Burnett v Cowell [2010] QDC 481

DISTRICT COURT OF QUEENSLAND CITATION: Burnett v Cowell [2010] QDC 481 PARTIES: EDWARD MATTHEW BURNETT (applicant) v BENJAMIN SCOTT COWELL (respondent) FILE NO: 2806/09 PROCEEDING: Application for criminal compensation ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 10 December 2010 DELIVERED AT: Brisbane HEARING DATE: 11 November 2010 JUDGE: Rafter SC DCJ ORDER: The respondent pay to the applicant the sum of $22,500 pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of assault occasioning bodily harm which led to the conviction of the respondent in the District Court at Brisbane on 5 September 2008. CATCHWORDS: APPLICATION – CRIMINAL COMPENSATION – assault occasioning bodily harm – where the applicant suffered physical injuries and mental or nervous shock – assessment of compensation Criminal Offence Victims Act 1995 (Qld), s 22, s 24, s 25 Criminal Offence Victims Regulation 1995 (Qld), s 2 Victims of Crime Assistance Act 2009 (Qld), s 149, s 155 Lewis v Williams [2005] QCA 314 Lynch v Loli, District Court No 881/09, Botting DCJ, judgment delivered 30 September 2008 Madden v Merlo [2009] QDC 118 R v Bennett, ex parte Facer [2002] 2 Qd R 295; [2001] QCA 395 -- 1 of 13 -- 2 R v Ward, ex parte Dooley [2001] 2 Qd R 436; [2000] QCA 493 SAY v AZ [2007] 2 Qd R 363; [2006] QCA 462 The Queen v De Simoni (1981) 147 CLR 383 Wren v Gaulai [2008] 2 Qd R 383; [2008] QCA 148 COUNSEL: F Muirhead, solicitor for the applicant No appearance by or for the respondent SOLICITORS: Legal Aid Queensland for the applicant No appearance by or for the respondent Introduction [1] The applicant seeks compensation pursuant to s 24 Criminal Offence Victims Act 1995 for physical and emotional injuries caused by the respondent on 15 May 2004. The Criminal Offence Victims Act 1995 was repealed by s 149 Victims of Crime Assistance Act 2009 which commenced on 1 December 2009. The application was filed on 1 October 2009. Therefore, the transitional provision in s 155 Victims of Crime Assistance Act 2009 requires the application to be determined in accordance with the Criminal Offence Victims Act 1995. [2] On 5 September 2008 in the District Court of Queensland at Brisbane the respondent pleaded guilty to assault occasioning bodily harm. He was placed on probation for 6 months.1 [3] I made an order for substituted service on 8 October 2010. Service was effected upon the respondent by means of an advertisement placed in The Courier Mail on 19 October 2010 and the posting of the originating application and supporting affidavit material to the respondent’s mother’s address on 13 October 2010. There was no appearance by or for the respondent at the hearing. Circumstances of the offence [4] The offence occurred on 15 May 2004. The applicant was 31 years of age. The respondent was 19 years of age. When sentencing the respondent, I described the circumstances of the offence and the applicant’s injuries as follows:2 “ … you were at a family birthday party. You were in a relationship with the complainant’s niece. You were evidently intoxicated. You were making somewhat of a nuisance of yourself on the dance floor bumping into other people. However, you made more than a nuisance of yourself by picking the complainant up in a fireman’s hold. You fell over and the 1 Exhibit A to the affidavit of Melissa Lo filed 19 August 2010. 2 Exhibit B to the affidavit of Melissa Lo filed 19 August 2010 (Transcript of Sentencing Remarks) at pp 3-4. -- 2 of 13 -- 3 complainant struck his head on the dance floor and suffered pain in his leg. He sustained a fractured fibula. As it happens, that act of reckless behaviour has had a substantial impact upon the complainant. He has suffered ongoing pain, emotional harm and financial loss.” Injuries and medical reports [5] The applicant states that he suffered a serious injury to his left knee in the assault. He states that he was diagnosed as suffering multiple severe ligament injuries to the left knee and nerve injuries to the left leg.3 The applicant states that he required the use of a leg brace for 2 months following his operation to repair the significant injury to his left knee, followed by the use of crutches for several months. He required the use of a foot drop splint and pain relief medication for more than 12 months. He states that he has been left with two surgical scars on his left leg, both of which he finds distressing.4 He states that he is unable to complete his former duties as a steel fixer in his business, instead having to adopt a managerial role. The applicant states that he feels humiliated by his physical condition. He states that he has difficulty sleeping, relying on sleeping medication, and at times self-medicating with alcohol, to help him sleep. He is unable to play games with his children