Rapson v George

[2004] QDC 409

DISTRICT COURT OF QUEENSLAND

CITATION:

Rapson v George [2004] QDC 409

PARTIES:

LANCE WAYNE RAPSON
(Applicant)
v
LEE DANIEL GEORGE
(Respondent)

FILE NO/S:

D9 of 2004

DIVISION:

Civil Jurisdiction

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court, Mount Isa

DELIVERED ON:

16 September 2004

DELIVERED AT:

Mount Isa

HEARING DATE:

10 September 2004

JUDGE:

Tutt DCJ

ORDER:

That the respondent, Lee Daniel George, pay to the applicant, Lance Wayne Rapson, the sum of $9,000 by way of compensation for injuries caused by him to the applicant for which the respondent was convicted by this Court on 17 May 2001.

CATCHWORDS:

Criminal compensation – grievous bodily harm – injuries to jaw and bruising – compensation Schedule 1 – applicant’s contribution to the injuries by own conduct – mental or nervous shock.

Criminal Offence Victims Act 1995 ss. 24, 25(6) and (7) and 31.

Ferguson v Kazakoff [2000] QSC 156.

COUNSEL:

Ms J Brasch for the applicant.

SOLICITORS:

Anderson Telford Lawyers for the applicant.

No appearance for the respondent.

Introduction

1. The applicant, Lance Wayne Rapson, aged 24 years, claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for personal injuries he sustained on or about 8 December 2000 arising out of the criminal conduct of the respondent, Lee Daniel George, who was convicted by this court at Normanton on 17 May 2001 for causing grievous bodily harm to the applicant on the said 8 December 2000. The respondent, although served with the application, made no appearance at the hearing.

1. The application for compensation is made pursuant to s 24 of the Act and is supported by the following material:-

(a)        the affidavit with exhibits of John Andrew Bolton, solicitor sworn 21 May 2004 and filed in this court on 8 July 2004; and

(b)        the affidavit with exhibits of the applicant, sworn 28 July 2004 and filed in this court on 17 August 2004.

Facts

1. The applicant swears that he was the victim of an assault by the respondent which arose out of an altercation he had with the respondent on or about 8 December 2000 in Normanton.  The circumstances of the incident are set out in a statement the applicant gave to the police on 18 December 2000 which is Exhibit “A” to his affidavit.

1. The statement indicates that he was a passenger in a car which was hit by a “stubbie bottle” thrown by the respondent.

1. The applicant alighted from the vehicle and remonstrated with the respondent who was his cousin.

1. The applicant says he then walked over to the respondent and threw a punch at him which struck the respondent in the chest or shoulder.

1. Not surprisingly the respondent retaliated and a fight ensued.

1. During the course of the fight the applicant slipped over and fell to the ground and while on the ground the respondent kicked him in the face and head.

1. The applicant became unconscious and woke up in the Normanton Hospital with a sore head.

Injuries

1. The applicant’s injuries are described in Exhibits “D” and “E” to the affidavit of John Andrew Bolton being reports in the form of statements from Doctor Manjit Singh of Normanton Hospital and Doctor Richard Mulcahy of the Cairns Base Hospital respectively.

1. The applicant was initially admitted to the Normanton Hospital at 1:30am on 9 December 2000 and discharged himself against medical advice at 4am that morning.  He then returned that evening where his injuries are described as:

   1.   “Small swelling at right angle of mandible with bruise

   and marked tenderness.  Range of movement of jaw were painful and restricted. Teeth were intact.

   2.   Three bruises measuring 8cm x 4cm, 4cm x 3cm, 3cm x 3cm, in the Rt Parieto-Temporal region. There was no bony crepitus.

   3.   Slight bruising inner side of left lip.”

2. It was suspected he had a fracture of his right mandible and he was referred to the Cairns Base Hospital for x-ray of his mandible and face.  He did not report for any follow-up treatment at the Normanton Hospital.

1. The applicant presented at the Cairns Base Hospital on 13 December 2000 and his injuries were described as:

“On examination his jaw was tender at the right angle and also just to the left of the mid-line.  HE was unable to open his jaw fully.  HE was unable to chew.  Accordingly, he had x-rays of jaw, which revealed fracture through the right angle, and also to the left of the mid-line.”

