Carmichael v Morris-Brauer [2010] QDC 384

DISTRICT COURT OF QUEENSLAND CITATION: Carmichael v Morris-Brauer [2010] QDC 384 PARTIES: BRETT JOHN CARMICHAEL (applicant) V NATHAN JAMES MORRIS-BRAUER (respondent) FILE NO/S: 7/2010 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: Beenleigh DELIVERED ON: 1 October, 2010 DELIVERED AT: Beenleigh HEARING DATE: 31 August 2010 JUDGE: Dearden DCJ ORDER: The respondent Nathan James Morris-Brauer pay the applicant Brett John Carmichael the sum of $28,000 CATCHWORDS: APPLICATION – CRIMINAL COMPENATION – UNLAWFUL WOUNDING – BRUSING/LACERATION – FACIAL DISFIGUREMENT OR BODILY SCARRING – MENTAL OR NERVOUS SHOCK LEGISLATION: Criminal Offence Victims Act (Qld) 1995 s. 35(7). Victims of Crime Assistance Act (Qld) 2009 s. 154, s. 155. CASES: Paterson v Chand & Chand [2008] QDC 214 Kennedy v Faafeu [2010] QDC 21 COUNSEL: Ms Y Chekirova for the applicant No appearance for the respondent SOLICITORS: Campbell & Whyte Lawyers for the applicant No appearance for the respondent Introduction [1] The respondent, Nathan John Morris-Brauer, pleaded guilty before me in the Beenleigh District Court on 1 May 2009 to one count of unlawfully wounding the -- 1 of 4 -- 2 applicant, Brett John Carmichael. The respondent was sentenced to 18 months imprisonment with a parole date fixed at 31 August 2009. Facts [2] The offence occurred on 31 March 2006 at the Windaroo Tavern, Windaroo. The applicant, then 20, went to the Windaroo Tavern with a friend to celebrate the applicant’s aunt’s birthday. The applicant had been at the tavern for about half an hour and was on his second schooner of beer when he was beckoned over by the respondent, who was sitting with and talking to another group. The respondent waved the applicant towards himself. The applicant recognised the respondent as someone he had seen around the area. The applicant also knew a few people that the respondent was sitting with. [3] The applicant walked over to the respondent’s group at a normal pace, with a beer in his hand at waist height. When the applicant was within talking distance of the respondent, the respondent lifted his schooner glass and, while holding the glass, pushed it into the face of the applicant. The glass hit the applicant between the eyes. [4] The glass shattered on the face of the applicant. Although the applicant did not fall over, he stumbled back as a result of the glass being pushed into his face. The applicant felt immediate pain and noticed blood pouring from his face. The applicant looked at the respondent, who proceeded to run from the tavern. Although people present gave chase, they were unable to locate the respondent. The applicant went into the toilets and tried to wash his wounds. One of the applicant’s friends took his shirt off and gave it to the applicant.1 Injuries [5] The applicant was taken to the Logan Hospital by his mother where he received 16- 20 stitches to his facial area. The injuries noted by the treating doctor were:- • A thin laceration across the forehead; • A laceration superior to medial canthus of the right eye, not injuring the right eye itself; • A three centimetre laceration across the bridge of the nose, with smaller laceration superior on nose; and • Shards of glass removed from around left eye. • No pain in the eyes and visual acuity was normal.2 [6] The applicant’s lacerations were sutured under local anaesthetic and his nose and eye/head were washed with saline.3 The applicant’s injuries are clearly depicted in two photographs tendered on this application4. 1 Exhibit E (Schedule of Facts) Affidavit of Lauren Wilkie sworn 22.12.2009 2 Exhibit E (Schedule of Facts) pp 1-2 Affidavit of Lauren Wilkie sworn 22.12.2009 3 Exhibit F (Statement of Dr Blake O’Brien) Affidavit of Lauren Wilkie sworn 22.12.2009 4 Exhibit G Affidavit of Lauren Wilkie sworn 22.12.2009 -- 2 of 4 -- 3 The law [7] The application in these proceedings was filed on 4 January 2010, after the repeal of the Criminal Offence Victims Act 1995 (COVA) on 1 December 2009, when the Victims of Crime Assistance Act 2009 (VOCAA) commenced. This application satisfies the transitional provisions of VOCAA s.154 and 1555. [8] 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 [9] Ms Chekirova, who appears for the applicant, seeks compensation as follows:- (1) Item 2 – Bruising/laceration etc (severe) – 3% - 5% Ms Chekirova submits that the applicant should receive an award of 4% of the scheme maximum. In my view the injuries, although clearly serious, would be more appropriately compensated under this item by an award of 3% of the scheme maximum, namely $2,250. (2) Item 28 – Facial disfigurement or bodily scarring (severe) – 10%-30% The applicant’s injury was sustained as a result of a schooner glass which struck simultaneously around the middle of his nose and the middle of his forehead, with sutures required close to the applicant’s right eye. The scarring is still prominent (and obviously permanent) and is clearly apparent in the photographs of the applicant from February 20106. Ms Chekirova submits that an appropriate award for scarring in these circumstances (clearly visible, permanent and in the middle of the applicant’s face) would be 20% of the scheme maximum, namely $15,000. I accept that submission and accordingly I award $15,000 pursuant to Item 28. (3) Item 32 – Mental or nervous shock (moderate) – 10% - 20% The applicant was examined by Dr Nigel Prior, psychiatrist on 28 May 2010 and Dr Prior provided a report on the same date7. Dr Prior diagnosed the applicant as suffering from post traumatic stress disorder (PTSD) (chronic) and noted that “in the aftermath of the assault [the applicant] developed a post traumatic stress disorder associated with nightmares, flashbacks, avoidance behaviour, hyper-vigilance, hyper-arousal, social withdrawal, activity withdrawal and neuro-vegetative disturbance. This was also associated with escalating substance abuse including alcohol and cocaine. [The applicant] has gradually settled over time and with detoxification in February 2010 at the Palm Beach Currumbin Clinic. [The applicant] reports that he is no longer abusing alcohol or drugs and these conditions area both in remission. [The applicant] shows evidence of a post 5 See Kennedy v Faafeu [2010] QDC 21 6 Exhibit BJC 3 Affidavit of Brett Carmichael sworn 13 July 2010 7 NLP 2 Affidavit of Nigel Prior sworn 25 June 2010 -- 3 of 4 -- 4 traumatic stress disorder which initially was of moderate severity but now has decreased to minor severity. It is likely that the symptoms of the PTSD will continue indefinitely although in a low grade [manner]”8 Dr Prior notes that the applicant had “no significant pre existing psychiatric, psychological conditions that have contributed to the impact, severity [or] inevitability of the condition.”9 [10] In the circumstances, Ms Chekirova submits that an appropriate award pursuant to Item 32 would be 15% of the scheme maximum, namely $11,250. I accept this submission and accordingly I award $11,250 pursuant to Item 32. Contribution [11] The applicant has not contributed in any way, direct or indirect, to his own injuries10. Order [12] I order that the respondent Nathan James Morris-Brauer pay the applicant Brett John Carmichael the sum of $28,500. 8 Exhibit NLP2 p.7 Affidavit of Nigel Prior sworn 25 June 2010 9 Exhibit NLP2 p.8 Affidavit of Nigel Prior sworn 25 June 2010 10 COVA s. 35(7) -- 4 of 4 --