Mayes v Clayton
[2005] QDC 435
•21/10/2005
DISTRICT COURT OF QUEENSLAND
CITATION: Mayes v. Clayton [2005] QDC 435 PARTIES: ROBERTS MAYES
Applicant
v
LINN EDWARD CLAYTON
Respondent
FILE NO/S: BD3816/05 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING
COURT:District Court, Beenleigh DELIVERED ON: 21 October 2005 DELIVERED AT: Brisbane HEARING DATE: 18 October 2005 JUDGE: Nase DCJ ORDER: It is ordered that Linn Edward Clayton pay to Robert Mayes the sum of $24,750 by way of compensation pursuant to the Criminal Offence Victims Act 1995.
COUNSEL: Mr Lee R Smith for the Applicant
No appearance by or on behalf of RespondentSOLICITORS: Trilby Misso Lawyers solicitors for the Applicant
This is an application for a compensation order pursuant to the Criminal Offence Victims Act 1995 (the Act) by a Robert Mayes (the Applicant). The Respondent to the application is a Linn Edward Clayton.
On 5 February 2004 Clayton was convicted in the District Court at Beenleigh of doing grievous bodily harm to the Applicant. He was sentenced to a term of imprisonment (one year, eight months) which was suspended after two and a half months. He had in fact been in presentence custody for a little over four months, so the effective sentence was one of two years imprisonment suspended after about six and a half months.
The Respondent chose not to appear or to be represented at the hearing of the applicant. As a consequence the hearing proceeded in his absence and solely on the materials placed before the court by the Applicant.
The facts of the offence can be briefly stated. The two men were acquaintances but not particular friends. Their connection was only that they lived at the same block of flats. On the evening of the offence, the Applicant had invited Clayton to watch a football match on his television set. His television set apparently had a large screen. All were drinking. The Applicant was supporting one team, Clayton the other. The two men bet a six pack of beer on the result of the game. The Applicant’s team won, to his joy, and Clayton’s disappointment. For no better reason than that his team lost, Clayton, without warning, assaulted the Applicant, punching him about the face repeatedly.
An ambulance was summoned for the Applicant who was transported to the Logan Hospital. He suffered a badly fractured nose and a fracture to his right eye socket, as well as a number of other minor physical injuries.
On the material placed before the court, the Applicant is entitled to a compensation order. I am satisfied he suffered an injury within the meaning of section 20 of the Act and the offence is a personal offence within the meaning of section 21 of the Act.
Under the legislative scheme, a court may make a compensation order up to the scheme maximum in accordance with the provisions of the Act. The method of assessment under the legislative scheme involves associating an injury suffered by an applicant with a corresponding item in a compensation table attached to the Act. The maximum awards of compensation are to be reserved for the most serious cases and the awards in other cases are to be scaled according to the relative seriousness of the particular injury (section 22(4)). In assessing compensation, it is important to be mindful of the principle that the compensation which may be awarded under the Act is intended to help an applicant and is not intended to reflect the compensation to which the applicant may be entitled at common law (section 22(3)).
In support of the application reports were placed before the court from a Dr Hazell (a general practitioner), Professor Monsour (an oral and maxillofacial surgeon), Professor Coman (a head and neck surgeon), Dr Hilton (an ophthalmologist) and a Dr Grant (a psychiatrist).
The most serious injuries suffered by the Applicant are the fractures to the nose and right orbital floor. An endeavour was made at the Mater Hospital to realign the nasal bones. On external examination there is no significant evidence of nasal deviation (Professor Monsour). However, on investigation (Professor Comos) both right and left nasal airways were found to be blocked. To correct his nasal airways the Applicant requires a septoplasty[1]. As a result the Applicant experiences difficulty breathing through his nose, especially on the left side. This has caused discomfort to him.
[1] Professor Coman suggests that a functional rhinoplasty with insertion of nasal splints may prove to be necessary.
X-rays have confirmed a fracture to the right orbital floor. At the time the injury was first reviewed, his initial symptom (double vision) had improved significantly and the decision was taken to manage the fracture conservatively. I assume, although it is not stated directly in the reports, that the fracture was not associated with any displacement of the underlying bony structures. A note in the medical records reveals the Applicant returned to the outpatients department complaining of pain in his right eye. A CT scan and eye review was arranged. The CT scan did not indicate any significant abnormality to account for the complaint of persisting pain. The general opinion at that time, on review, was that no surgical intervention was appropriate[2].
[2] See note by Dr Erzetic dated 4 December 2002.
