BBJ v LLH & Ors [2009] QDC 388

DISTRICT COURT OF QUEENSLAND CITATION: BBJ v LLH & Ors [2009] QDC 388 PARTIES: BBJ (Applicant) v LLH (First respondent) and ESV (Second respondent) and TIH (Third respondent) and SRD (Fourth respondent) FILE NO/S: 2762/09 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: District Court Brisbane DELIVERED ON: 26 November 2009 DELIVERED AT: Brisbane HEARING DATE: 26 November 2009 JUDGE: Rafter SC DCJ ORDER: The respondents pay to the applicant the sum of $12,000 by way of compensation pursuant to s.24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of robbery in company with personal violence. CATCHWORDS: APPLICATION – CRIMINAL COMPENSATION – robbery in company with personal violence – physical injuries and mental or nervous shock -- 1 of 4 -- 2 COUNSEL: F Muirhead, solicitor for the applicant No appearance by or for the respondents SOLICITORS: Legal Aid Queensland for the applicant No appearance by or for the respondents Introduction [1] The applicant seeks compensation pursuant to s.24 Criminal Offence Victims Act 1995 for physical and emotional injuries caused by an attack by the respondents on 21 February 2006. [2] The first, second and third respondents appeared before the Children’s Court of Queensland at Brisbane on various dates. They each pleaded guilty to robbery in company with personal violence. The fourth respondent was sentenced in the District Court at Beenleigh on 15 March 2007. [3] By s.256 Juvenile Justice Act 1992 the Criminal Offence Victims Act 1995 applies to an offence committed by a child unless the contrary intention appears. [4] All respondents have been served with the application and supporting affidavit material. There has been no appearance by or for them. Circumstances of the offence [5] The applicant was a passenger on a train on the night of 21 February 2006. He was subjected to considerable harassment and abuse by a group of youths. They surrounded him. The applicant got off the train at the Runcorn Station. The four respondents also got off the train and followed him. They confronted him and took some of his property. The applicant was then punched in the face. He was also struck in the back and on the back of the neck. He was then thrown onto the railway tracks between the two platforms. The group followed and continued to assault him. Injuries and medical reports [6] The applicant was taken by ambulance to the QEII Hospital Emergency Department. According to the report of Dr Rod Kruger the applicant suffered lacerations to his hand and right eyebrow. He suffered bruising to the face. He complained of pain to his head, neck and face. He was unable to open his mouth complaining that he was experiencing pain to his jaw. The applicant was discharged home on analgesia and antibiotics. [7] The applicant sustained injuries to his teeth. The report of Dr Lai, Specialist Orthodontist, states that the applicant sustained injuries to his lower incisors. He says that the teeth are sensitive to the cold and heat but are not displaced or fractured. Dr Lai recommends that the damage to the applicant’s teeth continue to be monitored. He states that the true extent of the dental injuries may not be realised for some time. The teeth may require root treatment and crowns eventually. The estimated cost of such treatment cannot accurately be estimated. Dr Lai states -- 2 of 4 -- 3 that the cost of treatment may be in the range of $1,000 to $60,000 depending on the actual treatment required. [8] The applicant was examined by Dr Barbara McGuire, Psychiatrist, on 18 May 2009. Dr McGuire expressed the view that the applicant suffers post traumatic stress disorder as shown by his experience of nightmares, flashbacks, avoidant behaviour, hyper-vigilance and irritability. Dr McGuire says that the symptoms were severe for three months and that there has been some improvement. [9] In his affidavit affirmed on 12 June 2009, the applicant said that he still gets flashbacks when approaching groups of people.1 He is far more security conscious than he previously was.2 The applicable principles [10] The assessment of compensation is governed by Part 3 of the 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 (s22(3)). [11] The maximum amount of compensation provided under the Criminal Offence Victims Act 1995 is reserved for the most serious cases and the amounts provided for in other cases are intended to be scaled according to their seriousness. The amount of compensation cannot exceed the scheme maximum (s25(2)). The award for a particular injury cannot exceed a percentage greater than that contained in Schedule 1; the compensation table (s25(4)). The assessment of compensation does not involve applying principles used to decide common law damages for personal injuries (s25(8)). [12] If there is more than one injury the amounts must be added together, but the total cannot exceed the scheme maximum (s25(3)).3 The approach to the application of s 22(4) was explained by the Court of Appeal in R v Ward, ex-parte Dooley.4 The assessment requires consideration of the most serious example of the relevant injury. The injury being considered must be scaled accordingly. The court explained: “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 per cent to 34 per cent 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 per cent. 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.”5 1 Affidavit of the applicant filed 29 September 2009 at paragraph 12 2 Affidavit of the applicant filed 29 September 2009 at paragraph 13 3 See Wren v Gaulai [2008] QCA 148 4 [2001] 2 Qd R 436 5 R v Ward ex-parte Dooley [2000] QCA 493; [2001] 2 Qd R 436 at 438 at para [5] -- 3 of 4 -- 4 Assessment [13] Ms Muirhead for the applicant submits that the following injuries in the compensation table are applicable: Item Injury Percentage of Scheme Maximum 1 Bruising/laceration (minor/moderate) 3% 5 Loss or damage of teeth 3% 32 Mental or nervous shock (moderate) 14% [14] The total sought by Ms Muirhead on behalf of the applicant is 20% of the scheme maximum which would lead to an award of $15,000. [15] The applicant suffered a cut to the right forehead which required stiches. He also sustained a cut to the hand and a swollen lip. I accept Ms Muirhead’s submission that these injuries should attract an award of 3% of the scheme maximum which results in an amount of $2,250. [16] The applicant continues to experience difficulties with his teeth and may require considerable treatment in the future. I therefore accept that the damage to his teeth should result in an award of 3% of the scheme maximum which is $2,250. [17] The applicant’s post traumatic stress disorder was severe for three months but has improved. The applicant said that he had difficult getting off to sleep for about three months. He is now sleeping well.6 [18] The range for moderate mental or nervous shock in Item 32 of the compensation table is 10% to 20%. I accept that the applicant’s post traumatic stress disorder should be assessed under Item 32 but in my view the injury is at the lower end of that range. I therefore assess the applicant’s post traumatic stress disorder at 10% of the scheme maximum which results in an award of $7,500. [19] The total assessment is $12,000. [20] There is no behaviour of the applicant that directly or indirectly contributed to his injuries (s.25(7)). Order [21] There is no basis upon which the separate liability of each of the respondents can be assessed according to their respective contribution to the applicant’s injuries. They are jointly and severally liable for the order pursuant to s.26(6)(b). [22] I order that the respondents pay to the applicant the sum of $12,000 by way of compensation pursuant to s.24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of robbery in company with personal violence. 6 Affidavit of the applicant filed 29 September 2009 at paragraph 10 -- 4 of 4 --