Penny v Scott

[2006] QDC 24

[2006] QDC 024

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3919 of 2005

LEVI CARL PENNY	Applicant
and
RUSSELL FRANCIS SCOTT	Respondent

BRISBANE

..DATE 30/01/2006

ORDER

CATCHWORDS: Criminal Offence Victims Act - applicant awarded compensation for physical and psychological injuries from respondent's offence of grievous bodily harm, by "glassing" - after the glassing the applicant assaulted the offender, and broke his own wrist and suffered other injury, for which compensation was refused.

HIS HONOUR:  This situation is another illustration of the unhappiness to individuals and the cost to society which inappropriate use of alcohol leads to.

The applicant is a young man in his early 20s who was "glassed" in a public bar by the respondent, a man about twice his age, of blameless character, it appears, but an alcoholic.  His life has been blighted and perhaps even destroyed by his incarceration for nine months of a three year sentence for grievous bodily harm which was imposed by Judge Boyce on the 7th April 2003 in Bundaberg. 

The offence occurred about 2 o'clock in the afternoon on the 28th November 2001. The State has had to bear the cost of getting Mr Penny's injuries repaired, which required his evacuation from Bundaberg to Royal Brisbane Hospital and will no doubt have to bear the cost of the compensation under the Criminal Offence Victims Act which the Court awards on this application.

The State has had to support the respondent in prison and it may well be that the events have brought an end to his previously useful working life.  It will have had to fund the cost of any medical treatment he may have needed in consequence of injuries the applicant may have succeeded in inflicting on him after the glassing, as also the not inconsiderable cost of the police investigation and the prosecution.

I suppose the bright side of the story is that there was money in it for those plying the protagonists with alcohol.

Mr Penny had been drinking for some hours but contends that although unfit to drive, he had his wits about him.  The respondent, who is not here today and doubtless in total ignorance of the application, although Mr Penny and his legal advisers have complied with the requirements of an order for substituted service of notice of today's hearing, was observed to be harassing a lady in the public bar.  Mr Penny did not intervene in that situation.  Not long afterwards he became the victim of unwanted attention from Mr Scott in the form of comments about a "Labrette" piercing of his bottom lip.

The protagonists' pursuit of that subject led to Mr Penny's telling the respondent to "fuck off" and to interrogation as to what was Mr Scott's "fucking problem." The incident appeared to have come to an end when, unexpectedly, Scott plunged a beer glass into the left side of Mr Penny's face. I would not regard the coarse language of Mr Penny, in the context and circumstances, as contributing to the offence for purposes of possibly discounting compensation.

Although Judge Boyce in sentencing noted the community's abhorrence of these glassing incidents, referring in particular to the risk of serious damage to eyes, Mr Penny was spared that.  He suffered, however, serious lacerations to the left side of his face.  He says he required 40 stitches.  There has been interference with nerves in his face which prevents him from raising his left eyebrow or "wrinkling" as one of the reports puts it.

He has noticed greatly increased sensitivity to bright light, which leads to his left eye weeping.  There seems to be some sympathetic response now from the right eye. 

Mr Penny says that those difficulties have led to his having to give up outdoor work which he formerly engaged in, for example as a rigger and a hand on prawning vessels.  The glare from the water, as he discovered, was particularly troublesome.

It is pertinent to record here the extreme physical pain which the applicant suffered in his hospitalisation.  I note that Dr Vanderleur has confirmed that there is nothing wrong with Mr Penny's eyes.  He attributes a psychological basis to the problems which Mr Penny complains of and which the Court accepts that he has. 

A large part of his claim is in that (psychological) realm.   Dr Grant's report indicates that Mr Penny is far from being a saint.  He has quite a history with police preceding the subject incident including a conviction for assault.  It seems clear that he has always had a very bad temper and been aggressive.  He spent time detained for domestic violence type matters, his temper has disrupted his employment history and he himself seems to accept that he is better working alone or where things are quiet.

Dr Grant faced a difficult task in attempting to allocate any particular part of Mr Penny's long term psychiatric condition to the incident but thinks there is some effect.  What he is clear about is that if the situation is to be satisfactorily dealt with, Mr Penny will have to do something about his longstanding and continuing excessive ingestion of alcohol and drugs.  Dr Grant had evidence that in respect of the latter, Mr Penny's assertions that this was limited to marijuana of the order of half a dozen cones a day was unreliable.

One of the interesting aspects of the application is that in part the injuries which Mr Penny suffered in the incident could not have been caused by any direct physical action of Scott.  There is a recorded soft tissue injury to the right lateral chest said to come under item 21 in the CAVA schedule, and a fracture of the right ulnar styloid that is said to come under item 15.

The applicant himself accepts that the latter was caused by his assaulting the respondent.  Doubtless if he had been charged he would have had the ability to rely on self defence and/or provocation.  Mr Smith has not been able to persuade me by citation of authority that injuries suffered in those circumstances are ones which for whose consequences Scott ought to pay.  I do not think it is taking a too narrow or a too pedantic view of the incident to separate out those aspects.  The supposed item 21 component is even more mysterious than the fracture.

Mr Smith's suggestion was that in relation to those there might be discounting to reflect any view embraced by the Court that Mr Penny had some responsibility.  Of course it is unrealistic to expect someone in his position to exercise a careful judgment about the extent to which to resort to force himself.  It is not possible, as I understand the facts on the basis of the material before the Court, which includes Mr Penny's police statement and the submissions on sentence, to allow any component in the award.

In these respects it is clear that there were numerous others in the vicinity, including bar staff and other patrons, to deal with the situation.  I think these injuries were self-inflicted, rather than inflicted by the respondent.

Mr Smith makes claims under item 1 of the Schedule and, as far as not mentioned already, items 26, 27 and 32.  I think it is somewhat artificial to separate out the minor injuries which seem to me to be part and parcel of the item 26 injury which it is clear Mr Penny suffered.

Mr Smith seeks a separate award under item 27, although in his comprehensive written submissions, he cites Ferguson v. Kazikoff [2000] QSC 156 for the proposition that when considering appropriate compensation payable in respect of the stab wound, it is appropriate to treat the stab wound and scarring as a single state of injury.

I would prefer to proceed in line with Ferguson, which requires the Court to acknowledge the continuing impairment of nerves with all the usual consequences that has of altered sensations in the face and the "disfigurement" aspect which is concerning to Mr Penny, although he does not suffer from an ugly or scarred appearance so much as finding the movements he can make with his face seriously compromised.

An award under Section 32 is appropriate in light of Dr Grant's report.  Taking as much care as can be being taken to allow for the underlying difficulties which have affected Mr Penny ever since he started drinking and using drugs to excess, I think the award ought to be one of $25,000, two-thirds of which is attributable to the physical injuries and the remaining one-third to the psychiatric and psychological aspects.

The respondent will be ordered to pay $25,000 compensation.

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