Unsworth v Roy

[2006] QDC 199

[2006] QDC 199

DISTRICT COURT
CIVIL JURISDICTION

JUDGE ROBIN QC

No 204 of 2006

BRADLEY MAX UNSWORTH	Applicant
and
PAUL DAVID ROY	Respondent

Catchwords Victim Act 1995 s25(7) - reduction of compensation where wounded applicant had slapped offender in the face over an argument about rent owed to a third party, whereupon offender picked up a knife

TOWNSVILLE

..DATE 05/07/2006

JUDGMENT

05072006 T15/DD M/T TSVDC2/2006 (Robin DCJ)

HIS HONOUR: This is an unusual application for compensation	1
under the Criminal Offence Victims Act 1995. I feel under some difficulties which may not have embarrassed the sentencing Judge to the same extent. The respondent, who was served in a custodial institution and has not appeared today

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when called, was sentenced here in Townsville on the 6th of was committed on the 2nd of September 2003. He may have been fortunate to face only one count because he inflicted multiple wounds to the lower part of the body of the applicant, Mr

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Unsworth.

That which appears to have caused him greatest concern from a functional point of view was high on the inside thigh in the groin area. Although there is not much medical support,

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wasting being denied for example, I accept that Mr Unsworth
has a genuine complaint of weakness in that leg which has
interfered with his ability to work in his occupation of more
recent times of cook or that which he pursued in younger days

of brick layer. It would not interfere with his ability to do

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security work, which also features in his curriculum vitae.

He is a man who has been interested in keeping fit, which doubtless he has done since times when he was associated with the military. He has continued by pursuing an interest in

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boxing, along with other sports, for fitness reasons.

There was another stabbing injury to his abdomen, which seems
to have been relatively minor, not compromising any vital
05072006 T15/DD M/T TSVDC2/2006 (Robin DCJ) 2 JUDGMENT 60

organs. Unusually, there was stabbing in the genital area to	1
both the top of the applicant's penis and to his scrotum. He suffered minor lacerations to an arm, probably sustained in some kind of brushing by the knife in the course of what must have been a frenzied attack by the respondent.

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It is unsurprising there have been psychological consequences, the applicant's affidavit referring to panic attacks he said he has had, nightmares, fear of certain places where he thinks he might be hurt and the like. That aspect has not been

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overstated. Professor James opines that the relevant incident
represented an intensification or aggravation of an existing
generalised anxiety disorder, for practical purposes, reaching
the diagnostic criteria for post-traumatic stress disorder.

Professor James' view was that the PTSD was relatively mild

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and decreasing so that within a few months from now Mr functioning and that, of course, takes account of various problems appearing in Professor James' report which I do not think I need to notice.

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Mr Unsworth has scarring as a reminder of his injuries, but it is not located so as to be visible to others, with the exception of sexual partners, of course. In this respect I would note that after initial disruption for six months or so

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he was able to return to what he thinks was a somewhat reduced
level of activity which he attributes to reduced interest,
perhaps, rather than reduced physical capacity.
05072006 T15/DD M/T TSVDC2/2006 (Robin DCJ) 3 JUDGMENT 60

In applications of this kind I think the Court ought to be	1
astute, in deference to the theoretical interests of the respondent and to the actual interests of the taxpayer, to avoid double compensation, for example, by making full allowances for scarring and stab wounds. One of the unusual

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features here is that while ordinarily I would not contemplate
making separate awards for multiple stab wounds to a discrete
part of the body, for example, the abdomen, as things happened
here, I think there are separate injuries with separate

consequences, notwithstanding the relatively confined area of

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Mr Unsworth's body that was involved.

I think it is reasonable to regard both the thigh injury and the injury to genitalia as serious. In allotting amounts under the items in the COVA schedule, I think it is incumbent

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on the Court, while doing so separately, to keep in mind the
aggregate effect.

So far as section 25(7) of the Act is concerned, it is noteworthy that the attack by the respondent would not have

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occurred but for Mr Unsworth's having slapped the respondent
in the face in the course of some discussion about unpaid

rent, not due to Mr Unsworth but due to some associate of his.

The place where the incident happened was a hostel in

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Townsville where Mr Unsworth was apparently working as a cook. is physically small - or if a case of Little John is a guide, be because he is physically big. I know much less about him 05072006 T15/DD M/T TSVDC2/2006 (Robin DCJ) 4 JUDGMENT 60

than the sentencing Judge would have known and have to proceed	1
on a rather speculative basis, I suppose. I find it difficult to overlook the preliminary to the stabbing, which is just part of a very unusual picture in which it seems that Mr Unsworth initially gave a very different account of how he

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came to be injured, attributing what happened to a group of
unidentified people. Of course, the respondent's guilty plea

confirms that the story implicating him was the correct one.

I congratulate Mr Betts for locating a decision of Judge

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Bradley's, Mazlin v. Brett Grant [2000] QDC 444. That case bears some similarities to the present. There seems to have been a consensual fight in a hotel in which the applicant came off second best. The respondent emerged from the hotel toilet where he had been and, as her Honour says, "Approached the

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applicant and his uncle and was punched by them." Grant's
response was to draw a knife stabbing the uncle in the chest
and lacerating the applicant's arm. It appears he also

stabbed him in the abdomen.

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Her Honour's view was:

"Whilst it would appear that the applicant should take
some responsibility for what occurred prior to the
stabbing and in fact, the sentencing Judge did in his sentencing remarks, accept that the applicant and his uncle were behaving in an "obnoxious way", and the

respondent should not be punished for the fist fight that	50
followed, his Honour did find that what happened subsequently when the respondent used a knife was inexcusable and unprovoked. Accordingly I am satisfied that no behaviour on the part of the application directly or indirectly contributed to his injury."

5 JUDGMENT 60

05072006 T16/MM M/T TSVDC2/2006 (Robin DCJ)

Mr Betts' submission is that the same conclusion should be	1
drawn by this Court today that the respondent with no justification whatever took matters to a new and more serious level which could not reasonably have been anticipated. He submits that no reduction ought to be made under section

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25(7). Section 25(7) and its equivalents should not, in my
opinion, be treated as a dead letter; there must be somewhere
for them to operate. I do not suggest that they operate
whenever "but for" what an applicant has done he or she would

not have been injured. But I cannot bring myself to consider

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that the introduction of physical violence by Mr Unsworth
should be without consequences in the present matter. So, I
propose to make a modest reduction in the award as a mark of

that.

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The way in which the schedule of items will be applied is as follows:

For the genital injuries
- as I will call them -
under item 26 - 15 per cent $11,250

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For the serious cut to the

thigh or upper leg - 20 per cent $15,000

...

For the abdomen injury under item 25 - 8 per cent	$ 6,000	50
For the lacerations to the arm	$ 750
For the psychiatric aspect under item 31 - 6 per cent	$ 4,500
$37,500

6 JUDGMENT 60

05072006 T16/MM M/T TSVDC2/2006 (Robin DCJ) I think the reduction that is appropriate is 10 per cent.	1
The respondent will be ordered to pay the applicant compensation under the Act of $33,750.

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7 JUDGMENT 60