Corliss v RG [2009] QChC 1

CHILDRENS COURT OF QUEENSLAND CITATION: Corliss v RG [2009] QChC 1 PARTIES: MILO FILIPPO CORLISS (Applicant) v RG (Respondent) FILE NO/S: BD 1153/08 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: Childrens Court of Queensland, Brisbane DELIVERED ON: 27 November 2009 DELIVERED AT: Brisbane HEARING DATE: 25 November 2009 JUDGE: Rafter SC DCJ ORDER: The respondent pay to the applicant the sum of $18,750 by way of compensation pursuant to s24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of assault occasioning bodily harm which led to the conviction of the respondent in the Childrens Court of Queensland at Brisbane on 3 August 2007 CATCHWORDS: APPLICATION – CRIMINAL COMPENSATION –assault occasioning bodily harm – physical injuries and mental or nervous shock COUNSEL: Y Chekirova for the applicant No appearance by or for the respondent SOLICITORS: Carter Capner Lawyers for the applicant No appearance by or for the respondent Introduction [1] The applicant seeks compensation pursuant to s.24 Criminal Offence Victims Act 1995 for physical and emotional injuries caused by an assault committed by the respondent on 10 February 2007. By s.256 Juvenile Justice Act 1992, the -- 1 of 7 -- 2 Criminal Offence Victims Act 1995 applies to an offence committed by a child unless the contrary intention appears. [2] On 3 August 2007 the respondent pleaded guilty to inter alia, one count of assault occasioning bodily harm with a circumstance of aggravation. On 12 October 2007 he was sentenced to 90 days detention, to be released after serving 50 percent of the detention. The respondent had severed 45 days in pre- sentence custody. In relation to other unrelated charges he was placed on probation for 2 years. [3] The application and supporting material was served on the respondent on 11 September 2009. However when the matter came on for hearing on 17 September 2009 there was no affidavit of service. Ms Chekirova for the applicant was unable to contact her instructing solicitors. The matter was stood down to enable her to obtain proof of service. After the matter was stood down, the respondent contacted my Associate. He had arrived at Court late. He was advised that the matter had been stood down. However when the matter was called on later the same day the respondent did not appear. The matter was adjourned to 25 November 2009. The respondent is now in custody at the Arthur Gorrie Correctional Centre. He has been served with the notification of the hearing date and indicated that he did not wish to appear. There has been no appearance on his behalf. [4] Circumstances of the offence [5] At the time of the offence the respondent was 16 years of age. The applicant was 27 years of age. [6] The offence occurred on 10 February 2007. On the evening of 9 February 2007 the applicant and his girlfriend had gone to the cinema at Carindale Shopping Centre. At approximately 1.00am on 10 February they left the Centre and went to a park nearby, sat at a table and consumed some wine. [7] A group of youths, including 6 males, one of whom was the respondent and two females, approached them. Approximately 4 of the males sat down at the table with them. The remainder of the youths stood behind the applicant. There was some conversation between the couple and the group. [8] The applicant’s girlfriend had possession of his phone and was taking some pictures of the group. One of group accused the applicant of being a police officer which he denied. The group then became aggressive towards the applicant. [9] One of the girls in the group asked the applicant for a glass of wine, which he provided her. She then threw it in his face. The applicant asked her why she had done that. She became aggressive and an argument began. [10] The applicant attempted to avoid confrontation by walking away when the group surrounded him and his girlfriend. Two of the males began pushing the applicant as he repeated that he did not want to fight. He was then punched to -- 2 of 7 -- 3 the left hand side of the face which caused him to “black out for a second”. He was then repeatedly punched in the face by two other males. [11] The applicant was then pushed into a grassed area and fell over. He was then kicked approximately 4 to 5 times to his left shoulder, ribs and hip. At the same time he felt about 4 to 5 punches to the back of his head and neck. [12] The group ceased the attack and the applicant and his girlfriend went across the road to a house, where an ambulance later attended. The applicant found it hard to breath immediately after the attack and his face was swollen. His jaw was stiff and he was bleeding from the nose. Injuries and medical reports [13] The applicant was taken to hospital by ambulance and presented with; - Left lateral rib fractures 8 & 9 (with associated mild subcutaneous emphysema) - Small left pneumothorax - Left lower lobe lung bruising (pulmonary contusion) - Small right posterior lung bruising (pulmonary contusion) and small amount of collapse (atelectasis) - Graze to the left shoulder and right pointer finger (first meacarpo- phalangeal joint) - Facial bruising - Chipped front tooth. [14] The applicant was examined by Dr Peter Conrad, on 21 February 2008. He presented with complaints that he continues to suffer from headaches, pain and stiffness in his left chest and neck along with stiffness in his jaw. [15] In his report dated 25 February 2008 Dr Conrad stated: “ He sustained an injury to his chest associated with a punctured lung, causing a pneumothorax and he continues to have ongoing pain and stiffness in the left chest. He has a minor neck injury. He has some bruising to both temporomandibular joints, which is ongoing. At this stage, he needs conservative treatment.” [16] In a supplementary report also dated 25 February 2008 Dr Conrad stated: “ Further to my report regarding Mr Milo Corliss. As a result of the act of violence of 10 February 2007, the nearest descriptors and percentage losses, according to the Criminal Offence Victims Act 1995, Queensland, sections 20 and 25(4) are as follows: -- 3 of 7 -- 4 1. Item 1: bruising of both jaws 2% maximum 2. Item 21: a minor neck injury 4% 3. Item 21: a minor chest injury 6% 4. Item 31: mental or nervous shock (minor) 5%” [17] The applicant was examined by Dr Paul Nichols, Dental Surgeon on 20 February 2008. He states in his