Smajic v Nona

[2007] QDC 245

DISTRICT COURT OF QUEENSLAND

CITATION:

Smajic v Nona [2007] QDC 245

PARTIES:

HASAN SMAJIC

Applicant

V

IRENE ROSE NONA

Respondent

FILE NO/S:

BD1295/07

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

29 August 2007

DELIVERED AT:

Brisbane

HEARING DATE:

20 August 2007

JUDGE:

Nase DCJ

ORDER:

That Irene Rose Nona pay to Hasan Smajic the sum of $9,750 by way of compensation pursuant to the Criminal Offence Victims Act 1995.

CATCHWORDS:

COUNSEL:

P. James, Solicitor, for the applicant

No appearance by the respondent

SOLICITORS:

Legal Aid Office Queensland for the applicant

No appearance by the respondent

1. This is an application for a compensation order pursuant to the Criminal Offence Victims Act 1995 (the Act) by Hasan Smajic (the applicant). The respondent to the application is an Irene Rose Nona.

1. The respondent did not appear and was not represented at the hearing of the application.  As a consequence the hearing proceeded in her absence and solely on the materials placed before the court by the applicant.

1. The basic facts are these.  On 4 August 2004, in the District Court at Beenleigh, the respondent pleaded guilty to an offence of assaulting the applicant (assault occasioning bodily harm).  She in fact pleaded to a total of six offences.  For those offences she was convicted and released subject to a probation court order.[1]

   [1]The respondent had spent 267 days in pre‑sentence custody which was taken into account on sentence.

1. Hasan Smajic was 67 years old at the time of the assault.  He was out walking in the morning when the respondent, who he does not know, assaulted him for no apparent reason.  During the assault he was punched and struck about the head with a stick.  At one point he fell over.  The respondent sat on him in an attempt to pin him to the ground, holding him by the throat with her right hand.  He managed to free himself and leave the area.

1. On those facts he is entitled to compensation under the Act.  I am satisfied he suffered an injury or injuries within the meaning of s 20 of the Act and the offence is a personal offence within the meaning of s 21 of the Act.

1. Under the legislative scheme a court may make a compensation order up to the scheme maximum in accordance with the provisions of the Act.  The method of assessment under the legislative scheme involves associating an injury suffered by an applicant with a corresponding item in a compensation table attached to the Act.  The maximum awards of compensation are to be reserved for the most serious cases and the awards in other cases are to be scaled according to the relative seriousness of the particular injury (s 22(4)).  In assessing compensation it is important to be mindful of the principle that the compensation which may be awarded under the Act is intended to be a help to an applicant and is not intended to reflect the full compensation to which the applicant may be entitled at common law (s 22(3)).

1. Although the assault was no doubt distressing for the applicant, the only injuries were relatively superficial soft tissue injuries to the head and body.  His injuries are summarised in one of the reports as follows;[2]

   [2]Statement of Dr David Lewis‑Driver, from Logan Hospital dated 8 January 2003.

“His injuries were:

·3 cm abrasion right shoulder

·1 cm laceration to the temporal region of the right side of the top of the head.  This breached the true skin and required one suture.

·1 cm abrasion above the right eye.

·2 cm haematoma above the left eye, with an associated abrasion

·2 to 3 cm abrasion to the nose.

·Mild swelling of the right ear with an associated broken hearing aid.”

At that time it was anticipated his injuries would heal without complication.

1. Oddly, in advancing the claim for compensation the applicant complains of recurrent headaches which, he says, have been present since the assault.  These headaches he claims occur nearly every day.  He also complains of a spinning sensation (dizziness), which occurs three or four times a day.  He attributes these symptoms to the injuries he suffered in the assault.  He was ultimately referred to a neurologist (Dr Ohlrich).  Dr Ohlrich concluded the applicant did not sustain any brain damage from the assault, and that any symptoms he may experience presently are not related in any way to the assault. This conclusion was based in part on a Norman CT brain scan and the limited nature of the assault.

