R v Browne, ex parte Nairn

[2001] QSC 44

SUPREME COURT OF QUEENSLAND

CITATION:

R v Browne, ex parte Nairn [2001] QSC 044

PARTIES:

R
v
DANIEL FRANK BROWNE
(respondent)
EX PARTE JOHN PATRICK NAIRN
(applicant)

FILE NO:

S8502 of 1999

DIVISION:

Trial Division

DELIVERED ON:

27 February 2001

DELIVERED AT:

Brisbane

HEARING DATES:

13 December 1999, 31 January 2000, 16 February 2000, 29 May 2000, 21 June 2000, 21 September 2000, 25 October 2000, 29 November 2000

JUDGE:

Helman J

ORDERS:

Order that the respondent pay to the applicant $100,000 by way of compensation for the injuries he suffered as a result of the offence committed by the respondent.

Order that the respondent pay to the applicant his costs of and incidental to the application to be assessed.

CATCHWORDS:

CRIMINAL – application for criminal compensation -  above-elbow amputation of left arm

Acts Interpretation Act 1954
Criminal Code

Criminal Code Amendment Act 1984

Criminal Offence Victims Act 1995
Workers Compensation Act 1916
WorkCover Queensland Act 1996

Chong v Chong [1999] QCA 314

COUNSEL:

Mr P B Rashleigh for the applicant
The respondent in person

SOLICITORS:

M A Kent & Associates for the applicant

1. HELMAN J: This is an application for an order for compensation for injury suffered by the applicant at the hands of the respondent on or about 13 January 1995 at Yengarie, Queensland. His application is made under the repealed sections of Chapter 65A -ss.663A to 663E inclusive - of the Criminal Code: see s. 46(2) of the Criminal Offence Victims Act 1995.

1. On 5 August 1996 the respondent was before me in Maryborough, Queensland for trial on a charge of attempting to murder the applicant, alternatively unlawfully doing grievous bodily harm to the applicant intending to do so.  The respondent pleaded not guilty to both counts.  On 8 August he was found not guilty of attempted murder but guilty on the alternative count, and I sentenced him to imprisonment for ten years.  The respondent applied to the Court of Appeal for leave to appeal against his sentence but on 4 February 1997 leave was refused.

1. The applicant suffered a number of injuries in the incident which gave rise to the charges against him.  According to the applicant he was assaulted by two residents of the house in which he was living at 1 Bridge Street, Yengarie:  the respondent and another man.  The respondent struck the applicant a number of times with an axe, first using the handle and then the head:  in the face, on the calf of the right leg, on the bare toes of the left foot, and on the left arm above the elbow.  The blow to the left arm was the heaviest and had the most serious consequences.  The other man’s attack was with hot water and a pick handle, but its consequences were of little significance compared with those of the respondent’s attack.

1. At the trial an issue arose as to whether the applicant had threatened his attackers with a knife, and the applicant denied his doing so but admitted that he had a knife in a pouch on his belt.  At the hearing of this application the applicant admitted that he had grabbed a knife ‘[i]n the end’.  That evidence contradicted his evidence at trial, at which he denied having a knife in his hand at any time.  From the evidence in that state I am not persuaded that the applicant was guilty of ‘behaviour…which directly or indirectly contributed’ to the injury he suffered within the meaning of those words in s. 663B(2).  The discrepancy between the applicant’s accounts reinforces a view I had formed from other evidence that the applicant is not a wholly trustworthy witness, but his seizing a knife at the conclusion of the incident in an effort to protect himself would not justify a reduction of an award that might otherwise be made on this application.

1. After the incident the applicant was taken by ambulance to the Maryborough Base Hospital where, after admission in the early hours of 14 January 1995, he was found to have multiple lacerations to the face, torso, and limbs, lacerations with severed tendons to the fourth and fifth toes, and a laceration just above the left elbow with a fractured humerus, severed median nerve, severed muscles, and severed brachial artery.  (The doctor who examined the applicant, Dr Nanu Grewal, recorded the injuries to the toes as being on the right foot, but I am satisfied that that was an error and the injuries were to the toes on the left foot.)  The fractured humerus was fixed internally and the nerve, muscles, and artery were repaired.  He was discharged from the Maryborough hospital on 27 January 1995.

