Kumar v Soane Afialofiameimounga Lotoaniu

[2007] QDC 139

[2007] QDC 139

DISTRICT COURT
CIVIL JURISDICTION

JUDGE O'SULLIVAN

No 439 of 2007

KIRAM KUMAR	Applicant
and
SOANE AFIALOFIAMEIMOUNGA LOTOANIU	Respondent
BRISBANE ..DATE 07/06/2007
JUDGMENT

HER HONOUR: This is an application for criminal compensation

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by Kiram Kumar. the applicant is 45 years old born on 24
March 1961. The respondent pleaded guilty to assault
occasioning bodily harm and grievous bodily harm and was
sentenced on 16th of September 2005 in the District Court at

Brisbane to four years imprisonment.	10
The circumstances of the assault occasioning bodily harm are that there was a punching and kicking repeatedly to the face and a stomping on the chest and stomach. The circumstances of
the grievous bodily harm were a knife was used. There were	20
threats to the applicant's life. There was a slash along his wrist and the cut to the web between the fingers and the face.
The injuries which were sustained by the applicant are set out	30
in the report from the Logan Hospital. There were 11 to 13
stitches to the left cheek. The injuries are noted as three
rib fractures, a four to five centimetre incised wound to the left wrist with severing of the underlying tendon, a fracture of the distal ulnar, an incised three to four centimetre wound	40
to the dorsum of the right hand with severing of underlying tendons, a superficial wound to the left cheek, superficial wounds to the fingers and a soft tissue injury to the upper abdominal wall.
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After being treated at Logan Hospital, he was transferred to Princess Alexandra Hospital and was there for five days. He received surgical treatment for the tendon injuries and also treatment for damage to the ulnar nerves. 2 JUDGMENT 60

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A report from Dr Stedman of 19th July 2006 refers to a reduction in grip strength of the left hand and slight sensory

changes due to radial nerve injury. He noted reduced range of

motion with flexion, pain and shortness of breath from the rib	10
fractures. He said: 'The attacks with the knife were serious and the applicant would have experienced a period of time where he felt extremely frightened and helpless, and feared for his life and, indeed, he lost a great deal of blood.'
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Dr Flanagan saw the applicant on 4th of May 2006 and in his
report he diagnoses a chronic post-traumatic stress disorder,
compounded by some degree of realistic fear and ongoing pain
and disability. Dr Flanagan notes that the applicant had been
subject to previous serious life stressors but this incident	30
caused post-traumatic stress disorder, because the applicant
experienced a violent life threatening assault which
occasioned serious bodily injury. Dr Flanagan attributes five
to 10 per cent of the overall psychological impact to factors
other than these offences. He notes that he is in need of	40
psychotherapy and continuing help.
As a result of the incident, the applicant was too scared to
live on his own and had his cousin stay with him. He
experienced nightmares and difficulties sleeping. Even now,	50

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he does not go out unaccompanied and he has become self-conscious of his appearance.	1
The incident led to serious financial jeopardy, for which he cannot be directly compensated, but I take that into account because he suffered humiliation and had difficulties in	10
relying on others for an extended period while he recovered from his physical and psychological injuries.
The written submissions I have received refer to scarring due
to the stab wounds, but I have been advised today there is no	20
specific separate claim in respect of that.
I agree with the written submissions that these are the
appropriate figures. Item 1, bruising and laceration, a range
of three to five per cent, I award three per cent, a sum of	30
$2,250. Item 21, chest injury, a range of two to seven per
cent, I award seven per cent, a sum of $5,250. Item 26, stab
wound, a range of 15 to 40 per cent, written submissions refer
to 30 to 35 per cent, I award 30 per cent, a sum of $22,500.
Item 32, mental or nervous shock, moderate, the range is up to	40
20 per cent, written submissions refer to 15 to 20 per cent, I award 20 per cent, the sum of $15,000.
The other life stressor factors are relevant to the claim for
mental or nervous shock and I take five per cent off that	50
claim in respect of those.
...
For mental or nervous shock I award $14,250 and the total

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amount payable is $44,250.	1
I find that the applicant has not contributed in any way to his injuries, pursuant to section 25(7) of the Criminal Offence Victims Act 1995. The attack was unprovoked and sudden, and not the result of any actions of the accused. Any conduct shown by the applicant towards the respondent's girlfriend, or his intoxication, did not contribute to his injuries.	10
20
I order the respondent to pay to the applicant the sum of
$44,250 by way of criminal compensation.
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