Addley v Tago [2011] QDC 98

DISTRICT COURT OF QUEENSLAND CITATION: Addley v Tago [2011] QDC 98 PARTIES: TRACEY ANN ADDLEY (Applicant) v SO’O TAGO (Respondent) FILE NO/S: 124/2009 DIVISION: Civil PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: Beenleigh DELIVERED ON: 9 June, 2011 DELIVERED AT: Kingaroy HEARING DATE: 16 May 2011 JUDGE: Dearden DCJ ORDER: The respondent So’o Tago pay the applicant Tracey Ann Addley the sum of $39,000 CATCHWORDS: Application – criminal compensation – grievous bodily harm – facial fracture – fractured jaw – dental injury – mental or nervous shock LEGISLATION: Criminal Offence Victims Act 1995 (Qld) ss. 24 & 25(7) Victims of Crimes Assistance Act 2009 (Qld) s.167(2) CASES: Paterson v Chand & Chand [2008] QDC 214 COUNSEL: D J Gilmore (solicitor) for the applicant No appearance for the respondent SOLICITORS: D J Gilmore & Associates, solicitors for the applicant No appearance for the respondent -- 1 of 8 -- 2 Introduction [1] The respondent So’o Tago pleaded guilty in the Beenleigh District Court on 28 August 2007 to one count of grievous bodily harm in respect of the applicant Tracey Ann Addley. The respondent was sentenced by me to three years imprisonment, suspended after serving nine months, with an operational period of four years. Facts [2] On 7 August 2005 the applicant went to the respondent’s house to visit his 21 year old niece with whom she was friends. The respondent arrived home at about 11.00 pm and the applicant and the respondent’s niece was sitting on the bed talking. Once the respondent’s niece saw the respondent, she left the bedroom and returned to her own room. [3] The respondent came into the room where the applicant was sitting and proceeded to call her a “bitch”. The applicant said that she noticed that the respondent’s eyes were red and that he smelt of alcohol. The respondent grabbed the applicant by her hair and then proceeded to hit the right side of her face. The applicant was terrified and tried to cover her face. The applicant heard a cracking sound in her jaw and felt immediate pain. The respondent has a steel metal plate in his left arm and used both arms when he hit the applicant several times. [4] The applicant said that she could taste blood in her mouth and that she thought she was going to vomit. The applicant said that once the respondent left the room, she -- 2 of 8 -- 3 went to the bathroom and saw that her two front teeth were smashed into her bottom gum. The applicant’s jaw was broken as a result of the assault.1 Injuries [5] The applicant was x-rayed in respect of the injuries. The applicant suffered a fractured jaw. On 14 August 2005 the applicant attended the Brisbane Women’s Hospital where on 16 August, 2005, she underwent surgery on her face, involving the insertion of two metal plates into her chin. The applicant was required to wear a neck brace.2 The Law [6] The application in this matter was filed on 28 September 2009, pursuant to s. 24 of the Criminal Offence Victims Act 1995 (COVA), which was subsequently repealed by the Victims of Crimes Assistance Act 2009 (VOCAA) on 1 December 2009. Pursuant to VOCAA s. 167(2), this application (having been filed prior to the repeal of COVA) is preserved. The application proceeds pursuant to the repealed provisions of COVA. [7] 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. 1 Exhibit KR4 (Schedule of Facts), p. 1, Affidavit of Karl Robinson sworn 21 August 2009. 2 Exhibit KR4, (Schedule of Facts), p. 1, Exhibit KR5, Affidavit of Karl Robinson sworn 21 August 2009. -- 3 of 8 -- 4 Compensation [8] Mr Gilmore, who appears for the applicant, seeks compensation as follows: (1) Item 1 – bruising/laceration etc (minor/moderate) – 1%-3% The applicant, when admitted to the Royal Brisbane Hospital on 14 August 2005, had the following injuries documented (in addition to the broken jaw): “Swelling to the right side of face and neck, abrasions and bruising to the right side of face.” 3 It is submitted on behalf of the applicant that an assessment should be made at 2% of the scheme maximum ($1,500) in respect of the bruising and laceration injuries. I accept that submission. Accordingly I award 2% ($1,500) pursuant to Item 1. (2) Item 5 – Loss of Damage to Teeth – 1%-8% It is submitted on behalf of the applicant that an assessment should be made at 2% of the scheme maximum in respect of “loss or damage to teeth”. In that respect, I note that the Schedule of Facts indicates that after the assault by the respondent, the applicant “went to the bathroom and saw that her two front teeth were smashed into her bottom gum.”4 However, as Mr Gilmore frankly (and appropriately) concedes, a report from the Royal Brisbane Hospital dated 19 October 2010 indicates “there is no record of damage to teeth in this medical file [Royal Brisbane and Women’s Hospital].5 There is similarly no reference to any loss or damage to teeth in the 3 Exhibit KR5 (Report of Dr Matthew Hawthorne), p. 1, Affidavit of Karl Robinson sworn 21 August 2009. 4 Exhibit KR4 (Schedule of Facts), p. 1, Affidavit of Karl Robinson sworn 21 August 2009. 