1. The applicant then moved to Ipswich, where, after consulting a doctor in a surgery in Bell Street, he was seen at the outpatients department at the Ipswich Hospital on 30 January 1995.  He was found to have multiple infections in his left arm which were treated with potent intravenous antibiotic therapy until 16 February 1995.  On that day, on the advice of two orthopaedic surgeons, he underwent an above-elbow amputation of his left arm.  He was discharged from the Ipswich hospital on 27 February 1995, and reviewed on 7 March 1995 when his stump was found to be clean and healing well.  He attended the Ipswich hospital rehabilitation unit on 14 and 22 March 1995.  On 7 April 1995 he failed to attend for review because he was in prison.

1. The applicant suffered severe pain and discomfort when the injuries were inflicted and after the amputation.  He still suffers from pain in the stump, which can last for a day or more when it occurs.  The applicant is right-handed but clearly the amputation has caused a serious impediment to his ability to perform many tasks.  It is possible that some of the disability may be reduced if he can obtain and use an artificial arm, but some reduction of his disability is all that could reasonably be expected.  The other injuries inflicted on the applicant by the respondent, although painful in the past, do not now cause more than minor discomfort. 

1. On the evidence I am not persuaded that the chain of causation beginning with the respondent’s striking the applicant’s left arm and ending in the amputation was broken by any intervening cause unrelated to the respondent’s act.

1. In making this claim, the applicant seeks an award to compensate him for his pain and suffering and loss of amenities, which I find to be considerable, and for impairment of his earning capacity.  As to the latter, the applicant’s evidence is less than satisfactory.  No records of any kind were put before me:  no copies of income tax returns, or group certificates, or anything else.  The applicant, who was born on 2 November 1962, claims to have qualified as a bricklayer at the age of twenty-one years. In an affidavit filed on 20 September 1999 swore that he had worked ‘continuously from that time [i.e. when he qualified] as a bricklayer until the incident’ on 13 January 1995.  He swore further that prior to the incident he was earning as a bricklayer ‘anywhere from $100 to $120 per day depending on the job site’ and that since the incident he had not worked as bricklayer.  I accept  the latter assertion as correct but the applicant’s assertions as to his work history appear incorrect.  He had not worked continuously as a bricklayer from the age of twenty-one, but rather had, from time to time, a variety of occupations including factory hand, farm labourer, machine operator, welder, as well as bricklayer. He was unemployed from about April 1993 to the incident.  The applicant has received a disability pension since 1998.

1. The amendments to Chapter 65A made by the Criminal Code Amendment Act 1984 apply to this case, because the sections of that Act which had not commenced on the date of assent, 5 April 1984, commenced on 1 July 1984, and the injuries suffered by the applicant were inflicted after the latter date.  That means that the prescribed amount applicable to this claim must be determined under ss. 663A and 663AA.  This application is a case of a claim in respect of more injuries than one, so the prescribed amount is, by operation of s. 663AA(3), the amount for the time being specified in s. 14(1)(C)(a) of the Workers’ Compensation Act 1916, as varied from time to time pursuant to s. 14E of that Act.  The Workers’ Compensation Act 1916, was repealed and replaced from 1 January 1991 by the Workers’ Compensation Act 1990. The latter act was repealed and replaced from 1 February 1997 by the WorkCover Queensland Act 1996. The prescribed amount is that which applies when the order for compensation is made: Chong v. Chong [1999] Q.C.A. 314. It follows that by operation of s. 14H of the Acts Interpretation Act 1954 the relevant provision is s. 167 of the WorkCover Queensland Act, which provides that the maximum amount of compensation payable for multiple injuries sustained in one event is $103,100.

1. The applicant is entitled to a large award for his pain and suffering and loss of amenities, past and future.  I assess $80,000 under that head.  As to impairment of earning capacity, a more modest award is called for.  Correctly recognizing the deficiencies in the evidence on that aspect of the claim, Mr Rashleigh for the applicant conceded that an assessment of $20,000 would be appropriate.  I accept that that is the case since the applicant appears to have an extremely poor employment history.

1. I shall therefore order that the respondent pay to the applicant $100,000 by way of compensation for the injuries he suffered as a result of the offence committed by the respondent.

1. I shall also order that the respondent pay to the applicant his costs of and incidental to the application, to be assessed.