Miller v Nixon

[2000] QDC 317

DISTRICT COURT OF QUEENSLAND

[2000] QDC 317

REGISTRY:  ROCKHAMPTON

NUMBER:     D76 OF 2000

Applicant:                 Darryl Reginald Stanley Miller

and

Respondent:            Leslie Alfred Nixon

REASONS FOR JUDGMENT

BEFORE HIS HONOUR JUDGE BRITTON S.C.

DELIVERED the 15 day of September 2000

This is an application by Darryl Reginald Stanley Miller (“the applicant”) for compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 for injury sustained by him as the result of a personal offence committed against him by Lesley Alfred Nixon (“the respondent”). There was no appearance by or on behalf of the respondent.

On the 28^th July 1998 the respondent was convicted on his plea of guilty of one count of grievous bodily harm.  On the 29^th July 1998 in respect of that conviction he was sentenced to two and a half years imprisonment. 

The applicant was born on the 3^rd August 1957.  The offence was committed on the 21^st June 1997 so that at that time the applicant was 39 years of age and he is now 43 years of age. 

Briefly the circumstances in which the offence was committed are that there had been some animosity between the parties for some time prior to the date of the offence.  They were both employed as fettlers by Queensland Rail and following an arrangement whereby the respondent lent to the applicant his motor vehicle the respondent claimed but the applicant denied that the applicant owed the respondent two cartons of beer in part payment for the use of the motor vehicle.  The applicant maintained that the arrangement was that he would pay the respondent $50 per week for each week he had the car and that he paid him $50 when he took the car and another $50 after he returned the car.  In any event when the applicant did not give the two cartons of beer to the respondent the respondent started picking on the applicant at work and at the pub and on one occasion at the May day fair at Blackwater assaulted the applicant.  This is not the assault which gives rise to the offence.  The animosity continued notwithstanding that the applicant initially made a complaint to the police which he later withdrew and then on the 21^st June 1997 the parties had some contact at a hotel at Blackwater although according to the statement the applicant did not retaliate to the taunting of the respondent at the hotel.  Later the applicant went to a private home in Blackwater where he continued drinking and at about 6pm started to walk home.  He had consumed by then a considerable quantity of alcohol although he says without conviction that he did not think he was drunk.  As he was walking towards the railway line he felt someone push him from behind and he fell to the ground.  As he was trying to get up a boot kicked him in the face on the left side.  As he fell back down he heard a voice he recognised as being that of the respondent.  He then got up and started walking towards the gates at the railway line and felt a knock in the back of the head which knocked him down.  He fell to the ground and the respondent then started kicking into him kicking him in the face, ribs and right legs.  There is no suggestion that he in any way retaliated to any of the assaults by the respondent. 

