Vecchio v Maui

[2006] QDC 493

DISTRICT COURT OF QUEENSLAND

CITATION:

Vecchio v Maui and Anor [2006] QDC 493

PARTIES:

WALTER BRIAN VECCHIO

Applicant

V

DAVID ROBERT MARK MAUI

First Respondent

AND

WAYNE REGINALD FUTCHER

Second Respondent

FILE NO/S:

BD2366/06

DIVISION:

Civil

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

1 December 2006

DELIVERED AT:

District Court, Brisbane

HEARING DATE:

11 September 2006

JUDGE:

Nase DCJ

ORDER:

That Wayne Reginald Futcher pay to Walter Brian Vecchio the sum of $39,750 by way of compensation pursuant to the Criminal Offence Victims Act 1995.

CATCHWORDS:

COUNSEL:

Mr J. Allen  for the applicant

SOLICITORS:

Gilshenan and Luton  for the applicant

1. This is an application for a compensation order by Walter Brian Vecchio (the applicant) pursuant to the Criminal Offence Victims Act 1995. The respondents to the application are David Robert Mark Maui and Wayne Reginald Futcher.

1. The respondents chose not to appear or to be represented at the hearing of the application.  As a consequence, the hearing proceeded in their absence and solely on materials placed before the court by the applicant.

1. Both respondents were convicted on indictment in the District Court at Beenleigh on 4 September 2003.  Maui was convicted of a charge of assault occasioning bodily harm in company.  Futcher was convicted of grievous bodily harm.

1. A transcript of the sentence proceedings was not placed before the court.  As a result, I do not know the factual basis of the plea entered by Maui. On the other hand, from the remarks[1] made by me on sentence I am aware that Futcher was sentenced on the basis that he either caused the grievous bodily harm himself, or he is liable under the party provisions of the Code for the grievous bodily harm caused to the applicant.

   [1]The sentencing remarks by me, but not the submission of counsel on sentence, were included in the material placed before the court.  The sentencing remarks do not reveal the factual basis of the plea entered by Maui.

1. The facts can be briefly stated.  The assault on the applicant occurred on 14 December 2000.  The applicant, after returning to his residence that evening with some friends, walked across the road to speak to a number of persons who were calling out to him or his friends.  The respondents were among the group.  At one point when speaking with them he turned away.  At that moment, he was struck on the right side of his jaw from behind.  He felt his jaw break.  The assault on him continued for some time until his father and a friend came to his assistance.

1. I am satisfied the applicant suffered an injury or injuries within the meaning of s 20 of the Act and the offences are personal offences 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 help an applicant and is not intended to reflect the compensation to which the applicant may be entitled at common law (s 22(3)).

1. The applicant was taken by ambulance to Logan Hospital, but then transferred to the Royal Brisbane Hospital for surgery (15 December 2000).

1. The material placed before the court consists of raw medical records of the applicant’s treatment (approximately 80 pages), a one page report by a Dr Tite (the oral and maxillofacial registrar, Royal Brisbane Hospital) dated 14 February 2001, an affidavit by the applicant setting out his injuries dated 3 August 2006, and a report from a psychologist (Diannah Cameron) dated 29 July 2005, which confirms his physical presentation to her on that date.  The relevant paragraphs of his affidavit are as follows:

“12.     Immediately after the assault, I was taken by ambulance to the Logan Hospital where my injuries were cleaned and treated.  I had suffered from a fractured jaw, fractured left zygoma, lacerations around the left eye and minor head injury.

13.      I was subsequently transferred to the Royal Brisbane Hospital on 15 December 2000 for surgery to my jaw.  At this time I was diagnosed as suffering a fracture to the right mandible and fracture to the left condylar of mandible.

14.      As a result of the assault, I sustained the following injuries:

(a)       compound open fracture to the right mandible;

(b)      fracture to left condylar of mandible;

(c)       undisplaced fracture of left zygoma;

(d)      ruptured left ear drum;

(e)       laceration of skin to left superior face as well as the lower chin;

(f)       chipped front teeth.

15.      I have required surgery to one fracture to my jaw, however, I have been advised that the other fracture cannot be operated.  I have been informed by the specialist that the second fracture crosses a nerve centre and an operation would be too dangerous.

16.      My jaw was wired for several months while the fractures healed.  During this time, I was in considerable pain and discomfort, and I was unable to eat solid foods.

17.      As a result of the fractures to my jaw, I now suffer from restriction when opening my mouth.  In addition, I experienced altered sensation to my mouth, lip and chin regions.  I continue to suffer with altered sensation around my jaw, which is highlighted by activities such as shaving.  This in turn has caused difficulty with speech, causing me to mumble and slur.  I am aware that this impedes on my ability to communicate effectively with people.  I am very conscious of the fact that people often ask me to repeat what I have said. Further, the injuries to my jaw have caused me great difficulty when eating.

