M v T

[2012] QDC 279

DISTRICT COURT OF QUEENSLAND

CITATION:

M v T [2012] QDC 279

PARTIES:

M
(Applicant)

v

T
(Respondent)

FILE NO/S:

2113/09

DIVISION:

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

DELIVERED ON:

22 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2012

JUDGE:

Samios DCJ

ORDER:

1.    Respondents to pay the Applicant $75,000.

CATCHWORDS:

CRIMINAL LAW - Compensation

Criminal Offence Victims Act (1995), s24.

COUNSEL:

SOLICITORS:

Legal Aid Queensland for the Applicant.

1. This is an application by which the applicant seeks compensation to be assessed pursuant to section 24 of the Criminal Offence Victims Act 1995.

2. The applicant was born on 24 August 1958.

3. On 10 February 2005 he was at the Bribie Island Hotel.  The respondent was seated at another table drinking with friends.  During the night the applicant and the respondent did meet.  During the night the applicant said to a member of the group of people, including the respondent, that he felt like having a smoke, by which he meant cannabis.  The respondent indicated he would go outside with the applicant and they went out to the car park.

4. The respondent, without warning, struck the applicant on the head, causing him to fall to the ground.  The respondent continued to punch the applicant to the head.  A witness to the assault said that the respondent was sitting astride the applicant, slamming his head into the bitumen of the car park.  The respondent got off the applicant and ran away.

5. On 18 August 2006, the respondent, who was then 25 years of age, pleaded guilty in the District Court to doing grievous bodily harm to the applicant.  For that personal offence the respondent was sentenced to four years' imprisonment to be suspended after serving 18 months with an operational period of four years.

6. This application was filed on 30 July 2009.  It has been served by means of substituted service.  I am satisfied the respondent has been given notice of this application and that I can proceed to assess the compensation for the applicant.

7. The application is also to proceed under the Criminal Offence Victims Act 1995 by reason of the provisions of the Victims of Crime Assistance Act 2009 which commenced on 1 December 2009. Those provisions are to the effect that the Court is to proceed with the application and determine the application accordingly under the repealed provisions.

8. The application is also within time in that the repealed Act provided that an application had to be made within three years after the end of the convicted person's trial. See section 40(1) of the repealed Act.  As the respondent was dealt with by the Court on 18 August 2006, the applicant had until 18 August 2009 to file his application.  The application, as I have said, was filed on 30 July 2009 and therefore is within time.

9. Also, leave has been obtained from the Court for the applicant to proceed with these proceedings, notwithstanding no step had been taken in the proceeding for two years from the time the last step was taken.

10. During sentencing of the respondent, the prosecution proceeded on the basis that the applicant following the offence was found unconscious in a pool of blood.  He was taken to hospital.  He suffered swelling to the left parietal and temporal areas and was in a coma.  He was found to have a right parietal brain contusion and haemorrhaging around his brain.  He was weakened in his left arm and leg and needed a crutch to walk.  He had slurred speech and could not write or shave with his left hand which was shaky.  He was also unable to return to work and had been on sickness benefits following the offence.

11. There are a number of medical reports in evidence before me.  These reports confirm that the applicant has suffered a severe brain injury and weakness of the left side.  He has undergone physiotherapy and speech therapy.  He needed walking aids to get about.

12. His general medical practitioner has treated him since 15 October 2004.  Before the offence, apart from some blood pressure problem, the applicant was fit, healthy and working full time at Centacare Caboolture.

13. The doctor noted that the applicant requires a walking stick and easily loses his balance and often falls.  He was unable to return to his work because that was telephone-based work.  He also was finding daily chores very difficult and needed daily assistance.  He was struggling with his personal care, including shaving, showering and dressing and writing.  The doctor noted that the applicant had to "cope with his disability on a daily basis." 

