Martin v Michael and Rootsey

[2001] QDC 223

DISTRICT COURT OF QUEENSLAND

CITATION:	Martin v Michael and Rootsey [2001] QDC 223
PARTIES:	LEO ASHLEY MARTIN (Applicant) CONRAD TROY MICHAEL (First Respondent) AND LEONARD JASON ROOTSEY (Second Respondent)
FILE NO/S:	13 of 2001
DIVISION:	Trial
PROCEEDING:	Application for Criminal Compensation
ORIGINATING	Cairns
COURT:
DELIVERED ON:	1/6/01
DELIVERED AT:	Cairns
HEARING DATE:	23/03/2001
JUDGE:	White DCJ
ORDER:	That the first respondent Conrad Troy Michael pay the applicant Leo Ashley Martin the sum of $35,000 by way of compensation.
That the second respondent Leonard Jason Rootsey pay the applicant Leo Ashley Martin the sum of $35,000 by way of compensation.
CATCHWORDS:
COUNSEL:
SOLICITORS:	Ms S Hadley (Farrellys Solicitors) as Town Agent for Mr M Fairclough (Walker Pender Solicitors) for the Applicant

1. The Respondents, Conrad Troy Michael and Leonard Jason Rootsey, were convicted in the District Court at Cairns on 11 March 1998 of the following offence:-

1. That on the eighteenth day of April 1997 at Cooktown in the State of Queensland they unlawfully assaulted Leo Ashley Martin and thereby did him bodily harm.

And that at the time aforesaid they were in company with other persons.

This is an Application by the said Leo Ashley Martin for compensation pursuant to s.24 of the Criminal Offence Victims Act 1995.

[2] The Applicant was born 7 February 1956. He was therefore 41 at the time of
the commission of the offence. He is now 45 years of age.

1. At the time of the commission of the offence, the Applicant was a Professional Fisherman working out of the township of Cooktown. The Applicant has two children with his wife who worked as a barmaid at the “Sovereign Hotel”, on Charlotte Street in Cooktown.

2. During the course of the afternoon of 17 April 1997, the Applicant visited his wife at her place of work where he had a conversation with her. He began drinking, socialising and playing pool with the other patrons. At various times during the course of the afternoon, the Applicant moved between the “Sovereign Hotel” and the “West Coast Hotel” which is a short distance away, also on Charlotte Street.

3. At approximately 6pm, the Applicant returned to the family home in Garden Street Cooktown where he remained until approximately 9pm. At which time, he went once again to the “West Coast Hotel”.

4. While at the “West Coast Hotel”, the Applicant was engaged in conversation with the Proprietor, one Carl Gavlik and a friend of Mr Gavlik’s one Duncan MacArthur. The Applicant continued drinking but was observed to be at all times to be “very pleasant”, “his usual happy self” and “jovial”. The Applicant remained at the “West Coast Hotel” until approximately midnight, whereupon he left to walk home.

5. During the course of the day the Applicant would have consumed a notable amount of alcohol and it is certain that he was somewhat intoxicated. However, there is no evidence that the Applicant was in “a drunken state” when he left the Hotel that night.

6. A short distance from the Hotel, the Applicant met and exchanged greetings with one Ben Green. Mr Green was sitting on a bench in front of the Newsagency on Charlotte Street, also on his way home from the Hotel. It was shortly thereafter that the Applicant was attacked by the Respondents. In his statement dated 23 April 1997, Mr Green noted the following:-

   “I then saw a big group of them boys jump Leo and start punching and kicking him when he was on the ground… I did not see Leo fighting or arguing with any of these boys before they started hitting him…

   I saw Leo was pretty bad. There was a lot of blood and he was just lying there on the ground. Someone then called the Ambulance… I saw them take Leo to the Hospital.”

7. The Applicant himself has little recollection of the attack. He does however recall being punched, kicked, being struck in the face with bottles and fading in and out of consciousness. Those are the facts that constitute the offence.

[10] The Applicant was taken by Ambulance to Cooktown Hospital where the
following was noted:-

“His injuries consisted of: -

– Bilateral periorbital haematomas

– 1.5cm superficial laceration across r bridge of nose

– 0.5cm laceration lower r eyelid

– Multiple superficial scratches on face

– 1cm superficial laceration on back of the neck

– bruises on the right abdomen and left lower ribs

– bruises right chest

– bruises left shoulder

– fractured left 7th, 8th and 9th ribs

– depressed fracture left zygomatic arch

– ? foreign body right upper orbit on x-ray

– intermittent diplopia /flashes left eye

He was admitted for observation and treated with strong analgesia. The patient also attended outpatient clinic at Cooktown Hospital on 20th, 22nd and 23rd of April…”

1. On 12 May 1997, the Applicant was examined by Dr Graeme Atkinson, Ophthalmologist, who conducted an x-ray of the Applicant’s skull which confirmed a depressed fracture of the zygomatic arch (cheekbone).

