CW obo CRW v CBW [2011] QDC 298

DISTRICT COURT OF QUEENSLAND CITATION: CW obo CRW v CBW [2011] QDC 298 PARTIES: CW as litigation guardian for CRW (Applicant) v CBW (Respondent) FILE NO: 149/2009 DIVISION: Civil PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: Beenleigh DELIVERED ON: 23 November 2011 DELIVERED AT: Beenleigh HEARING DATE: 28 October 2011 JUDGE: Dearden DCJ ORDER: 1. The respondent CBW pay the applicant CW on behalf of CRW the sum of $75,000; 2. The monies are to be paid to the Public Trustee of Queensland who is authorised to receive and hold such monies on behalf of CRW until she attains the age of 18 years; 3. The Public Trustee of Queensland is authorised to advance such monies or part of such monies from time to time for the maintenance, education or treatment (including counselling) of CRW as the Public Trustee in his or her discretion considers appropriate; and 4. The Public Trustee of Queensland is authorised to pay out of such monies received the reasonable costs of the present application to Legal Aid Queensland. CATCHWORDS: Application – criminal compensation – grievous bodily harm – assault occasioning bodily harm – bruising/laceration – fractured skull (brain damage) – fracture/loss of use of leg/ankle – neck/back/chest injury – mental or nervous shock -- 1 of 7 -- 2 LEGISLATION: Criminal Offence Victims Act 1995 (Qld) ss. 25(7) & 40(1) Victims of Crime Assistance Act 2009 (Qld) s.167(2) CASES: Paterson v Chand & Chand [2008] QDC 214. COUNSEL: Ms F Muirhead (solicitor) for the applicant No appearance for the respondent SOLICITORS: Legal Aid Queensland for the applicant No appearance for the respondent Introduction [1] The respondent, CBW, pleaded guilty in the District Court, Beenleigh on 16 July 2007 to one count of grievous bodily harm, and one count of assault occasioning bodily harm of the complainant CRW. The respondent was sentenced to five years imprisonment, suspended after fifteen months, in respect of the grievous bodily harm count, and two years imprisonment, suspended after fifteen months (concurrent) on the assault occasioning bodily harm count. Each of the sentences was subject to an operational period of five years.1 Facts [2] The respondent is the father of the complainant, CRW. The injuries which were the subject of the grievous bodily harm count occurred when CRW was approximately five weeks old, and the injuries the subject of the assault occasioning bodily harm count occurred when she was seven months old. [3] In my sentencing remarks, I outlined the offences, and consequent injuries, as follows:- “The injuries in respect of the first offence, which is the grievous bodily harm offence, came to light when CRW was taken to hospital on 13 January 2006 suffering from vomiting and lethargy. There were some tests conducted on a number of different days, namely the 13 and 15 January 2006. The tests and scans indicated a callous formation on the first, second and third ribs where joining the spine. The radiographic examinations on 17 January 2006 indicated bi-lateral fractures of the left fourth, fifth, sixth and seventh ribs laterally, the right sixth and seventh ribs laterally, right first, second and third ribs posterior and adjacent to the spine and left seventh at the costo-chondral juncture (the cartilage breach between the sternum and ribs). Dr Lamont, the radiologist, noted that all injuries have a similar callous formation consistent with deliberate applied force approximately seven to ten days prior to examination. 1 Exhibit A, Affidavit of Melissa Lo, affirmed 30 August 2011. -- 2 of 7 -- 3 Both the femur showed fine periosteal reactions (some demonstrated reaction in the membranous sleeve covering the bone). Dr Lamont‟s opinion is that the pattern of rib fractures suggested that CRW had been squeezed in a front to back direction in a manner that the spine and the sternum were brought close together. This is consistent with the findings of fractures to the apex on the side of each rib in this case and due to the fact that at the same time in the posterior parts of the ribs are levered over the “transverse processes” of the spine, the location of the rib fractures at the back and close to the spine. Dr Lamont further gave the opinion that contusions of the brain which had been identified by other scans were the result of violent movement of the brain within the skull cavity and bruising through impact between brain and skull and there was a further cortical tear which would indicate an impact injury, most likely against a soft surface such as a mattress or change table. The reports of Doctors Seto and Skellern, expert paediatric specialists, indicate that there had been, as a result of MRI tests, bi- lateral petechial haemorrhages (bleeding into tissue) towards the retina, extensive contusions (bruising) to her frontal lobe and entire left temporal lobe and some evidence of cerebral tearing to the cortex (grey matter to the outside of the brain) on