Baker v Murphy [2012] QDC 149

DISTRICT COURT OF QUEENSLAND CITATION: Baker v Murphy [2012] QDC 149 PARTIES: GEORGE WALLACE BAKER (applicant) v PATRICK MICHAEL MURPHY (respondent) FILE NO: 14/2010 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: Beenleigh DELIVERED ON: 22 June 2012 DELIVERED AT: Beenleigh HEARING DATE: 21 June 2012 JUDGE: Dearden DCJ ORDER: The respondent Patrick Michael Murphy pay the applicant George Wallace Baker the sum of $61,500 CATCHWORDS: Application – criminal compensation – grievous bodily harm – bruising/laceration – fractured nose (displacement/surgery) – loss or damage of teeth – facial fracture (moderate) – fractured skull (brain damage – severe) – mental or nervous shock (severe) – where applicant did not contribute to injuries LEGISLATION: Criminal Offence Victims Act 1995 (Qld) s. 40(1) Victims of Crime Assistance Act 2009 (Qld) ss. 154 and 155 CASES: Paterson v Chand & Chand [2008] QDC 214 COUNSEL: C D Hughes (solicitor) for the applicant Respondent in person SOLICITORS: Howden Saggers for the applicant Respondent in person Introduction [1] The respondent, Patrick Michael Murphy, pleaded guilty in the Beenleigh District Court on 25 June 2008 to one count of assault occasioning bodily harm (in respect of complainant Corey Douglas Ashwell), and one count of grievous bodily harm (in -- 1 of 5 -- 2 respect of the applicant George Wallace Baker). The respondent was sentenced by Acting Judge Collins at the Beenleigh District Court on 5 December 2008 and received a sentence of three years’ imprisonment in respect of the assault occasioning bodily harm, and six years’ imprisonment for the grievous bodily harm count (relevant to the applicant in these proceedings). Acting Judge Collins set a parole eligibility date after serving two years’ imprisonment. Facts [2] The applicant and Corey Ashwell (the complainant in respect of count 1 – assault occasioning bodily harm) met at the Logan City Tavern after work on 15 March 2007. Mr Ashwell and the applicant walked back to Mr Ashwell’s residence, then decided they would purchase some methamphetamine. Mr Ashwell and the applicant pooled together $70 and attended an address at Woodridge to purchase methamphetamine from the respondent. The applicant and Mr Carswell were invited inside the respondent’s unit where enquiries were made about purchasing methamphetamine. Mr Carswell left the respondent’s unit to try and obtain drugs elsewhere but was unsuccessful. The applicant remained at the unit but was getting rowdy. Mr Carswell and the applicant then left the unit, but returned claiming that they had left the money behind. [3] The respondent asked Mr Carswell to accompany him into his bedroom, where the respondent proceeded to punch Mr Carswell in the face, apparently to try to get Mr Carswell to admit that he, Mr Carswell, had taken the missing money. After the assault by the respondent on Mr Carswell, he ran from the respondent’s bedroom, ran out through the unit and called out to the applicant to run. Mr Carswell ran out the front door of the unit and ran to his own residence where he locked himself in, due to his fear of being further assaulted by the respondent. [4] After Mr Carswell fled the unit, the applicant confronted the respondent. The respondent picked up a socket wrench and hit the applicant with it 10-20 times. [5] The applicant has no recollection of the events of the evening of the offence, but a witness describes being present when Ashwell was being assaulted inside the respondent’s bedroom and states that she and the applicant tried to get into the bedroom, and when they did so, the respondent reached into a tool box, grabbed what looked like a socket wrench and the respondent then hit the applicant repeatedly in his upper back about five or six times, by which stage the applicant was slumped over the bed. The witness saw the respondent hit the applicant in the back of the head with the ratchet making “a slushy noise” and she then “saw blood spurt” out of the applicant’s head. [6] The applicant was admitted to the PA Hospital on 16 March 2007, having been located wandering the streets near his residence about 5.00 am on that date. The applicant was disorientated, suffering from severe injuries to his head and face, and was conveyed firstly to the Logan Hospital and then to the intensive care unit of the PA Hospital.1 Injuries 1 Exhibit PJS-4, pp 1-4, affidavit of Peter Saggers sworn 4 January 2010. -- 2 of 5 -- 3 [7] The schedule of facts indicates that the applicant was diagnosed “with severe skull and facial fractures” requiring corrective surgery, as well as “substantial damage” to his teeth requiring “extensive dental work”.2 [8] The report of Dr Boon Pang, neurosurgical registrar dated 8 November 2007 notes that “on admission [the applicant’s] injuries included a right frontal skull fracture, right traumatic subarachnoid haemorrhage, fractured nose, facial lacerations, and displaced linear fracture of his right zygomatic arch and paraorbital haematoma”.3 [9] Dr Pang notes that the applicant’s brain injury was treated non-surgically and his facial laceration was cleaned and stitched up. The applicant suffered a period of post traumatic amnesia and severe headaches. The applicant’s intracranial haemorrhage was shown as resolved on a CT scan on 18 May 2007.4 The law [10] This application was filed on 7 January 2010, subsequent to the repeal of