DISTRICT COURT OF QUEENSLAND
CITATION:
Physick v Naulu & Ors [2008] QDC 304
PARTIES:
MICHAEL PETER PHYSICK
(Applicant)
v
ISRAEL HERMAN NAULU
(First Respondent)
and
STEPHEN PAUL WHAREWERA
(Second Respondent)
and
SHAUN ROBERT DOLHEGUY
(Third Respondent)
FILE NO/S:
116/08
DIVISION:
Civil
PROCEEDING:
Application for criminal compensation
ORIGINATING COURT:
District Court Beenleigh
DELIVERED ON:
19 December 2008
DELIVERED AT:
Beenleigh
HEARING DATE:
25 November 2008
JUDGE:
Dearden DCJ
ORDER:
The respondents Israel Herman Naulu, Stephen Paul Wharewera and Shaun Robert Dolheguy pay the applicant Michael Peter Physick the sum of $42,750
CATCHWORDS:
LEGISLATION:
CASES:
APPLICATION – criminal compensation – robbery in company with personal violence – assault occasioning bodily harm in company – bruising and lacerations – fracture or loss of use of ankle – facial fracture – mental or nervous shock – single state of injury – multiple respondents – causation
Criminal Offence Victims Act 1995
R v Ward; ex parte Dooley [2001] 2 Qd R 436
Riddle v Coffey [2002] 133 A Crim R 220; [2002] QCA 337
SAY v AZ; ex parte Attorney-General of Queensland [2006] QCA 462
COUNSEL:
Mr J Stevenson (solicitor) for the applicant
No appearance for the respondents
SOLICITORS:
Legal Aid Queensland for the applicant
No appearance for the respondents
Introduction
The applicant Michael Peter Physick seeks compensation in respect of injuries suffered by him in an incident which occurred on 3 December 2005 at Kuraby, Queensland. This incident resulted in the first respondent, Israel Herman Naulu, the second respondent, Stephen Paul Wharewera, and the third respondent, Shaun Robert Dolheguy, each pleading guilty to counts of robbery in company with personal violence and assault occasioning bodily harm in company in respect of the applicant. Each of the respondents pleaded guilty to similar counts relating to another victim. The first respondent, Israel Herman Naulu was sentenced to four-and-a-half years imprisonment suspended after sixteen months with an operational period of five years in respect of the robbery in company with personal violence count, and three years imprisonment suspended after serving sixteen months, for an operational period of five years in respect of the assault occasioning bodily harm in company count. The second respondent Stephen Paul Wharewera was sentenced to three years imprisonment with an immediate parole release date in relation to the robbery in company with personal violence count, and a twelve month intensive correction order in respect of the assault occasioning bodily harm in company count. The third respondent, Shaun Robert Dolheguy, was sentenced to four years imprisonment wholly suspended with an operational period of five years in relation to the robbery in company with personal violence count, and a three year probation order in relation to the assault occasioning bodily harm in company count.
Facts
The applicant, who was then twenty nine, was drinking at home with a friend on 3 December 2005. At about 9:45pm the applicant decided to head down to the local skate bowl to finish his drink there and hopefully run into someone he knew.…
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- AGLC
- Physick v Naulu [2008] QDC 304
- Case
- [2008] QDC 304
- Decision Date
CaseChat Overview and Summary
The court assessed the injuries sustained by the applicant and determined the appropriate compensation for each. For the bruising and lacerations, the court awarded 3% of the scheme maximum, equating to $2,250. For the facial injuries, including fractures and a laceration, the court awarded 25% of the scheme maximum, amounting to $18,750. The sprained ankle was considered a minor/moderate injury, and compensation was awarded at 4% of the scheme maximum, which was $3,000. Regarding the mental or nervous shock, the applicant was diagnosed with post-traumatic stress disorder, for which the court awarded 20% of the scheme maximum, totalling $15,000.
