Trickey v Baker

[2006] QDC 176

DISTRICT COURT OF QUEENSLAND

CITATION:

Trickey v Baker [2006] QDC 176

PARTIES:

ANTHONY KELVIN TRICKEY
Applicant

v
AARON ALEXANDER BAKER
Respondent

FILE NO:

D39/2006

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Southport

DELIVERED ON:

24 May 2006

DELIVERED AT:

Southport

HEARING DATE:

18 April 2006

JUDGE:

Dearden DCJ

ORDER:

THAT THE RESPONDENT, AARON BAKER, PAY THE APPLICANT, ANTHONY TRICKEY, CRIMINAL COMPENSATION IN THE SUM OF $32,250.00.

CATCHWORDS:

APPLICATION – Personal injury – Mental or Nervous Shock – Contribution

Criminal Offence Victims Act 1995

Cases cited:

Riddle v Coffey (2002) 133 A Crim R 220; [2002] QCA 337

R v Ward ex parte Dooley [2001] 2 Qd R 436

COUNSEL:

Mr C Bagley for the applicant

No appearance for the respondent  

SOLICITORS:

McLaughlins for the applicant
 

1. The applicant, Anthony Trickey, seeks criminal compensation in respect of injuries suffered by him in an incident which occurred on 25 July 2004 at the Gold Coast.  As a result of this incident, the respondent, Aaron Baker, pleaded guilty to one count of entering a dwelling with intent using actual violence while in company, and one count of assault occasioning bodily harm while armed with an offensive instrument while in company.  In respect of both counts, the respondent was sentenced by Judge O’Brien in the District Court at Southport on 21 September 2005 to four years’ imprisonment, suspended after 18 months with a four-year operational period.  A period of 422 days spent in pre-sentence custody was declared time already served in respect of the sentence. 

FACTS

1. The applicant and the respondent were known to each other and had, for a brief period of time prior to 25 July 2004, shared a house after the respondent’s marriage broke up.  There was a fight between the applicant and the respondent some two months prior to 25 July 2004, during the course of which the applicant suffered a number of broken ribs and bruising.  The respondent was concerned that the applicant was going to go to the police about this incident, and threatened to kill him if he did so.

1. The respondent subsequently attended at the applicant’s house on 25 July 2004 with another person.  The applicant was at the house with his de facto wife and another female, as well as two male friends.  The two females were asleep when the respondent arrived at about 3pm.  The respondent shoved open the front glass sliding door and then the respondent and the second male person came in through that door.  The respondent immediately threatened to kill the applicant and swore at him[1].  The applicant’s friends tried to calm the respondent down and get him to leave, but the respondent rushed at the applicant, grabbed him and threw him on top of a glass table which smashed.  The applicant tried to get away but the respondent tackled him and pulled him to the ground near a fireplace in which a fire was burning.

   [1]  Sentencing submissions T p 9

1. The applicant was then held face down on the floor with the respondent kneeling on top of him, throwing punches at his back, neck and around his ribs for “a number of minutes” and was hit at least 20 times, feeling pain (especially around the ribs which had been broken from the previous incident[2]).

   [2]  Sentencing submissions T p 9

1. The respondent then grabbed a metal fire poker sitting next to the fire on a stand and hit/forced the poker into the back of the head and neck of the applicant while saying, “I am going to kill you.  You’re nothing but a dog cunt piece of shit”[3].

   [3]  Sentencing submissions T p 10

1. The respondent then began to push the applicant’s head in towards the fire while the applicant was pushing as hard as he could back away from the fire.  As a consequence, the applicant’s hands were burnt by the heat coming from the fire, and lacerated by being forced under brickwork near the fire.

1. The applicant managed to slip out of the respondent’s hold and roll away.  As he was getting to his feet, he felt a sharp smack across the side of the mouth with a metal object, which caused his teeth to break through the lower lip of his mouth and subsequently caused the loss of two lower teeth.  By this stage, the applicant described there being “blood everywhere,” and “feeling woozy, overcome with pain and very faint”[4].

   [4]  Sentencing submissions T p 10

1. At this point, the applicant’s friend managed to take the respondent outside.  The respondent continued muttering threats at the applicant, before leaving[5].

   [5]  Sentencing submissions T pp 10-11

INJURIES

1. The applicant was examined by Dr Siobhan Queenan at the Gold Coast Hospital Emergency Department at 5pm on 25 July 2004[6].  Dr Queenan summarises the applicant’s injuries as follows:

   [6]  Exhibit C, affidavit of Angus James Walker sworn 17 January 2006

1.      Multiple superficial grazes - left ear, left cheek, right arm (elbow and hand), left arm (elbow and back of hand), back (near spine and shoulder blade), legs (left and right);

2.      Multiple bruises;

3.      Two broken teeth:

(a) lower right jaw second incisor, fractured at gum level;

(b) lower right jaw canine fractured and loose;

4.      Two small lacerations to face (below right lip, half a centimetre long, deep through to inside);

5.      Laceration to scalp (2 cms long, including 1 cm through to the true skin, requiring suturing).

The applicant was discharged with advice to follow up with his local general practitioner for a review of his wounds and to have the sutures removed, and to attend on a dentist for the repair of his teeth.

SERVICE

1. This application was unable to be served on the respondent personally.  Consequently, an order for substituted service was made by me on 20 March 2006.  The requirements of that order for substituted service were complied with[7] and there was no appearance by the respondent at the subsequent hearing of the application on 18 April 2006.

