McLaughlin v Leokava-Taani
[2010] QDC 163
•23 April 2010
DISTRICT COURT OF QUEENSLAND
CITATION:
McLaughlin v Leokava-Taani [2010] QDC 163
PARTIES:
MARK McLAUGHLIN
(Applicant)
v
ERUERA REIVITI LEOKAVA-TAANI
(Respondent)
FILE NO/S:
BD 1674 of 2009
DIVISION:
Civil
PROCEEDING:
Application for Criminal Compensation
ORIGINATING COURT:
District Court Brisbane
DELIVERED ON:
23 April 2010
DELIVERED AT:
Brisbane
HEARING DATE:
12 November 2009
JUDGE:
Tutt DCJ
ORDER:
The respondent Eruera Reiviti Leokava-Taani pays to the applicant Mark McLaughlin the sum of $8,250.00 by way of compensation for the injuries sustained by the applicant and caused by the respondent on 25 March 2007 for which he was convicted by the District Court at Brisbane on 28 March 2008.
CATCHWORDS:
CRIMINAL COMPENSATION - assault occasioning bodily harm – where “applicant was struck by the respondent in the mouth” – where applicant sustained injuries to his lower lip and mouth – where applicant sustained damage to teeth – where one tooth was knocked out & another displaced– where applicant was knocked unconscious - where applicant did not contribute to index injury.
Criminal Offence Victims Act 1995, ss 24, 25(7), 31
SOLICITORS:
Mr B.G. Fotheringham Solicitor of John Paul Mould Solicitors for the applicant
No Appearance by or on behalf of respondent
Introduction:
Mark McLaughlin (“the applicant”) claims compensation under Part 3 of the Criminal Offence Victims Act 1995 for bodily injury he sustained arising out of the criminal conduct of Eruera Reiviti Leokava-Taani (“the respondent”) who was convicted by the District Court at Brisbane on 28 March 2008 for the offence of assault occasioning bodily harm to the applicant on 25 March 2007 at Brisbane, Queensland.
The application for compensation is made pursuant to s 24 of the Act and is supported by the following material:
(a) The applicant’s affidavit with exhibits sworn 28 May 2009 and filed in this court on 17 June 2009;
(b) The affidavit with exhibits of Dr Benjamin Erzetic, a maxillofacial surgeon sworn 14 April 2009 and filed in this court on 17 June 2009.
The respondent was served by way of substituted service pursuant to the order of His Honour Judge Robin QC DCJ of 13 October 2009; the affidavit of Ben Graham Fotheringham, solicitor sworn 5 November 2009 and filed in this court on 6 November 2009 confirms that the respondent was served by publication of an advertisement in The Australian and Courier Mail newspapers on 16 October and 22 October 2009 respectively.
The respondent did not appear at the hearing which proceeded in his absence on 12 November 2009.
Background Facts:
On 25 March 2007 at about 3.15 am the applicant was at a Brisbane nightclub when there was an altercation between him and another person as a result of which the applicant was struck by the respondent in the mouth causing him to suffer injuries to his lower lip and mouth resulting in damage to two of the applicant’s teeth one of which was knocked out by the blow. The applicant was also unconscious for a short time after having been struck by the respondent.
Applicant’s Injuries:
The applicant was taken to the emergency department of the Royal Brisbane and Women’s Hospital Health Service District where the “Patient Record” states: [1]
“Allegedly assaulted tonight – Lac chin and bottom tooth completely out. Second tooth pushed back into mouth. Tooth cleaned ….. will see to put back.”
[1]Emergency Department Patient Record exhibit “MML7” to applicant’s affidavit.
There is further evidence before the court from the applicant’s dentist, Peter Wong of Springhill Dental in the following terms: [2]
“25/03/07 – Mark was hit in the mouth this morning at Friday’s Club around 3.30 am by someone at the bar. He went to the hospital straightaway. According to Mark, 41 was avulsed but still in the mouth and 42 was displaced. There was a cut which went through the sulcus to the skin below the lower lip. Two sutures placed on skin and both teeth were repositioned by the doctor on duty.”
There is a further notation on “28/03/07 – follow-up call patient is doing well, the teeth seem to have stabilised, he has been taking panadol for pain, Mark has been doing his salt rinses. He saw his doctor yesterday to get the stitches reviewed. The doctor said that his lip was healing well. Patient was happy with the call, patient confirmed next appointment also.” A further note on “02/05/07 states “review 41, 42. Mark is able to chew on teeth now slightly sensitive with temperature. PA showed possible radiolucency at 41 but could also be healing. No colour change.”
[2]Springhill Dental Records exhibit “MML8” to applicant’s affidavit.
The applicant was also examined by Dr Benjamin Erzetic Oral and Maxillofacial surgeon whose report includes the following: [3]
[3]Medical Report of 5 March 2009 being exhibit “B2” to affidavit of Dr Benjamin Erzetic.
“From his history and records he was punched in the face via a single blow at a nightclub on the 25th March 2007. He states there was a brief loss of consciousness as a result of this. The injuries sustained included an avulsed 41 (lower right central incisor) a subluxed 42 (lower right lateral incisor) and a through and through laceration of his lower lip.
He presented to the Royal Brisbane Hospital where the avulsed tooth was reduced into its socket and an OPG x-ray was performed to identify there were no other fractures. The lip laceration was sutured at the same time.