The Applicant continued to complain about his right eye. As a consequence, the eye was reviewed on 26 May 2004 by an ophthalmologist (Dr Hilton). The Applicant complained to Dr Hilton his right eye tended to feel dry and sticky. This was his only complaint at that time. Dr Hilton concluded as follows:
“Examination showed that the corrected vision in his right eye is 6/6 and the corrected vision in his left eye is 6/6. There was no sign of any residual deficit from his fractured right orbital floor. He did not have any enophthalmos and he had normal facial sensation. Further examination showed that his eyes were straight in the primary position and in down gaze. In both these positions he did not experience any double vision of diplopia. His ocular movements were full.
Examination of the inside of both eyes in all other regards was normal.”
Dr Hilton concluded that the Applicant was not suffering from any permanent disability as a result of the original eye injury and that although he did suffer pain and discomfort for a period of some weeks after the initial injury, he did not suffer any percentage disability as a consequence of the assault.
Apart from the fracture to the nose and the orbital floor of the right eye, the Applicant complains of general bruising and swelling of the face associated with the assault, and of injuries to his right hand and left shoulder. The latter two injuries were caused when he was thrown to the ground by Clayton during the assault. Presumably they are soft tissue bruising type injuries. All of the soft tissue injuries may be considered under the one heading of bruising/laceration in the compensation table.
In addition, an affidavit was placed before the court in which the Applicant set out the injuries suffered by him.
The most serious injury suffered by the Applicant is the fracture to the nose. The appropriate item in the compensation table is item 4 where the range provided is 8 per cent to 20 per cent of the scheme maximum. Mr Smith, who appeared for the Applicant, suggested 16 per cent of the scheme maximum as an appropriate allowance. I agree with that assessment.
The fracture to the right orbital floor is to be assessed under item 6 (facial fracture (minor)) of the compensation table. Although the Applicant claims to experience continuing problems with his vision, the claims are not supported by the medical investigations. In the circumstances, 10 per cent will be allowed for this injury.
An assessment of 3 per cent of the scheme maximum is, I believe, an appropriate allowance for the soft tissue bruising suffered by the Applicant.
[18] The Applicant also claims for loss of sensation due to nerve damage. Professor Monsour explored this complaint in his report. Although the Applicant did experience some initial sensory disturbance, the residual effects are minimal. Professor Monsour in his report noted:
“The only observable sign of residual neurosensory functional change is on palpation of the area of direct exit of the right infra orbital nerve, which incites a triggered sensory response or tingling in the right upper lip region, suggestive of minor scarring and its influence in the region. This does not, however, present a very significant residual disability, as his feeling and overall appearance and functions are essentially normal in this overall region.”
In the circumstances, I have allowed for any sensory disturbances in the assessment for the fractures.
The Applicant also claims an allowance for mental or nervous shock. At the time of the assault, the Applicant was a 52 year old man on a disability support pension. He has been on that pension since 1994. Dr Grant believes he developed a post traumatic stress disorder following a serious assault on him back in 1992. As a juvenile he had a fairly extensive criminal history. In 1973 he served a period of imprisonment at the old Boggo Road Prison. More recently, in 1997 a domestic violence order was taken out against him by an ex-partner.
Dr Grant believes the history related by the Applicant satisfies the criteria for a diagnosis of a post traumatic stress disorder[3]. Dr Grant believes the recent assault has exacerbated a pre-existing post traumatic stress disorder (which dated from 1992). The Applicant’s present symptoms are apparently likely to be permanent. There is, however, some evidence of exaggeration in the material. In the Applicant’s victim impact statement he wrote, “Friends and family have commented that I have changed and am not as happy as I used to be. I am no longer the joking and easygoing person I used to be”. This presents a picture of him before injury as free of any psychological conditions, when in fact he was on a disability pension for a pre-existing post traumatic stress disorder.
[3]The exercise the court is required to undertake under the Act is to attempt to rank the seriousness of the Applicant’s mental or nervous shock relative to other cases of mental or nervous shock. In the circumstances, I assess the Applicant’s condition as falling in the middle of the minor range (item 31). In the circumstances, six per cent will be allowed for the claim for mental or nervous shock. The total award therefore is assessed at 33 per cent of the scheme maximum. This calculates out as $24,750.
The court is also required to consider whether any conduct on the part of the Applicant may have contributed directly or indirectly to the injuries suffered by him. In this case, there was no relevant conduct on the part of the applicant that should reduce the award to which he is otherwise entitled under the legislation.
It is ordered that Linn Edward Clayton pay to Robert Mayes the sum of $24,750 by way of compensation pursuant to the Criminal Offence Victims Act 1995.
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