and can no longer ride a motorbike, which was one of his previous social activities. He states that his marital difficulties have worsened since the assault.5 [6] The applicant’s treating orthopaedic surgeon, Dr James Fardoulys, provided a report dated 18 August 2005. In that report, he states that upon admission to the St Andrew’s Hospital, he diagnosed multiple severe ligament injuries to the applicant’s left knee and nerve injuries to his left leg. The applicant sustained a complete rupture of the anterior cruciate ligament and a horizontal disruption through all of the soft tissue structures in the lateral aspect of the left knee. Dr Fardoulys operated on the applicant on 25 May 2004. Postoperatively, the applicant required the use of a leg brace, crutches and a foot drop splint. Dr Fardoulys states that the applicant’s knee was stable on review in late August 2004. No recovery was yet evident in the nerve. He said that the applicant required ongoing physiotherapy and rehabilitation over the next 6-12 months. He will have a permanent deficit of 20% of lower limb function.6 [7] The applicant was examined by Dr Tze-Ki Ho, Orthopaedic Surgeon, on 5 September 2007 and 24 March 2010. In his report dated 11 May 2008, Dr Ho states that the rupture to the applicant’s anterior cruciate ligament was successfully reconstructed and that his lateral capsular structure was also repaired. He states that there was no significant instability in the applicant’s collateral ligaments. The applicant’s medial condyle bone bruising apparent on his first MRI scan was noted to be associated with cartilage disruption, explaining some of the applicant’s ongoing knee pain. Dr Ho did not recommend any further treatment to the applicant’s left knee. Dr Ho also states that the applicant had a stretched peroneal 3 Affidavit of the applicant filed 19 August 2010 at para 11. 4 At paras 13-14. 5 At paras 18-23. 6 Exhibit D to the affidavit of Melissa Lo filed 19 August 2010. -- 3 of 13 -- 4 nerve which led to a dropped foot and anterior shin numbness. He was of the view that that nerve damage was unlikely to improve.7 [8] In a further report dated 24 March 2010, Dr Ho states that the applicant continues to suffer from stabbing anterior knee pain when he works as well as sporadic pain at night. The applicant had unchanged numbness over the anterior shin and dorsal foot areas. Dr Ho states once again that no further treatment, whether surgical or non- surgical, is being considered for the applicant. Dr Ho used the AMA Guidelines, 5 th edition to calculate the applicant’s partial permanent impairment. He considered the applicant to be suffering from a 12% impairment of the whole person, consisting of a 4% impairment from loss of range of motion and an 8% impairment from the loss of function in the applicant’s peroneal nerve. 8 [9] Dr Trevor Harris, Plastic and Reconstructive Surgeon, examined the applicant on 16 November 2009. In his report dated 17 November 2009, Dr Harris states that the applicant has been left with a 13cm scar running down his left leg lateral to his kneecap and a 5cm scar below his kneecap running medially on his upper shin. Both scars resulted from operative treatment of the applicant’s injury to his left knee. Dr Harris states that the scarring is a source of embarrassment to the applicant, but fortunately is able to be covered up by long shorts or trousers. Dr Harris states that the applicant’s scarring would be visible at the beach. He also notes that the applicant had previously been involved in a motorcycle accident, requiring open reduction and internal fixation of fractures to both femurs, which left him with extensive scarring on both thighs. Dr Harris estimates that the applicant’s whole person impairment due to the scarring is 7%.9 [10] The applicant was examined by Dr Barbara McGuire, psychiatrist, on 16 November 2009. In her report dated 24 November 2009, Dr McGuire states that the applicant experienced depression prior to the assault however the assault had a reinforcing effect upon his symptoms and had lessened the probability of him recovering from those symptoms.10 She states that the applicant suffers from depressive symptoms to a moderate degree. His social and recreational activities have been significantly reduced, however he continues in his business.11 Dr McGuire states that the applicant had been prescribed anti-depressant medication by his general practitioner approximately 1 month prior to her examination; however he had not been using that medication because of its sedative effects. She states that the applicant feels a sense of grief and loss that he is unable to play with his sons. He denied having nightmares or flashbacks of the assault. The applicant did not feel counselling to be appropriate for him. Dr McGuire states that other factors, such as marital problems, contribute to the applicant’s psychiatric diagnosis. However she is of the view that the assault had materially and significantly contributed to the applicant’s diagnosis and that there was a probability that the applicant would have recovered from his depressive symptoms were it not for the assault. She states that the applicant’s 7 Exhibit B to the affidavit of Dr Tze-Ki Ho filed 19 August 2010 at pp 4-5. 