[7]  Affidavit of Angus Walker sworn 27 March 2006

THE LAW

1. The application proceeds under s 24 of the Criminal Offence Victims Act 1995 (COVA).  The provisions of that legislation commenced on 18 December 1995 and provide for compensation in respect of convictions on indictment of a personal offence for injury suffered by an applicant because of that offence.     R v Ward ex parte Dooley [2001] 2 Qd R 436 indicates that the assessment of compensation should proceed pursuant to COVA s 22(4) by scaling within the ranges set out in the compensation table (Schedule 1) for the relevant injuries. In particular, the fixing of compensation should proceed by assessing the seriousness of a particular injury in comparison with the “most serious” case in respect of each individual item. Riddle v Coffey (2002) 133 A Crim R 220; [2002] QCA 337 is authority for the proposition that COVA s 26, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury, without duplication.

COMPENSATION

1. Mr Bagley, counsel for the applicant, seeks compensation under three items as follows:

(1)        Item 2 – Bruising/laceration etc. (severe) (3-5%).

Mr Bagley submits that the applicant suffered extensive bruising and laceration to various parts of his body and further, that although some of the injuries could be categorised under various different item numbers in the Schedule, that it would be more appropriate to seek compensation under the “bruising/laceration” item at the “severe” level.  There is no doubt that the applicant has suffered extensive bruising and lacerations to various parts of his body including below the right lip, the left ear, left cheek, scalp, right and left arms (including hands), anterior and posterior aspects of his chest, lumbar spine and both legs.  In these circumstances, the submission by Mr Bagley that the applicant should be awarded 5% of the scheme maximum ($3,750) for the totality of these injuries seems to me to be entirely appropriate.  Accordingly, I award an amount of 5% ($3,750) under item 2.

(2)        Item 5 – Loss or damage of teeth (1-12%).

The damage to the second incisor and lower right jaw canine of the applicant were noted by Dr Queenan at the Gold Coast Hospital Emergency Department when he was examined immediately after the alleged assault[8].  The applicant was subsequently seen by Richard Lee, dental surgeon, on 12 December 2005[9].  Mr Lee’s report relevantly notes that the “lower right lateral and lower right canine were fractured at the gum line [and] the pulpal tissues were exposed in both teeth with the canine being slightly loose.”       Mr Lee’s opinion in respect of the teeth was that “the prognosis [was] … poor” and Mr Lee recommended that both teeth be extracted and “a five unit VMK bridge [be] constructed to restore appearance and function” at a cost of $5,180[10].  Mr Lee expresses the opinion that the two broken teeth were “caused by a direct hit to the mouth from an object”[11].

[8]  Exhibit C, affidavit of Angus Walker sworn 17 January 2006

[9]    Exhibit D, affidavit of Angus Walker sworn 17 January 2006

[10]  Exhibit D, affidavit of Angus Walker sworn 17 January 2006

[11]  Exhibit D, affidavit of Angus Walker sworn 17 January 2006

1. Mr Bagley submits that upon consideration of relevant factors including the loss of two teeth, the location of those teeth, the cost of repairs to the teeth, the physical pain endured as a result of the loss of the teeth, the loss of function of those teeth, and the cosmetic effects and general appearance of the loss of the teeth, an award of 8% ($6,000) is justified in respect of item 5 (which has a range of 1% to 12%).  Given the serious nature of the injuries to the applicant’s teeth and the substantial cost of repairs (which, given the nature of the COVA assessment process, is not directly transferable to an assessment), it seems to me appropriate to award the figure of 8% as submitted by Mr Bagley.  Accordingly, I award an amount of 8% ($6,000) under item 5.

1. (3)        Item 33 – Mental or nervous shock (severe) (20-34%).

The applicant was examined by Paul Elliott, psychologist, who provided a report dated 10 November 2005[12].  Mr Elliott diagnoses the applicant as suffering from post-traumatic stress disorder – chronic and severe (DSM-IV); which has left the applicant with a severe psychological disorder, virtually eliminating any quality from his life.  Mr Elliott assesses the applicant’s global assessment of functioning (GAF) at 50 (i.e. 50 per cent of his pre-morbid level) and considers that the probability of some permanent psychological impairment is 60 per cent.  The applicant has been unable to cope with work, has lost his relationship with his intimate partner, has been unable to go out socially since the assault, and has suffered a complete loss of confidence in himself and his future.

[12]  Exhibit A, affidavit of Paul Elliott sworn 28 November 2005

1. Mr Bagley submits that the appropriate award under this item would be 32% ($24,000), being an award just slightly under the maximum applicable for mental or nervous shock (34%).  Although I accept that the report of              Mr Elliott demonstrates a severe case of post-traumatic stress disorder, I am still obliged to consider whether it approaches the “most serious” case of “mental or nervous shock”[13].  I am not persuaded that it is at the most serious end of the relevant scale (item 33 (20-34% per cent)) but clearly, it is a serious injury and should be compensated accordingly.  I award an amount of 30% ($22,500) under item 33.

[13]  R v Ward ex parte Dooley [2001] 2 Qd R 436

CONTRIBUTION

1. Although it appears that the events which occurred on 25 July 2004 represent a further confrontation between the applicant and respondent (following a fight two months previously in which the respondent broke a number of the applicant’s ribs), it is clear in my view that there was nothing said or done by the applicant on 25 July 2004 which contributed to the applicant’s own injuries[14].

   [14]  COVA s 25(7)

CONCLUSION

1. I order that the respondent, Aaron Baker, pay the applicant, Anthony Trickey, criminal compensation in the sum of $32,250.00.

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