Kotevski v. McIlhatton
[2007] QDC 118
•25 June 2007
DISTRICT COURT OF QUEENSLAND
CITATION:
Kotevski v McIhatton [2007] QDC 118
PARTIES:
SLOBODAN KOTEVSKI (Applicant)
V
ADAM MCILHATTON (Respondent)
FILE NO/S:
760/07
DIVISION:
Civil jurisdiction
PROCEEDING:
Application for Criminal Compensation
ORIGINATING COURT:
District Court, Beenleigh
DELIVERED ON:
25 June 2007
DELIVERED AT:
Brisbane
HEARING DATE:
2 May 2007
JUDGE:
Tutt DCJ
ORDER:
The respondent pay the applicant the sum of $51,750.00 by way of compensation for injury caused by the respondent to the applicant for which the respondent was convicted by the District Court at Beenleigh on 19 June 2006.
CATCHWORDS:
CRIMINAL COMPENSATION – grievous bodily harm – where respondent assaulted applicant with a baseball bat – where applicant suffered multiple skull and facial fractures – where applicant diagnosed with post-traumatic stress disorder.
Criminal Offence Victims Act 1995 s 24.
Ferguson v Kazakoff [2000] QSC 156.
COUNSEL:
Mr A. Maher for the applicant.
No appearance for the respondent.
SOLICITORS:
Trilby Misso Lawyers for the applicant.
Introduction:
The applicant, Slobodan Kotevski claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for bodily injury he sustained arising out of the criminal conduct of the respondent, Adam McIhatton, who was convicted by the District Court at Beenleigh for the offence of grievous bodily harm to the applicant on 19 June 2006.
The respondent, although being served with the application and supporting documents, made no appearance at the hearing.
The application for compensation is made pursuant to s 24 of the Act and is supported by the following material:-
(a) the affidavit with exhibits of the applicant sworn 15 March 2007 and filed in this court on 19 March 2007;
(b) the affidavits with exhibits of Amy Sue Marr, Solicitor, sworn 31 January 2007 and 1 May 2007 and filed in this court on 19 March 2007 and by leave on 2 May 2007 respectively;
(c) the affidavit with exhibit of Dr Barbara McGuire, Psychiatrist, sworn 24 November 2006 and filed in this court on 19 March 2007;
(d) the affidavit with exhibit of Dr Scott Campbell, Neurosurgeon, sworn 30 January 2007 and filed in this court on19 March 2007;
(e) the affidavit with exhibit of Professor Frank Monsour, Oral and Maxillofacial Surgeon sworn 30 November 2006 and filed in this court on 19 March 2007; and
(f) the affidavit of Robert Brian Lyndon, Licensed Commercial Agent, sworn 23 April 2007 and filed in this court by leave on 2 May 2007.
Facts:
The circumstances of the offence were that the respondent and the applicant’s daughter were in a relationship and on 21 November 2004 the respondent and the applicant’s daughter drove to the applicant’s house. The applicant’s daughter proceeded inside the house while the respondent remained in his car which was parked across the applicant’s driveway.
The applicant was aware that the respondent was outside and approached the respondent in his car. Words were exchanged between the two men and respondent got out of his car and confronted the applicant, before returning to his vehicle and collecting a baseball bat. The respondent said words to the effect “I want to fix you up now” to the applicant before assaulting the applicant with the baseball bat causing the applicant to suffer a number of serious head and bodily injuries.
Injuries (physical):
The applicant’s injuries are described by Dr Michael Gerard Cameron of the Logan Hospital Meadowbrook, who examined the applicant on the night of the incident, in the following terms: [1]
[1] Page 35 of Exhibit “ASM-4” to Amy Sue Marr’s affidavit filed 19 March 2007.
“1. Multiple skull fractures.
2. Left extra dural haematoma
3. Pneumocphalus.
4. Fracture of the nasal bone.
5. Fracture of the left maxilla.
6. Fracture of the medial wall of the left orbit.
7. Fracture of the superior wall of the right orbit”.
The applicant was transferred from the Logan Hospital Emergency Department to the Princess Alexandra Hospital Emergency Department on 21 November 2004 where:
“On arrival at the Princess Alexandra Emergency Department he had a Glasgow Coma score of 15. He had antegrade amnesia, nausea and vomiting. He had bilateral perieorbital haematoma, and swelling associated with his upper lip.
His management was conservative with assessment by the Maxillofacial Surgeon with respect to his deviated nasal septum and comminuted nasal bone fractures.
On February 17 2005 he was reviewed in the Neurosurgery Outpatient Clinic by Dr Robert Campbell, Consultant Neurosurgeon.”[2]
[2] Page 41 of Exhibit “ASM-5” to Amy Sue Marr’s affidavit filed 19 March 2007.
