Rich v Dowling
[2022] VMC 36
•18 October 2022
IN THE MAGISTRATES’ COURT OF VICTORIA
AT BENDIGO
Case No. 201902852
| BRADLEY RICH | Applicant/Victim |
| v | |
| CAMERON DOWLING | Respondent/Defendant |
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MAGISTRATE: | B WRIGHT |
WHERE HELD: | Bendigo |
DATE OF HEARING: | 18 October 2022 |
DATE OF DECISION: | 18 October 2022 |
CASE MAY BE CITED AS: | Rich v Dowling |
MEDIUM NEUTRAL CITATION: | [2022] VMC 36 |
REASONS FOR DECISION
CRIMES COMPENSATION – Application for compensation for pain and suffering – Unlawful assault – Delay – Whether application too complex for summary disposition – Whether relevant facts’ sufficiently appear in prescribed material - Issue of possible other causation – Sentencing Act 1991 s85B, 85C, 85F
APPEARANCES: | COUNSEL | SOLICITORS |
| For the Applicant | Mr A Dimsey | Winn Legal |
| For the Respondent | Mr P Santamaria | Galbally O’Bryan |
This is an application pursuant to the Sentencing Act s85B for compensation for pain and suffering arising out of an assault by Mr Dowling upon Mr Rich on 13 May 2017 when Mr Rich was almost 16 years and two months old. On 18 October 2022 I struck out the application on my own motion. I now set out my written reasons. All legislative references are to the Sentencing Act.
Mr Dowling had been apparently charged with several assault charges upon Mr Rich. On 25 February 2019, the charges came before my colleague Magistrate Kumar for a special mention. Up to that date, Mr Dowling had been contesting all the charges in relation to Mr Rich. A sentence indication was sought by Mr Dowling's counsel.
After discussions Mr Dowling pleaded guilty to a single charge of unlawful assault upon Mr Rich and the other more serious assault charges were struck out by agreement. Magistrate Kumar fined him $500 (which he said was the maximum fine) without conviction. Mr Rich turned 18 years old one month after the date of sentence.
The present application was issued on 17 July 2020 almost seventeen months after the date of sentence. This is relevant because pursuant to s85C(1)(a) such an application must be made within 12 months of the offender being found guilty or convicted of the relevant offence. However, the time for issue of the application can be extended pursuant to s85D if “it is in the interest of justice to do so.”
Pursuant to s85F a court must not refuse to hear and determine an application for a compensation order unless in its opinion the relevant facts do not sufficiently appear from the evidence given at the hearing of the charges, any statement of the relevant material facts to the court not disputed by the accused and the “available documents” together with any admissions.
For the purposes of this case the “available documents” mean any admissible written statements or admissions which were made for use as evidence on the hearing of the charge and any victim impact statement. Of course, on the hearing of such application evidence can be given by the victim, the offender or other person and be cross examined and re-examined.
The compensation provisions in the Act have been held on a number of occasions as providing a cheap, expeditious remedy which builds upon the criminal proceeding (see, Moresco v Budimir [2015] VSC 51). Also, in DPP v Gardner [2004] VSCA 119 the President described the similar process pursuant to s86 of the Act as “a summary procedure and ancillary to the criminal process”.
More importantly in Kaplan v Lee-Archer [2007] VR 405 at [41] the Court of Appeal held that “the presence of possible causes of an injury other than the commission of the crime by the offender, is capable of rendering an application so complex that it is unsuitable for resolution by the summary procedure envisaged by s85B.”
As noted, the present application finally came on for hearing before me on 18 October 2022, two years and three months after it had been issued. I understand the delay was mainly because the applicant was obtaining medical reports, including from independent medical experts (IME).
On 12 September 2022 I fixed the application for hearing on 19 October 2022. Mr Rich’s solicitor later filed with the court a supporting affidavit with exhibits. Later again on 14 October 2022 further medical reports and other documents were filed as well. Mr Dowling did not file any material save for written submissions dated 22 September 2022.
Upon perusing the above documents shortly prior to this date, I became concerned that the application was so complex, including the presence of other possible causes of injury, that it may be unsuitable for resolution pursuant to s85B. Further, pursuant to s85F I had a preliminary view that the relevant facts did not sufficiently appear from the documents and material referred to in that provision.
Upon raising my concerns with Counsel as to the complexity issue in the opening, I heard from them and determined that the proceeding should be struck out with no order as to costs as being too complex for disposition pursuant to s85B. I also formed the necessary opinion pursuant to s85F. The relevant facts (in particular those relevant to Mr Rich’s present relevant health and medical condition and consequential pain and suffering as a direct result of the offence) did not sufficiently appear from the relevant documents referred to in s85F. The effluxion of time alone since those documents were prepared make them less relevant to his present state.