The court considered the pre-existing mental health history of the applicant, which complicated the assessment of compensation for the mental or nervous shock. However, the court concluded that the assault on 3 December 2005 still materially contributed to the applicant’s post-traumatic stress disorder, and awarded compensation accordingly. The total compensation awarded to the applicant was $42,750. The respondents, Israel Herman Naulu, Stephen Paul Wharewera, and Shaun Robert Dolheguy, were ordered to pay this sum to Michael Peter Physick.
Orders
Orders of the court
The respondents Israel Herman Naulu, Stephen Paul Wharewera and Shaun Robert Dolheguy pay the applicant Michael Peter Physick the sum of $42,750
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Item 1 – bruising/laceration etc (minor/moderate) – 1%-3% Mr Stephenson submits that the “numerous bumps and bruises” suffered by the applicant, who on examination at the Queen Elizabeth II Jubilee Hospital was “tender on palpitation of the upper cervical spine and the upper thoracic spine, with a right elbow graze and minor grazes to the knees and hands,”[11] should be compensated at the upper end of the minor/moderate range i.e. 3% of the scheme maximum ($2,250). In my view that is an appropriate award for the totality of the bruising/lacerations suffered by the applicant. [11]Exhibit F. Affidavit of Debbie Richardson sworn 25 August 2008 Item 8 – facial fracture (severe) – 20%-30% Mr Read submits that the totality of the facial injuries suffered by the applicant include fractures of the jaw, nose and right eye socket, the chipping of a tooth, and a laceration to the centre of the applicant’s forehead requiring stitches and leaving a scar. In essence, Mr Stephenson submits that, without “doubt counting”, an assessment of compensation at the middle of the severe range for facial fracture (i.e. 25%) adequately compensates the applicant for the serious and debilitating injuries suffered by him (even though no surgical intervention was required) in this attack. I accept that as an appropriate submission, and accordingly I assess compensation at 25% of the scheme maximum ($18,750) under Item 8. Item 19 – fracture/loss of use of leg/ankle (minor/moderate) – 4%-10% The applicant suffered a sprained right ankle in the attack and in the circumstances, that clearly amounts to a “loss of use of…ankle” which (as Mr Stephenson submits) should be assessed at the bottom of the applicable range (Item 19) i.e. 4% of the scheme maximum ($3,000). I assess compensation at 4% accordingly. Item 33 – mental or nervous shock (severe) – 20%-34% The applicant was diagnosed by Dr Barbara McGuire, psychiatrist, as exhibiting “post traumatic stress disorder to a moderate degree” with the likelihood that the applicant “will continue to experience symptoms for an indefinite period although there may be some amelioration over time.”[12][12]Exhibit A (Report 3 April 2008) p. 4 Affidavit of Dr Barbara McGuire sworn 21 August 2008 The complication in respect of the mental or nervous shock suffered by the applicant from the assault on him on 3 December 2005, is that the applicant had a pre-existing “significant mental health history [with] the likely diagnosis being a substance induced psychosis”.[13] The applicant gave a history to Dr McGuire which (if taken at face value) would indicate that the applicant had twice previously been the victim of offences of rape by male persons. Dr McGuire was asked to advise whether or not those sexual assaults were “more likely than not to be delusional beliefs”, to which she responded that although she could not “make this comment with certainty but feel that it is a probability [that the assaults were delusional beliefs] as it appears to have occurred at a time when [the applicant] was regarded as having a substance induced psychosis.”[14] Dr McGuire went on to state that, “had the incidents [i.e. the purported sexual assaults against the applicant] occurred as [the applicant described] I believe that the assault of the 3.12.05 still materially and significantly contributed to [the applicant’s] post traumatic stress disorder. If the earlier described rape and assault did actually occur, the likelihood would be that the assault of the 3.12.05 was not the sole and effective cause of his post traumatic stress disorder.”[15][13]Exhibit A, p. 4, Affidavit of Dr Barbara McGuire sworn 21 August 2008[14]Exhibit A (Report 16 July 2008), Affidavit of Dr Barbara McGuire sworn 21 August 2008[15]Exhibit A (Report 16 July 2008), Affidavit of Dr Barbara McGuire sworn 21 August 2008