Dr Scott Campbell Neurosurgeon who examined the applicant on 6 November 2006 (2 years post incident) opined:
“He was knocked out for 20 minutes and amnesic for events. Subsequent CT scans to the brain showed an extradural haematoma and overlying skull fracture. There was also a fracture of the nose which required closed reduction. Treatment of the brain injury was conservative.
The diagnosis is that of:
1. Closed head injury resulting in post traumatic headaches.
2. The loss of sense of smell and altered sense of taste.
3. Fractured nose requiring closed reduction.
4. Multiple facial fractures.”[3]
[3] Pages 3 and 4 of Exhibit “SC-1” to Dr Scott Campbell’s affidavit filed 19 March 2007
Dr Campbell further states:
“The headaches occur two to three times per week and rate up to 5/10 on the Visual Analogue Scale. The headaches can last for 24 hours at a time. When the headaches are severe he has to cease the activity he is performing and he lays down in a quiet room and takes Panadol.
The loss of sense of smell causes decreased enjoyment of food. He is unable to smell dangerous gases or smoke. His sense of taste is reduced and he can only taste sweet and salty foods”.[4]
[4] Page 2 of Exhibit “SC-1” to Dr Scott Campbell’s affidavit filed 19 March 2007.
Dr Campbell, further states that:
“The symptoms have gone on to become chronic despite appropriate treatment and management to date. Mr Kotevski’s condition can now be classified as stable and stationary with maximal medical improvement having taken place.
There is no treatment for the loss of sense of taste and smell and this will result in loss of enjoyment of meals and pleasant smells.
Treatment for the chronic headaches should be with rest in a dark, quiet room and use of simple analgesics.”[5]
[5] Page 4 of Exhibit “SC-1” to Dr Scott Campbell’s affidavit filed 19 March 2007
Dr Campbell makes the following assessment of the applicant’s permanent impairment:
“Mr Kotevski’s chronic headaches are consistent with the head injury sustained. His chronic pain has been assessed using Chapter 18 of the guides. Mr Kotevski is suffering a 3% whole person impairment for the chronic headaches.
Mr Kotevski is suffereing a 3% whole person impairment as the result of sense of taste and smell, chapter 13.4.”[6]
[6] Pages 4 and 5 of Exhibit “SC-1” to Dr Scott Campbell’s affidavit filed 19 March 2007
Professor Frank Monsour sets out comprehensively, an “Outline of relevant maxillofacial injuries treatment recommended and residual disability/impairment” in respect of the applicant and in “Summary” states:
“In relating to the relevant schedules, I would therefore ascertain that Mr Kotevski has suffered a facial fracture (severe) with severe residual functional disability and percentage of scheme maximum assessed as in the order of 25%.
In relating the AMA 5 Schedule, identifying with Table 11-5 embodying the criteria for rating impairment due to facial disorders and/or disfigurement, I would identify with a category 3 level of disability, with an assessed impairment of the whole person of some 12-14% on the basis of the extent of the comprehensive level of disability and impairment identified as a result of lack of any effective treatment.”[7]
He further describes the applicant’s facial bruising as “severe”.
[7] Page 5 of Exhibit “FM-1” to Prof Frank Monsour’s affidavit filed on 19 March 2007.
Mental or nervous shock injury:
The applicant also claims that he has suffered “mental or nervous shock” for which he has been examined and reviewed by Dr Barbara McGuire, psychiatrist, who reported on the applicant on 31 October 2005.
Dr McGuire describes the applicant’s condition in the following terms:
“1. In relation to this offence Mr Kotevski has suffered a post-traumatic stress disorder. His symptoms are nightmares, flashbacks, fear of going out, hypervigilance and apathy
2. He has not had any treatment for his condition
3. It is my belief that his condition will last for a matter of years but the symptoms should gradually diminish
4. Whether he has suffered pain – he complains of the occasional headache all over his head
5. Percentage disability – I would estimate that this particular offence was responsible for 5 to 10% disability
6. Has the injury had any adverse effect on his ability to carry out his own employment – he was on a disability pension prior to the offence, but his capacity for work appears to have been diminished even further”.[8]
[8] Page 3 of Exhibit “BM-1” to Dr Barbara McGuire’s affidavit filed 19 March 2007.
Dr McGuire summarises her report by saying:
“At interview he had an impassive face. He was a difficult historian who gave very sparse detail. He appears to have had a major depressive disorder with psychotic symptoms prior to this injury.”[9]
[9] Ibid at page 4.
Whilst it appears that the applicant has been the subject of depressive episodes in the past “…with psychotic symptoms prior to this injury”, Dr McGuire’s diagnosis confirms that his current “post-traumatic stress disorder” is causally related to the index assault for which the applicant is entitled to be compensated.
It is now well accepted that to establish a “mental or nervous shock” injury the applicant must prove more than a negative or unpleasant reaction to the offence; what must be proved is “(an) injury to health, illness, or some abnormal condition of mind or body over and above that of normal human reaction or emotion following a stressful event” as distinct from “… fear, fright, unpleasant memories or anger towards an offender…” – Thomas JA in Ferguson v Kazakoff [2000] QSC 156, at paragraphs [15, [17] and [21] respectively.