The parties in this case earlier agreed that it would take less than a day and that the only witness to be called to give viva voce evidence was Mr Rich. Otherwise, it was proposed to tender documents, including several medical reports. Having regard to the issues I will set out, I do not think that the proposed conduct of the hearing would have assisted me in making an appropriate decision pursuant to s85B.
The fact that the application was issued more than one year after sentence was not a major issue in this application as Mr Rich was under the age of 18 years old at the time of the assault and also the date of sentencing. Having regard to other issues such as his physical and mental state, it may have been appropriate for this court to have heard the application out of time “in the interests of justice.” The defendant’s submissions did not raise this as a real issue anyway.
In relation to the conduct of Mr Dowling constituting the offence, there was some significant difference between the events set out in the prosecution summary and that alleged by Mr Rich in his two supporting affidavits. The prosecutor opened on the basis that Mr Rich was in the backyard of Mr Dowling's residence where there was a teenage party to which Mr Rich had been invited. Mr Rich sat in a garden chair which broke underneath him. The prosecutor then stated that Mr Dowling came out of his house and attacked Mr Rich by grabbing him around the throat, pushing him backwards and then shoving him to the ground causing his head to hit the concrete path. Mr Dowling held him for several seconds then released him and walked back to the house. This was based on Mr. Rich’s police statement.
At all times Mr Dowling had alleged that a drunken and belligerent Mr Rich approached him with a broken piece of chair in the backyard. Mr Dowling then said he pushed Mr Rich with an open hand and Mr Rich fell backwards. He denied any other contact with Mr Rich. Of course, his alleged version is still consistent with an unlawful assault. However, the difference in the factual descriptions of the incident would be important in determining the pain and suffering sustained by Mr Rich in the incident.
According to the prosecutor, Mr Rich was dazed, had difficulty in breathing, was in pain and was crying. He complained the next day of some bruising and soreness to the head, neck and shoulder area and needed continuing medical aid for the shoulder. Importantly, the prosecutor stated the shoulder injury was diagnosed as “bursitis” and that the prosecution might not be able to show causation, which was why the prosecutor said he accepted a plea of a nominal assault only.
As time has passed since the date of sentencing, it appears the alleged major continuing physical injury was to the left shoulder.
In his second supporting affidavit, Mr Rich says he was grabbed by the throat and lifted from the ground in a chokehold. He also says he was informed that he had been thrown or lifted from the ground. However, in his first affidavit he simply says that “he stuck (sic.) me and choked me but thereupon I lost consciousness.” The variations are important, both on credit issues and the left shoulder issue. The application notes that Mr Rich has a SLAP tear to the left shoulder as a result of the assault and now requires surgery.
The medical material discloses Mr Rich had several radiology tests to the shoulder in 2017 showing bursitis only to the shoulder which was probably the reason for the prosecutor’s concession. More importantly, an MRI on 2 November 2017 showed no abnormalities or pathology in the left shoulder save for two large bony cysts which were incidental and not relevant to this case. No SLAP tear is referred to in that report. In October 2017 he told a Mr Dillon, orthopaedic surgeon, he had severe left shoulder pain at the time which had since ceased. Such differences would have been subject of attack by Mr Dowling’s counsel in this case.
The more recent MRI did show a SLAP tear now some five years after the assault. In that time, according to the material, Mr Rich says that he has played football, taken part in martial arts and even acknowledged a later workplace injury to his left shoulder. He has not worked since aggravating that shoulder at work. Not surprisingly, the continuing left shoulder problems appear to have played a significant part in his continuing psychological and psychiatric problems.
Mr Rich’s solicitors arranged for him to be examined on 2 February 2022 by a Dr Graham Doig, an orthopaedic IME. After obtaining a history of being “thrown to the ground,” Mr Doig opined that Mr Rich’s superior labral tear was in response to the assault and the likely cause of his present symptoms.
Despite Dr Doig’s opinions some five years after the assault, it would be very difficult for any court to determine “summarily” what if any left shoulder injury in the assault continues to be present and whether any need for surgery is a “direct result” of the offence pursuant to s85B (see, Kaplan v Lee-Archer, supra). Those difficulties would be greater in the present case because of the summary nature of the proceeding five and a half years after the assault and the limited nature of the evidence to be called.
Even if I were to find that the SLAP tear was a direct result of the offence, it would have been necessary to consider the issue of surgery. Dr Doig only opined that a surgeon may (emphasis added) recommend arthroscopic surgery after further assessment as a possibility. That opinion makes it very difficult for a court to assess compensation for such injury and “surgery.”
The other aspect of this case involves the allegation of psychological/psychiatric injury as a “direct result” of the assault. This has been diagnosed as a PTSD and major depressive disorder by an IME psychiatrist, Dr Schneider, who examined him once on the 26 July 2021 some 4 1/2 years after the assault.
