D v B [2009] QDC 273

DISTRICT COURT OF QUEENSLAND CITATION: D v B [2009] QDC 273 PARTIES: D Applicant and B Respondent FILE NO: 269 of 2006 DIVISION: Civil PROCEEDING: Criminal Compensation Application ORIGINATING COURT: District Court at Maroochydore DELIVERED ON: 24 August 2009 DELIVERED AT: Maroochydore HEARING DATE: 14 August 2009 JUDGE: K S Dodds, DCJ ORDER: B pay to D the sum of $26,250 CATCHWORDS: CRIMINAL COMPENSATION – where applicant suffered a facial fracture and post traumatic stress disorder as a result of the offence of assault occasioning bodily harm of which the respondent was convicted on 23 October 2003 Criminal Offence Victims Act 1995 Criminal Offence Victims Regulation 1995 -- 1 of 4 -- Uniform Civil Procedure Rules 1999 r 389 COUNSEL: A J Kimmins for the applicant No appearance by the respondent SOLICITORS: Campbell & White Lawyers for the applicant No appearance by the respondent [1] This is an application for criminal compensation. The applicant is D. The respondent is B. On 23 October 2003 the respondent was convicted of assaulting the applicant and causing him bodily harm. The offence occurred on 13 April 2002. [2] The applicant was born on 24 September 1968. [3] The application was filed on 28 September 2006. Thereafter there was a flurry of activity which came to a halt after the filing of an affidavit of service on 28 November 2006. Nothing further seems to have occurred until on 19 December 2008, when a notice of change of solicitors was filed. [4] Two years having lapsed since the filing of the affidavit of service, rule 389 Uniform Civil Procedure Rules 1999 provides that no new step may be taken in the proceedings without the order of the court. [5] In this case it is appropriate, I think, given the short period beyond the two years to give leave to the applicant to proceed in the matter. [6] Following the assault the applicant was taken to the Nambour Hospital and then attended at the Maxillo Facial Clinic at the Royal Brisbane Hospital for a period of six weeks. [7] Dr Harrington from the Nambour Hospital described the injuries evident when the applicant attended the hospital as a large contusion to the right forehead and brow, with a small laceration on the medial part of it, a minimally depressed fractured frontal sinus and a likely fracture of right orbit. Later, CT scanning showed a grossly comminuted fracture of the superior orbital ridge and fractures of the right frontal bone extending into the right frontal sinus, with the fracture line extending all the way through to the inner table. A small fragment of bone was seen retro-pulsed beyond the inner table. [8] I have an affidavit from the applicant. He deposes to suffering severe headaches and anxiety for a number of months following the assault, continuing to suffer debilitating headaches and aches and pains in joints and muscles, some memory and sleep impairment, social isolation and inability to work. [9] The applicant has been seen by a psychologist, Ms Bendall and by Dr Ohlrich, a neurologist. 2 -- 2 of 4 -- [10] Ms Bendall first saw the applicant on 8 March 2004 and then again on 25 March 2004. She produced a report dated 30 March 2004 in which she diagnosed a post traumatic stress disorder chronic and a major depressive disorder with alcohol/drug dependency. [11] On 21 and 24 March 2005 she undertook some neurological testing of the applicant. She produced a report dated 25 March 2005 in which she said that the testing revealed cognitive dysfunction indicative of having sustained a traumatic brain injury. [12] Dr Ohlrich examined the applicant on 16 October 2008 and produced a report dated 21 October 2008. He found some alteration of superficial sensation over the right forehead in the area where the applicant had been struck. He concluded as follows: • the applicant sustained no brain damage from the assault; • there was no residual neurological impairment except for some minor alteration to sensation; • there were significant psychiatric difficulties; • the changes Ms Bendall described were not the result of any brain damage; • there was no cognitive, neurological or neuro-psychological dysfunction relating to the assault; • the employment capacity of the applicant and activities of daily living were not influenced by the assault. [13] Ms Bendall saw the applicant again on 25 June 2009 and produced a further report dated 26 June 2009. She had been provided with a copy of Dr Ohlrich’s report. Ms Bendall revisited an abnormality in the performance of the applicant on the neuro-psychological assessment testing she undertook in 2005, namely significant depression of his speed of processing information. She considered a number of possible explanations for this, but maintained her opinion that the assault was the cause of the his neuro-psychological dysfunction. She considered he continued to display symptoms indicative of post traumatic stress disorder chronic and of major depressive disorder alcohol/drug dependency together with generalised anxiety possibly caused or aggravated by prescribed medications. [14] I accept the opinions of Dr Ohlrich. I also accept Ms Bendall’s opinion that the applicant suffers from a post traumatic stress disorder chronic and a major depressive disorder, both caused by the assault. [15] I assess compensation as follows: for the facial fracture – at 15% of the scheme maximum; for mental and nervous shock – at 20% of the scheme maximum. [16] That results in an amount of $26,250. 3 -- 3 of 4 -- [17] I order B do pay to D the sum of $26,250 by way of compensation for injury done to him by the offence of unlawful assault occasioning bodily harm for which the respondent was convicted on 23 October 2003. 4 -- 4 of 4 --