McNamara v. Johnson

[2007] QSC 215

[2007] QSC 215

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

HOLMES JA

No 9746 of 2006

MICHAEL JOHN MCNAMARA	Applicant
and
FREDERICK ALLEN JOHNSON	Respondent

BRISBANE

..DATE 03/08/2007

JUDGMENT

HER HONOUR: This application is made pursuant to section 24 of the Criminal Offence Victims Act 1995.

On the 26th of November 2003 the respondent pleaded guilty before me to one count of committing grievous bodily harm with intent and was sentenced to seven years' imprisonment with a recommendation for parole after two years.  The applicant seeks compensation for the injuries inflicted on him in the course of the commission of that offence.  His legal representatives have not been able to find and serve the respondent but I am satisfied that the conditions of an order that I made on 13th of June 2007 for substituted service have been met, so that the respondent should be deemed to have been served with the application.

The respondent's version of the relevant events as given at the sentence hearing was that the applicant had been standing over his wife in relation to a drug debt.  He believed the applicant, who was staying at the couple's flat, to have access to a firearm.  He assaulted the applicant by way of a pre-emptive strike.  The version put by the Crown and in essence confirmed by the applicant in his affidavit on the application here was that the applicant had lent the respondent's wife some money for rent (although he conceded at the committal hearing it might have been for drugs) and had made a number of requests for its return.  He was suddenly assaulted by the respondent.  On either version, while the applicant was sleeping, the respondent hit him six times or so with a piece of metal pipe.
Given the denial by the applicant in his affidavit that he was standing over anyone, I would not be prepared to make a finding against him that he contributed to his injuries within the meaning of section 25(7) of the Act.

The applicant sustained, according to Princess Alexandra Hospital records and the statement of a doctor who treated him there, multiple facial fractures and lacerations to the face and skull, a fractured cervical spine, a fractured base of the skull, and bruising and abrasions to the chest.  He spent 11 days in hospital.  His facial fractures were repaired under a general anaesthetic using titanium plates and screws.  Although the ultimate removal of those devices was intended, that does not seem to have taken place.  He has been left with some facial scarring.

A report from Dr Klug, a psychiatrist who saw the applicant on 12th of July 2006, notes the applicant's background of heroin use, although at the time of interview he had been abstinent for a year.  He reported to Dr Klug that six months after the assault he was gaoled for car stealing and that he had been incarcerated seven or eight times in the past, generally in relation to property offences to obtain drugs.

Dr Klug gave his opinion that the applicant had suffered from a post-traumatic stress disorder for about 12 months as a consequence of the assault, that disorder being, at the time of interview, in partial remission.  His resumption of heroin dependence some eight months after the assault was probably due to the post-traumatic stress disorder in the context of a prior history of severe heroin dependence and cannabis abuse.  There was no clear evidence of any traumatic brain injury. 
Dr Klug noted that the applicant's developmental years had been disturbed in ways which he describes.  He thought that these were probable predisposing factors to psychiatric disorder.  The history of incarceration probably reflected an anti-social personality disorder.

The applicant in his own affidavit reports that he suffers from recurrent nightmares, excessive fatigue, anxiety and diminished concentration and memory.

Coming then to assessment of the injuries, the bruising and lacerations suffered by the applicant fall, in my view, at the upper end of the minor moderate scale of item 1 in the compensation table to the Criminal Offence Victims Act 1995, and warrant an award of 3 per cent. The facial fractures were undoubtedly severe and should be allowed at 25 per cent. The fracture of the skull without brain damage should be allowed at another 5 per cent. The neck injury in the form of the cervical spine fracture would be at the upper end of the minor range of that item, at 7 per cent.

There is nothing, in my view, which really supports the contention that the facial scarring or disfigurements are of such severity as to warrant an award of 20 per cent as was submitted.  The applicant himself gives a subjective and somewhat imprecise description of significant facial scarring.  The best indication I can glean of the significance of the scarring is Dr Klug's description:  "He had no clear abnormality of facial structure but I was aware of extensive scarring on his scalp."  In the circumstances I consider that this injury should be regarded as at the bottom of the severe range at 10 per cent.

The remaining item is nervous shock.  The applicant's disturbed background and apparent predisposition to psychiatric disorder in the view of Dr Klug requires consideration.  On the other hand, given the severity and unexpectedness of this assault it seems probable that a much more robust personality would similarly have responded with symptoms of post-traumatic stress disorder.  I should say that I do not consider the resumption of heroin use of much significance in adding to the proportions of the psychiatric injury in light of the applicant's previous dependence.

On the whole, in the context of the applicant's history, and taking into account that the post-traumatic stress disorder was of limited duration, albeit with continuing effects, I think that the award for nervous shock should be regarded as falling at the lower end of the severe scale at 20 per cent.

Those percentages added give 70 per cent of the scheme maximum of $75,000.  Accordingly I order that the respondent pay compensation of $52,500 to the applicant.

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