report dated 20 February 2008: “ He says his teeth and jaw joints (temporomandibular joints) were sore for a while but recovered to just sensitivity of one upper front tooth. CURRENT STATUS Mr Corliss is basically dentally comfortable, but the chipped tooth 21 is sensitive to cold and bite, and he admits he has no dietary restrictions. He has not made any arrangements to start any treatment as yet.” …. Treatment 4. Mr Corliss requires immediate stabilisation of the fractured upper incisor with bonded composite resin to reduce the risk of future nerve death. Total fees should be less than $500.00 Future treatment 5. No further treatment is required at the moment, however, it is possible the subject tooth 21 may become non-vital and require root canal therapy and post core crown (fees less than $3,000.00).” [18] The applicant was assessed by Trudy J Leivesley, Clinical Psychologist, on 23 October 2008 by telephone conference from Italy, where he currently resides. In her report dated 18 December 2008 she stated: “17.2(a) i Mr Corliss’ report was consistent with his having experienced prominent post traumatic symptoms including:- - frequent re experiencing aspects of the traumatic event; - frequent assaulted related dreams; - feelings of personal vulnerability; - symptoms of hyper arousal. -- 4 of 7 -- 5 ii Mr Corliss reported a decrease in post traumatic symptoms, in particular those relating to re-experiencing the traumatic event. Despite this he continues to report - marked avoidant behaviour, particularly relating to interpersonal interactions, or situations which he perceives as having the potential for conflict; - marked hyper arousal including an elevated startle response; - marked feelings of vulnerability; - at least occasional assault related dreams and thoughts. …. 17.4 (a) I consider that as a result of Mr Corliss’ involvement in the assault of 9th February, 2007 he continues to be experiencing symptoms which meet the DSM-IV-TR Criteria for Posttraumatic Stress Disorder. (b) I consider that as a result of Mr Corliss’ involvement in the assault of 9th February, 2007 he has experienced Mental or Nervous Shock (as per Schedule 1 of the Criminal Compensation Act 1995), the severity of which falls at least at the lower end of the severe range.” The relevant principles [19] 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)). [20] 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)). [21] If there is more than one injury the amounts must be added together, but the total cannot exceed the scheme maximum (s25(3)).1 [22] The approach to the application of s 22(4) was explained by the Court of Appeal in R v Ward, ex-parte Dooley.2 The assessment requires consideration 1 See Wren v Gaulai [2008] QCA 148 -- 5 of 7 -- 6 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.” 3 Assessment of compensation [23] Ms Chekirova for the applicant submits that compensation in accordance with the items in the compensation table be assessed as follows: 1. Injury 2 – bruising/laceration etc. (severe) – 5% 2. Injury 5 – loss or damage of teeth – 7% 3. Injury 9 – Fractured skull/head injury (no brain damage) 10% 4. Injury 23 – Neck/back/chest injury (severe) 20% 5. Injury 33 – Mental or nervous shock (severe) 25% [24] These amounts sought on behalf of the applicant fail to have sufficient regard to the requirement to scale the injuries according to their seriousness. [25] In relation to the bruising and grazes sustained by the applicant, in my view, having regard to the material provided including the photographs of the applicant’s face and hand, the appropriate assessment is 2% of the scheme maximum. ($1,500) [26] In relation to the damage to the applicant’s tooth, Ms Chekirova submitted that an award of 7% of the scheme maximum would be appropriate. However, Dr Nichols in his report stated that there “was relatively minor damage to one tooth” and referred specifically to Injury 5 in the compensation table and stated that in his view the assessment would be 1%. Although the appropriate award for an injury is a matter for the Court there is no basis for departing from Dr Nichols’ assessment. Accordingly, in my view the appropriate assessment is 1% of the scheme maximum. ($750) [27] In relation to the head injury, it should be noted that the applicant made complaints about ongoing stiffness and pain in his jaw to both Dr Conrad and 2 [2001] 2 Qd R 436. 3 R v Ward ex-parte Dooley [2001] 2 Qd R 436 at 438 at para [5]. -- 6 of 7 -- 7 Ms Leivesley. However when the applicant saw Dr Nichols on 20 February 2008, he said that he had had some pain in his jaw for a few weeks, however that had dissipated and he was only now left with sensitivity to the one tooth. The reports indicate that the applicant suffered a concussion, some jaw discomfort and that he continues to suffer from headaches. Accordingly I would allow 5% of the scheme maximum for the injury. ($3,750) [28] In relation to the Neck/back/chest injury, in my view, having regard to the punctured lung, fractured ribs and long term discomfort to the applicant, the appropriate assessment is 7% of the scheme maximum. ($5,250) [29] In relation to the award for mental or nervous shock, there are limitations in attaching significant weight to Ms Leivesley’s opinion that the severity of the applicant’s mental or nervous shock falls at least at the lower end of the severe range. The assessment took place by telephone on 23 October 2008. Moreover, there is no indication that Ms Leivesley has considered the requirement to scale the injury according to seriousness. And Dr Conrad regarded the applicant’s mental or nervous shock as minor assessing the appropriate amount at 5% of the scheme maximum. In my view, having regard to all of the circumstances, it is appropriate to allow 10% of the scheme maximum under item 32 (mental or nervous shock (moderate)). ($7,500) [30] There was no behaviour of the applicant that directly or indirectly contributed to his injuries (s25(7)). [31] The total assessment of compensation is therefore $18,750. Order [32] I order that the respondent pay to the applicant the sum of $18,750 by way of compensation pursuant to s24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of assault occasioning bodily harm which led to the conviction of the respondent in the Childrens Court of Queensland at Brisbane on 3 August 2007 -- 7 of 7 --