Nelson v Small

[2003] QDC 162

DISTRICT COURT	[2003] QDC 162
CIVIL JURISDICTION JUDGE HOATH
No 737 of 2003
DAVID SVEN NELSON	Applicant
and
CHRISTOPHER JOHN SMALL	Respondent
BRISBANE ..DATE 01/05/2003
ORDER

01052003 T09/JAT16 M/T CMS47/2003 (Hoath DCJ)

HIS HONOUR: This is an application by David Sven Nelson for	1
an order pursuant to the Criminal Offence Victim's Act 1995 that the respondent Christopher John Small pay him compensation for injury sustained as a result of the offence of unlawful wounding of which the respondent was convicted on

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the 16th of August 2002.

That offence was committed on the 27th of December 2000 at the drive-through section of McDonalds Restaurant at Aspley. On that day, the respondent and two female friends were in a

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stationary vehicle (the First vehicle) in the drive-through

section placing an order or waiting to be served.

The applicant was a front-seat passenger in a vehicle (the

Second vehicle) that was stationary behind the first vehicle.

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The applicant and another male yelled out to the persons in the first vehicle to hurry up. Both vehicles shortly after that moved forward and were then stationary at service

windows.

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A female in the first vehicle approached the second vehicle and yelled out, "Shut the fuck up you idiots." The applicant and the other male in the second vehicle called out to the female to put some clothes on. At the time the female was wearing a short skirt. The respondent then got out of the

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first vehicle and approached the applicant who remained

sitting in the second vehicle.

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01052003 T09/JAT16 M/T CMS47/2003 (Hoath DCJ)

The respondent attempted to strike the applicant in the head.	1
Unbeknown to the applicant, the respondent had a knife and actually stabbed him in the left upper arm.
Following the stabbing the applicant was conveyed to the

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emergency department of the Royal Brisbane Hospital where an
examination revealed a stab wound to the left shoulder,
approximately three centimetres in diameter, and extending
into the muscle. The applicant had a full range of motion at

the shoulder joint. There was no evidence of neurovascular

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injury. An X-ray of the shoulder was performed. That
revealed nothing abnormal. The wound was injected with local
anaesthetic and cleaned and three sutures were placed in the

deltoid muscle and nine sutures in the skin.

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The applicant was discharged home with advice to see his local doctor to have the sutures removed in seven days time. That apparently occurred. A report 12 months later from his local doctor, Dr Michael Callan of the Strathpine 7 Day Medical Clinic states the he now has a raised red scar three

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centimetres by two centimetres over the left deltoid laterally
and mild wasting of the upper lateral deltoid muscle. His
auxiliary nerve is in tact. He will always have a scar and

muscle wasting causing an unsightly aesthetic appearance.

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More recently, on the 14th of May this year, the applicant was
examined by Dr John Pentis a specialist orthopaedic surgeon.
In a report of the 16th of April, Dr Pentis states:
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"He will have some difficulties with it, especially if it	1
is bumped or knocked or if he performs strenuous overhead activities, it may be somewhat tighter and weaker than normal the deltoid."

He goes on to state:

"I don’t envisage it will deteriorate to any great degree	10
with time. It is unlikely to affect his work activities to any great extent but it has left him with a residual weakness and it would be approximate a three to five per cent loss of the efficient function of the left upper limb."

In two affidavits before the Court, the applicant sets out in	20
some detail the adverse physical and psychological affects of
the offence committed on him. Those affects include
significant detrimental affect on his enjoyment of sport, a
personality change, a reluctance to go out socially, a loss of
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self-esteem and confidence and an inability to find work and
the break-up of the relationship with his girlfriend.
The applicant was 21 years of age at the time the offence was
committed on him. He had completed grade 12 in 1997. In that	40
year, he suffered a depressive illness and attended counselling in 1998, 1999 and 2000. At the time of the offence, he was not suffering from current symptoms of depression.
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Sometime prior to the 31st of December 2001, the applicant was seen by Dr Persley, a consultant psychiatrist. On examination Dr Persley observed an articulate, fit looking, young man of

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01052003 T09/JAT16 M/T CMS47/2003 (Hoath DCJ)

average general intellectual ability, with no abnormality of	1
thought process or perception.
Dr Persley, after examination, concluded that in the month immediately following the assault, the applicant suffered an

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acute stress disorder of mild severity with a degree of
impairment in the 10 to 15 per cent range. Those symptoms had
largely resolved with minimal residual symptoms. Dr Persley
anticipated that the applicant would make a full psychological

recovery from his injury.

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Whilst I accept that the applicant has suffered physical and psychological consequences of the offence committed on him, in view of Dr Persley's report, it is difficult to accept that all the symptoms and the extent of them referred to in the

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applicant's affidavits are solely attributable to the actions

of the respondent.

Compensation payable to an applicant under the Criminal

Offence Victims Act is intended to help the applicant and is

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not intended to reflect the compensation to which the
applicant may be entitled in an action for common law damages.

Compensation for injury is limited to the amount specified or within the range specified for that injury in the compensation

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table in schedule 1 of the Act, the maximum prescribed being reserved for the most serious cases and the amounts in other cases being scaled according to their seriousness.

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01052003 T09/JAT16 M/T CMS47/2003 (Hoath DCJ)

In this case I am satisfied that the applicant suffered	1
bruising; loss of use of his shoulder; a stab wound; bodily scarring and mental or nervous shock. In determining the appropriate range for the particular injury in the compensation table in schedule 1, it should be borne in mind

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that there is a degree of overlapping of the stab wound,
scarring and loss of the use of the shoulder.

I assess the applicant's entitlement as to the loss of shoulder at 8 per cent; the stab wound at 10 per cent; the

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scarring at 4 per cent; mental or nervous shock at 8 per cent
and bruising at 1 per cent. That is a total of 31 per cent of

the scheme maximum of $75,000, that is a sum of $23,250.

Section 25(7) of the Criminal Offence Victims Act provides

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that 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.

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In this case I am satisfied that the applicant's actions in yelling out to the occupants of the respondent's vehicle to hurry up were abusive and the remarks to the female occupant

could be regarded as insulting.

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There is nothing in the material to suggest that the occupants

of the respondent's vehicle were responsible for the delay at

the speaker and the applicant's actions in abusively yelling

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01052003 T09/JAT16 M/T CMS47/2003 (Hoath DCJ)

at them to hurry up and then making insulting remarks to the	1
female occupant were, in my view, provocative and caused the respondent to get out of the car, the first vehicle and remonstrate with the applicant.

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The respondent's action in stabbing the applicant was, as I said when sentencing the respondent, an utterly intolerable response to the applicant's abuse. Nevertheless that abuse led to the respondent getting out of the car and should be

seen, even if in a quite minimal way, as indirectly

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contributing to the applicant's injury.

Accordingly, I propose to reduce the applicant's entitlement by 10 per cent. Such a reduction leaves an assessment in the sum of $20,925. I order that the respondent pay the applicant

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the sum of $20,925 by way of compensation for the injury the
applicant received as a result of the offence and unlawful
wounding of which the respondent was convicted on the 16th of

August 2002.

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