Dawson-Johnstone v Galuvao [2012] QDC 90

DISTRICT COURT OF QUEENSLAND CITATION: Dawson-Johnstone v Galuvao [2012] QDC 90 PARTIES: MARIO ANTON DAWSON-JOHNSTONE (applicant) v ALENI GALUVAO (Respendent) FILE NO: 191/2009 DIVISION: Civil PROCEEDING: Criminal Compensation Application ORIGINATING COURT: District Court Ipswich DELIVERED ON: 8 May 2012 DELIVERED AT: Ipswich HEARING DATE: 19 March 2012 JUDGE: Richards DCJ ORDER: The respondent is ordered to pay the applicant the sum of $21,800 by way of compensation. CATCHWORDS: Criminal compensation – contribution by applicant COUNSEL: SOLICITORS: M Fairclough of Walker Pender for the applicant The respondent appeared for himself -- 1 of 7 -- 2 [1] The applicant was assaulted on 6 May 2008 at the premises of HVAC Pty Ltd, a steel fabrication company. [2] The applicant ran a labour hire service and at the time owed his employees money for wages over a number of weeks. He had come to the worksite to discuss the matter with his employees. The applicant, upon arrival at the premises became involved in a discussion, which disintegrated into an argument, with the foreman of HVAC about the unpaid money. As a result of that argument the applicant was asked to leave the premises. Instead of leaving as requested he went into the workshop area and started to talk with one of the workers who had not been paid. He was then told to leave the premises again by the foreman and an argument followed. The foreman pushed the applicant in the chest a number of times telling him to leave but he again refused. The foreman threw a punch towards him and they grabbed hold of each other. Whilst they were grappling the respondent approached the applicant holding a steel bar in his hand and hit him on the back of the head whereupon he immediately fell to the floor face first onto the concrete. [3] An ambulance was called immediately. He was taken to the emergency department of the Ipswich Hospital and was found to have some superficial lacerations to the nose and forehead, a six centimetre laceration to the back of the head requiring five sutures and a fractured nose. The Crown did not allege that the fractured nose was caused through falling to the ground as they could not exclude it occurring as a result of a punch from the foreman during the fight. [4] The applicant was seen by Ms Lennon, a psychologist on 22 and 23 January and 11 February 2010. Ms Lennon noted that the applicant had previously indicated to a psychologist in 2009 that he was physically assaulted severely by his mother through his developmental years. He was bullied at school. He claimed to have had -- 2 of 7 -- 3 a good work history although she suggested that he was prone to grandiose statements. He had previously been a heavy drinker and a drug user although he did not now use drugs. He suffered from seizures during his childhood and was asthmatic. When he was forty years old he started having problems with his neck after motorbike riding and that resulted in tension headaches. He has obsessive compulsive symptoms. He had been on antipsychotic medication in April 2008 as a result of auditory hallucinations and he indicated that he had been experiencing voices for most of his life but that they had increased since the assault. [5] The applicant states that since the assault he: Is not as smart as he was and he is not good with paperwork anymore; Has difficulty concentrating when driving; Suffers from intense sweating and anxiety; Has a short fuse and irritability; Feels detached and at times isolated from other people; Has difficulty sleeping; Has an increased startle response; Has depression and low mood; Has recurring pictures of the event and the events surrounding the lead up to the assault; [6] Ms Lennon found his speech to be confused, tangential, and interspersed with grandiose statements. At times he felt suicidal. He had an average IQ when tested and his processing speed abilities were in the extremely low range. She suggested -- 3 of 7 -- 4 that his cognitive functioning has declined significantly and that is consistent with his head related trauma. He also suffers from post traumatic stress disorder and depression and anxiety. Ms Lennon noted that he has underlying narcissistic, anti- social and borderline personality traits and that there was a strong indication of pre- morbid mental health issues including auditory hallucinations, suicidal, and homicidal ideation. She maintains, however, he is more prone now to depression, low impulse control, and frequent suicidal ideation. [7] As a result of Ms Lennon’s report he was referred to Dr Don Todman a neurologist for assessment in relation to his head injury. Dr Todman describes his injury as a closed head injury with loss of consciousness with patchy recollection of events and post traumatic amnesia for up to ten days. He also states that the injury to the cervical spine as being likely to have been caused by the assault as well as post traumatic headaches which are frequent and of a muscle tension type. He also notes he has two resulting falls with injuries to his right foot and ankle and he says they are indirectly related to his foot injury. [8] He was also