Ferrett v Upton [2009] QDC 383

DISTRICT COURT OF QUEENSLAND CITATION: Ferrett v Upton [2009] QDC 383 PARTIES: BENJAMIN JAMES FERRETT (Applicant) V. RYAN LIAM UPTON (Respondent) FILE NO/S: 2836/09 DIVISION: Civil PROCEEDING: Criminal Compensation Application ORIGINATING COURT: District Court DELIVERED ON: 25 November 2009 DELIVERED AT: Brisbane HEARING DATE: 25 November 2009 JUDGE: Martin SC DCJ ORDER: The respondent pay to the applicant the sum of $9,000.00 compensation pursuant to the Criminal Offence Victims Act 1995 in respect of the injury suffered by him as a result of the offence for which the respondent was convicted in the District Court at Brisbane on 27 February 2009. CATCHWORDS: CRIMINAL LAW – COMPENSATION – application for criminal compensation – grievous bodily harm – super glue inserted into applicant’s ear causing permanent hearing loss and tinnitus – whether previous payments should reduce the amount of compensation. Criminal Offence Victims Act 1995 Penalties and Sentences Act 1992 Perreira v Peterson [2005] QDC 030 Wiemers v Lynch [2009] QDC 51 Wilson v Kairouz [2005] QDC 401 COUNSEL: SOLICITORS: Murphy Schmidt Solicitors for the applicant The respondent appeared on his own behalf -- 1 of 5 -- 2 [1] The applicant seeks compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (“the Act”). On 27 February 2009 the respondent was convicted upon a plea of guilty to one count of doing grievous bodily harm. The applicant was the victim. Service [2] The respondent was duly served. The respondent appeared on the hearing of this application. Facts [3] On or about the 11th January 2008 the applicant was at party at a residence. Having consumed a deal of alcohol he fell asleep on a couch in the living room. By way of a prank, the respondent and others applied superglue to the applicant’s hand and glued his hand to his face. The respondent then poured superglue into the applicant’s right ear whilst the applicant continued to sleep. [4] The sentencing remarks state, relevantly, as follows: “Curiously, this offence does not involve violence. It does not involve malice. You and others, by way of a prank, applied superglue to the complainant. You foolishly took the matter a step further and poured superglue into the complainant's ear whilst he was asleep. It was an act of gross stupidity. It was undoubtedly brought on by your intoxication.”1 Injuries [5] Upon awaking shortly afterwards, the applicant experienced pain in his right ear and a complete loss of hearing in the right ear. He was taken immediately to the Wesley hospital. The medical staff were unable to remove the glue. [6] The pain in the ear progressively worsened over the following day. He remained completely without hearing in the right ear. [7] Dr Lomas, Ear, Nose and Throat specialist attempted to remove the glue by non- surgical means. This involved attempting to physically break-up the glue. This was painful for the applicant. Dr Lomas attempted to dissolve the glue with a solvent. These procedures were unsuccessful. [8] On 27 March 2008 Dr Lomas surgically removed the superglue from the applicant’s ear. This was significant surgery. The applicant was under general anaesthetic and Dr Lomas firstly drilled into the ear canal. The drilling was unsuccessful. Dr Lomas then cut into the applicant’s ear canal and removed the glue. The surgery took some three hours to complete. [9] After surgery, the applicant was required to keep the ear filled with packing which meant that he continued not to be able to hear in that ear. [10] The applicant was examined by Dr Black, Ear, Nose and Throat specialist on 17 November 2008. Dr Black’s report dated 18 November 2008 relevantly states: 1 Sentencing Remarks of His Honour Judge Martin SC in R v Upton dated 22/2/2009. -- 2 of 5 -- 3 “There is a permanent impairment and the nature is a right-sided unilateral hearing loss with tinnitus. It is stable and stationary and there is no treatment. Based on the recommendations for determining percentage loss of hearing and tinnitus, he has a 4.6% hearing tinnitus impairment. This equates to a 2% impairment of the whole person”. [11] In his affidavit the applicant stated that he has experienced trouble with his balance, a condition from which he did not suffer before the incident2. The applicant also stated that he feels that the hearing in his right ear has deteriorated further recently3. [12] The applicant also stated that the tinnitus sometimes creates difficulties for him when communicating with others and getting to sleep4. Previous Payments by Respondent to Applicant [13] By the time the respondent was sentenced for this offence, he had paid a substantial sum of money to the applicant for medical expenses associated with the injury. [14] Relying on section 22(1), it was submitted on behalf of the applicant that any compensation assessed under the Act cannot be diminished by the previous payments. Section 22(1) provides: “(1) A right, entitlement or remedy under this part is in addition to, does not limit, and is not in substitution for, any right, entitlement or remedy under common law or otherwise.” With respect, I disagree with this submission. In my view, section 22(1) provides only that separate remedies are not limited. I respectfully agree with the observations of Andrews SC DCJ in Wiemers v Lynch5 at [18]. [15] Supplementary submissions were provided ahead of the hearing. Having regard to the decisions in Wiemers v Lynch and Wilson v Kairouz6 (I note that a similar approach was taken in Perreira v Peterson7), the applicant’s argument changed but it remains the applicant’s position that the previous payments would not diminish the amount of compensation to be awarded under the Act. In these cases, awards of compensation under the Act were reduced by the amount of compensation ordered at sentence pursuant to s35(1)(c) of the Penalties and Sentences Act 1992. [16] I, respectfully, disagree with the approach taken in these decisions. [17] Section 25(7) of the Act provides: “In deciding whether an amount, or what amount, should be ordered to be paid for an injury, the court must have regard to everything relevant including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury.” 2 Affidavit of Benjamin Ferrett, sworn 1 September 2009, paragraph 49. 