Kamara v Van Engelen and Galuvao
[2010] QDC 238
•15 June 2010
DISTRICT COURT OF QUEENSLAND
CITATION:
Kamara v Van Engelen & Galuvao [2010] QDC 238
PARTIES:
MUSA KAMARA
Applicant
V
ALFRED THEO JOHN VAN ENGELEN & ALENI GALUVAO
Respondents
FILE NO/S:
D136 of 2009
DIVISION:
Civil
PROCEEDING:
Application for Criminal Compensation
ORIGINATING COURT:
DELIVERED ON:
15 June 2010
DELIVERED AT:
District Court Ipswich
HEARING DATE:
27 April 2010
JUDGE:
Bradley DCJ
ORDER:
That the respondents be jointly and separately liable to the applicant the sum of $9,750.00.
CATCHWORDS:
CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – QUEENSLAND – where both respondents were convicted of assault occasioning bodily harm in company – where there were other assailants who were not convicted – where the respondents are responsible to pay compensation to the applicant only for the injuries directly caused by them – where the applicant suffered mental and nervous shock as a result of the attack – where the applicant suffered with mental and nervous shock as a result of previous experiences unrelated to the attack – where compensation should be reduced accordingly to reflect the pre-existing condition.
Criminal Offence Victims Act 1995 (Qld)
REPRESENTATIVES:
M Kelly solicitor for the applicant, McMillan Kelly and Thomas Lawyers.
No appearance by or on behalf of either respondent.
On 30 September 2008 the respondent Van Engelen was convicted in the District Court of Beenleigh of assaulting the applicant and causing him bodily harm whilst in company. On the same date he was also convicted of wilful damage. The offences were committed on 19 November 2006 at Kingston.
On 8 October 2008 the respondent Galuvao was convicted in the Beenleigh District Court of assaulting the applicant and causing him bodily harm whilst in company, which offence arose out of the same incident as that leading to the conviction of the first respondent.
The applicant now seeks an order for compensation for the injuries suffered by him because of the offences pursuant to s 24 of the Criminal Offence Victims Act 1995 (“the Act”).
Personal service was not effected on the first respondent due to the aggressive manner in which the respondent acted toward the process server who attempted to serve him. On 11 November 2009 Her Honour Judge Richards ordered that service was deemed to have taken place seven days after posting the application and supporting material to the respondent’s known address. Service has been so effected.
Personal service of the application and supporting material was effected on the second respondent on 26 October 2009 at his known address.
There was no appearance by or on behalf of either respondent at the hearing of this application.
The applicant was born on 29 April 1986 and was 22 years of age at the time of the commission of the offence. He was born in Sierra Leone and moved to Australia in 2002.
Both respondents were at the time of the relevant events neighbours of the applicant and were therefore known to him. In fact, in his police statement on 26 November 2006, the applicant stated that both respondents had previously assaulted the applicant, but that those attacks were never pursued with the police by the applicant.
On 19 November 2006 the applicant was at his place of residence with his former girlfriend and his brother. The applicant heard disturbances in the area of the unit complex, however he did not become involved.
At approximately 9:00 pm a neighbour knocked on the applicant’s door. Once he opened the door to her she asked for a cigarette and they chatted briefly. At that time the applicant was in the doorway of his unit and the neighbour was in the carport.
The applicant subsequently saw a group of men walking around from the unit complex at the rear of the complex. There were at least four people in the group and the applicant was able to identify two of the men as the first and second respondents.
The group of men walked in front of the entrance to the applicant’s unit where the applicant was standing. One of the men was carrying three empty alcohol bottles and kept saying “what?” to the applicant, to which the applicant replied “what?” once. The rest of the group approached the applicant where they proceeded to hit him. The person with the empty bottles then hit the applicant three times with one of the bottles before the bottle smashed over the applicant’s head. The same person then grabbed the applicant by the throat and smashed his head against the wall. The man who the applicant identified as Allan, who is the second respondent, then came into the melee and punched the applicant in the eye with his fist. Another member of the group struck the applicant in the head with a stick and kicked him in the legs, causing him to fall to the ground. The first respondent then kicked the applicant in the leg and chest. The applicant lay on the ground bleeding until the police arrived at the scene, at which point the group dispersed.
