Bennett v Dowd [2011] QDC 11

DISTRICT COURT OF QUEENSLAND CITATION: Bennett v Dowd [2011] QDC 11 PARTIES: RICHARD LANCE BENNETT (Applicant) AND CAMERON CHRISTOPHER DOWD (Respondent) FILE NO: 6/10 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: District Court, Beenleigh DELIVERED ON: 18 February 2011 DELIVERED AT: Beenleigh HEARING DATE: 22 December 2010 JUDGE: Dearden DCJ ORDER: The respondent Cameron Christopher Dowd pay the applicant Richard Lance Bennett the sum of $52,500. CATCHWORDS: LEGISLATION: CASES: APPLICATION – Criminal Compensation – grievous bodily harm – fractured skull – brain damage – facial palsy as analogous to facial disfigurement – mental or nervous shock – loss of hearing Criminal Offence Victims Act 1995 s.24. Victims of Crime Assistance Act 2009 ss. 154 and 155. Kennedy v Faafeu [2010] QDC 21. Paterson v Chand & Chand [2008] QDC 214. COUNSEL: Ms Y. Chekirova for the applicant No appearance for the respondent SOLICITORS: Campbell & White Lawyers for the applicant No appearance for the respondent -- 1 of 5 -- 2 Introduction [1] The respondent, Cameron Christopher Dowd pleaded guilty (relevantly) in the Beenleigh District Court on 16 April 2008 to one count of grievous bodily harm in respect of the applicant, Richard Lance Bennett. The respondent was sentenced by me at the Beenleigh District Court on 18 June 2008 (relevantly) to four years imprisonment, suspended after serving 12 months imprisonment, with an operational period of five years. The respondent received concurrent sentences for unrelated counts including armed robbery, unlawful use of a motor vehicle and common assault. Facts [2] The applicant was the occupier of a house in Marsden. On 20 January 2007, the applicant held a party at his house to celebrate his daughter’s 18th birthday. After a disturbance involving the respondent and another person (resulting in a charge of common assault against the respondent), the applicant told the respondent and his friends to get out of his house. The applicant pushed a party guest, Joshua Quinlan (who had been invited to the party, but had then attended with two car loads of uninvited guests), once. A third person pulled apart the applicant and Joshua Quinlan to prevent them from fighting. The applicant was then speaking to Joshua Quinlan. At this stage, the respondent ran in and hit the applicant in the back of the head with a fence paling. The applicant immediately dropped to the ground as a result of this blow.1 Injuries [3] The applicant suffered the following injuries: (i) right petrous temple fracture (fracture to the right temple); (ii) right frontoparietal linear minimally displaced fracture (undisplaced fracture in the skull, underneath the hairline); (iii) small right frontoparietal extradural haematoma (collection of blood underneath the fracture to the right temple); (iv) small right contusion of the posterior left temporal lobe (bruise to the brain, less than 1 cm in diameter); (v) small left sided acute subdural haematoma and traumatic subarachnoid haemorrhage; (vi) right facial nerve palsy; and (vii) right sided deafness.2 1 Exhibit E (Schedule of Facts) affidavit of Abigail Webb sworn 23 December 2009. 2 Exhibit E, affidavit of Abigail Webb sworn 23 December 2009. -- 2 of 5 -- 3 The law [4] The application in these proceedings was filed on 4 January 2010. The application falls to be decided pursuant to s.24 of the Criminal Offence Victims Act 1995 (COVA), repealed effective 1 December 2009 by the Victims of Crime Assistance Act 2009 (VOCAA). This application complies with the transitional provisions of VOCAA ss. 154 and 155.3 [5] 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 [6] Ms Chekirova, who appears for the applicant, seeks compensation as follows: (1) Item 20 – fractured skull (brain damage – minor/moderate) – 10%-25%. Ms Chekirova submits that the head injury suffered by the applicant, which was initially severe but ameliorated over time, leaving the applicant with minor cognitive deficits, should receive an award at 24% of the scheme maximum. Ms Chekirova relies on a report by Dr Gregory Ohlrich, neurologist, who concludes that the applicant “sustained a moderately severe head injury as a result of the assault which occurred on 20 January 2007. … As a result of the head injury [the applicant] has suffered brain damage. This in turn as resulted in impairment of memory and cognitive function.”4 Dr Ohlrich considered that the applicant had reached his maximum medical improvement from a neurological perspective, and was at the date of the report showing only minor cognitive changes with slight weakness in information processing. Dr Ohlrich considered that the applicant’s “total permanent whole person impairment level” resulting from the applicant’s “impairment of memory and cognitive function” was 10%. Dr Ohlrich noted that the applicant suffers from headaches “most of the time” as a result of the assault. These were assessed by Dr Ohlrich as “a total permanent whole person impairment level of 3% resulting from these headaches”. In addition, Dr Ohlrich assessed a “total permanent whole person impairment level of 2% resulting from [the applicant’s] mild right lower facial weakness”. The applicant’s “total permanent whole person impairment level” resulting from his neurological injuries was assessed by Dr Ohlrich as 15%. In addition, Dr Ohlrich noted that there was a scarring in the applicant’s left temporal lobe, as demonstrated on an MRI scan, which left a “very small risk of post traumatic epilepsy arising in the future as a result of this head injury”.5 3 See Kennedy v Faafeu [2010] QDC 21, para 6. 