8 Exhibit C to the affidavit of Dr Tze-Ki Ho filed 19 August 2010 at p 3. 9 Exhibit A to the affidavit of Dr Trevor J Harris filed 19 August 2010 at pp 3-4. 10 Exhibit A to the affidavit of Dr Barbara Anne McGuire filed 19 August 2010 at p 3 (report dated 24 November 2009). 11 Exhibit A to the affidavit of Dr Barbara Anne McGuire filed 19 August 2010 at p 5 (report dated 12 February 2010). -- 4 of 13 -- 5 symptoms may have been less had the applicant’s only experience been that of the assault.12 What injuries can be taken into account? [11] At the hearing of the application on 11 November 2010, I raised an issue not addressed by Ms Muirhead in her written submissions. The respondent pleaded guilty to assault occasioning bodily harm. The Crown entered a nolle prosequi in respect of an indictment charging the respondent with grievous bodily harm. The issue that arises is whether injuries constituting grievous bodily harm can nevertheless be the subject of an award of compensation. [12] Section 24 Criminal Offence Victims Act 1995 provides: (1) This section applies if someone (the convicted person)- (a) is convicted on indictment of a personal offence; … (2) The person against whom the personal offence is committed may apply to the court before which the person is convicted for an order that the convicted person pay compensation to the applicant for the injury suffered by the applicant because of the offence. (3) The court may make an order (a compensation order) for an amount to be paid by the convicted person to the applicant because of the injury. [13] “Bodily harm” is defined is s 1 Criminal Code as meaning “any bodily injury which interferes with health or comfort”, while “grievous bodily harm” is relevantly defined as meaning “any bodily injury of such a nature that, if left untreated, would … cause or be likely to cause permanent injury to health…”. [14] At the sentence hearing on 5 September 2008 the issue of the applicant’s injuries was raised in the following exchange with the Crown Prosecutor:13 MS MEISENHELTER: … So the basis of the plea, your Honour, is it’s not a deliberate assault that you would usually see in this Court. It is on a criminal negligence, reckless behaviour basis. The complainant was taken to the Caboolture Hospital and x-rays showed that he suffered a fractured fibula. He was placed in a cast. He had surgery----- HIS HONOUR: Fractured fibula? MS MEISENHELTER: Yes. He had surgery on the 25th of May 2004 for the fracture. He also had some ligament damage and nerve damage which 12 Exhibit A to the affidavit of Dr Barbara Anne McGuire filed 19 August 2010 at pp 3-4 (report dated 24 November 2009). 13 Exhibit B to the affidavit of Melissa Lo filed 19 August 2010 (Transcript of Submissions on Sentence) at pp 4-5. -- 5 of 13 -- 6 was treated. Post-operatively he was placed in a leg brace and he was on crutches and he had some analgesics for several months for the pain. The medical opinion is that he will have some permanent deficiencies from the injuries, some weaknesses in the leg caused by the nerve damage. The matter----- HIS HONOUR: Well, I suppose you need to be a little careful about that. I mean----- MS MEISENHELTER: Yes. HIS HONOUR: -----it was discontinued, the grievous bodily harm----- MS MEISENHELTER: Yes, that’s correct. HIS HONOUR: -----so the defendant needs to be sentenced for having recklessly caused bodily harm----- MS MEISENHELTER: That’s correct. HIS HONOUR: -----which is interference with health or comfort. MS MEISENHELTER: Yes. That’s correct. I do have a victim impact statement by the complainant. He has been advised that the charge here has been accepted as an assault occasioning bodily harm, but his victim impact statement does talk about the full extent of his injuries. I tender the victim impact statement. HIS HONOUR: That is not to say the bodily harm can’t be serious and ongoing to a degree, but the defendant can’t be sentenced for a permanent injury. MS MEISENHELTER: That’s correct. Yes, I understand. [15] Ms Muirhead filed supplementary written submissions addressing this issue. Ms Muirhead submitted that the applicant has suffered an ongoing injury that was referred to on sentence. She submitted that notwithstanding that the respondent was convicted of assault occasioning bodily harm and the discontinuation of the grievous bodily harm charge, the