3 Affidavit of Benjamin Ferrett, sworn 1 September 2009, paragraph 53. 4 Affidavit of Benjamin Ferrett, sworn 1 September 2009, paragraph 53. 5 [2009] QDC 51. 6 [2005] QDC 401. 7 [2005] QDC 030 -- 3 of 5 -- 4 In my view, previous payments by a respondent to an applicant in respect of the injury would be a relevant thing in respect of which regard must be had for the purpose of determining whether an amount, or what amount, should be ordered to be paid under the Act for an injury. However, in my view, it would be relevant only as described below. [18] Section 22(3) of the Act provides: “Compensation provided to an applicant under this part 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.” It is clear then that compensation under the Act is to help the applicant but that it falls short of common law damages. This is also evident from the modest amounts in the compensation table – schedule 1 of the Act. Compensation under the Act does not reflect reasonable compensation for an injury. Common law damages would ordinarily reflect reasonable compensation for an injury. [19] It is clear from section 25(8) that compensation under the Act does not involve applying principles used to decide common law damages. Nonetheless, I would regard common law damages as the notional appropriate amount of compensation for an injury. It therefore seems to me to be relevant to consider, when determining whether an amount, or what amount, of compensation under the Act should be paid, whether the previous payments when added to the appropriate amount assessed under the Act would exceed reasonable damages for the injury at common law. If it would, the amount of compensation under the Act ought be reduced accordingly to avoid an unjustified benefit. If it would not, I can see no good reason for reducing the compensation under the Act. Under the provisions of the Act, a person in the position of the applicant is entitled to apply for compensation under the Act and a court may make an order for such compensation. The only provision in the Act relevant to the topic of previous payment is s25(7). There is nothing in the Act which specifies that the amount of compensation assessed under the Act is to be reduced by the amount of relevant previous payments. Section 22(3) provides that the compensation under the Act is intended to help an applicant. It does not follow that an applicant is disentitled to additional help by way of gratuitous payments or compensation ordered pursuant to section 35(1)(c) of the Penalties and Sentences Act. I cannot see that it would be “fair and reasonable” to reduce the appropriate compensation under the Act by the amount of relevant previous payments in circumstances in which the combined amounts fall short of reasonable compensation for an injury8. [20] If the approach in Wiemers v Lynch, Wilson v Kairouz and Perreira v Peterson is correct, the mitigation value in paying compensation before sentence or offering to pay compensation at sentence or inviting a compensation order at sentence, would be severely diminished. If the approach in these decisions is correct, in the vast majority of cases, a respondent, before or upon sentence, would only be paying that which he/she would be obliged to pay anyway under the Act. [21] Whether or not my view expressed above is correct, the problem does not arise in this case. Section 24(2) of the Act provides: 8 Contrast the approach taken in Wiemers supra, at [20]. -- 4 of 5 -- 5 “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.” Section 20 of the Act defines “injury”: “Injury is bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table or prescribed under a regulation.” The previous payments made by the respondent to the applicant were in respect of medical expenses only. No payments have been made to the applicant “for the injury suffered by the applicant because of the offence”. The argument in the supplementary submissions coincides with this view. In the circumstances, consideration of diminution of the amount assessed under the Act, does not arise. Assessment [22] The maximum amount of compensation is reserved for the most serious cases and amounts in other cases are intended to be scaled according to their seriousness. The scheme maximum provided under the Act is $75,000.00. The award in a particular case is assessed by reference to the percentages of the scheme maximum provided in a compensation table (see s 25(4) of the Act). [23] As referred to above, section 25(7) of the Act requires the court, in deciding what amount should be ordered, to have regard to everything relevant including any behaviour of the applicant that directly or indirectly contributed to the injuries. I am satisfied that there was no behaviour on the part of the applicant that directly or indirectly contributed to his injuries, within the meaning of s 25(7) of the Act. [24] The relevant item in the compensation table for the applicant’s physical injuries is Item 35 loss of hearing 1 ear – 2% - 20%. [25] It is submitted on behalf of the applicant that he be awarded 12% of the scheme maximum under item 35. The applicant is left with a very significant permanent hearing impairment, with tinnitus. There is no treatment. Doing the best I can, I would accede to the submission made on the applicant’s behalf and award 12% of the scheme maximum ($9,000). Orders [26] The total amount of compensation is $9,000.00. [27] I order the respondent pay to the applicant the sum of $9,000.00 compensation pursuant to the Criminal Offence Victims Act 1995 in respect of the injury suffered by him as a result of the offence for which the respondent was convicted in the District Court at Brisbane on 27 February 2009. -- 5 of 5 --