18.      The change to my physical appearance (ie my protruding jaw) and the difficulty with my speech causes me considerable anxiety.  I am constantly self‑conscious of my misaligned jaw, and this causes me to feel awkward in social settings.  My discomfort with people is worsened by difficulties with my speech.  These serve as a constant reminder of the assault and causes me significant distress.”

1. The main injuries are the fractures to his face.  Unfortunately, the precise nature of the fracture injuries is not explained in any medical report.  I am not qualified to interpret the extensive medical notes, and I am uncertain of the reliability of the applicant’s statements in his affidavit.  I accept the fractures have left him with an inability to fully open his mouth, with changes in his physical appearance (a protruding jaw), and with speech difficulties.[2]  By inference, it is suggested these effects are permanent.

   [2]These effects are confirmed by the psychological report by Cameron (29 July 2005).

1. Thomas JA in Ferguson v Kazakoff[3] noted that s 26 of the Act is designed to ensure that “harm that substantially should be treated as a single state of injury is treated as a single injury even though it may consist of more than one injury” (s 26(1)).  In applying this approach to the applicant’s injuries, the various facial fractures and their consequences should be treated as a single injury.  The appropriate item is item 8 facial fracture (severe).  The range provided for item 8 is 20‑30 per cent of the scheme maximum.  The nature and number of facial fractures, the difficulty in their treatment, and the long period of rehabilitation, in combination with the effects on his appearance and speech, as well as the nerve damage and other physical consequences, point to an allowance at the top of the range.  In all the circumstances, 30 per cent will be allowed.  On the evidence I am uncertain whether the bruising/lacerations claimed and the damage to his teeth claimed should be taken into account in assessing the seriousness of the facial fractures, or whether they should be treated as stand-alone injuries when assessing compensation.  He says that his teeth are chipped. His complaint is suggestive of a separate injury.  On balance, they will be treated as separate injuries, however, in treating them as separate injuries I will adopt a cautious approach to their assessment.  In the circumstances, an award of 3 per cent of the scheme maximum will be allowed for these claims.

   [3](2000) QSC 156 para 25.

1. A claim is also made for mental or nervous shock.  Mental or nervous shock is a compensable injury under the Act.  The psychologist (Cameron) concluded he developed a post‑traumatic stress disorder immediately after the assault, although she feels a diagnosis of adjustment disorder (with mixed features of anxiety and depressed mood) best fits his present state.  Her overall opinion is indicated in the following passage:

“Specifically, he suffered a post‑traumatic stress disorder PTSD (mild to moderate) and of which symptoms have reduced in severity with time, and where his current condition best meets a diagnosis of an Adjustment Disorder (with mixed Features of Anxiety and Depressed Mood), in keeping with DSM-IV criteria.  He suffers from ongoing psychological trauma effects as well as poor adjustment to the physical injuries left him.

His psychological condition caused by injury was of significant severity to render him significantly deterred in his capacity for work and the ease of going about his normal living.  He suffers anxiety and fear and apprehension when around people, and where he anticipates repeat assault.  His social activities have become restricted; he fears going out and being around others.  He complains of restricted mouth opening, protruding jaw line, and he has mumbled speech, which further impedes his social interaction.  He had anxiety with living in his home and was caused to move from his residence, fearing the assailants or peoples known to them may come and assault him.  He has ongoing feelings of anxiety, despite having moved out of his former residence.”

1. Cameron believes he is likely to be permanently affected by the offence , and that he will experience real difficulty adjusting to the changes to his appearance and function.  Although he had a good work history, he has now lost all desire to work, and his social life is limited.  She believes that extended counselling would be of benefit to him.

1. Mental or nervous shock is dealt with in items 31 (minor), 32 (moderate) and 33 (severe) of the compensation table.  It is suggested that an award at the top of the moderate range or bottom of the severe range is appropriate.  I agree. In the circumstances, 20 per cent of the scheme maximum will be allowed for mental or nervous shock.

1. The total claim therefore is 53 per cent of the scheme maximum.  This calculates out as $39,750.

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

1. I said initially that the material does not disclose the factual basis on which the sentence against Maui proceeded.  In other words I do not know the act of assault on which the charge was based or the bodily harm it is said to have caused.  In the absence of this knowledge, it is not possible to make an order for compensation against Maui.  An order can, however, be made against the respondent Futcher.

Order

1. That Wayne Reginald Futcher pay to Walter Brian Vecchio the sum of $39,750 by way of compensation pursuant to the Criminal Offence Victims Act 1995.