Subsequently on 25th March 2007 he was seen by his local Dental Officer and offered further treatment of his dentoalveolar injuries. This involved placement of a wire splint to support the lower teeth. He was subsequently followed up by the Dentist over the pursuing months and on the 27th June it was noted that on an x-ray that there was an appearance consistent with an infection associated with the lower teeth. Subsequently a root canal treatment was completed on both the 41 and 42.”
Dr Erzetic further reported that:
“It is my opinion at this stage that his clinical condition is stable. It is difficult to comment whether in the future there would be any degenerative changes associated with this.
Commonly when teeth are avulsed there is an increased risk of internal resorption. On recent examination by his local dentist in 2009 a periapical x-ray indicated that the teeth were sound and no evidence of this. I believe his local dentist is continuing to follow up on a six monthly basis. As indicated by his local dentist there may be a need in the future for a crown or post core crown of these teeth.
From the perspective of his injury I believe that there is a low probability of any ongoing problems as a result of the initial injury and subsequent treatment.”
Applicant’s Submissions:
It is submitted on the applicant’s behalf that the physical injuries arising out of the respondent’s criminal conduct fall under the following categories of injury contained in the Compensation Table under Schedule 1 of the Act namely:[4]
[4]Paragraphs [41] to [45] of applicant’s written submissions.
(a) Item 1 – “Bruising/laceration etc (minor/moderate) … 1%-3%” and in respect of this item the applicant claims that the appropriate assessment should be at 3% of the scheme maximum, that is the sum of $2,250.00;
(b) Item 27 – “Facial disfigurement or bodily scarring (minor/moderate) ….. 2%-10%” and in respect of this item the applicant claims that the appropriate assessment should be 5% of the scheme maximum, that is the sum of $3,750.00;
(c) If the applicant’s injury to his mouth was to be treated as a “single state of injury” it is submitted that the appropriate item would be item 27 – “Facial disfigurement or bodily scarring (minor/moderate) … 2% - 10%” and that the appropriate assessment should be 9% of the scheme maximum, that is $6,750.00 which would be referable to “the laceration and resultant scarring to the applicant’s lower lip.”[5]
(d) Item 5 – “Loss or damage of teeth ….. 1%-12%” and in respect of this item the applicant claims that the appropriate assessment should be 12% of the scheme maximum that is $9,000.00.
[5]Paragraph [47] of applicant’s written submissions.
Findings on Categories of Injuries:
On the basis of the evidence before me and the submissions made I find that the applicant is entitled to an award of compensation against the respondent for the physical injuries he suffered at the hands of the respondent and that such injuries fall within the following categories of injuries contained in the Compensation Table in Schedule 1 of the Act namely:
(a) Item 1 – “Bruising/laceration etc (minor/moderate) ….. 1%-3%” and I assess the applicant’s compensation in respect of this item in the sum of $1,500.00 representing 2% of the scheme maximum payable under Schedule 1 of the Act based upon the applicant’s own evidence and the medical evidence before the court being the Royal Brisbane Hospital records and the medical records from the Camp Hill Medical Centre dated 9 October 2008[6] where it is noted that on “26/03/2007 (1 day post incident) Wound cleaned ….. and covered with dressing and for ros. SAT” and on “31/03/2007 ros. from chin 2 sutures removed”;
[6]Exhibit “MML6” to applicant’s affidavit.
(b) Item 27 – “Facial disfigurement or bodily scarring (minor/moderate) ….. 2%-10%” and I assess the applicant’s compensation in respect of this item in the sum of $2,250.00 representing 3% of the scheme maximum payable under Schedule 1 of the Act based upon the applicant’s own evidence and the medical evidence before the court namely the Royal Brisbane Hospital’s medical records; the medical records from the Camp Hill Medical Centre dated 9 October 2008 and the report from Dr Benjamin Erzetic who refers to the scarring as “a small vertical scar on his lower lip but there is no other function or cosmetic deformity noted”.[7]
[7]Page 2 of Dr Erzetic’s report of 5 March 2009 – Exhibit “BE2” to Dr Erzetic’s affidavit.
(c) Item 5 – “Loss or damage of teeth ….. 1%-12%” and I assess the applicant’s compensation in respect of this item in the sum of $4,500.00 representing 6% of the scheme maximum payable under Schedule 1 of the Act based upon the applicant’s own evidence and the medical evidence before the court from the applicant’s dentist Peter Wong who reported that only three days after the applicant sustained the injury to his teeth that the applicant “is doing well, the teeth seem to have stabilised”, and that on 2 May 2007 the applicant “is able to chew on teeth now”. In addition the evidence from the specialist Oral and Maxillofacial surgeon Dr Benjamin Erzetic is that “commonly when teeth are avulsed there is an increased risk of internal resorption. On recent examination by his local dentist in 2009 a periapical x-ray indicated that the teeth were sound and no evidence of this”. Further Dr Erzetic stated “From the perspective of his injury I believe that there is a low probability of any ongoing problems as a result of the initial injury and subsequent treatment”.
For these reasons I find that an assessment in the above terms is appropriate and reasonable.
Applicant’s Direct Contribution to Injury:
In deciding the amount of compensation payable to the applicant I must also take into account the behaviour of the applicant that directly or indirectly contributed to the injury (see s 25(7) of the Act).
I refer to the circumstances of the incident as set out in paragraph [5] above and I am satisfied that the applicant did not either directly or indirectly contribute to the injuries he sustained at the hands of the respondent.
Order:
I order that the respondent pays to the applicant the sum of $8,250.00 by way of compensation for the injuries sustained by the applicant and caused by the respondent on 25 March 2007.
In accordance with s 31 of the Act I make no order as costs.
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