Wells v. Dunning

[2008] QDC 113

DISTRICT COURT OF QUEENSLAND

CITATION:

Wells v Dunning [2008] QDC 113

PARTIES:

BENJAMIN PAUL WELLS

(Applicant)

AND

GEOFFREY CLAI DUNNING

(Respondent)

FILE NO/S:

BD613/07

DIVISION:

Civil

PROCEEDING:

Application for criminal application

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

23 May 2008

DELIVERED AT:

District Court, Southport

HEARING DATE:

9 May 2008

JUDGE:

Kingham DCJ

ORDER:

Geoffrey Dunning to pay Benjamin Wells $5,430.

CATCHWORDS:

CRIMINAL COMPENSATION - Assault occasioning bodily harm - Nervous or mental shock - Causation – Contribution

Criminal Offence Victims Act 1995, s 21, s 24

SAM v SAM [2001] QAC 12, applied

COUNSEL:

Mr A. F. Maher for the applicant

The respondent was self represented

SOLICITORS:

Trilby Misso & Co appeared on behalf of the applicant

1. This is an application pursuant to s 24 of the Criminal Offence Victims Act for an order for Mr Dunning to pay compensation to Mr Wells.  The application relates to a personal offence. (s 21)  The respondent pleaded guilty before me on 4 September 2006 in Brisbane to one count of assault occasioning bodily harm.  I sentenced him to a $500 fine and did not record a conviction.  The offence occurred during an AFL game.  The respondent and applicant were players on opposing teams, apparently in positions where they marked each other.  Prior to the offence occurring, there was sledging, pushing, and shoving, which both engaged in.  This is a matter I will return to later in these reasons.

1. Mr Dunning’s plea of guilty was entered on the agreed basis that there was no independent evidence that Mr Dunning used a closed fist on Mr Wells.  Mr Dunning admitted, and the Crown accepted Mr Dunning’s plea, on the basis that he used his right palm to hit Mr Wells in the face, causing his nose to break, as well as cuts and abrasions to his nose and left eye. When I sentenced Mr Dunning I noted some considerable force would have been required to cause the injuries with a palm.

1. Mr Wells was taken to the Caloundra Health Service suffering from swelling and distortion of the bridge of the nose with a displaced nasal septum.  He had a laceration to his left upper eyelid.  He was in pain for several days after the event.  He consulted Dr Moore, an ENT surgeon, three times in the month following the assault.  Dr Moore reported that Mr Wells suffered considerable pain at the time of the injury and there was ongoing discomfort and interference to his ability to work in his normal occupation.  Mr Wells underwent manipulation of the nasal bones under local anaesthesia in Dr Moore’s rooms, which provided some improvement in the appearance of the external nose.  Surgical correction was offered to Mr Wells but he did not undergo surgery.

1. In February 2007 he was examined by another ENT surgeon, Dr Black who noted nasal obstruction with deviation of the septum and the internal component of the nose.  He noted that Mr Wells had chosen not to proceed with surgical correction because of his concerns about risk factors from such surgery.  Dr Black determined the impairment represented a 1% impairment of the whole person.

1. Around the same time he consulted Dr Harris, a plastic and reconstructive surgeon, who noted an obvious indentation in the nasal skeleton and soft tissues on the left side and some fullness on the right side.  He estimated a whole person impairment of 7% based on the facial abnormality involving the supporting structures of the nose and some obstruction of the right nasal airway.

1. In January 2006, Dr Barbara McGuire, psychiatrist, examined Mr Wells.  She concluded that “in psychological terms he does not suffer from any illness.  In particular, he does not have any of the symptoms of post traumatic stress disorder.” (Report dated 27 January 2006.)  She recommended no treatment for him. 

1. She noted that he was subjectively distressed by his own preoccupation with anger and that he felt this aspect of his personality had become worse.  He was also disappointed that, because of the breathing difficulties he had since the incident, he could not keep up with physical training towards joining the army.  He said he held a grudge and wanted revenge, thought about his nose daily, and was bothered by his appearance.  He has given up football and was no longer maintaining a high level of physical activity and had gained weight.  He had thought of suicide but had taken no action and did not see himself as being at risk.  He said there was no family history of depression and he had not seen a psychiatrist in the past. When he saw Dr McGuire on this occasion he reported an excellent relationship with his present girlfriend, who he had started going out with after the offence.

1. In January 2007 Mr Wells made a serious attempt to take his own life.  He was subject to an involuntary treatment order at Prince Charles Hospital and on discharge he went to Dubbo and consulted a psychiatrist there.  That psychiatrist (Dr Wilton) diagnosed a clear history of bipolar affective disorder.  Based on the information Mr Wells gave to him and to others who treated him after his suicide attempt, Mr Wells had suffered from marked mood swings from a period which preceded the date of this offence. It appears that formed the basis of Dr Wilton’s diagnosis.