seen by Dr Hayes in relation to his foot and ankle injuries. Dr Hayes is an orthopaedic surgeon and he has also provided a report and noted that three to four months after the assault he was at work and stepped off a mezzanine floor at his workshop sustaining a fracture to his right calcaneum. This required surgery in September of 2008. In November of 2009 he then had a balance issue and stepped off a sandhill into water and sustained an injury to the leg again, namely a closed fracture to the tibia and fibula. Surgery again was required in October of 2010. [9] In an affidavit supplied by Mr Dawson-Johnstone he states that since the assault his sleeping patterns have been greatly affected, he becomes frustrated quickly with -- 4 of 7 -- 5 people, he does not like being alone, his business has failed and he is unable to drive. He says in relation to the injuries to his ankle and his leg, on the first occasion he was at his workshop and moving furniture out of the workshop when he blacked out. When he regained consciousness he was unable to stand up. In relation to the second incident, he stepped off a sand dune in November 2009 at Currimundi Lake. He was jumping off the dune when his mind went blank and stepped off onto rocks. [10] At the hearing of this matter Mr Galuvao appeared and submitted that he did not break the applicant’s nose and that the applicant did not injure his back during the altercation. He submitted that an award in the order of $6,000 is appropriate taking into account all the factors involved in this case. [11] It is clear that Mr Dawson-Johnstone is entitled to compensation under the Act. In my view there was some contribution made by him to his injuries in that he had been asked on numerous occasions to leave the premises upon which he was assaulted but refused to do so. He then became involved in a physical altercation with the foreman of the premises and the respondent only became involved upon that altercation escalating. It is noted however that the respondent armed himself with a weapon and hit the complainant from behind and therefore any contribution by the applicant take those facts into account. [12] In addition to the contribution by his actions on the day in question there is evidence of pre-existing issues in relation to the applicant’s neck and his mental health. It was noted in SAY v AZ Ex Parte AG [2006] QCA 462 at [22]: “The court must have regard to the various limitations of procedural steps in s 25 in arriving at the amount of the compensation order. Only those injuries to which the relevant offence has materially -- 5 of 7 -- 6 contributed will be compensable. If, as in Stannard, it is possible to identify in the state of the injury consequences specifically attributable to the offence, that must be done. In deciding what amount is payable for a given injury, the court must consider whether there are other relevant factors to which regard must be had, and if so, whether they should operate to reduce the amount which might otherwise be awarded.” [13] In my view the following compensation should be awarded: In relation to lacerations, an award of 2 per cent is appropriate, namely $1,500. In relation to the fractured nose, the Crown did not submit that the nose was broken by the respondent and as such no award can be made in that regard. In relation to the cervical spine, I accept that some degree of injury was caused in the fall to the cervical spine as opined by Dr Todman although I accept that there must have been some pre-existing injury from motorbike riding. In my view an award of 8 per cent of the scheme maximum is appropriate, namely $6,000 and that should be discounted by one third to $4,000. In relation to the injury to the ankle, I accept that the injury to the ankle was caused by blacking out which was caused by the head injury. I do not accept however that the injury to the leg from jumping off the dunes is contributable to the head injury. The applicant was jumping off a sand dune into water with a previously injured ankle. In my view that act was likely to cause further injury. Accordingly I award 4 per cent of the scheme maximum namely $3,000. -- 6 of 7 -- 7 In relation to his head injury, he is also entitled to damages under item 10, fractured skull, brain damage minor to moderate. Although the skull was not fractured it is clear that there has been some loss of brain function that has significantly affected his life and accordingly an award of 15 per cent of the scheme maximum namely $11,250 is appropriate. Finally, he is also entitled to an award for mental or nervous shock. In this case he has suffered from post traumatic stress disorder and it is causing him significant problems in his life. He is entitled to an award of 20 per cent of the scheme maximum namely $15,000. However, given his pre-existing problems that sum should be reduced by 50% to $7,500. That is a total award of compensation in the sum of $27,250. [14] In relation to his contribution to the offending, in my view that award should be reduced by 20 per cent again to $21,800. ORDER The respondent is ordered to pay the applicant the sum of $21,800 by way of compensation. -- 7 of 7 --