applicant’s injury was clearly sequela of the offence. Ms Muirhead therefore submitted that the applicant was entitled to be compensated for the full extent of his injury.14 [16] In support of her submission, Ms Muirhead relied on the judgment of the Court of Appeal in Lewis v Williams.15 The appellant had been convicted by a jury of assault occasioning bodily harm. The prosecution had entered a nolle prosequi in relation to a charge of grievous bodily harm.16 The sentencing judge referred to the fact that the respondent believed he had lost his sense of smell because of the assault although that was not established unequivocally. It was accepted by Counsel for the appellant that the sentencing judge had intended to convey that he had taken the loss 14 Supplementary written submissions filed by leave on 11 November 2010 at para 22. 15 [2005] QCA 314. 16 [2005] QCA 314 at para [12] per Wilson J. -- 6 of 13 -- 7 of sense of smell into account when passing sentence. The view had been taken by the prosecution that loss of the sense of smell did not constitute grievous bodily harm.17 [17] On appeal, the appellant submitted that the respondent’s loss of the sense of smell was not compensable as it formed no part of the prosecution case on the bodily harm charge. The appellant submitted that the respondent was bound by the action of the prosecution in entering a nolle prosequi on the grievous bodily harm charge. [18] Ms Muirhead emphasised the following passage in the judgment of Wilson J:18 “Unlike the evidence sought to be led in R v Bennett; ex parte Facer, the evidence of loss of the sense of smell is not inconsistent with evidence at the trial or the view taken on sentencing. Rather it is additional evidence of a sequela of the offence of assault occasioning bodily harm. The shearing of the olfactory nerves was an “injury” within s 20 of the Criminal Offence Victims Act, as well as “bodily harm” within the meaning of in the Criminal Code. Assault occasioning bodily harm is a “personal offence” within the meaning of s 21 of the Criminal Offence Victims Act, and it was open to the primary judge to infer that the shearing of the olfactory nerves was an “injury suffered by the [respondent] because of the offence”: s 24(2).” [19] Ms Muirhead also emphasised the following passage from the judgment of Jerrard JA. The additional emphasis is as it appears in Ms Muirhead’s supplementary written submissions:19 “[8] Section 19(1)(a) does not specifically restrict the scheme for payment of compensation to compensation for the injury suffered by an applicant caused by a personal offence committed against the applicant, which offence itself is constituted by the doing of that injury. It requires only that there be an injury suffered by the applicant, caused by a personal offence committed against the applicant. Mr Williams suffered bodily injury caused by an indictable offence of assault occasioning bodily harm committed against him. Mr Lewis was convicted on indictment of that personal offence; and as it happens, the learned sentencing judge specifically remarked that he was taking into account on sentence the fact that Mr Williams had suffered a loss of his sense of smell. [9] Section 24(2) gives Mr Williams the right to apply to the court for an order that Mr Lewis pay compensation for the injury Mr Williams suffered “because of the offence”. I understood, perhaps wrongly, that Mr Collins submitted, in effect, that that limited the compensation the court could order to an injury Mr Williams suffered which was constituted by the circumstances of the offence of which Mr Lewis was convicted; but that section too is not so restricted in its terms. What is required is proof to the satisfaction of the judge making the order, pursuant to the standard of proof prescribed by s 30 of the Act, 17 [2005] QCA 314 at para [2] per McPherson JA. 18 [2005] QCA 314 at para [32]. 19 [2005] QCA 314 at paras [8]-[9]. -- 7 of 13 -- 8 that the injury for which compensation is sought was suffered because of the commission of the personal offence of which the respondent had been convicted on indictment, or which personal offence was taken into account on sentence when the respondent was convicted on indictment. Both the circumstances specified in s 24 applied to Mr Lewis.” (footnote omitted) [20] Ms Muirhead did not make reference to paragraph [5] of the judgment of McPherson JA. His Honour stated: “It might perhaps be arguable that the “injury” in s 24(3) for which the compensation order was made refers to the “injury” in s 24(2) “suffered by the applicant because of the offence”; and that the words “because of the offence” may have a limiting effect on the circumstances in which a compensation order under the section may be made by confining it to the personal offence of which in