14. A neurologist also noted the applicant "could not do his work.  His gait was ataxic and he could not tandem."  Another neurologist at a later point in time noted the plaintiff had been left with the hemiparesis and cerebellar signs.  It was also noted the applicant was "troubled by episodes of tingling which affect the outer aspect of his left arm and left leg."  The tingling also extended up the whole of the leg and arm.  His speech was quite slurred.

15. This neurologist, Dr Bami, expressed the opinion that the applicant who was then 50 years of age had "a significant head injury which has resulted in the left hemiparesis and probably cerebellar damage."  The doctor also noted the episodic tingling.  He thought it "could be due to damaged sensory pathways or perhaps the applicant might have a mild migraine problem."  There was also the possibility of epilepsy secondary to the head injury.  The applicant has continued to be examined from time to time at the hospital.

16. Ultimately, Dr Todman, a neurologist, has provided a report.  He confirms the applicant's symptoms.  He also notes the applicant is using a wheelie walker and has slurred speech.  Dr Toddman's opinion is the applicant has suffered from post traumatic epilepsy and requires medication.  He has had general seizures every few months.  He has suffered some headaches.  He has reduced hearing in the right ear and is due to have a hearing aid.  His short-term memory is affected.  He has difficulty with recall of day-to-day events and conversations.  He uses lists as an aid to memory.  "Prior to the offence, the applicant's memory was quite sharp."

17. Dr Todman notes the applicant also has secondary depression and he is on antidepressant medication.  Dr Todman notes the applicant cannot work and is on a disability support pension.  Dr Todman concludes the applicant has an impairment of between 70 and 80 per cent whole person impairment.  He states, "This is a central nervous system impairment and there is no separate nerve impairment."

18. Dr Todman's opinion is that all the impairments are attributable to the offence with no other contributing factor.  He considers the applicant will be permanently concluded from work.  Further, he requires considerable assistance for domestic tasks and a full-time carer.

19. The applicant has also been examined by Dr Keane, a clinical psychologist.  She also, in her report, confirms the effects of the offence and the applicant's difficulties with daily living.  She has noted that he has suffered cognitive impairments.  She states, "He has an acquired brain injury."  In her opinion the applicant's symptoms are those of post traumatic stress disorder, which she would put in the range of minor to moderate.

20. She noted he is not interested in socialising as he did prior to the assault.  She did note that he has consumed alcohol when he is stressed.  This increases.  She thinks his acquired brain injury is in the moderate range.  She thinks he will require assistance in the activities of daily living, including cooking and money management.

21. There is no evidence that the applicant contributed directly or indirectly to his injuries.

22. In my opinion, he is to be compensated for bruising to his chest and a swollen face under item 1, bruising laceration minor-moderate, in an amount of two per cent, which is a sum of $1,500.

23. Further, he is to be compensated under item 11, a fractured skull, brain damage severe, which is the item that is the most comparable to his injuries in the schedule.  These have been severe injuries suffered by the applicant.  To be left needing assistance with domestic tasks and a full-time carer is indicative of how severe these injuries are.

24. Under item 11 I allow the applicant 90 per cent of the scheme maximum, which is the sum of $67,500.

25. Further, he is to be compensated under item 32, mental or nervous shock, moderate.  For that I would allow 20 per cent, which is the sum of $15,000.

26. I should add that I am mindful that compensation to be provided to an applicant under this Act is intended to help the applicant and is not intended to reflect the compensation to which the applicant may be entitled under common law or otherwise.  Further, that the maximum amount of compensation provided is reserved for the most serious cases and the amounts provided in other cases are intended to be scaled according to their seriousness.

27. In my opinion, this is indeed a serious case.  The maximum I assess is $84,000 in total.  However, the applicant can only be awarded under the Act the scheme maximum, which is $75,000.

28. I order the respondent to pay the applicant the sum of $75,000.

29. Under the Act I cannot order the respondent to pay the applicant's costs of the application.

30. Therefore, there will be an order as per the draft, initialled by me and left with the papers.