her left hand side. All injuries were noted to be of a similar age. The injuries to the brain were extensive with expected long term consequences to CRW‟s development and wellbeing. As a result of those initial injuries, the Department of Child Safety became involved and, in short, the child CRW and her elder sister ICW – both of your children – were placed in the care of the respective maternal and paternal grandparents. It was while you [a reference to the respondent] and your wife were having an access visit to your parents, the paternal grandparents, that you showed your mother a bruise on CRW‟s chin and later some bruising to her shoulder. There was an argument. You were confronted by your mother and at that stage you confessed and said „I was just frustrated and I just wanted her to accept me. I love my daughter and I did not mean to hurt her. I just grabbed her too hard.‟ She [a reference to CRW] later began vomiting and was taken to hospital although the vomiting itself was a mild self-resolving viral illness but the injuries on the second occasion which amount to bodily harm included a circular bruise on her forehead about 1 cm, pinpoint bruising under her jawline, a linear bruise to her lower leg and scattered minor bruising to both shoulders. -- 3 of 7 -- 4 The bruise to the forehead was considered by Dr Skellern to be an impact injury, bruising to the shoulder and leg consistent with being grabbed hard by another person.” [4] I went on to note that “the preliminary diagnosis is that the child CRW has and will suffer mild cerebral palsy linked to the brain injury which occurred at the time of count 1, that is likely to have had a significant impact on her upbringing and the reports indicate to date a failure to yet develop mental milestones.”2 The Law [5] The application in these proceedings was filed on 30 November 2009, prior to the repeal of the Criminal Offence Victims Act of 1995 (COVA) by the Victims of Crime Assistance Act 2009 (VOCAA), which commenced on 1 December 2009. The transitional provisions of VOCAA s. 167(2) require this court to continue to hear and decide the application pursuant to the repealed provisions of COVA. The application was brought within the relevant timeframe pursuant to COVA s. 40(1). [6] 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 [7] Ms Muirhead, for the applicant, seeks compensation as follows:- (1) Item 2 – bruising/laceration etc (severe) 3%-5% [8] Ms Muirhead submits that the bruise suffered by the complainant on her forehead, under her jawline, her lower leg and minor bruising to both shoulders (all of which related to count 2 (assault occasioning bodily harm) should receive an assessment of 5% of the scheme maximum. With respect, I consider it more appropriate pursuant to this item to award a somewhat less than the maximum, and accordingly I award 3% ($2,250) of the scheme maximum. (2) Item 11 – fractured skull (brain damage – severe) – 25%-100% [9] The injuries which constituted “grievous bodily harm” (count 1) included extensive contusions (bruising) to the frontal lobe and entire left temporal lobe, as well as cerebral tearing to the cortex (grey matter to outside of brain) on the left-hand side. These brain injuries were described by Dr Seto as “extensive with expected long term consequences to [the complainant‟s] development and wellbeing.”3 Both Dr Seto and Dr Lamont concluded that the injuries to the complainant‟s brain were the result of “impact between the head and a soft object with considerable force”.4 [10] The short but devastating report of Dr David McDonald, consultant paediatrician dated 24 May 20115 contains the following observation:- “[CRW] has suffered a severe cerebral injury which has caused both an intellectual and a psychical impact. She has severe cerebral palsy 2 Exhibit B (Sentencing Remarks), pp. 2-6, Affidavit of Melissa Lo affirmed 30 August 2011. 3 Exhibit C (Sentence Exhibit 2), Affidavit of Melissa Lo affirmed 30 August 2011, p. 2. 4 Exhibit B (Sentence Exhibit 2), p. 2, Affidavit of Melissa Lo affirmed 30 August 2011. 5 Exhibit B (Affidavit of David McDonald sworn 22 August 2011). -- 4 of 7 -- 5 and cannot walk unaided. She can walk with aids for short distances only, and will require a motorised wheelchair for longer distances throughout her life. She will also require computer aids for fine motor skills. Although her verbal IQ was recently measured on the 50th percentile it is very likely that she will demonstrate executive attentional deficits and other higher order deficits that will become more apparent with age. Her MRI showed frontal lobe injury and this will become manifest … as difficulties with emotional regulation.” [11] Dr McDonald expressed the opinion that the complainant had “lost 80% of her general global assessment of functioning potential.” Dr McDonald went on to state that “the injuries acquired will not have improved with time although as with all children [the complainant] will show some