Applicant’s submissions:
The applicant submits that he is entitled to compensation for his physical and psychological injuries in the following terms namely:[10]
[10] Para 6.14 of the applicant’s written submissions.
| ITEM | DESCRIPTION | AMOUNT |
| Item 1 | Laceration (minor) 1%-3% - Laceration to left arm Suggested 1% | $750 (1%) |
| Item 2 | Bruising/laceration (severe) 3%-5% - Multiple facial bruising and swelling Suggested 5% | $3,750.00 (5%) |
| Item 4 | Fractured nose (displacement) 8%-20% - Fractured nose requiring closed reduction resulting in loss of smell and altered taste Suggested 20% | $15,000 (20%) |
| Item 8 | Facial Fracture (severe) 20%-30% - Multiple facial fractures including: - Fracture of the nasal bone - Fracture of the left maxilla - Fracture of the medial wall of the left orbit - Fracture of the superior wall of the right orbit Suggested 30% | $22,500 (30%) |
| Item 9 | Fractured skull/head injury (no brain damage) 5%-15% - Multiple skull fractures resulting in closed head injury with headaches and antegrade amnesia. Suggested 15% | $11,250 (15%) |
| Item 33 | Mental or nervous shock (severe) 20%-30% - Post Traumatic Stress Disorder Suggested 20% | $15,000 (20%) |
| TOTAL | $68,250 (92%) |
Applicant’s contribution:
In deciding the amount of compensation payable to the applicant I must also take into account the behaviour of the applicant that directly or indirectly contributed to the injury (see s 25(7) of the Act).
I have referred to the circumstances of the incident in paragraph [4] and [5] above and I am of the opinion that the applicant’s behaviour at the relevant time did not either directly of indirectly contribute to the injury complained of by her.
Findings on categories of injuries:
On the basis of the evidence before me, I make the following findings in respect of the categories of injuries under which the applicant’s respective injuries fall and the percentage applicable to those injuries under the Compensation Table to Schedule 1 of the Act, namely:
(a) Item 2 – Bruising/laceration etc (severe) based upon the applicant’s own evidence contained in his said affidavit and exhibits thereto including photographs together with the evidence contained in the Logan Hospital Emergency Department Clinical Records/Report and the affidavit of Professor Frank Monsour and in this respect I find that the applicant is entitled to one (1) assessment only under the injury heading “Bruising/laceration” (not two (2)). The Compensation Table does not allow for “Bruising/laceration” to various parts of the body to be compensated separately but rather the defined injury being considered as a composite injury applicable to the body as a whole. In this instance I find that the applicant is entitled to the maximum allowed – percentage applicable from index assault 5%.
(b) Item 4 – fractured nose (displacement/surgery) based upon the applicant’s own evidence contained in his said affidavit; the evidence contained in the Logan Hospital Emergency Department Clinical Records/Report and the affidavit of Professor Frank Monsour noting that the applicant declined to proceed with any operative treatment involving reduction and fixation of his maxillary and naso-orbital fractures…” - percentage applicable from index assault 14%.
(c) Item 8 – facial fracture (severe) based upon the evidence contained in the Logan Hospital Emergency Department Clinical Records/Report and the evidence contained in the affidavit of Professor Frank Monsour – percentage applicable from index assault 25%.
(d) Item 9 – fractured skull/head injury (no brain damage) based upon the evidence contained in the Logan Hospital Emergency Department Clinical Records/Report and the evidence contained in the affidavit of Dr Scott Campbell – percentage applicable from index assault 15%.
(e) Item 31 – mental or nervous shock (minor) based upon the applicant’s own evidence contained in his said affidavit and the evidence of the psychiatrist, Dr McGuire contained in her affidavit and exhibit thereto – percentage applicable from index assault 10 %.
I therefore assess the quantum of the applicant’s compensation for the injuries he sustained on 21 November 2004 as follows:
| (a) In respect of item 2, the sum of $3,750.00 representing 5 per cent of the scheme maximum; and | $3,750.00 |
| (b) In respect of item 4, the sum of $10,500.00 representing 14 per cent of the scheme maximum; | $10,500.00 |
| (c) In respect of item 8, the sum of $18,750.00 representing 25 per cent of the scheme maximum; | $18,750.00 |
| (d) In respect of item 9 the sum of $11,250.00 representing 15 per cent of the scheme maximum; and | $11,250.00 |
| (e) In respect of item 31 the sum of $7,500.00 representing 10 per cent of the scheme maximum. | $7,500.00 |
| TOTAL | $51,750.00 |
I therefore order that the respondent pay to the applicant the sum of $51,750.00 by way of compensation for the injuries he sustained.
In accordance with section 31 of the Act, I make no order as to costs.
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