O'Sullivan v Hall

[2004] QDC 317

DISTRICT COURT OF QUEENSLAND

CITATION:

O’Sullivan v Hall [2004] QDC 317

PARTIES:

WELDON DOUGLAS O’SULLIVAN
(Applicant)
v
FREDERICK CECIL HALL

(First Respondent) 

TROY ADAM HALL
(Second Respondent)

FILE NO/S:

No 55/2003

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

17/9/04

DELIVERED AT:

Ipswich

HEARING DATE:

27 February 2004

JUDGE:

Judge Richards

ORDER:

It is ordered that the first respondent pay the applicant the sum of $16,065 and the second respondent is ordered to pay the applicant the sum of $1,785 to the applicant by way of compensation for injuries caused on 31 December 1999.   

CATCHWORDS:

Criminal compensation – division between co-accused

SOLICITORS:

Ms R E Hartfiel solicitor with M A Kent & Associates for the applicant
No appearance for the respondents

1. This matter arises out of a domestic situation.  Mr O’Sullivan was in a relationship with Rhonda Dengate who had previously been married to the first respondent, Frederick Cecil Hall.  On the day in question he was looking for Ms Dengate with her sister, Shirley. The car had broke down on Glebe Road. 

1. Whilst parked on the side of the road he saw Rhonda Dengate drive past with the first respondent.  He made a gesture towards her and they pulled up.  Mr Frederick Hall walked back towards them. His brother Troy pulled up in his utility. A fight followed between O’Sullivan and Dengate and then Frederick Hall and O’Sullivan. At one stage Frederick Hall was on the ground when O’Sullivan was grabbed by Troy Hall who was trying to stop Mr O’Sullivan attacking his brother.  Troy Hall let him go but Frederick Hall continued to punch him around the face. 

1. Towards the end of the case the applicant fell to the ground and the first respondent started stomping him on the head.  He could feel blood running down the back of his nose and into his mouth.  He had a cut to his lip and a small cut in the corner of his left eye and across his left cheek. He had double vision. He was seen by an ophthalmologist and was sent for an x-ray which confirmed he had a blowout fracture of the left eye socket area and damage to his upper nose and sinus areas.   He was left with bruising and swelling of his face for a month together with headaches. 

1. He has had problems with being constantly tired, lacking motivation and has found himself less tolerant of others.  He has been left with a permanent scar above his top lip.  He has continuing sinus problems.  He has been treated by Dr Wong, a psychiatrist, who says that since the attack he has been suffering from persistent symptoms of hyper arousal, re-experiencing and avoidance, consistent with a diagnosis of chronic post traumatic stress disorder.  He experiences thoughts and images of being attacked two to three times a week and has a sensation of his left eye popping out.  He has recurrent dreams and he is on medication at the moment.  He continues to suffer depression and rarely leaves home.

1. He is entitled to compensation under the Act.  He is entitled to compensation under the following headings:

·     Bruising and Lacerations.  He suffered a cut lip, a cut in the corner of his left eye, a cut across his left cheekbone, bruising around both eyebrows and to his left upper and lower lid.  That combination of injuries would result in an award of  3% of the total Scheme. 

·     Facial Fracture (minor). He suffered a blowout fracture of his left infero orbital margin which has left him with double vision. Compensation would amount to an award of 14% of the scheme maximum. 

·     Bodily scarring (minor). He has suffered minor scarring to his lip. Compensation would result in an award of  2% of the scheme maximum.

·     Mental and nervous shock.(moderate). He suffers from post traumatic stress disorder. Compensation would result in an award of 15% of the scheme maximum.

1. This represents a total compensation of 34% of the scheme maximum, namely a sum of $25,500. 

1. There is a question in this case in relation to the behaviour of the applicant under     s 25(7) of the Act.  In this case the applicant was involved in a fight with the first respondent having started by fighting with Ms Dengate.  There is no suggestion that the applicant was anything other than a willing party to the fight and it seems to me in those circumstances that there was a significant contribution by the applicant to his injuries. Accordingly the award is reduced by 30% to take into account his contribution. This reduces the award to $17,850. 

1. The final question is how the award should be divided between the respondents.  It is clear from the sentencing submissions that the first respondent was the person primarily responsible for the injuries.  The second respondent had a very minor role in proceedings.  Accordingly the first respondent is ordered to pay 90% of the compensation and the second respondent is ordered to pay 10% of the compensation. 

ORDER

I order that the first respondent pay the applicant the sum of $16,065 and the second respondent is ordered to pay the applicant the sum of $1,785 to the applicant by way of compensation for injuries caused on 31 December 1999.