Beasley v Robertson [2010] QDC 507

1-1 [2010] QDC 507 DISTRICT COURT CIVIL JURISDICTION JUDGE JONES No 45 of 2009 GREGORY JOHN BEASLEY Applicant and TODD MICHAEL ROBERTSON Respondent BRISBANE ..DATE 16/12/2010 ORDER -- 1 of 9 -- 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is an application for compensation pursuant to section 24 of the Criminal Offence Victims Act 1995. That Act was repealed with the introduction of the Victims of Crimes Assistance Act 2009. However, under the transitional provisions of that Act, compensation is to be assessed under the Criminal Offences Victims Act because the originating application was filed before the commencement of the new legislation. The commencement date for the new legislation is 1 December 2009. The application was filed on 16 October 2009. Pursuant to section 22 subsection 4 of the Criminal Offences Victims Act, the maximum amount of compensation provided for under the Act is reserved for the most serious of cases. The amounts provided for in other cases are intended to be scaled according to their level of seriousness. The scheme of the Act and its associated regulations is that in respect of the classification of injuries identified, certain percentages are to be applied to a scheme maximum of $75,000 which is prescribed under section 2 of the regulations. In this application the amount of compensation claimed or contended for is $56,250 made up as follows: (a) Bruise and lacerations of ankle 5 per cent, $4,500. (b) Bodily scarring to area of ankle 13 per cent, $9,750. (c) Fracture to right ankle 13 per cent, $9,750. -- 2 of 9 -- 1-3 ORDER 1 10 20 30 40 50 60 (d) Fracture to right leg 13 per cent, $9,750. (e) Mental or nervous shock 30 per cent, $22,500. The reasons will become more clear in a moment. I consider the claim excessive and particularly, in respect of items (a), (c) and (d) where I consider that there are elements of double dipping. If I could turn briefly to the facts of the case, the applicant was born on 13 July 1959. He is now 51 years of age. On 28 September 2006 the applicant was assaulted by the respondent. On 14 July 2008 the respondent pleaded guilty to two counts of assault occasioning bodily harm and was sentenced to 12 months' imprisonment. The whole term of the imprisonment was suspended forthwith with an operational period of 18 months. The circumstances of the assault were that on 28 September 2006 the applicant was living with his wife, his son who was 26 years of age and five other younger children. On the evening of that day the respondent and the applicant became involved what was essentially a neighbour dispute about the noise the applicant's children were making in the swimming pool. A short time after that altercation, the respondent and his son came to the applicant's door and when the door was answered by the applicant's wife the respondent and his son pushed past her, entered the applicant's house and thereafter -- 3 of 9 -- 1-4 ORDER 1 10 20 30 40 50 60 attacked him. As a result of the attack, the applicant suffered bruising and lacerations but the more significant injury was a fractured right ankle. The bruising predominantly was to the back of the head and upper back area. As Mr George described it, it had the elements of a home invasion and would have been an extremely distressing event. As a result of the assault, the applicant has undergone two operations to correct the fracture to his right ankle. Dr Martin records at page 2 under the heading, Injury: "The injury was a closed diastasis fracture of the right ankle. There was a spiral fracture of the proximal fibular. There was a diastasis between the distal fibular and the tibia and there was a small postal lateral fracture from the tibial articular surface and there was a fracture of the medial malleolus." As the medical report reveals, there were two fractures, being a fracturing and a separation of the two bones in the area of the ankle. However, notwithstanding this, on balance, I am inclined to adopt the position more consistent with the medical report, namely that the injury really is more properly described as one injury to the ankle. It was, however, a significant injury. At page 3 of Dr Martin's report he reports: "The injury was appropriately treated by internal fixation. A diastasis screw was inserted and two screws were inserted to fix the medial malleolus. The leg was then immobilised in a cast and Mr Beasley was discharged from hospital when mobile non-weight bearing. He -- 4 of 9 -- 1-5 ORDER 1 10 20 30 40 50 60 remained non-weight bearing until the diastasis screw was removed in a minor operation in December 2006." The balance of Dr Martin's report indicates that he has made a good recovery in respect of the injury. Nonetheless though, as I have said, it was a significant injury. In addition to the physical injuries of the assault, it also had a psychological effect upon the applicant. He was reviewed by a psychologist, Mr Nembach, and at page 6 of his report it is said by him: "It would appear from Mr Beasley's reported history, reported symptomology and test results that he is currently experiencing symptoms which are consistent with a Diagnostic and Statistical Manual of Mental Disorders 4th Edition (DSM-N) diagnosis of: (i) acute stress disorder; and (ii) major depression, recurrent. It would appear from his test results that he may be under-reporting the severity of his symptoms as a result of a simplistic view of the world. It would appear any psychological symptoms he