Pascoe v Tufuga

[2006] QDC 484

DISTRICT COURT OF QUEENSLAND

CITATION:	Pascoe v Tufuga [2006] QDC 484
PARTIES:	COLIN FRANCIS PASCOE

Application

V

KIRK MALO TUFUGA

Respondent

FILE NO/S:	1660/06
DIVISION:	Civil
PROCEEDING:	Application for criminal compensation
ORIGINATING  COURT:	District Court, Brisbane
DELIVERED ON:	11 October 2006
DELIVERED AT:	District Court, Brisbane
HEARING DATE:	1 August 2006
JUDGE:	Nase DCJ
ORDER:

It is ordered that Kirk Malo Tufugo pay to Colin Francis Pascoe the sum of $13,500 by way of compensation pursuant to the Criminal Offence Victims Act 1995.

CATCHWORDS:

COUNSEL:	L. M. Dollar for the applicant
SOLICITORS:	Jonathan C Whiting and Associates for the applicant

1. This is an application for a compensation order by Colin Francis Pascoe (the applicant). The respondent to the application is a Kirk Malo Tufuga. The respondent elected not to appear or to be represented at the hearing of the application. As a consequence, the application proceeded in his absence and on the materials placed before the court by the applicant.

2. The respondent was convicted on 12 May 2004 in the District Court at Beenleigh of an assault on the applicant (assault occasioning bodily harm). He was sentenced to a period of imprisonment to be followed by release on probation.

3. At the time, the applicant was the manager of the Calamvale Hotel. On this occasion, the applicant was assaulted by the respondent and others during an incident at the hotel. The respondent punched and kicked the applicant about the face, and, when the applicant was knocked to the ground, he again punched and kicked him. At one stage during the incident, another person fell heavily on the applicant’s left leg. As a consequence of the assaults on the applicant, he suffered a number of physical injuries.

4. I am satisfied the applicant suffered an injury within the meaning of s 20 of the Act and the offence is a personal offence within the meaning of s 21 of the Act.

5. Under the legislative scheme established by the Act, a court may make a compensation order up to the scheme maximum in accordance with the provision of the Act. The method of assessment under the legislative scheme involves associating an injury suffered by an applicant with a corresponding item in a compensation table attached to the Act. The maximum awards for compensation are to be reserved for the most serious cases, and the awards in other cases are to be scaled according to the relevant seriousness of the particular injury (s 22(4)). In assessing compensation, it is important to be mindful of the principle that the compensation which may be awarded under the Act is intended to help an applicant and is not intended to reflect the compensation to which the applicant may be entitled at common law (s 22(3)).

6. In the assault, the applicant suffered bruising and other soft tissue damage to his arms, neck, ribs and face (a black eye). Apart from these soft tissue injuries, he suffered a tear to the medial ligament of his left leg.

7. The applicant was unable to return to work for approximately six months. At the time of the injury, arthroscopic investigations had revealed a small tear to the medial meniscus of his left knee. At the time the injury was resected.

8. In support of the application a report was placed before the court from an orthopaedic surgeon (Dr Pentis). Dr Pentis reports the applicant now finds he has difficulty in negotiating steps and uneven ground. He cannot run well. His knee grates on him and he reports it feels funny when he jumps on it. His knee continues to swell, click, catch, lock and (sometimes) give way. It hurts when he walks for any length of time, and he has difficulty squatting, kneeling and negotiating stairs. He still limps when walking. He takes analgesics when required.

9. Dr Pentis’ conclusion is that the applicant has suffered at 10-15 per cent loss of the efficient function of his left leg. In the long term, he thinks the knee joint is likely to degenerate. On the worst outcome, the applicant may require a total knee joint replacement, although there is no certainty about that outcome and no accurate prediction can be made.

10. In summary, the applicant has suffered two compensable injuries. He is entitled to compensation for the bruising to his body and face. Items 1 (minor/moderate cases of bruising) and 2 (severe cases of bruising) are the appropriate items in the compensation table. I think an allowance at the top of the moderate range and the bottom of the severe range is appropriate. Accordingly, 3 per cent of the scheme maximum will be allowed for the physical injuries.

11. The more serious injury is the damage to the left knee. This injury is associated with a loss of use of the left leg. It has left him with an overall incapacity and he is pre-disposed to oesteo-arthritic problems in the future. The injury to his leg affects both his work and his recreational activities. Turning to the compensation table, item 20 is appropriate for fractures/loss of use of the leg/or ankle (severe). The range provided for this item is 8 per cent to 25 per cent of the scheme maximum. I agree that 15 per cent of the scheme maximum is an appropriate allowance in all the circumstances.

12. In assessing the appropriate order, the court is also required to consider whether any conduct on the part of the applicant may have contributed, directly or indirectly, to the injuries suffered by him. In this case, I do not believe that the awards to which he is otherwise entitled should be reduced because of his conduct.

13. The applicant is therefore entitled to an overall award of 18 per cent of the scheme maximum. This calculates out as $13,500.

Order

1. It is ordered that Kirk Malo Tufugo pay to Colin Francis Pascoe the sum of $13,500 by way of compensation pursuant to the Criminal Offence Victims Act 1995.