Laurie v Desnica
[2010] QDC 267
•2/07/2010
DISTRICT COURT OF QUEENSLAND
CITATION: Laurie v Desnica [2010] QDC 267 PARTIES: JASON PAUL LAURIE
Applicant
V
NICHOLAS DESNICA
Respondent
FILE NO/S: D55 of 2009 DIVISION: Civil PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: Ipswich DELIVERED ON: 2 July 2010 DELIVERED AT: Brisbane HEARING DATE: 11 June 2010 JUDGE: Bradley DCJ ORDER: I order that the respondent pay to the applicant the sum of $15,000.00 by way of criminal compensation CATCHWORDS: CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – QUEENSLAND – where the applicant was a victim of one assault and another assault occasioning bodily harm – where the applicant suffered with injuries to the face, neck, back and spine – where these injuries are ongoing and are unlikely to improve significantly over time. Criminal Offence Victims Act 1995 (Qld) REPRESENTATIVES: A Maher of counsel for the applicant instructed by the
Queensland Law Group.No appearance for the respondent.
On 31 March 2006 the respondent was convicted in the District Court of Ipswich after trial of five charges. Two of the charges relate to assaulting the applicant. One of the assault charges had the aggravating feature of causing the applicant bodily harm. On the same date the respondent was also convicted of assaulting his wife as well as being convicted of two counts of wilful damage. These charges all stemmed from the same series of events. On 3 April 2006 the respondent was sentenced to 18 months imprisonment in relation to the assault occasioning bodily harm charge and 12 months for the assault charge. The offences were committed on 16 February 2005 at Ipswich.
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).
On 7 May 2010 an order for substituted service was made. Service has been effected in accordance with that order.
There was no appearance by or on behalf of the respondent at the hearing of this application.
The applicant was born on 13 December 1974 making him 35 years old currently. He was 30 years old at the time of the commission of the offences.
I was not the trial judge and do not have a transcript of the evidence at the trial. However, from the statements given to police it appears that the offences occurred at a barbeque that the respondent was hosting. The event was proceeding amicably until the respondent approached his wife and grabbed her in a headlock position. The respondent subsequently punched his wife in the face repeatedly before walking to the applicant and sitting next to him.
The respondent then punched the applicant, knocking the applicant off his chair whilst continuing to punch him. This constitutes the first count of assault against the applicant which caused him bodily harm. The applicant stood back up and threw the respondent over his shoulder in order to restrain him, however the respondent’s son then entered the fracas and the applicant was again assaulted by the respondent. This constitutes the second count of assault simpliciter that was committed against the applicant.
The applicant escaped and ran toward his own house which was located next door to the respondent’s. The respondent and his son followed the applicant. At this point the applicant noticed damage to his vehicle. The applicant obtained a shovel and used it against the respondent in order to defend himself, however the applicant stumbled and the respondent took the shovel which he then used to cause damage to the applicant’s house. The applicant ran to a neighbour’s house and called the police, who arrived shortly after and took the respondent into custody.
Her Honour Judge Richards at sentence observed that the respondent “went off the rails”[1] on the evening that the offences occurred, that the Crown case was very strong, that he had not shown any remorse and that a term of imprisonment was inevitable in the circumstances. There is no evidence of any behaviour whatsoever on the part of the applicant which contributed to his injuries.
[1] Richards DCJ sentencing remarks 3 April 2006 at page 2.
The Queensland Ambulance Service attended the incident shortly thereafter at which point the applicant was examined and told that he did not need to transfer to hospital. The applicant was told to rest and visit a hospital emergency department in his own time.
On 17 February 2006 the applicant presented at the Ipswich Hospital emergency department complaining of pain in his neck, chest and lower limbs. An examination of the applicant including an x-ray examination revealed bruising to the base of his neck posteriorly. No fractures were found, but the applicant had bruising to the right side of his chest below his clavicle as well as multiple bruises and abrasions to both lower limbs. The applicant was sent home and told to apply ice and take simple analgesics to relieve the pain.
