Wall v Blair

[2004] QDC 73

[2004] QDC 073

DISTRICT COURT
CIVIL JURISDICTION

JUDGE HOATH

No 576 of 2003

PATRICIA MARY WALL	Applicant
and
MARGARET NGARULA BLAIR	Respondent
BRISBANE ..DATE 16/03/2004
JUDGMENT

16032004 T01/HMC9 M/T CMS27/2004 (Hoath DCJ)

HIS HONOUR: This is an application by Patricia Mary Wall	1
pursuant to the Criminal Offence Victims Act for criminal compensation for injury suffered by her because of the offence of assault occasioning bodily harm in company committed upon her by Margaret Ngarula Blair on the 18th of November 1999.

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On that day the applicant was with her daughter at the Banyo Railway Station when she was assaulted by several persons including the respondent Margaret Blair. As a result of that assault the applicant suffered a fractured nose, loss of

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hearing in the left ear, loosened front teeth, a laceration to
her chin and lower lip and some bruising.

On the 20th of October 2000 the respondent pleaded guilty to assault occasioning bodily harm in company. At the same time

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Carla Lee Conlon pleaded not guilty to the same offence and a trial was held in relation to the charge against her. On the trial of Carla Conlon the applicant gave evidence that she was
punched by a young unidentified male, punched by a female

Bobby Jo and kicked and punched by Carla Conlon.

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The applicant made no reference in her evidence to the respondent being involved in any actual physical assault on her. She had however in her statement to the police said that the respondent was throwing punches.

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In cross-examination the applicant was adamant that it was a punch from Carla Conlon that broke her nose, that Carla Conlon was standing directly in front of her at the time and that it 16032004 T01/HMC9 M/T CMS27/2004 (Hoath DCJ) 2 JUDGMENT 60

was not the respondent that broke her nose. Despite that	1
evidence Carla Conlon was acquitted of assault occasioning bodily harm on the applicant.
At the conclusion of Carla Conlon's trial the respondent was

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sentenced as a result of her earlier plea of guilty. She was sentenced on the basis that she was a party to the offence of assault occasioning bodily harm in company but that her
physical involvement was limited to one punch and that was not

the punch that broke the applicant's nose.

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As Carla Conlon was found not to be criminally responsible for the applicant's broken nose and as there is no evidence that the other two assailants caused that injury and as the applicant has denied that it was the respondent who caused it,

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it cannot form the basis of a claim for criminal compensation
against the respondent.

The other injuries suffered by the applicant are however consistent with the assaults committed upon her by the

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unidentified male, the female Bobby Jo and the admitted punch
by the respondent.

As the assaults were a joint enterprise and the respondent pleaded guilty to assault occasioning bodily harm in company,

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the respondent is responsible for the resultant injuries apart
from the broken nose.
16032004 T01/HMC9 M/T CMS27/2004 (Hoath DCJ) 3 JUDGMENT 60

The respondent is the only person that has been convicted in	1
relation to the joint assault therefore section 26 subsection 8 of the Criminal Offence Victims Act providing that there must be separate assessment of liability scaled according to the convicted person's contribution to the injury does not

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apply in this situation.

Following the assaults the applicant was taken to the Banyo observed by Dr John Carter. Dr Carter referred the applicant

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to the Royal Brisbane Hospital where she subsequently received

treatment for her fractured nose.

In June 2001 the applicant was seen at the Princess Alexandra

Hospital for evaluation and treatment for loss of hearing in

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her left ear. Exploratory examination revealed that her total
hearing loss in that ear was due to complete permanent nerve
deafness. As the applicant's loss of hearing was first
noticed after the assault Dr Chris Perry, a consultant ear

nose and throat surgeon was of the opinion that it was

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reasonable to assume that her total loss of hearing was

secondary to the assaults on her.

On the 29th of November 1999 the applicant was seen by Malcolm

Gunn at the Sandgate Dental Clinic. On examination Mr Gunn

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observed that several of the applicant's teeth were mobile.
There is however no evidence before me of any continuing
dental problems that have arisen as a result of the
applicant's teeth being loosened.
16032004 T01/HMC9 M/T CMS27/2004 (Hoath DCJ) 4 JUDGMENT 60

Apart from the physical injuries the applicant suffered she	1
has also suffered psychologically as a consequence of the assaults on her. The applicant states that she is now anxious around groups of young people, that she has lost a significant amount of self-confidence and now describes herself as a

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depressed and negative person. She has trouble sleeping and experiences nightmares and flashbacks of the incident. As a result of concerns for her safety and that of her daughter she

moved from Banyo to the Sunshine Coast.

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The applicant's entitlement for compensation falls to be assessed on the basis of a total loss of hearing in the left ear, mental and nervous shock, bruising and lacerations and damage to her teeth. All those injuries are injuries referred to in the compensation table in schedule 1 of the Criminal

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Offence Victims Act.

In my view a reasonable assessment of the applicant's entitlement is:

As to the loss of hearing, 20 per cent.

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As to the mental and nervous shock, 20 per cent.
As to the bruising and lacerations, 2 per cent.
As to the damage to her teeth, 3 per cent.

That gives a total of 45 per cent of the scheme maximum, namely $33,750.

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Accordingly I order that the respondent pay the applicant the sum of $33,750 by way of compensation for the injuries sustained by her as a result of the offence of assault 16032004 T01/HMC9 M/T CMS27/2004 (Hoath DCJ) 5 JUDGMENT 60

occasioning bodily harm in company of which the respondent was	1
convicted on the 26th of October 2000.

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6 JUDGMENT 60