1. Dr McGuire did not see Mr Wells again but spoke with him by telephone in July 2007.  He told her that he considered the injury to his nose was 60% responsible for his suicide attempt.  Dr McGuire stated in her report of 31 July 2007;

“It appears that he is suffering from a grief reaction as a result of the injury and has a reactive depression in a setting of a pre‑existing bipolar affective disorder.”

1. She also stated:

“In regard to the offence which occurred on 17.07.04 it is possible that a reactive depression which resulted from the incident and his injury tipped the balance in his pre‑existing affective disorder and acted as a precipitant for depression.  Consequently I believe that it played a contributory role in his serious suicide attempt.” (my emphasis added)

1. Dr McGuire relied on Mr Well’s assessment of causation in forming what can only be regarded as a very qualified opinion that the plaintiff’s suicide attempt may have been causally connected to the assault. 

1. Mr Maher urged me to make a compensation award which includes a significant component (10% of the scheme maximum, that is $7,500) for mental or nervous shock.  An applicant is entitled to be compensated to the extent that the offender’s conduct has materially contributed to their injury, even if the offender’s conduct was not the sole or even the effective cause of the injury. (SAM v SAM at p 4)

1. I accept the depression noted by Dr McGuire is properly compensable under the Act.  My concern is with Mr Well’s assessment of the degree to which this offence contributed to a state of depression leading to a serious suicide attempt.  I was provided with notes taken by medical practitioners who attended Mr Wells during his hospitalisation in Queensland after his suicide attempt.  I was also provided with the report by Dr Wilton in Dubbo.  There are some dozens of pages of material recording Mr Wells’ statements to these various practitioners and their assessment of his medical condition.  It appears that it is only Dr McGuire to whom he has ever suggested the offence the subject of these proceedings was a contributing cause.

1. The notes I have referred to record his discussion of longstanding conflicts with his mother, including allegations of abuse and a prejudicial childhood.  He reported that at some time in 2006 his relationship, the one he had discussed with Dr McGuire during his visit with her in January 2006, had broken down but they were living together and trying to work things through.  It is clear that there were multiple acute and chronic stressors immediately before Mr Wells’ suicide attempt and that in the months after it he did not attribute any contribution to this offence.  Nevertheless, I accept that, as a matter of commonsense, there has been some contribution by this offence to the depression that Mr Wells was certainly suffering both when he consulted Dr McGuire in January 2006 and when he made his attempt on his life in January 2007.  I do not, however, accept that it was a primary contributor and certainly not to the extent nominated by Mr Wells.

1. I assess Mr Wells’ injuries are compensable, with reference to Schedule 1 of the Act in the following amounts:

(a)	Item 1 – bruising/laceration (minor to moderate):  2%	$1,500
(b)	Item 4 – fractured nose (displacement/surgery):  8%	$6,050
(c)	Item 31 – mental or nervous shock (minor):  2%	$1,500
TOTAL		$9,050

1. I must now return to whether there should be any reduction in the amount payable by Mr Dunning to reflect any direct or indirect contribution by Mr Wells to his injuries.  Mr Maher has urged me to make no reduction.  He argued that Mr Dunning “king hit” Mr Wells unawares and that it was not provoked in a legal sense by Mr Wells.

1. As I have already observed the agreed basis for the plea was that Mr Dunning hit Mr Wells with a palm in the context of some “argy-bargy” on the field, not that he king hit him unawares.

1. It goes without saying that the defence of provocation was not relied upon by Mr Dunning. He entered a plea to the offence of assault occasioning bodily harm and accepted that he had overreacted to what occurred on the football field that day.  However, I sentenced Mr Dunning on the basis of uncontested submissions by Mr Dunning’s counsel to the effect that Mr Wells engaged in an unusual level of sledging, pushing, and shoving which had been sustained over the quarter in which this offence occurred.  The Prosecutor’s submissions to me indicated that this was accepted by the Crown.

1. Mr Dunning had been playing AFL since he was 8 years of age.  At the time of sentence he had played 289 senior games and 180 games as a junior.  He instructed his counsel this was the first time he had ever encountered such sustained behaviour of that nature.  At the time of the offence he was playing n a reserve game rather than A‑grade where he normally played because he was recovering from injury.  Mr Dunning was 32 years of age with no criminal history. There was no indication that he was prone to violence.  His plea to the offence acknowledged that his response was out of proportion to the behaviour he encountered.  At the sentence hearing, I formed the view that Mr Wells contributed to the circumstances in which the offence occurred. The penalty I imposed for the offence took account of that background. I imposed a fine and recorded no conviction.

1. Likewise, I consider Mr Wells contributed to his injuries by sustained insulting and confrontational behaviour towards Mr Dunning immediately prior to the offence.  To reflect this I have reduced the award to him by 40%; that is to, $5,430.