An ambulance arrived once the police came to the scene and the applicant was taken to the Logan Hospital. The statement of Doctor Hannah Rodgers from the Logan Hospital states that the applicant suffered a deep laceration to the left anterior scalp, two lacerations to the posterior scalp, a laceration behind the left ear and a small laceration on the upper lip with surrounding swelling.
A CT scan of the head was performed and did not show any intra-cranial pathology or skull fractures. The anterior scalp laceration and the two posterior scalp lacerations were cleaned and closed with sutures. The laceration behind the left ear was cleaned and dressed. All lacerations had penetrated deep to the dermis of the skin. The applicant was kept for observation for 12 hours and was subsequently referred to his local doctor to have the sutures removed.
The physical injuries caused to the applicant were said by Doctor Hannah Rodgers to cause pain and discomfort, however they would not be injuries of a type likely to cause permanent damage to health if they had been left untreated.
Each of the respondents was sentenced on the basis that they were not armed and were not parties to the assaults inflicted by the others involved in the attack on the defendant. Each can only therefore be liable for compensation for the injuries caused directly by them. It appears the others involved in the attack have not been convicted.
The incident has had a significantly negative impact on the applicant’s emotional and psychological health. On 26 June 2009 the applicant was psychiatrically assessed by Doctor John Chalk, a psychiatrist.
The psychiatric report of Doctor Chalk states that the applicant has a history of chronic post traumatic stress disorder which has resulted from distressing childhood experiences in Sierra Leone, for which the applicant has never been treated in any significant way. In Doctor Chalk’s opinion, this incident would have resurfaced many of the past experiences and the attack thus aggravated his pre-existing post traumatic stress disorder.
The applicant described his symptoms to Doctor Chalk as including ongoing nightmares of the attack that have lessened over time but that remain thematically connected. The applicant described himself to Doctor Chalk as being anxious, at times panicky, having poor concentration, a diminished short-term memory and experiencing fluctuating energy levels and appetite. The applicant described his libido as having diminished, as well as having suicidal notions and feeling depressed for a lengthy period of time. The applicant told Doctor Chalk that he is anxious about himself, avoids crowds, becomes panicky in such an environment and as a result avoidance has now become a significant feature of his behaviour.
Doctor Chalk identified the applicant as suffering from a diagnosable psychiatric illness of a moderate severity and recommended that he undergo further treatment for 12 to 18 months in addition to continuing to take antidepressant medication. Doctor Chalk determined that the applicant will benefit from at least 20 sessions of therapy in the private sector, as he has not had much prior success with the public system. According to Doctor Chalk such therapy would be at the cost of $200 per session.
Doctor Chalk stated that there was clear evidence that the applicant had problems in his past that predisposed him to the development of the psychiatric illness. The offence exacerbated the pre-existing Post Traumatic Stress Disorder and therefore an adjustment on the award of damages for mental or nervous shock must be made in the circumstances. The scale for mental or nervous shock of a moderate severity is 10% to 20%. The psychological injuries suffered by the applicant as a result of the offence are at the middle of the scale, being 15%. It is submitted on behalf of the applicant that the award should be adjusted by 5% to account for the pre-existing psychiatric illness. This is appropriate.
It is conceded on behalf of the applicant that the injuries actually caused by the respondents amounted to moderate bruising and lacerations only.
I assess compensation in accordance with the Compensation Table which is Schedule 1 to the Act as follows:-
Item 1 – bruising / lacerations (moderate) 3% $2,250.00
Item 32 – mental or nervous shock (moderate) 10% $7,500.00
TOTAL$9,750.00
Section 26 of the Act outlines when single or multiple compensation orders may be made. Although there were four offenders involved in the injury to the applicant, only two were identified and convicted for the relevant offences. Therefore, according to subsection 26(6)(c), both respondents should be jointly and severally liable for the full amount of the compensation payable to the applicant.
I therefore order that each of the respondents be both jointly and separately liable to pay compensation to the applicant in the sum of $9,750.
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