s 23(1) (sic) the offender is convicted. But if it is arguable, it was not a submission advanced by Mr Collins on this appeal, which was confined to the matters set out in and dealt with in the reasons of Wilson J. I therefore need not discuss the question any further.” [21] Nor was any reference made to the circumstances in which the charge of grievous bodily harm was discontinued at the trial. As I have said that course was taken because the applicant’s loss of the sense of smell did not constitute grievous bodily harm as defined in the Criminal Code.20 [22] It would be somewhat illogical if the offence itself was not an important factor. Lewis v Williams illustrates that an applicant for criminal compensation is not restricted to the medical evidence presented at sentence, but that does not mean that the offence itself is to be disregarded. [23] In her further written submissions, Ms Muirhead also referred to several unreported decisions of the District Court which she submitted supported her contention. These decisions are Perry v Nguyen,21 Lynch v Loli,22 Marshall v Howard,23 Madden v Merlo24 and Johns v Schofield.25 [24] Madden v Merlo simply illustrates the point established in Lewis v Williams that an applicant for criminal compensation is not restricted to the medical evidence available at the time of sentence. The respondent had pleaded guilty to grievous bodily harm. In Madden v Merlo, Kingham DCJ determined the criminal compensation application by having regard to the applicant’s ongoing health problems, although such problems were not placed before the sentencing court. That approach is consistent with Lewis v Williams. [25] However the situation is in my view somewhat different when the Crown elects to discontinue the more serious charge of grievous bodily harm and the respondent is 20 [2010] QCA 314 at para [2] per McPherson JA. 21 District Court No 1591/09, Dick SC DCJ, judgment delivered 6 June 2010. 22 District Court No 881/09, Botting DCJ, judgment delivered 30 September 2008. 23 District Court No 228/06, McGill DCJ, judgment delivered 3 May 2006. 24 [2009] QDC 118. 25 District Court No 3551/08, Martin SC DCJ, judgment delivered 27 August 2009. -- 8 of 13 -- 9 convicted of assault occasioning bodily harm. I do not accept that in those circumstances the Court is entitled to have regard to the more serious state of injury which would amount to grievous bodily harm. Lynch v Loli illustrates a different approach. In that case the respondent was convicted of assault occasioning bodily harm. Botting DCJ held that it was irrelevant that the applicant’s injuries clearly amounted to grievous bodily harm and awarded the scheme maximum of $75,000 under item 11 in the Compensation Table for the applicant’s brain injury. [26] In R v Bennett, ex parte Facer, Phillipides J, with whom Davies and Thomas JJA agreed, said:26 “In the criminal compensation hearing, the judge should take a view of the evidence consistent with that taken at sentencing; to do otherwise would result in unfairness and would be incongruous. However, since at a criminal trial the evidence must be restricted to what is relevant to the charges, there may be evidence not led at the criminal trial, which is relevant as a result of s. 25(7) of the Act to the issue of contribution. Thus, although additional evidence may be adduced at the compensation hearing, evidence which is inconsistent with the jury’s verdict or the view taken of the evidence on sentencing should not be permitted. This accords with principle and flows from the fact that the compensation proceeding is ancillary to the criminal trial.” [27] The criminal compensation application is ancillary to the criminal proceeding and the judge is required to adopt a view of the evidence consistent with that taken at sentence. It would therefore seem incongruous that the offence itself was to be disregarded. In my view the argument articulated by McPherson JA in Lewis v Williams at para [5] encapsulates the correct position. In the present case, although the precise reasons for the discontinuation of the grievous bodily harm charge are not known, it may well have been because it was envisaged that the Crown would encounter difficulties in establishing that the injuries did not occur by accident: s 23(1)(b) Criminal Code. In those circumstances it would be surprising if criminal compensation could be assessed by having regard to the full extent of the injuries constituting grievous bodily harm. [28] I do not accept Ms Muirhead’s submission that the prosecutor’s reference to the full extent of the applicant’s injuries in her submissions on sentence27 necessarily leads to the conclusion that that submission formed the basis upon which I sentenced the respondent. In sentencing the respondent, I did not have regard to any permanent injury suffered by the applicant.28 In his affidavit filed 19 August 2010, the applicant states that he has been left with a permanent loss of function because of the nerve damage he suffered in the assault.29 The permanent loss of function cannot be assessed within the parameters of the offence of bodily harm. [29] In The Queen v De Simoni,30 Gibbs CJ with whom Mason and Murphy JJ agreed said “where the Crown has charged the offender with, or has accepted a plea of guilty to, an offence less serious than the facts warrant, it cannot rely, or ask the 26 [2002] 2 Qd R 295 at p 300 para [18]. 