Sao v DJO

[2010] QDC 471

[2010] QDC 471

DISTRICT COURT

CIVIL JURISDICTION

JUDGE SAMIOS

No 2834 of 2009

SAO	Applicant
and
DJO	Respondent

BRISBANE

DATE 14/09/2010

ORDER

HIS HONOUR:  This is the application of SAO by her litigation

guardian MO against DO

This is an application for criminal compensation to be

assessed for personal injuries suffered by the applicant as a

result of personal offences committed by the respondent

against the applicant.

The applicant was born on the 29th of January 2002.  She was

offended against by the respondent who is her natural father

between the 29th of January and the 11th of March 2002.  The

respondent was convicted on indictment for the offences of

assault occasioning bodily harm against the applicant on the

17th of August 2004.  For the offences committed against the

applicant the respondent was sentenced to imprisonment for two

years on each count.

The application in this matter was filed on the 2nd of October

2009.  Pursuant to section 167 of the Victims of Crime

Assistance Act 2009 the Court must hear, or continue to hear

and decide the application under the repeal provisions,

namely, the Criminal Offence Victims Act 1995.

The application is within time.  The applicant, having been

born on the 29th of January 2002 is a minor, and has up until

three years from turning 18 to apply for compensation, which

would be until the 29th of January 2023.  The application has

been served by way of substituted service and I am satisfied

on the affidavit evidence that notice has been given of the

application to the respondent and that I can proceed to assess

the compensation.  I am satisfied the order has been complied

with by the applicant.

The respondent offended against his infant son, and although

the infant son's mother was sentenced to a term of

imprisonment, that was set aside by the Court of Appeal.  The

applicant in the present application was born whilst her

mother was in prison.  Custody of the applicant was given to

the respondent.

The offending came to light when a community health service

person, a nurse, noticed bruises to the applicant's forehead,

chin, left forearm, knees and pubic bone.  The applicant was

noted at the Mater Children's Hospital to have four rib

fractures on the left and seven rib fractures on the right

side of the body.  She also had a skull fracture on the left

side of the skull.

The medical evidence before me confirms the bruising to

various parts of the body.  There were five areas bruised.

The evidence confirms the rib fractures on both sides of the

chest and the fracture of the skull.  The evidence satisfies

me that the applicant was offended against on at least two

occasions to suffer the varied rib fractures.  The applicant

was approximately five weeks of age when she suffered her

injuries.

Treatment appears initially to have been by way of

physiotherapy, however, when the applicant was about two

a-half years of age she showed subtle signs of left hemiplegia

with some briskness of her lower limb reflexes and increased

tone.  She was noted to have an unusual gait and was referred

to orthopaedic outpatient clinic at the Mater Hospital.  At

that time there was no treatment required.

In January of 2007 she was reviewed at the neurological

department and there she was found to have no neurological

problems and had a normal examination.  The evidence satisfies

me that the skull facture was due to either blunt force

directly to the skull or the skull was brought forcefully

against a fixed object.

Dr McGuire, a psychiatrist, states that:  "While the applicant

does not appear to have suffered long term physical injuries,

it is highly probable that she will in the long term

experience psychological effects which will be profound."

Dr McGuire refers to the applicant:  "Possibly developing a

reactive attachment disorder."  She recommends that there be a

further review of the applicant for the purpose of

compensation when she is in late adolescence.

I'm mindful on an application of this kind the compensation

ordered by the Court is not meant to reflect the amount of

compensation the applicant would be entitled to by Common Law.

Further, the maximum amount is reserved for the most serious

cases.  See subsection (3) and (4) of section 22.

In this matter I can understand the decision not to delay the

application for compensation.  Section 183 of the Victims of

Crime Assistance Act 2009 places a limitation on such an

application.  With regard to future mental or nervous shock it

is my opinion that the chance of the applicant suffering

mental or nervous shock in the future must be assessed as best

as possible.

In all the circumstances it is my view that the applicant

should be compensated under Item 1 for bruising/lacerations: 

Severe, three per cent, which is a sum of $2,250; under Item 9

for a fractured skull, no brain damage, where the range is

between five to 15 per cent, an amount of 10 per cent, which

is $7,500; under Item 22, neck, back, chest injury:  Severe,

where the range is between eight per cent to 40 per cent, an

amount of 15 per cent, which is a sum of $11,250; and finally

under Item 32 for mental or nervous shock:  moderate, where

the range is 10 per cent to 20 per cent, an amount of 15 per

cent, which is a total of 43 per cent or $32,250.

I order the respondent to pay the applicant the sum of

$32,250.  I regard that the applicant did nothing directly or

indirectly to contribute to her injuries and therefore there

is no contribution to be made from the applicant's

compensation.

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