Caldwell v Boone [2010] QSC 51

SUPREME COURT OF QUEENSLAND CITATION: Caldwell v Boone [2010] QSC 51 PARTIES: PETER DAVID CALDWELL Applicant v BRIAN JOHN BOONE Respondent FILE NO/S: S226/2009 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court Rockhampton DELIVERED ON: 24 February 2010 DELIVERED AT: Rockhampton HEARING DATE: 1 February 2009 JUDGE: McMeekin J ORDER: The respondent pay the applicant compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 in the sum of $32,250. CATCHWORDS: CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY - COMPENSATION - QUEENSLAND - where the respondent has pleaded guilty to the offence of assault and occasioning bodily harm against the applicant - where the applicant suffered physical and psychological injuries - whether compensation should be reduced where there is more than one cause of injury Criminal Offence Victims Act 1995 (Qld), s 22, s 24 Victims of Crime Assistance Act 2009 (Qld), ch 6 SAY v AZ; ex parte A-G (Qld) [2006] QCA 462 COUNSEL: A. Arnold for the applicant No appearance for the respondent -- 1 of 6 -- 2 SOLICITORS: Shine Lawyers at Gympie for the applicant No appearance for the respondent [1] Peter David Caldwell applies for compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 (“the 1995 Act”). Section 24 provides that where a person is convicted on indictment of a personal offence then “the person against whom the personal offence was committed may apply to the Court for an order that the convicted person pay compensation for injuries suffered because of the offence.” [2] The respondent is Brian John Boone. Mr Boone pleaded guilty to the offence of assaulting Mr Caldwell and occasioning him bodily harm in the Supreme Court of Rockhampton on 10 June 2008. The respondent has been served with the proceedings but has not appeared. [3] The Victims of Crime Assistance Act 2009 repealed the 1995 Act but the transitional provisions contained in chapter 6 of the 2009 Act require that Mr Caldwell’s application be heard and determined under the provisions of the 1995 Act, given that his application was filed on 14 May 2009 and so before the commencement of the 2009 Act. 1 Circumstances of the Offending Conduct [4] At the time of the relevant assault the applicant and respondent had been friends for about 18 months. On the 5th of March 2007 the applicant and respondent were walking about Gladstone. They had been drinking. The applicant recalls the respondent started talking about taking his own life as well as doing harm to others. He says that he has no recollection of any threat being made by the respondent to him or the respondent acting in a manner that would cause him any alarm. He has no memory of being attacked but awoke in hospital some time later. [5] The case against the respondent was based largely on admissions he made to the police as to his conduct. In my sentencing remarks I said: “For some reason which doesn’t really emerge in any sensible fashion, you took the view that he [the applicant] wished to end his life and you wished to end yours and you set about helping him with his intentions. I’m told that you grabbed the complainant by the throat, that you grabbed him very hard, squeezed for one to two minutes, released the pressure and then resumed the pressure. You saw his face go blue, his tongue come out of his mouth, and it turn blue. The circumstances of the offence are truly quite frightening; I imagine they were for the complainant. It would seem that not only does he have the strangulation, but he has suffered facial injuries of quite a serious degree involving the fracture of bones in his face. Quite how he received those, is not clear. It may be that you caused them. It may be 1 See s167 Victims of Crime Assistance Act 2009 -- 2 of 6 -- 3 that, in his disorientated state after being strangled, he has fallen onto a rock as suggested by your counsel.” The Injuries Suffered [6] The applicant was admitted to the Gladstone Hospital in an unconscious state. He had a Glasgow coma scale score of 8/15. [7] Upon admission to the intensive care unit of the Rockhampton Hospital, the applicant was noted to have extensive soft tissue swelling and bruising around the right eye with a fracture of the right orbital floor and medial wall and bilateral nasal bone fractures. [8] I have very little in the way of information in relation to the facial fractures. Dr Taylor, the senior medical officer at the Gladstone Hospital provided a report in which he recorded: “There is evidence of direct trauma to the right eye with proptosis, chemosis, non-reactive pupil and CT scan shows inferior and medial orbital wall fractures.” [9] Dr Dunn, a radiologist, reported the results of a CT scan of the head as follows: “Right frontal and peri-orbital soft tissue swelling. There is a crack in the floor of