27 See para [14] above. 28 See para [4] above. 29 At para 15. 30 (1981) 147 CLR 383 at 392. -- 9 of 13 -- 10 judge to rely, on the facts that would have rendered the offender liable to a more serious penalty.” That principle has implications for the ancillary criminal compensation application. To the extent that the applicant’s injuries constituted the more serious permanent injury of grievous bodily harm they should be disregarded for present purposes. The applicable principles [30] The assessment of compensation is governed by Part 3 Criminal Offence Victims Act 1995. It is necessary to bear in mind that compensation is designed to help the applicant and is not intended to reflect the compensation to which an applicant may be entitled under the common law or otherwise (s 22(3)). [31] The maximum amount of compensation provided under the Act is reserved for the most serious cases and the amounts provided for in other cases are intended to be scaled according to their seriousness (s 22(4)). The amount of compensation cannot exceed the scheme maximum (s 25(2)). The scheme maximum provided by s 2 of the Criminal Offence Victims Regulation 1995 is $75,000.00. The award for a particular injury cannot exceed a percentage greater than that contained in Schedule 1; the compensation table (s 25(4)). If the applicant suffers more than one of the injuries in the Compensation Table, s 25(3) requires that the applicable amounts be added together, but if the total is more than the scheme maximum, only the scheme maximum may be ordered to be paid. The assessment of compensation does not involve applying principles used to decide common law damages for personal injuries (s 25(8)). [32] The approach to the application of s 22(4) was explained by the Court of Appeal in R v Ward, ex parte Dooley.31 The assessment requires consideration of the most serious example of the relevant injury. The injury being considered must be scaled accordingly. The court explained:32 ”But in our opinion the proper method is to fix the compensation for, say, severe mental or nervous shock, at the appropriate place in the range 20% to 34% of the scheme maximum, which is done by considering how serious the shock is in comparison with the “most serious” case, which must be compensated by an award of the maximum, 34%. This illustrates the point that the compensation table has no relationship to what would be awarded as damages in tort; a crime victim permanently institutionalised by the psychological results of an assault could, on that account, get no more than $25,500.00.” The applicant’s submissions [33] In her written submissions, Ms Muirhead submitted that the following injuries in the compensation table were applicable: 31 [2001] 2 QdR 436. 32 [2001] 2 QdR 436 at 438 para [5]. -- 10 of 13 -- 11 Item Injury Percentage of Scheme Maximum Amount 20 Fracture/loss of use of leg/ankle (severe) 20% $15,000 27 Facial disfigurement or bodily scarring (severe) 15% $11,250 32 Mental or nervous shock (moderate) 12% $9,000 [34] The reference to Item 27 appears to be a typographical error. Item 27 in the compensation table (Facial disfigurement or bodily scarring (minor/moderate)) provides for a range of 2% - 10% of the scheme maximum. Ms Muirhead clearly seeks an award under Item 28 in the compensation table, which provides a range of 10% - 30% of the scheme maximum. [35] Ms Muirhead therefore sought an award of 47% of the scheme maximum, which is $35,250. Assessment [36] I consider that the applicant’s injury to his left knee and leg and the scarring with which he has been left following the operative repair of those injuries can be separately assessed without leading to the duplication of compensation.33 [37] The applicant sustained multiple severe ligament injuries to his left knee, nerve injuries to his left leg in the assault and a fracture to the left fibula head. He continues to suffer from ongoing pain in his left knee. Item 20 in the compensation table (Fracture/loss of use of leg/ankle (severe)) is the appropriate injury. The range in Item 20 is 8% - 25% of the scheme maximum. I consider Ms Muirhead’s submission for an award of 20% of the scheme maximum to be reasonable, leading to an