1. The applicant was more recently examined by Doctor Anthony J Oliver, Consultant Oral and Maxillofacial Surgeon on 25 November 2002 (2 years post injury) whose report dated 3 December 2002 is Exhibit “G” to Mr Bolton’s affidavit.

1. Dr Oliver reports of the applicant’s injuries as follows:

·     The site fractures of the mandible have now completely healed;

·     He has a full range of unimpeded mandibular motion;

·     No evidence of palpable temporo-mandibular joint dysfunction;

·     His occulusion was stable and reproducible;

·     No obvious evidence of facial disfigurement or bodily scarring;

·     No further treatment or rehabilitation is indicated.

1. The applicant reported that subsequent to the assault he had to modify his diet; he has soreness when sleeping on his left side and occasional headaches when waking in the morning and early morning left joint stiffness.

1. Counsel for the applicant submitted that the sentencing judge of the respondent referred to the applicant requiring surgery for his facial injuries but that does not appear to have been confirmed by any of the medical evidence tendered and no other evidence that was put before me on this issue.

1. The applicant was further examined by Ms Jenny Hatfield, psychologist on 30 September 2003 (2 years 9 months post injury) whose report dated 27 November 2003 is Exhibit “I” to Mr Bolton’s affidavit.

1. Although there are some factual errors in the report in respect of the circumstances of the incident, Ms Hatfield’s diagnosis, so far as her speciality is concerned, is that it would not appear that the applicant’s post or current presentation would satisfy a psychiatric diagnosis and intervention by other medical practitioners since the event of assault have not suggested that such a diagnosis might be appropriate.

Mental or nervous shock

1. In respect of the “mental or nervous shock” aspect of the claim, the applicant’s counsel submitted that I am entitled to have regard to s25(6) of the Act and make an assessment under this provision where an applicant has sustained a definable injury which is not categorised under the table or the regulations.

1. As to whether this applicant has suffered mental or nervous shock has to be measured in the light of the authorities on point and a very useful guide is to be found in the matter or Ferguson v Kazakoff [2000] QSC 156 where Thomas JA said at [21]:

“It is extremely difficult to define the point at which mental consequences to a claimant from a crime become compensable as “mental or nervous shock”.  I consider however, that if nothing more is shown than fear, fright, unpleasant memories or anger toward an offender, or a combination of such reactions, the claimant has not shown that he or she suffered nervous shock.  Unless the court is affirmatively satisfied that mental or nervous shock has been suffered compensation should not be awarded for such reactions.”

1. There is no convincing evidence before me that the applicant has suffered mental or nervous shock nor any other injury which might come within s25(6) of the Act and I make no order under these categories.

Applicant’s contribution

1. In deciding the amount of compensation payable to the applicant I must also take into account the behaviour of the applicant that directly or indirectly contributed to the injury (see s 25(7) of the Act).

1. On this issue the applicant not only engaged in “a consensual fight” to use the words of the learned sentencing judge, but started the fight.  Obviously the applicant did not consent to the extent or severity of the retaliation by the respondent which resulted in his injuries but nonetheless he had no need to alight from the safety of the vehicle and confront the respondent in the manner he did.  I am of the opinion that his contribution to his own injuries should be assessed at one-third (33⅓%) and his quantum of compensation reduced accordingly.

Categories of injury

1. The applicant’s injuries fall under the following categories of injury in Schedule 1 of the Act, namely:

(a)        Item 7 – facial fracture (moderate) (percentage of scheme maximum 14% - 20%);

(b)        Item 1 – Bruising / laceration etc (minor / moderate) (percentage of scheme maximum 1% - 3%)

1. Taking all relevant matters into account I assess the quantum of the applicant’s compensation for the bodily injuries he sustained on 8 December 2000 as follows:

(a)   In respect of Item 7, the sum of $11,250.00 representing 15% of the scheme maximum; and	$11,250.00
(b)   In respect of Item 1, the sum of $2,250.00 representing 3% of the scheme maximum.	$2,250.00
TOTAL (before contribution)	$13,500.00

1. In view of my conclusions as set out in paragraph [24] above, I therefore order that the respondent pay to the applicant the sum of $9,000.00 by way of compensation for the injuries he sustained.

1. In accordance with section 31 of the Act, I make no order as to costs.