the right orbit and right haemoentrum. Gas is present in the etraconal right orbit medially adjacent to occult fractures of the right medial orbital wall. There is soft tissue thickening in the right ethmoid complex as well.” [10] The discharge summary from the Gladstone Hospital records the right orbit fracture of the medial wall and floor and adds “inferior rectus entrapment clinically.” [11] I am provided with the reports of a psychologist, Janice James, and a psychiatrist, Dr Andrew Byth. They are consistent in their analysis that Mr Caldwell has a post traumatic stress disorder as a consequence of this assault. A major depressive condition is diagnosed. I note that Dr Byth also records that Mr Caldwell appears to have suffered “a mild hypoxic brain injury as a result of the subject assault.” Entitlement to Compensation [12] In order to qualify for compensation under the 1995 Act, the applicant must show that Mr Boone was convicted on indictment of a personal offence, that the personal offence was committed against him, and that as a consequence he has suffered injuries as defined in the Act. [13] Each of those three conditions is satisfied here. [14] In making a compensation order the Court is limited to ordering the payment of an amount in accordance with s 25 of the 1995 Act. That section provides that a Court assessing compensation may not order more than the prescribed amount, which is $75,000, and must determine the appropriate compensation by reference to the percentages specified in the Compensation Table which is to be found in Schedule 1 to the Act. By s 25(4) the amount of compensation awarded for injuries specified in the table may not be more than the percentage of the scheme maximum which appears in the table with respect to each injury. The Court is required to apply that -- 3 of 6 -- 4 nominated percentage or adopt an amount within the listed range of the percentages of the scheme maximum. [15] The scheme maximum is reserved for the most serious cases and the amounts provided in other cases are required to be scaled according to their seriousness: s 22(4). [16] It is relevant to note that the compensation intended to be provided by the 1995 Act “is intended to help the applicant and is not intended to reflect the compensation to which the applicant may be entitled under common law or otherwise” (s 22(3)) and in arriving at an appropriate amount of compensation the legislation provides that the Court is not to apply principles used to decide common law damages for personal injuries (s 25(8)). Assessment of Compensation [17] Mr Arnold, counsel for the applicant, submitted that the following amounts of compensation ought to be allowed: Item Description of Injury Percentage of scheme maximum Amount 1 Bruising/Laceration (minor/moderate) 3% $2,250 3 Fractured nose (no displacement) 5% $3,750 7 Facial Fracture (moderate) 18% $13,500 33 Mental or Nervous Shock (severe) 25% (reduced by 40%) $11,250 TOTAL: $30,750 [18] In my view the claims made in relation to bruising/laceration and the undisplaced fractured nose need no further elaboration – the claims made are appropriate. [19] In relation to the facial fractures, the range of percentages provided by the table are from 8% at the lower end of a minor facial fracture to 30% at the upper end of a severe facial fracture. The amount for which Mr Arnold contends is at the high end of the moderate level (Item 7: 14%-20%). [20] Mr Caldwell makes no mention of the consequences of the physical injuries in his affidavit. He mentions that he had follow up treatment at the Royal Brisbane Hospital at the maxillofacial clinic as well as the ophthalmology clinic. What that treatment might have been and how long it lasted is not made clear. Given the absence of any complaint and the absence of any report, I assume that whatever the treatment was it was effective and that there have been no lasting effects. In my view it would be appropriate to classify the fractures suffered as moderate and I would assess them at the lower end of the range. I assess 15% of the scheme maximum that is $11, 250. -- 4 of 6 -- 5 [21] The applicant also makes a claim for mental or nervous shock. [22] No submission was made seeking compensation for the “mild hypoxic brain injury” noted by Dr Byth. I assume that is an oversight as it seems to me Mr Caldwell would be entitled to some compensation for the injury as the medical evidence clearly supports it. No item in the Compensation Table precisely applies. The references in the Table to brain damage are associated with a fractured skull. Mr Caldwell’s brain injury is a result of the strangulation that he endured. Where there is no item that precisely applies the legislation requires that a comparison be made with those injuries which are identified in the table and that compensation