In an affidavit sworn on 24 March 2009 and filed in support of his application, the applicant states:
“As a result of the assault incident I have suffered in the following ways:
(a) I sustained injury to my face, neck and back; (b) I now experience neck and facial pain, with a stabbing pain through my left ear; (c) Numbness to the left hand side of my face; (d) I also suffer pain in the middle of my back that radiates around to the chest that causes stabbing “locking up” pain which becomes painful when breathing and I am forced to take small breaths in order to relieve the pain. This could last for two or three days. I suffer pain continually, but the “locking up pain” occurs about one to two times per month; (e) I was unable to work following the assault; (f) I think about this incident on a daily basis; (g) My wife and I were fearful that the Respondent would return to our home and we had to relocate to an acreage property; (h) I currently take Panadol, Nurofen and Ibuprofen daily for pain relief; (i) Prior to the incident on 9 February 2005 [sic] I was self employed as a furniture removalist. I had two trucks and employed several men. However, since the accident [sic] I have suffered injuries which affected my ability to lift and move furniture. I had no choice but to sell my two trucks and purchase a new one so that I could move from furniture removal to general freight where I am not required to lift and move furniture. This resulted initially in a loss of earnings. I must now be extremely careful when moving my neck as certain movements will cause severe pain.
(j) I am unable to drive for long periods of time due to the pain in my neck, back, left shoulder and arms becoming sore. The only relief I can get is by stopping work, stretching, massaging and doing exercises. I am able to drive as long as the trips remain relatively short or that I am able to take breaks when they are needed.”
On 18 April 2008 the applicant saw Dr Malcolm Wallace, an orthopaedic surgeon in relation to his injuries. In his report of 13 June 2008 Dr Wallace states that the applicant complained of posterior cervical spinal pain that was worse on the left had side and radiated into the trapezius and into the upper part of the left upper limb. Further, the applicant complained of left facial pain and that his left shoulder ached constantly and was worse in mid-abduction. As a result of the injuries, the applicant told Dr Wallace that he tends to drive right handed and experiences nocturnal pain when sleeping on his left side.
Dr Wallace reports: “Examination of the cervical spine revealed tenderness around the vertebrae prominens and along the ligamentum nuchae. He was tender over the point of the left shoulder and in the left trapezius and in the left para-cervical musculature. He had a full range of motion in the cervical spine in flexion and extension, lateral flexion and lateral rotation to the left and right. Examination of the thoracic showed tenderness over the mid-thoracic spinous processes. He had normal flexion and extension and lateral rotation to left and right.”
In Dr Wallace’s opinion, ongoing treatment should include avoiding heavy lifting, bending and twisting, application of localised heat as required and simple analgesia or anti-inflammatory agents. Dr Wallace states that as a result of his injuries, the applicant would not be able to return to the similar type of work that he undertook before the offences against him occurred, that being furniture removal and driving long distances. In Dr Wallace’s opinion, the applicant’s ability to drive long distances is adversely affected because of the injuries. Further, Dr Wallace states that the applicant has a DRE II category impairment of the cervical spine which has 7% whole person impairment on a possible impairment scale of 5 – 8%. Regarding the applicant’s thoracic spine, the applicant has a DRE I impairment which does not allow a percentage impairment but in Dr Wallace’s opinion the applicant suffers a further 2% whole person impairment as a result of that particular injury.
On 16 December 2008 the applicant was examined by Dr John Cosson, an oral and maxillofacial surgeon regarding the relevant facial injuries. Dr Cosson also prepared a report based on his findings of the applicant’s injuries. The applicant presented to Dr Cosson with tingling numbness on the left hand side of his face as well as some crepitus of the left temporomandibular joint and left masseteric muscle which was quite tender (Dr Cosson gave this a rating of 7/10). The applicant informed Dr Cosson that the joint was painful when eating or on wide opening of the mouth, and that he experienced an increased feeling of numbness in his face when his jaw was particularly painful. The applicant described a burning sensation to the left side of his face.
In Dr Cosson’s opinion, the injuries were consistent with a blow to the left side of the face using moderate force that would be enough to disrupt the left temporomandibular joint. Dr Cosson opined that such incidents of trauma would often lead to the victim experiencing ongoing problems with the cartiligeous disc within the joint. Further, in Dr Cosson’s opinion the numbness that the applicant experienced is consistent with either some trauma to the left infraorbital nerve or perhaps the left cervical nerves due to neck damage. Dr Cosson wrote that the injuries would affect the patient personally due to the limiting effect on his mastication. Overall Dr Cosson was of the opinion that the applicant’s condition had stabilised and would not improve significantly over time nor would it improve with any operative or medical intervention.
I assess compensation in accordance with the Compensation Table which is Schedule 1 to the Act as follows:-
Item 2 – bruising / lacerations (severe) 4% $3,000.00 Item 6 – facial fracture, injury to mandibular joint (minor) 8% $6,000.00 Item 22 – neck / back injury and
injury to cervical and thoracic spine (moderate) 8% $6,000.00
TOTAL $15,000.00
I order that the respondent pay to the applicant the sum of $15,000.00 by way of criminal compensation.
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