2. The Applicant was further referred on to a Dr John Ferguson, Oral and Maxillofacial Surgeon, who examined the Applicant on 13 May 1997. However, this was some 4 weeks after the incident and Dr Ferguson determined that it was already “too late to undertake any active treatment for the cheek- bone.” In a letter dated 20 May 1997, Dr Ferguson noted the following with respect to the fractured cheekbone:-

   “I do not think he will have any significant long-term problems, other than that he does have some paraesthesia of the skin in the distribution of the left zygomatico-facial nerve. This may or may not resolve, and in any event may be permanent whether treatment is carried out or not.”

3. During the course of the examination of 12 May 1997, Dr Atkinson also conducted a CT scan and confirmed that a foreign body had lodged in the superior right orbit. As a consequence, in December 1998, the Applicant was admitted to the Marter Hospital Brisbane where Dr William Glasson, Oculoplastic Surgeon, operated to remove a piece of glass from the Applicant’s right upper eyelid.

4. On 4 February 1999, the Applicant attended at Cooktown Medical Centre where he was examined by Dr D.R.Hill, General Practitioner. Dr Hill noted that: “Leo still had some problems with his L cheek and L eye. Still aching at times. V/A L blurred 6/6. R 6/9 Plan referral back to Dr Atkinson.”

5. Dr Hill further examined the Applicant on 6 September 2000 and noted: “Blurred vision and swelling L cheek at times. Some headaches… Referral back to Dr Atkinson…”

[16] On 11 November 2000, Dr Atkinson reviewed the Applicant’s condition and
noted the following:-

“He continues to have diplopia on the left gaze only and blurred vision – particularly when near tired. He also has intermittent swelling of the left inferior orbit associated with tenderness.

… was diplopia on left gaze. The left eye was enophthalmic. The anterior segments were normal. Disc, macular and retinal examination was normal.

The diplopia is the result of facial fractures and only occurs on left gaze. There is no diplopia in the primary position, so treatment is not indicated…”

1. In his affidavit dated 31 January 2001, the Applicant swears the following:-

   “12.I suffered severe headaches for two to three weeks afterwards. They were continuous and I was taking Panadol every four hours in an endeavour to relieve the pain. At the same time, I had severe bruising to the kidney area and broken ribs, which caused me extreme discomfort and I was unable to move from bed

13.	For about a month after the incident I was bed-ridden and I required assistance to undertake simple chores such as going to the toilet or moving at any time.
14.	After two or three weeks, the headaches eased to some extent but I continued to suffer severe headaches which were relieved by taking two Panadols a day and I obtained sleep at night by taking two Panadol Forte I still suffer from headaches about twice a week and I lie in a darkened room to relieve the pain. The headaches last approximately two hours and at times are excruciating.

…

21.	… For the first month my ribs caused me to be basically useless and totally incapacitated and the slightest trauma caused me considerable pain...
22.	I suffer double vision as a result of the attack… it is uncertain as to whether the glass in my eye or the trauma to the cheek has caused it…
23.	As a result of the double vision… my employment as a fisherman is not available… When I am required to view the sounder or fish finder, by the time I am able to focus, basically the fish are gone… I am unable to read charts and other materials…
25.	For approximately five months after the incident I had difficulty chewing and now, if I chew on that side I can see my cheekbone out of the corner of my eye…”

There is no evidence to suggest that any conduct on the part of the applicant contributed to his injuries.

[18]

I am satisfied that the evidence supports a claim for compensation under the
following items contained in the Schedule to the Act –

2.	Bruising/laceration etc. (severe)
27.	Facial disfigurement or bodily scarring (minor/moderate)
29.	Loss of vision (one eye)
7.	Facial fracture (moderate)
22.	Neck/back/chest injury (moderate)

Because there is considerable overlapping I do not consider it appropriate to attempt to make a separate assessment in respect of each item. In my view $35,000 is an appropriate amount of compensation. In my view the respondents should be jointly and severally liable for such. The applicant is, of course, not entitled to recover more than $35,000 in total.