be assessed having regard to the amounts that may be ordered to be paid for those injuries: s 25(6). Where there is a fractured skull with brain damage at the minor level then the percentage of scheme maximum, at its lowest end, is 10% (Item 10 of the Compensation Table). Presumably that includes some element of the physical injury as well as the brain damage. For a fractured skull with no brain injury an allowance of 5% to 15% is made (Item 9). I bear in mind the potential for overlap with the claims for mental or nervous shock. I will allow 5% for the hypoxic brain injury suffered, described as I have said as “mild” by Dr Byth. [23] Mr Caldwell has quite severe symptoms of post traumatic stress disorder. His symptoms are comprehensively described in the report of Ms James. Dr Byth referred to persistent reliving experiences, avoidance of related stimuli, social withdrawal, emotional numbing, anxiety depression and hyperarousal. Dr Byth considered that the symptoms complained of were of “marked severity, as indicated by subjective distress, high anxiety levels, social withdrawal and emotional numbing.” Associated with the post traumatic stress disorder he considered there was an additional diagnosis of major depression. Some evidence of the severity can be gathered from Dr Byth’s view that there was a need for ongoing treatment at a cost of some $9,000 and that even with such treatment the prognosis was that there was unlikely to be full remission and that Mr Caldwell will be left “with chronic marked PTSD and depression.” [24] The complicating feature of the case is that Mr Caldwell has been assaulted on three occasions and each has contributed to his psychiatric state. The first assault is the subject one. He was subsequently assaulted by his girlfriend with a knife on 26 October 2007 and by a stranger by way of punching and kicking on 10 May 2008. [25] The fact that other assaults have contributed to the psychiatric condition for which compensation is sought does not mean that Mr Caldwell is disqualified from obtaining such compensation. It is necessary for him to show that the offence in question has materially contributed to the injury for which compensation is sought: SAY v AZ; ex parte A-G (Qld) [2006] QCA 462. That pre-condition is plainly satisfied here. [26] In SAY, Holmes JA held at [23]: “Where there is a single state of injury produced by a number of factors, some or all of which warrant a reduction in the award, the Court must do its best to make allowance for their contribution although the evidence may not lend itself to any precision. Often a broad-brush approach of the kind adopted by Thomas JA in Sanderson v Kajewski will be necessary. The exercise may be one of discounting, or fixing on a lower percentage in the compensation scale to allow for the role of the other factors, rather than necessarily a strict process of -- 5 of 6 -- 6 apportionment. In that exercise, it is legitimate to consider the nature of the other contributing factors…” [27] Dr Byth has attempted the exercise of apportioning causation between the three assaults. In his opinion 60% can be attributed to the subject assault, 30% to the second and 10% to the third. Because of his analysis Mr Arnold has submitted that the claim for compensation for mental or nervous shock should be reduced by the 40% attributed by Dr Byth to the second and third assaults. [28] It is evident from Dr Byth’s discussion in his report that he considers that the subject assault outweighed the combined effects of two later assaults in terms of its contribution to the final result and hence he has arrived at the 60% apportionment. No doubt that reflects a broad brush approach but it seems to me to be an appropriate one in the circumstances and I propose to adopt his opinion. [29] Turning then to the compensation table, it seems to me that the severe post traumatic stress disorder and major depression from which Mr Caldwell suffers falls into the severe category of “mental or nervous shock” but towards the lower end of it. The range given is 20% to 34%. Mr Arnold submitted that 25% is appropriate and I agree with his submission. I assess compensation for this aspect of Mr Caldwell’s condition at $11,250 (ie 25% of the scheme maximum reduced by 40%). [30] The total compensation then will be as follows: Item Description of Injury Percentage of scheme maximum Amount 1 Bruising/Laceration (minor/moderate) 3% $2,250 3 Fractured nose (no displacement) 5% $3,750 7 Facial Fractures (moderate) 15% $11,250 Hypoxic brain damage 5% $3,750 33 Post traumatic stress disorder and major depression (Mental or Nervous Shock) 25% (reduced by 40%) $11,250 TOTAL: $32,250 [31] I order that the respondent pay the applicant compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 in the sum of $32,250. -- 6 of 6 --