Boulter v Bradford [2009] QDC 80

SUPREME COURT OF QUEENSLAND CITATION: Boulter v Bradford [2009] QDC 80 PARTIES: ANDREW PAUL BOULTER (Applicant) v AARON KEITH BRADFORD (Respondent) FILE NO/S: 124/2008 DIVISION: Civil Jurisdiction PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: Beenleigh DELIVERED ON: 20 March 2009 DELIVERED AT: Beenleigh HEARING DATE: 16 December 2009 JUDGES: Dearden DCJ ORDER: That the respondent Aaron Keith Bradford pay the applicant Andrew Paul Boulter the sum of $22, 500.00. CATCHWORDS: Application – Criminal Compensation – grievous bodily harm – loss of tooth – facial fracture. CASES: R v Ward; ex parte Dooley [2001] 2 Qd R 436 Riddle v Coffey [2002] 133 A Crim R 220; [2002] QCA 337 Wren v Gaulai [2008] QCA 148 LEGISLATION: Criminal Offence Victims Act (Qld) 1995 ss 22(4), 24, 25(7), 26 COUNSEL: Mr L Dollar for the applicant. No appearance for the respondent. SOLICITORS: Raniga Lawyers, solicitors for the applicant. No appearance for the respondent. Introduction [1] The applicant Andrew Paul Boulter seeks compensation in respect of injuries suffered by him in a confrontation which occurred on 13 April 2006 at Marsden. -- 1 of 4 -- 2 After a trial on 8 and 9 August 2007 before Judge Kingham at the District Court, Beenleigh, the respondent Aaron Keith Bradford was found guilty of one count of grievous bodily harm. Judge Kingham sentenced the respondent to 18 months imprisonment and ordered a parole release date of 9 August 2007. Facts [2] The sentencing remarks of Her Honour Judge Kingham indicate that the applicant suffered a fracture of the right angle of the mandible (the applicant’s jaw) with displacement associated with a root fracture of the applicant’s second molar. This occurred as a result of a single blow to the applicant’s head by the respondent. 1 The sentencing judge explicitly noted in her sentencing remarks that the respondent was being sentenced on the basis that there had been prior encounters between the applicant and the respondent that night, that there was some history of animosity between the applicant and the respondent that night, and further that it may not have taken a great deal of force for the respondent’s blow to have caused the injuries that it did.2 Injuries [3] As outlined above, the applicant suffered grievous bodily harm, being a fracture of the right angle of the mandible (the applicant’s jaw) with displacement associated with a root fracture of the applicant’s second molar. [4] The applicant was taken to the Logan Hospital on the night of the injury where he was x-rayed. The applicant was then taken to the Princess Alexandra Hospital and on 16 April 2007 the applicant underwent surgery where titanium screws and a plate were inserted in his jaw and the tooth that sustained the root fracture was removed. The medical prognosis was that he would have been left with diminished mandibular function which would slowly improve, and if left untreated would have resulted in severe malocclusion, inability to chew, speech disturbances and cosmetic disturbances. The applicant was in considerable pain for some time while he was awaiting surgery.3 The Law [5] This is an application under s 24 of the Criminal Offence Victims Act 1995 (“COVA”). COVA commenced operation on 18 December 1995 and provides for compensation in respect of convictions on indictment of a personal offence for injury suffered by an applicant because of that offence. R v Ward; ex parte Dooley [2001] 2 Qd R 436 indicates that the assessment of compensation should proceed pursuant to COVA s 22(4) by scaling within the ranges set out in the compensation table (Schedule 1) for the relevant injuries. In particular the fixing of compensation should proceed by assessing the seriousness of a particular injury in comparison with the “most serious” case in respect of each individual item in Schedule 1. Riddle v Coffey [2002] 133 A Crim R 220; [2002] QCA 337 is authority for the proposition that COVA s 26, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication. However “where it is practical to make separate 1 Exhibit APB 3 (sentencing remarks) p. 2 affidavit of Andrew Paul Boulter sworn 3 October 2008. 2 Exhibit APB 3 (sentencing remarks) p. 3 affidavit of Andrew Paul Boulter sworn 3 October 2008. 3 Exhibit APB 4 (sentencing submissions) pp. 2 – 3 affidavit of Andrew Paul Boulter sworn 3 October 2008. -- 2 of 4 -- 3 assessments under each applicable item in the [compensation] table whilst at the same time avoiding duplication that course should be adopted”, unless it is impractical.4 Further, “if an injury that is best described in one item [of the compensation table] is instead assessed together with another injury under another item in order to avoid duplication it may therefore be necessary to make an adjustment to cater for differences between the ranges or maxima for each item”. 5 Ultimately the court should ensure that there is compliance with “the use of the methodology prescribed by [COVA] s 25 [which] is mandatory”.6 Compensation [6] Mr Dollar on behalf of the applicant seeks compensation as follows:- (1) Item 5 – loss of tooth – 1% - 12% [7] The applicant suffered displacement associated with the root fracture of the 47th tooth (second molar). The tooth was subsequently removed at the time of the operation for the fractured mandible due to its mobility and involvement in the fracture line. 7 Mr Dollar submits that an award should be made towards the middle of the range for Item 5, namely at 5% of the scheme maximum ($3,750). Given the nature of the tooth lost, and being mindful of the necessity to make separate assessments under each particular item in the compensation table, where practical8 , such a submission appears entirely appropriate. Accordingly I award 5% ($3,750) pursuant to Item 5. (2) Item 8 – facial fracture (severe) [8] Mr Dollar submits that the fractured right angle of the mandible caused the applicant to suffer swelling and bruising to the relevant area overlying the fracture. The injury required surgical treatment, a week after the injury was inflicted, involving titanium screws and a plate. The applicant was unable to eat any solid foods for six to eight weeks after the injury and still suffers pain and ongoing problems including numbness in the right side of the face. The applicant has been left with the fixation devices in place and intra-oral scarring. The applicant’s prognosis includes diminished mandibular function and the possibility of continual temporo-mandibular joint problems.9 In those circumstances the submission by Mr Dollar is for an award at the mid-range of Item 8 (facial fracture (severe)), namely 25%. Given the serious nature of the injury, that appears to be an appropriate submission. Accordingly I award 25% of the scheme maximum ($18,750) pursuant to Item 8. Contribution 4 Wren v Gaulai [2008] QCA 148 per Fraser JA at para [24]-[25]. 5 Wren v Gaulai [2008] QCA 148 per Fraser JA at para [29]. 6 Wren v Gaulai [2008] QCA 148 per Fraser JA at para [22]. 7 Exhibit APB 8 (report of Dr Shannon Webber) p.1 affidavit of Andrew Paul Boulter sworn 3 October 2008. 8 Wren v Gaulai [2008] QCA 148 per Fraser JA at para [24] –[25]. 9 Outline of submissions on behalf of the applicant – p.10 -- 3 of 4 -- 4 [9] Although there may have been some history of animosity between the applicant and the respondent, it does not in my view amount to a contribution by the applicant to his own injury.10 Conclusion [10] Accordingly I order that the respondent, Aaron Keith Bradford, pay the applicant, Andrew Paul Boulter, the sum of $22,500.00 in compensation. 10 COVA s 25(7). -- 4 of 4 --