Mr Rich appears to have had little treatment for any psychiatric/psychological condition since the assault. He has been treated and assessed by two “mental health social workers” as a result of his successful VOCAT (Victims of Crime Assistance Tribunal) claim. He was seen on three occasions by a Ms Dridan in early 2018 and cancelled his next two appointments with her. He was also seen by a Ms Dam from the 23rd of February 2021 to the 27th of July 2021 on six occasions.
Their two reports in this case are in fact VOCAT reports prepared for the purposes of seeking payment for continuing psychological treatment. The reports are limited by their nature. Ms Dridan takes a limited history. Ms Dam does not refer to any history at all apart from an assault. The VOCAT template for such reports does not go into other contributing causes. Obviously, they support the link between continuing effects of the assault and need for treatment. They are not qualified to give medico-legal opinions and their reports would be of limited use in the present pain and suffering application.
As stated, he was examined by Dr Schneider in July 2021. She took a history that he remembered Mr Dowling grabbing him by the throat and asking him if he wanted to die and “do you want me to teach you a lesson.” She noted his treatment with Ms Dridan (whose report she had) and Ms Dam. He told her he stopped having treatment as he “thought he should ‘try to move on’ (and not need treatment).”
In her report she took a detailed history as to his previous and pre-existing psychological/psychiatric problems and those continuing problems after the assault.
He mentioned continuing shoulder problems but that it is getting better and is “largely bearable now.” According to her, he even uses a punching bag without a glove. However, Dr Doig took a history of continuing left sided trapezius muscle pain with difficulty sleeping.
Dr Schneider also took a history of him leaving his employment in early 2021 because of a relationship breakdown whereas there is other material that he left work because of his left shoulder condition.
I was informed in the opening that Mr Rich had now decided to seek further psychological treatment which I should consider in the context of this application for compensation, including medical expenses. Similarly, to my concerns about the possibility of shoulder surgery it would be extremely difficult to consider what award should be made for future psychological/psychiatric treatment expenses in those circumstances.
As stated, Mr Rich made a police statement about the time of the assault. He has also sworn 2 separate affidavits in these proceedings in March 2021 and September 2022.
The first affidavit expands on the police statement and the second affidavit expands even further on the events and history of the assault as well as his later physical/psychological symptoms. Without detailing all the instances there are significant variations in the contents of those three documents, e.g., as to symptoms at various times. There are also contradictions in histories to various medical and other treating practitioners and IME practitioners.
It is obvious from the written submissions of the defendant that Mr Rich would have been cross-examined extensively on the variations in descriptions of the assault, its aftermath and later symptomology. In particular, Counsel for Mr Dowling referred to the prosecutor’s summary which addressed the unlawful assault charge only submitting that this limited the factual findings as per s85(1)(b). However, the two affidavits of Mr Rich clearly allege much more serious conduct on the part of Mr Dowling. Thus, this court would have had to resolve factual issues beyond those set out in the prosecutors summary.
Further, there are instances of Mr Rich relating hearsay from other people as to the events on the night of the assault, such as him being seen having fits on the ground and the fact that his friends had not helped him on the night.
Of course, one of the major reasons for the difficulties in this case is the issue of delay as referred to in the defendant’s submissions. It was perhaps inevitable that difficulties would be caused by the fact that it is now 5 1/2 years since the assault and the major reports from IMEs are relatively recent. The longer the period between the assault and the hearing of such an application the more difficult it is to deal with the application under s85B, noting the judicial dicta that such applications are summary and meant to be dealt with quickly and simply as ancillary to the criminal process.
The fact that a s85B application is difficult does not automatically mean that it should not be dealt with and considered by a court (see, RK v Mirik (2009) 21 VR 623). It really is a question of degree. However, I believe it in all the circumstances this application has become too complex to be determined in a summary manner as envisaged by the provisions of s85B, etc. In particular, there are major doubts as to the relationship of his shoulder injury, and to a lesser extent his psychological/psychiatric state, to the assault.
After pointing at my concerns to Counsel in this case, I stood down the hearing for discussions and any further submissions by Counsel. Mr Rich’s Counsel stated that his client was prepared to withdraw his shoulder claim and proceed on the psychological/ psychiatric aspect only in this s85B application.
I pointed out that it seemed to me that Mr Rich’s continuing psychological/psychiatric issues could be seen as being significantly consequential upon his shoulder injury, e.g., having been frustrated, depressed and unable to work because of those shoulder problems. I said that it would be difficult for me to “disaggregate” the psychological/psychiatric aspects on that basis if the shoulder claim was withdrawn.
Counsel for Mr Dowling indicated that either both the shoulder and psychiatric aspects should be dealt with together in the application or not at all. That approach seemed to me to be sensible in all the circumstances.
I emphasise that this ruling should not be seen as an attack upon Mr. Rich’s credit or the strength of his case. From the submissions it appears that Mr Dowling does not contest the fact that Mr Rich suffered some injury in the assault. It is unfortunate that this application for compensation is now not suitable for the summary procedure set out in s85B.
The proceedings were struck out. Both parties agreed there should be no Order as to costs.
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