development progress.” [12] Dr McDonald expressed the opinion that he expected the complainant‟s “handicaps will be permanent. She will not able to function independently as a normal adult. She will require extensive house modifications. It is probable that she will require fully supported accommodation indefinitely.” Dr McDonald concluded that the offences led directly to the acquired brain injuries suffered by the complainant.6 [13] Ms Muirhead‟s submission is that an award should be made at 90% of the scheme maximum. I consider this to be an entirely appropriate submission. Accordingly I award 90% of the scheme maximum ($67,500) in respect of item 11. (3) Item 19 – fracture/loss of use of leg/ankle (minor/moderate) – 4%-10% [14] The complainant suffered injuries to both femurs as a result of the grievous bodily harm count allegations. This comprised a fine periosteal reaction (involving the membranous sleeve covering the bone) on both femurs. It is submitted that an appropriate award would be 10% of the scheme maximum. I accept this submission and award $7,500 pursuant to item 19. (4) Item 23 – neck/back/chest injury (severe) – 8%-40% [15] As set out in the sentencing remarks extracted above in paragraph [3] there were extensive injuries to various of the first, second, third, fourth, fifth, sixth and seventh ribs laterally, posteriorly, left and right. These all relate to the grievous bodily harm count. A submission is made that an award should be made at 20% of the scheme maximum. I accept that submission and accordingly award $15,000 pursuant to item 23. (5) Item 33 – mental or nervous shock (severe) – 20%-34% [16] David Sheenhan, psychologist, provided a report dated 26 June 2011.7 [17] Mr Sheehan is the treating psychologist for CRW and he notes the conditions for which he is providing treatment, namely:- (1) Specific phobia – “males” (DSM IV 300.29) 6 Exhibit B, pp. 1-2, Affidavit of David McDonald sworn 22 August 2011. 7 Exhibt B, Affidavit of David Sheehan sworn 29 August 2011. -- 5 of 7 -- 6 (2) Enuresis – (bedwetting) (DSM IV 307.6) (3) Nightmare disorder (DSM IV 307.47) (4) Separation anxiety disorder (DSM 309.21) (5) Adjustment disorder with mixed emotions and conduct (DSM IV 309.4) (6) Cerebral palsy (DSM IV 343.9) [18] Mr Sheehan considered the specific phobia, enuresis, adjustment disorder and cerebral palsy to be moderate at presentation, with the specific phobia, enuresis and nightmare disorder resolving to mild following treatment. The separation anxiety disorder was severe on presentation but following treatment is moderate. The adjustment disorder was moderate on presentation and remains moderate following treatment. Similarly the cerebral palsy (a life long disorder) was moderate on treatment and remains moderate. [19] Mr Sheehan also noted on presentation the condition of “physical abusive child – focus of attention on victim” which was severe at presentation, but following treatment is moderate. [20] In addition, Mr Sheehan considered, as a result of the multiple physical and psychological symptoms which were present following the assault on her, that there was “a high probability that CRW‟s current diagnosed conditions may modify later in life into other adult psychiatric conditions [and the complainant CRW] is at heightened risk for PTSD, generalised anxiety disorder, agoraphobias, specific phobia and major depression.”8 [21] Ms Muirhead‟s submission is that an order of 30% of the scheme maximum should be made pursuant to item 33. I accept this submission and accordingly award 30% of the scheme maximum ($22,500) pursuant to item 33. Conclusion [22] It is clear that the complainant in these proceedings has suffered a range of catastrophic physical, brain and consequent psychological/psychiatric injuries all directly attributable to the two offences committed against her by the respondent. The total assessments would entitle the applicant to an award of 153% ($114,750). However, COVA s. 25(2) limits any compensation order to a total amount of not more than the prescribed amount, namely $75,000. Contribution [23] The complainant did not contribute to her own injuries in any way, either direct or indirect.9 8 Exhibit B pp. 4-6, Affidavit of David Sheehan sworn 29 August 2011. 9 COVA, s. 25(7). -- 6 of 7 -- 7 Order 1. The respondent CBW pay the applicant CW on behalf of CRW the sum of $75,000; 2. The monies are to be paid to the Public Trustee of Queensland who is authorised to receive and hold such monies on behalf of CRW until she attains the age of 18 years; 3. The Public Trustee of Queensland is authorised to advance such monies or part of such monies from time to time for the maintenance, education or treatment (including counselling) of CRW as the Public Trustee in his or her discretion considers appropriate; and 4. The Public Trustee of Queensland is authorised to pay out of such monies received the reasonable costs of the present application to Legal Aid Queensland. -- 7 of 7 --