award of $15,000. [38] In his affidavit filed 19 August 2010, the applicant deposes to finding his surgical scars distressing and adopts Dr Harris’ description as to the embarrassment he feels because of the scars.34 The applicant is presumably equally embarrassed by his pre- existing scarring on his thighs. In Lewis v Williams, the Court of Appeal considered an award of 5% of the scheme maximum for scarring to be unexceptionable. The applicant had been left with a permanent scar on his upper lip, along with a scar on the back of his head that was covered by his hair. The award was not interfered with.35 The applicant has been left with scars that are bigger than those in Lewis v Williams, however they are not visible all of the time. Bearing in mind the requirement to scale injuries according to their seriousness, I am of the view that an award of 5% of the scheme maximum under Item 27 (Facial disfigurement or bodily scarring (minor/moderate)) is appropriate. This leads to an award of $3,750. [39] Dr McGuire is of the view that the assault materially contributed to the applicant’s pre-existing diagnosis of depression, and that were it not for the assault, there was a probability that he would have recovered from his depressive symptoms. However, 33 Wren v Gaulai [2008] 2 Qd R 383 at 388-389 paras [23]-[24] per Fraser JA. 34 At paras 9 and 14. 35 [2005] QCA 314 at paras [18] and [39] per Wilson J. -- 11 of 13 -- 12 there are other contributing factors that have led to the applicant’s diagnosis which I am required to take into account. [40] In SAY v AZ, Holmes JA stated:36 ”Only those injuries to which the relevant offence has materially contributed will be compensable. … 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 J.A. in Sanderson v. Kajewski will be necessary. The exercise may be one of discounting, or fixing on a lower percentage on the compensation scale to allow for the role of other factors, rather than necessarily a strict process of apportionment.” [41] Ms Muirhead submitted that an award of 20% of the scheme maximum under Item 32 in the compensation table (Mental or nervous shock (moderate)) was the appropriate starting point. She submitted that should be discounted by 8% to allow for the other contributing factors, leading to a final award of 12% of the scheme maximum. I do not accept that submission. [42] Lewis v Williams again provides a useful comparison. The applicant in that case had become socially withdrawn and anxious around people, suffered from depression, was self-conscious about his scarring and had ruminations about the assault upon him. He was diagnosed as suffering from a chronic adjustment disorder with depression. The psychologist recommended the applicant undergo cognitive behavioural therapy and adjustment counselling. The primary judge’s assessment of 15% of the scheme maximum under Item 32 in the compensation table (Mental or nervous shock (moderate) was reduced by the Court of Appeal to an award of 10% of the scheme maximum under Item 31 in the compensation table (Mental or nervous shock (minor)), “(h)aving regard to the comparatively minor nature of the psychological impairment…”.37 [43] I am of the view that an award of 10% of the scheme maximum under Item 32 in the compensation table is the appropriate starting point in this case. I would reduce that to 5% of the scheme maximum, to reflect the other contributing factors. The applicant suffers from depressive symptoms to a moderate degree. There is no evidence before the Court that the applicant has undergone counselling and he does not consider it appropriate for him. The assault exacerbated the applicant’s pre- existing depressive symptoms and eliminated the probability that he would have recovered from that depression. Account must also be taken of other contributing factors in the applicant’s life, such as his marital difficulties. I am of the view that an award of 5% of the scheme maximum under Item 31 in the compensation table is appropriate, namely $3,750. 36 [2007] 2 Qd R 363 at 370 para [22]-[23]. 37 [2005] QCA 314 at paras [26] and [40] per Wilson J. -- 12 of 13 -- 13 [44] I assess compensation as follows: Item Injury Percentage of Scheme Maximum Amount 20 Fracture/loss of use of leg/ankle (severe) 20% $15,000 27 Facial disfigurement or bodily scarring (minor/moderate) 5% $3,750 31 Mental or nervous shock (minor) 5% $3,750 [45] The total assessment is therefore $22,500. [46] There is no behaviour of the applicant that contributed directly or indirectly to his injuries. Order [47] I order the respondent pay to the applicant the sum of $22,500 pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of assault occasioning bodily harm which led to the conviction of the respondent in the District Court at Brisbane on 5 September 2008. -- 13 of 13 --