4 Exhibit GDO2 (report 17 February 2010) p 7. 5 Exhibit GDO2 pp 7-8, affidavit of Gregory Ohlrich sworn 9 March 2010. -- 3 of 5 -- 4 Dr Ohlrich noted that the significant brain damage suffered by the applicant had resulted in permanent neurological deficit, including impairment of memory and cognitive function, chronic headaches and mild right lower facial weakness. Dr Ohlrich considered that the applicant’s injuries could be classified as fractured skull (brain damage – minor/moderate). Dr Ohlrich noted further that the applicant had not been able to return to paid employment since the injury.6 In these circumstances, I accept the submission that an assessment should be made pursuant to Item 10 at 24% of the scheme maximum ($18,000). (2) Item 27 – Facial disfigurement or bodily scarring (minor/moderate) – 2%-10%. The applicant suffered a right facial nerve palsy associated with the skull fracture of the petrous temporal bone.7 Dr Andrew Lomas, otolaryngologist, examined the applicant on 22 July 2010. He noted that the applicant “had a mild facial weakness [assessed at] … House Brackmann Grade 2.” Dr Lomas noted that “this results in obvious facial deformity and [the applicant] had synkinesis [the involuntary movement of facial muscles that accompanies purposeful movement of some other set of muscles].” Ms Chekirova submits that the right nerve facial palsy does not fall directly within the ambit of Item 27 (facial disfigurement or bodily scarring),8 but argues that an assessment should be made by comparing the applicant’s facial injury to the facial disfigurement scale in Item 27 (2%-10%). The submission, in essence, is that the facial palsy injury is an analogue to the “facial disfigurement” referred to in Item 27, and accordingly should bring an award of 6% of the scheme maximum ($4,500). Given the nature of the injury and its persistence, I accept that submission and accordingly award $4,500 pursuant to Item 27. (3) Item 33 – Mental or nervous shock (severe) – 20%-34%. The applicant was referred, on 30 July 2008, by his general practitioner, Dr Steven Ting, for psychological treatment from Ms Michelle Kearnes. Ms Kearnes concluded that the applicant, both at initial assessment (October 2008) and during the course of treatment, fulfilled the diagnostic criteria for post traumatic stress disorder (PTSD), chronic. Ms Kearnes noted that “the impact on [the applicant’s] social and occupational functioning has been severe.”9 Dr Ohlrich had noted in his report that the applicant suffered from anxiety and agitation, which was quite severe, had no confidence and was cranky, admitted to depression and frequent suicidal thoughts, was getting only two or three hours of sleep at night, became angry and frustrated and sometimes violent, throwing and smashing things, yelling and screaming at times, and required his mother to accompany him 6 Exhibit GDO2 p 9, affidavit of Gregory Ohlrich sworn 9 March 2010. 7 Exhibit GDO2 p 3, affidavit of Gregory Ohlrich sworn 9 March 2010. 8 COVA s 25(4) & (5). 9 Exhibit MK2 pp 2-3, affidavit of Michelle Kearnes sworn 8 April 2010. -- 4 of 5 -- 5 on outings for medical appointments.10 Dr Ohlrich considered that the applicant’s major problem as at his examination of the applicant (11 February 2010) was the psychological sequelae of the assault, with the applicant showing “significant anxiety and depression with marked agitation and emotional upset”, becoming “angry and frustrated”, with the psychiatric problems having “contributed significantly to [the applicant’s] level of disability.”11 In these circumstances Ms Chekirova submits that an assessment should be made at 30% of the scheme maximum (i.e. towards the upper end of the Item 33 range). I accept this submission and accordingly award $22,500 pursuant to Item 33. (4) Item 35 – loss of hearing (one ear) – 2%-20% The applicant was examined by Dr Andrew Lomas, otolaryngologist, on 22 July 2010, who concluded that the applicant had suffered binaural hearing loss at 3.1% loss. Dr Lomas considered that of more concern for the applicant was his significantly intrusive tinnitus affecting his right ear. This was described by the applicant to Dr Lomas as “being cicada like and intrusive to the extent where [the applicant] could not sleep in the quiet despite trying distraction therapy in the forms of rainforest noises and music tapes”, and required the applicant taking sleeping tablets, which put him to sleep, but he tended to awaken secondary to the intrusive tinnitus. Dr Lomas noted that the applicant had already attempted treatment with the normal first measures of hearing aids, sleeping tablets and behaviour modification of his environment without success. Dr Lomas stated that the applicant may in the future require a trial of the “neuromonics” tinnitus treatment technique at a cost of approximately AUS$6,000.12 Ms Chekirova argues that this represents a substantial loss of hearing in one hear (the applicant’s right ear) and should receive an award of 10% of the scheme maximum ($7,500). I accept that submission and accordingly award $7,500 pursuant to Item 35. Contribution [7] I do not consider that the applicant has contributed to his own injuries, either direct or indirect.13 Order [8] I order that the respondent, Cameron Christopher Dowd, pay the applicant, Richard Lance Bennett, the sum of $52,500. 10 Exhibit GDO2 p 5, affidavit of Gregory Ohlrich sworn 9 March 2010. 11 Exhibit GDO2 p 7, affidavit of Gregory Ohlrich sworn 9 March 2010. 12 Exhibit LMW1 affidavit of Lauren Wilkie sworn 3 September 2010. 13 COVA s 25(7). -- 5 of 5 --