Malcolm v Juvenile v(1) and v(2)

[2010] QDC 89

[2010] QDC 89

DISTRICT COURT

CIVIL JURISDICTION

JUDGE SAMIOS

No 419 of 2009

STEVEN WILLIAM MALCOLM

Applicant

and

JUVENILE V(1)

and

JUVENILE V(2)

Respondent

Respondent

BRISBANE

..DATE 23/02/2010

ORDER

HIS HONOUR: This is an application by which the applicant seeks compensation to be assessed pursuant to the Criminal Offence Victims Act 1995.

The applicant was born on the 13th of May 1989.  He is presently 20 years of age.  On the 4th of June 2006 he was with some friends at the Indooroopilly Shopping Centre.  Sentencing of the respondents proceeded on the basis that they struck the applicant with a bar and a kick, fracturing his jaw.  The respondents were sentenced for the offence of grievous bodily harm upon the applicant on the 15th of February 2007.

The hospital report regarding the applicant's attendance at hospital shows that when he was admitted to the hospital the applicant was suffering a displaced fracture of the left lower jaw.  He spent the night in the hospital emergency department and the next morning was transferred to the 24-day unit.  He was then taken to the operating theatre the next day and, under general anaesthetic, the jaw fracture was reduced and fixed with the application of two titanium bone plates.  He stayed overnight in hospital and was discharged home.  He was given antibiotics and strong analgesics on discharge and was later reviewed.

Subsequent healing of the jaw injury was uneventful but, early in 2008, one of the bone plates began to protrude through the gum and this was surgically removed along with four impacted wisdom teeth on the 14th of March 2008.  The other bone plate was partially covered by bone and was left in place.

When examined by Dr Muir, the oral and maxillofacial surgeon, on 7 May 2009 the applicant said his lower jaw was more sensitive to knocks than elsewhere on his jaw but otherwise he had no ongoing symptoms or functional disability as a result of the injury and subsequent surgeries.  Dr Muir states that there is a very small risk that the second bone plate may eventually cause symptoms and have to be removed and, if this was done privately, the total cost of surgery, hospital and anaesthetic fees would at present be about $4,000.

Apart from the broken jaw the applicant also suffered concussion, bruising and general abrasions and his teeth were pushed inwards out of alignment.

The applicant has also been examined by Dr Maguire, a psychiatrist.  She has concluded that the applicant has suffered post-traumatic stress disorder.  I accept her opinion in this respect.  The applicant had told her he had particular trouble with large groups, especially at night; he was unable to go to the pubs; he hates using public transport; he can go out during the day on the street on his own but not at night; he has particular problems with the anniversary of the event and has to stay home; he never goes near Indooroopilly where the incident occurred; and because he had a girlfriend who lived at Kenmore, that relationship eventually broke up; he has an exaggerated startle reflex and his hyper vigilant especially at night; he checks the locks at home and has security fears; he used to have a baseball bat under his bed but when the family move house he felt better; he developed a psychosis, he would hear a noise and run outside to check, and stopped seeing his mates for about six months; he experienced auditory and visual hallucinations; his school performance declined significantly and he became depressed.

The applicant admitted to Dr Maguire, to his credit, that some years earlier he had been suicidal.  He had been suffering from depression.  However, Dr Maguire concludes that the offence committed upon the applicant by the respondents materially and significantly contributed to his current clinical condition.  I accept that view in the circumstances.  I come to that view because of the severity of the incident and the effects upon the applicant at his age.  I accept her opinion that the post-traumatic stress disorder is caused solely by the assault.

Sentencing proceeded on the basis that the applicant did nothing directly or indirectly to contribute to his injuries.  I therefore find that there is no contribution to be made by the applicant for his compensation.

The respondents have also been served by means of an order for substituted service.  I'm satisfied that the respondents have been given notice of the application and that I can proceed to assess the compensation.

I'm also mindful that in an application of this kind the amount to be ordered to be paid 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, the maximum amount of compensation provided under this part is reserved for the most serious cases and the amounts provided in other cases are intended to be scaled according to their seriousness (see section 22(3) and (4) of the Act).

In all the circumstances, I assess the applicant's compensation as follows:

Under item 1, bruising/laceration, et cetera, minor/moderate, 2 per cent, which is a sum of $1,500.

Under item 5, loss or damage of teeth, 2 per cent, which is a sum of $1,500.

Under item 7, facial fracture moderate, 20 per cent, which is a sum of $15,000.

Under item 32, mental or nervous shock moderate, 20 per cent, which is a sum of $15,000.

The total, therefore, is $33,000.

I order the respondents to pay the applicant jointly and severally the sum of $33,000.

I cannot order the respondents to pay the applicant's costs of the application because of the legislation.

...

HIS HONOUR:  There therefore will be an order as per the draft initialled by me and left with the papers.

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