5 Exhibit DJGG1, Affidavit of David Gilmore affirmed 15 February 2011. -- 4 of 8 -- 5 report of Dr E Then dated 15 November 2007.6 Dr Then saw the applicant on 8 August 2005 (the day after the injury occurred) and referred the applicant to the Royal Brisbane Hospital, where she was admitted on 14 August 2005. In these circumstances, I am not persuaded that there is sufficient evidence to make any assessment pursuant to Item 5. (3) Facial Fracture (Severe) – 20%-30% The report of Dr Hawthorne7 indicates that the substantive injury was a “bi-lateral mandibular fracture”, for which “the patient was taken to theatre on 16 August 2005 where she underwent the open reduction internal fixation of her fractured mandible. This was treated with titanium plates and screws. The [applicant] is left with titanium plates and screws left insitu, intra-oral scarring secondary to the surgical access sites”. Dr Hawthorne noted (in respect of prognosis) that the applicant was “initially left with diminished mandibular function secondary to her fractures and the possibility of decreased temporomandibular joint function due to an undisplaced condula R fracture.”8 Dr Then, in his report of 15 November 2007, states “I believe that [the applicant] is suffering from damaged nerves and loss of taste to 50% of her tongue and because the fracture could not be put together precisely (clicking sounds when eating or talking) it has resulted in some changes in the dental bite. [The applicant] has 6 Exhibit KR6 p. 1, Affidavit of Karl Robinson sworn 21 August 2009. 7 Exhibit KR5, Affidavit of Karl Robinson sworn 21 August 2009. -- 5 of 8 -- 6 suffered arthritic pains along the lower jaw and partial loss of hearing in her right ear.”9 Mr Gilmore submits that in these circumstances, given the severity of the facial fracture, it would be appropriate to assess compensation at 25% of the scheme maximum. I accept that submission. I consider it appropriate to award 25% ($18,750) pursuant to Item 8. (4) Item 27 – Facial Disfigurement or Bodily Scarring (Minor or Moderate) – 2%-10% Mr Gilmore submitted that an award should be made at 2% of the scheme maximum in respect of “intra oral scarring secondary to the surgical access sites”.10 However, such an injury is an internal scarring, and does not represent any form of “facial disfigurement” or “bodily scarring”. I therefore do not consider that any separate award should be made under Item 27, although I consider that the substantial award made pursuant to Item 8 effectively subsumes any possible compensation that might have been made pursuant to Item 27. (5) Item 33 – Mental or Nervous Shock (Severe) – 20%-30% The applicant was examined by Dr Barbara McGuire, psychiatrist, on 17 August 2008. In her report dated 8 October 2008,11 Dr McGuire diagnosed the applicant as suffering “post traumatic stress disorder to a moderate to severe degree”, citing as a 8 Exhibit KR5, Affidavit of Karl Robinson sworn 21 August 2009. 9 Exhibit KR6, Affidavit of Karl Robinson sworn 21 August 2009. 10 Exhibit KR5 (Report of Dr Matthew Hawthorne), p. 1, Affidavit of Karl Robinson sworn 21 August 2009. -- 6 of 8 -- 7 basis for the diagnosis the applicant demonstrating “hyper-vigilance, security fears, intrusive thoughts of the incident, avoidance of cues reminding her of the incident [and] chronic anxiety.” Dr McGuire noted that the disorder had manifested “to a moderate to severe degree” and had led to the applicant’s “inability to work and severe limitation to her social life.” Dr McGuire considered that the condition would “improve slowly and gradually” but was of the view that the applicant would “continue to experience her symptoms for a matter of years.” Dr McGuire considered that the applicant needed weekly trauma counselling for “some months” at an average cost of $150 - $200 per session.12 In these circumstances, Mr Gilmore submits that it would be appropriate to award compensation at 25% of the scheme maximum (i.e. the mid-range of Item 33). I accept that submission and accordingly award 25% ($18,750) pursuant to Item 33. (6) Item 35 – Loss of Hearing (One Ear) – 2%-20% Mr Gilmore, relying on the report of Dr Then dated 15 November 200713 which states “[the applicant] has suffered arthritic pains along the lower jaw and partial loss of hearing in her right ear”, seeks an award of 5% of the scheme maximum. There is, however, no reference to the hearing loss in the Schedule of Facts, 14 in the report of Dr Matthew Hawthorne from Royal Brisbane Hospital dated 11 Exhibit BMG1, Affidavit of Barbara McGuire sworn 2 February 2009. 12 Exhibit BMG1, p. 3 Affidavit of Barbara McGuire sworn 2 February 2009. 13 Exhibit KR6, Affidavit of Karl Robinson sworn 21 August 2009. 14 Exhibit KR4, Affidavit of Karl Robinson sworn 21 August 2009. -- 7 of 8 -- 8 29 November 2005,15 nor in a further report from Royal Brisbane Hospital dated 19 October 2010.16 [9] In these circumstances I consider that there is insufficient information to support a causal link between the injury (grievous bodily harm) which grounds the application, and the unspecific and unsupported assertion by Dr Then of “partial loss of hearing in the right ear”. Accordingly, I do not intend to make an award pursuant to Item 35. Contribution [10] The applicant has not contributed in any way, direct or indirect, to her own injuries.17 Conclusion [11] I order that the respondent So’o Tago pay the applicant Tracey Ann Addley the sum of $39,000. 15 Exhibit KR5, Affidavit of Karl Robinson sworn 21 August 2009. 16 Exhibit DJGG1, Affidavit of David Gilmore affirmed 15 February 2011. 17 Criminal Offence Victims Act 1995 (Qld) s.25(7). -- 8 of 8 --