Following the incident the applicant was firstly taken to the Blackwater Hospital but was then transported to the Rockhampton Hospital.  At the Rockhampton Hospital he was diagnosed with a fracture of the mandible and he was found also to have suffered a mildly tender abdomen and a laceration to the lip.  He required operative fixation of his fractured jaw but the abdomen resolved spontaneously.  The operation was performed by Dr Djamshidi on the 22^nd June 1997.  The fracture required open reduction and internal fixation.  Following that he was seen on a number of occasions at the maxillofacial outpatients department on the 1^st December 1997 Dr Djamshidi recommended the applicant see a dentist for his dentition.  The applicant swears that he suffered fractured teeth but there is no report from any dentist or any other person detailing the precise nature of the fractures.  He swears also that he sustained bruising to his ribs, groin and abdomen as well as the back of his head and right-sided facial swelling.  He says he was knocked out in the assault.  He was hospitalised for three nights and he says he was in a lot of pain for the two weeks after the assault and experienced difficulty eating for the first month after the assault.  The pain and discomfort in the area of his ribs and abdomen eventually subsided and he has no ongoing problems with those injuries and has not required any ongoing treatment.  He has continued to experience pain and discomfort to his jaw which he says aches down the right side of his face and also along the bottom of the jaw.  He experiences difficulty eating particularly chewing on foods such as meat.  He is restricted on how far he can open his mouth there is a distinct clicking noise on the left side when opening his jaw.  Dr Djamshidi removed a surgical plate from the left side of the mandible on the 3^rd November 1998 under a general anaesthetic and was subsequently followed up in the Oral and Maxillo-Facial Surgery Clinic where he was found to be well and discharged from follow up.   However Dr Djamshidi in his report refers to a review on the 15^th July 1999 when the applicant complained that he still had a problem with jaw opening with limited opening and eating problems.  He had quite a severe clicking in the left side of the jaw joint which Dr Djamshidi said was due to the damage to the cartillage at the time of the accident.  Consequently, he prescribed a course of physiotherapy but said that it was unlikely that he would be able to get rid of his jaw joint problem and he might require surgery to the left inside temporomandibular joint which would cost $2,000 to $3,000 excluding hospital and anaesthetic charges.  In a further report of Dr Djamshidi dated 21^st October 1999 he expressed the opinion that the degree of injury was mild to moderate.  He referred to a further review on the 1^st October 1999 when he found the applicant had slight improvement following the course of physiotherapy but was still having problems with pain and locking in the left temporomandibular joint.  He advised continuation of physiotherapy but he said there was definitely a chance that this might not ease the pain and discomfort and in the worst scenario he would require surgery to his temporomandibular joint but this would not happen until all the conservative managements had been tried.

The applicant was absent from employment for two weeks and then after his return was on light duties for a further two weeks.  Following the operation in November 1998 he was again absent from employment for a period of two days.  He incurred numerous medical expenses and also travelling expenses when travelling to Rockhampton for follow up treatment at the Rockhampton Base Hospital with Dr Djamshidi and for physiotherapy.

So far as the compensation for bruising and lacerations is concerned there is little in the way of medical evidence other than the report of the Rockhampton Base Hospital to which I have referred.  On the material before me I am of the view for the bruising and laceration the compensation should be assessed under item 1 of the compensation table and at the top end of the range namely 3% of the scheme maximum or $2,250.  As I have indicated there is no medical evidence in relation to the damage to teeth.  In the circumstances, whilst it seems clear that there was damage to teeth I am unable to assess the compensation at anything other than 1% of the scheme maximum under item 5.  1% of the scheme maximum is $750. 

So far as the facial fracture is concerned, on the report of Dr Djamshidi the injury is classified as mild to moderate.  It seems to me that the appropriate item under which to assess compensation is item 7 where the percentage of the scheme maximum that may be awarded it 14% to 20%.  In the circumstances, it seems to me that having regard to the ongoing problems which the applicant has and is likely to have in the future, the compensation should be assessed at 20% of the scheme maximum or $15,000.  The total compensation is therefore as follows:

Item 1 $2,250;

Item 5 $750;

Item 7 $15,000;

Total   $18,000.

By virtue of section 25(7), in deciding whether an amount or what amount should be ordered to be paid for an injury the Court must have regard to everything relevant including for example any behaviour of the applicant that directly or indirectly contributed to the injury.  It is submitted by the applicant’s solicitor that there is nothing relevant which adversely impacts upon whether an amount or what amount should be ordered to be paid by way of compensation.  In my view, on the material before me the respondent was clearly the aggressor no matter what animosity there may have been between the parties in the time leading up to the date of the offence.  It is clear that the applicant was intoxicated but on the material before me the attack against him by the respondent was quite unprovoked and this seems to be supported by the sentencing remarks of His Honour Judge Nase.  In the circumstances, there is nothing relevant which adversely impacts upon the award of compensation to the applicant.

I order that the respondent Lesley Alfred Nixon pay to the applicant by way of compensation the sum of $18,000.

G T BRITTON S.C. DCJ