the Criminal Offence Victims Act 1995 (COVA) by the Victims of Crime Assistance Act 2009 (VOCAA) which commenced on 1 December 2009. The application proceeds pursuant to the transitional provisions of VOCAA ss. 154 and 155, and was commenced in accordance with the relevant time limits pursuant to COVA s. 40(1). [11] I refer to and adopt my exposition of the relevant applicable law under COVA as set out in paragraph 6 of Paterson v Chand & Chand [2008] QDC 214. Compensation [12] Mr Hughes who appears for the applicant seeks compensation as follows:- (1) Item 2 – bruising/laceration etc (severe) – 3%-5% Mr Hughes submits that the bruising and laceration should receive an award of 4% of the scheme maximum. The report of Dr J D Webster5 indicates that the applicant suffered a “lacerated upper lip [and] multiple punctuate wounds (right supra orbital margin and occiput x 2) [and] haematoma of the left thumb”. I consider this to be appropriate and accordingly I award 4% ($3,000) pursuant to Item 1. (2) Item 4 – fractured nose (displacement/surgery) – 8%-20% Mr Hughes’ submission is that the fractured nose should be assessed at 14% of the scheme maximum. I note, however, that there was no requirement for surgery on the nose, and it is simply described in the report of Dr Webster6 as a “fractured nose” and is similarly described in the report of Dr Boon Pang dated 6 November 20077. In these circumstances I 2 Exhibit PJS-4, p 4, affidavit of Peter Saggers sworn 4 January 2010. 3 Exhibit PJS-5, Affidavit of Peter Saggers sworn 4 January 2010. 4 Exhibit PJS-5, Affidavit of Peter Saggers sworn 4 January 2010. 5 Exhibit PJS-1, Affidavit of Peter Saggers sworn 24 May 2011. 6 Exhibit PJS-1, Affidavit of Peter Saggers sworn 24 May 2011. 7 Exhibit PJS-5, Affidavit of Peter Saggers sworn 4 January 2010. -- 3 of 5 -- 4 consider an appropriate award would be at the bottom end of the item 4 range, namely 8% of the scheme maximum ($6,000). (3) Item 5 – loss or damage of teeth – 1%-12% Mr Hughes’ submission is that the applicant should be awarded 8% of the scheme maximum in respect of the loss or damage of teeth. The report of Dr Trevor Holcombe, director of oral health at the Kingston Oral Health Centre8 indicates that the applicant received treatment between 4 June 2007 and 21 February 2008, over which period the applicant was examined, had restoration on four teeth, and subsequently had his upper right central and lateral incisor extracted and had a part upper denture inserted. In these circumstances I consider 6% of the scheme maximum ($4,500) to be an appropriate award. (4) Item 7 – facial fracture (moderate) – 14%-20% The applicant suffered an “undisplaced linear fracture through [his] right zygomatic arch”, which did not, however, require surgery. The submission is that there should be an award at the bottom of the moderate range (14% of the scheme maximum). I accept that submission and award 14% ($10,500) pursuant to item 7. (5) Item 11 – fractured skull (brain damage – severe) – 25%-100% The applicant suffered a “comminuted right frontal skull fracture” with a “right traumatic subarachnoid haemorrhage”.9 This was described by Dr J D Webster as “a mild closed head injury (with post concussion syndrome) in association with sub-frontal contusion and the right frontal lobe and most likely a degree of short term memory loss and personality change”.10 Dr Pang noted11 that the applicant had suffered “a period of post traumatic amnesia”, had “suffered occasional emotional outbursts”, had suffered a “severe headache which has since settled down” and the CT scan on 18 May 2007 showed resolution of the applicant’s intracranial haemorrhage. At best, I consider this to be an injury at the bottom of the item 11 range, and accordingly I award 25% ($18,750) pursuant to item 11. (6) Item 33 – mental or nervous shock (severe) – 20%-34% The applicant was examined by Nicholas Smith, psychologist on 7 May 2010 and a report was provided dated 6 July 2010.12 Mr Smith considered the applicant suffered from “a severe disturbance in mood, resulting in an experience of severe depression; fear and anxiety of further injury and helplessness sufficient to result in ongoing agoraphobia; and experiences chronic post traumatic stress relating to chronic hyper-arousal, emotional 8 Exhibit PJS-6, Affidavit of Peter Saggers sworn 4 January 2010. 9 Exhibit PJS-1, Affidavit of Peter Saggers sworn 24 May 2011. 10 Exhibit PJS-1, Affidavit of Peter Saggers sworn 24 May 2011. 11 Exhibit PJS-5, Affidavit of Peter Saggers sworn 4 January 2010. 12 Exhibit NWWS-1, Affidavit of Nicholas Smith sworn 12 October 2010. -- 4 of 5 -- 5 blunting and avoidance of potential risks for further injury” amounting to “nervous shock”13. It is submitted that an award should be made at 25% of the scheme maximum. I accept the submission and award 25% ($18,750) pursuant to item 33. Contribution [13] Although there could be some criticism of the applicant attending on the respondent’s premises for the purchase of methamphetamine, I do not consider that in these circumstances the applicant contributed in any way to his own injuries. Accordingly there should be no reduction for contribution.14 Order [14] I order the respondent, Patrick Michael Murphy, pay the applicant, George Wallace Baker, the sum of $61,500. 13 Exhibit NWWS-1, 2.14, Affidavit of Nicholas Smith sworn 12 October 2010. 14 COVA, s. 25(7). -- 5 of 5 --