1. These symptoms therefore may be attributable to some other unknown physical or emotional cause, or they may simply represent a desire by the applicant to maximise his claim for compensation.

1. The applicant also claims for mental or nervous shock.  In support of this claim a report from a psychiatrist (Dr Barbara McGuire) was placed before the court.  Dr McGuire interviewed the applicant for an hour on 15 May this year.  The applicant was accompanied at that time by an interpreter.  Dr McGuire concluded that he fulfilled the criteria for a diagnosis of post‑traumatic stress disorder.  Dr Maguire said she considers the disorder has been present since the assault and that he experiences the disorder to a severe degree.

1. The diagnosis of post‑traumatic stress disorder is based upon his complaints that he has flashbacks every night, nightmares, and experiences dizziness.  That he is security conscious and fearful.  And that he spends a lot of time at home; it is said he cannot go to supermarkets, and he is hypervigilant.

1. The applicant was born in Bosnia.  He was wounded during the conflict in Bosnia.  He suffered a significant injury to his right upper arm, and his left thumb has been amputated.  He also has shrapnel in his right lower leg.  He is deaf (from bombing).  At one point he spent six months in hospital from war injuries.  He eventually escaped from Bosnia to Berlin, where he was held in a refugee camp for four years.  A turning point in his life came when he was accepted for resettlement in Australia.

1. Since arriving in Australia the applicant has not had to work.  He told Dr McGuire that he had a good life in Australia.  He now lives with his wife in a gated housing commission complex for elderly people. He enjoys close contact with his daughters, who live in Australia.  Dr McGuire thought that he had been considerably traumatised during the war in Bosnia; however, she observed that he seemed to have made a complete recovery from those experiences.  I presume the basis for that observation is the applicant’s own (translated) statement to that effect. If the observation is correct, he survived the tragedy of large scale civil conflict only to succumb psychologically to a relatively superficial assault by a woman.

1. In summary, the applicant is a man of 72 years of age.  He experienced dislocation and hardship during the war in Bosnia.  He was injured in the conflict and spent an extended period of time in hospital.  He managed to escape to Berlin, only to be detained in a refugee camp for four years.  In what proved to be a life‑changing event, he was allowed to travel to Australia, where he has finally been granted sanctuary.  He lives in a gated community with his wife, and is close to members of his extended family who live in the Brisbane area.  He is not required to work and does not speak English.  I assume he does not wish to make the effort to learn another language.  However, he obviously knows about our compensation laws.  Although the truth is impossible to know with any certainty, a likely explanation for his claimed symptoms of headaches and dizziness may lie in a desire to maximise any award for compensation. 

1. The exercise of ranking the applicant’s mental or nervous shock against other cases of mental or nervous shock is a difficult one. An award at the top of the minor range and bottom of the moderate range is I think appropriate. In fixing an appropriate award I have allowed for the possibility of exaggeration and for the possibilities his symptoms, as they have in the past, may diminish or resolve or are causally related to his experiences during the conflict in Bosnia. On balance 10% of the scheme maximum will be allowed for the claim for mental or nervous shock.

1. As far as the details of the claim are concerned, 3% will be allowed for the soft tissue injuries.  This represents an allowance at the top of the minor/moderate range (1% to 3%)[3], or bottom of the severe range (3% to 5%) for such injuries in the Compensation Table.  As the only head injury he suffered is the soft tissue damage, the applicant is not entitled to an additional claim for item 9 (fractured skull/head injury (no brain damage)).  As I have indicated 10% will be allowed for mental or nervous shock.

   [3]Item 1 compensation table.

1. The total compensation to which he is entitled therefore is a sum equivalent to 13% of the scheme maximum.  This calculates out as $9,750.

1. A court when awarding compensation is required to consider whether any conduct on the applicant may have contributed directly or indirectly to the injury suffered by him.  In this case there is no conduct on the part of the applicant which should result in a reduction in the award to which he is otherwise entitled.

Order

1. It is ordered that Irene Rose Nona pay to Hasan Smajic the sum of $9,750 by way of compensation pursuant to the Criminal Offence Victims Act 1995.