currently experiences may be manifested more in a physio social manner." Mr Nembach goes on to say: "It would appear his physiological injury relates to the attack that occurred in September 2006. There would appear to be no prior psychological injury or problem before the attack." And then later: "The significant symptoms involve fear for the family, hyper vigilance, agitation, numbness, helplessness, poor concentration, irritability, nightmares, poor sleep, worthlessness and fatigue." -- 5 of 9 -- 1-6 ORDER 1 10 20 30 40 50 60 At page 7 of his report Mr Nembach says: "It is difficult to ascertain at this stage if there's a likelihood of a full recovery until Mr Beasley has been through therapy. Once he has completed therapy there would be a more realistic idea of the likelihood of a full recovery. If there was no therapy it would be expected there would be very little change in his symptomology due to the time that has elapsed since the attack. It is also difficult to fully ascertain if there is any permanent disability until therapy was completed. If Mr Beasley was able to complete therapy it would be expected he would have some ongoing symptomology due to the time that has elapsed since the injury. The effect of a disability upon his work and lifestyle cannot be fully determined until he has completed therapy. It would be envisaged he would continue to have difficulties in the workplace and socially, due to his level of hyper vigilance and fear of other people. This can be evidenced by his move from Caloundra to Bundaberg to avoid the stress of living near the offender and by his ongoing withdrawal from society since moving to Bundaberg. The withdrawals have resulted in Mr Beasley relating to resulting from there being no therapy undertaken by the applicant. own immediately family and preferring to avoid social settings within the community." That passage identifies a number of issues resulting from there being no therapy undertaken by the applicant. First, trying to identify the full extent of the injury. Second, whether the injury amounts to a permanent disability and third, whether or not therapy would have any significant impact in improving the condition of the applicant. In respect of the claim for the injury of mental or nervous shock, the amount claimed is at the upper end of a severe form of that injury. In my opinion, the report of the psychologist does not justify a classification of this type. As I have already identified, the report states that it is difficult to ascertain the severity of the injury and whether or not it is permanent. On balance, I consider that the more appropriate -- 6 of 9 -- 1-7 ORDER 1 10 20 30 40 50 60 range is that provided for a moderate form of that injury, namely, the range of 10 per cent to 20 per cent. The 20 per cent being at the lowest level of the severe form of that injury. In all the circumstances, I do not consider that an allowance of more than 20 per cent should be made. In my view, whilst this form of injury might be described as being at the upper end of moderate, it does not fall into the severe category. In the circumstances, I will allow 20 per cent for that injury. Turning then to the allowance for fractures and bruising and lacerations, the medical evidence and the photographs to which I have referred, reveal that the bruising in the ankle area would have been severe. I accept that an allowance of 5 per cent is reasonable for that injury. For scarring 13 per cent is claimed. That would place it in the severe level of that form of injury. It needs to be borne in mind that here the applicant is an adult male and the injury is to the lower leg. In my view, the amount claimed is excessive. This form of injury could only be described as falling in the minor/moderate range. In my view, that range is 2 to 10 per cent. On balance, I consider that an allowance of 3 per cent is all that can be justified for this injury. Turning then to the question of the fracture. On balance, I consider that the medical evidence establishes one injury to -- 7 of 9 -- 1-8 ORDER 1 10 20 30 40 50 60 the ankle which in total would fall at the upper end of the range provided for a severe form of this injury. That range is 8 per cent to 25 per cent. I will allow 20 per cent. That 20 per cent, coupled with the 5 per cent for bruising, would adequately compensate the applicant for the physical injury to the ankle, in my view. Pursuant to section 25 subsection 7 of the Act, I am required to consider, in determining final compensation, whether any behaviour on the part of the applicant directly or indirectly contributed to the injury. As I have indicated, the lack of therapy more likely than not has tended to maintain the injury of mental or nervous shock at its present state. In that sense it might be said that the applicant has in some way contributed to the ongoing level of this injury. However, as a consequence of the injury and its effects on him, the applicant is now on a disability pension. In my view, it would be unreasonable to consider that in all the circumstances that he has contributed either directly or indirectly to this injury. Accordingly, I will make no further discount under this part of the legislation. ... -- 8 of 9 -- 1-9 ORDER 1 10 20 30 40 50 60 HIS HONOUR: I will reserve my right to tidy these reasons up but the order I will make will be then that the respondent be ordered to pay the applicant the sum of $36,000 by way of compensation under the Criminal Offence Victims Act 1995. ----- -- 9 of 9 --