Courville v Stewart [2008] QDC 245

DISTRICT COURT OF QUEENSLAND CITATION: Courville v Stewart [2008] QDC 245 PARTIES: James Norris Courville (Applicant) v Christopher James Stewart (Respondent) FILE NO/S: 1147 of 2007 DIVISION: Criminal compensation PROCEEDING: Application ORIGINATING COURT: District Court DELIVERED ON: 19 September 2008 DELIVERED AT: Brisbane HEARING DATE: 14 August 2008 JUDGE: Samios DCJ ORDER: I order the respondent to pay the applicant the sum of $10,500 CATCHWORDS: Criminal law - criminal compensation – basis of sentencing - sequela of offence – assessment of compensation Facer v Bennett & Anor [2001] QCA 395 Lewis v Williams (2005) QCA 314 SAY v AZ (2007) 2 Qd R 363, 370, 371 Criminal Offence Victims Act 1995 Ss 19(1)(a), 20, 21, 22(3), 22(4), 24(2), 25(7), 25(8) COUNSEL: Mr Maher, for the applicant Mr Byrnes, for the respondent SOLICITORS: Trilby Misso Lawyers, for the applicant VAJ Byrne & Co, for the respondent [1] The applicant claims from the respondent criminal compensation for injury caused by a personal offence committed by the respondent upon the applicant. -- 1 of 8 -- 2 [2] The offence committed by the respondent upon the applicant was an assault occasioning bodily harm on 2 June 2005. The respondent was convicted on indictment for the offence on 28 April 2006. [3] The applicant was born on 6 February 1948. He was fifty seven years of age when the offence was committed. [4] The respondent was born on 31 May 1967. He was thirty eight years of age when he committed the offence. [5] When the respondent was sentenced for the offence, a schedule of agreed facts was presented to the court which contained a basis of sentence (the schedule). [6] This schedule showed the applicant and the respondent were employed at a welding business in Gladstone. On the morning of 2 June 2005 they became involved in a verbal argument. This seems to have arisen from a perception by the applicant that the respondent was not pulling his weight in terms of their workload. The applicant slapped the respondent once to the back of the head with his open palm and then walked off. Witnesses stated that this slap was more of a “clip” and delivered with minimal force. The applicant called the respondent a “fucking wanker” as he did this. The respondent did not appear to react to this clip but a short time later there was some more verbal argument and a bit of pushing and shoving from both parties. Two witnesses then saw the applicant hit the respondent in the face, one witness described this as a punch with a closed fist that hit the respondent in the lower jaw area. Another witness “LEE” described it as a “slap” across the face/jaw area. The respondent in his police interview described it as a punch. [7] After being hit, the respondent grabbed the applicant by the shirt and pushed him forcibly against a fridge. The applicant swung his arms in a punching motion and the respondent then grabbed him again and threw him to the ground. Two witnesses described this as being in the manner of a “spear tackle” with the applicant being picked up and thrown head first to the ground. When the applicant was on the ground the respondent kicked him once to the general area of the midsection of his body. The respondent was wearing heavy work boots at the time. The respondent then knelt down and pinned the applicant to the ground with his knee. It was not alleged that in doing this he used any force other than that necessary to keep the applicant pinned to the floor. The respondent was then pulled off the applicant by his work colleagues and the incident was at an end. [8] The schedule goes on to state: “An ambulance was called and the complainant was taken to hospital. He was found to be suffering from the following injuries that can be clearly attributed to the incident of 2/6/05: • Fractured left clavicle (collar bone) • Comminuted (multiple fragments) fracture of the left iliac bone of the pelvis.” [9] The schedule goes on to state the applicant remained in hospital for six days. Medical opinion was that the displaced fracture of the iliac bone was likely to cause -- 2 of 8 -- 3 the applicant pain of an unknown severity and for an unknown duration into the future. The respondent was interviewed by police and gave a version of events broadly in line with that given by the witnesses, although he did not mention the single kick delivered to the body of the applicant as he lay prone on the ground. [10] Finally, the schedule states the basis of sentence was:- • The applicant and the respondent were involved in a consensual fight. The applicant struck the respondent with a punch or slap to the face. • According to the legal provisions relating to self-defence, the respondent was lawfully entitled to push the applicant into the fridge and to throw him to the ground. • The injury to the applicant’s clavicle was caused by that throw to the ground. • The respondent falls to be sentenced for the single kick to the body of the applicant who was lying on the ground and presenting no threat to the respondent. That kick was not necessary to make effectual defence to any assault by the applicant and was disproportionate to any provocation that he may have been subjected to. • That kick caused the comminuted fracture to the applicant’s pelvis which is likely to cause the applicant pain in the foreseeable future. On the available medical evidence it cannot be determined to be likely to cause permanent injury to health such as to constitute grievous bodily harm as that is defined in the Criminal Code. [11] Pursuant to section 19(1)(a) of the Criminal Offence Victims Act 1995 (COVA) the applicant is entitled to compensation “for injuries suffered by the applicant caused by a personal offence committed against the applicant”. [12] Section 20 COVA defines “injury” to include “bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table or prescribed under a regulation”. [13] Section 21 COVA defines a “personal offence” to mean “an indictable offence committed against the person of someone”. [14] Subsections 22(3) and (4) COVA provides: “Compensation provided to an applicant is intended to help the applicant but is not intended to reflect the compensation to which the applicant may be entitled under common law or otherwise and the maximum amount of compensation provided is reserved for the most serious cases and the amounts provided in other cases are intended to be scaled according to their seriousness”. [15] Section 24(2) COVA provides for payment of compensation “to the applicant for the injuries suffered by the applicant because of the offence”. [16] Section 25(7) COVA provides: -- 3 of 8 -- 4 “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”. [17] Section 25(8) COVA provides: “A decision on the amount that should be ordered to be paid under a compensation order: (a) does not involve applying principles used to decide common law damages for personal injuries; and (b) is to be decided by applying the principles mentioned in s 22 (3) and (4).” [18] Initially, the respondent was charged with doing grievous bodily harm to the applicant. [19] The medical imaging department of the Gladstone Hospital reports the applicant was assaulted and had pain in the left shoulder and left side of chest and left hip. There was a question mark about fractures to the left clavicle, left ribs, left hip and left iliac crest. The radiologist report included in the records of the Gladstone Hospital state there was a minimally displaced transverse fracture involving the distal third of the left clavicle. There was no rib fracture. There was an undisplaced fracture involving the anterosuperior border of the body of L4. There was an comminuted multi-fragmented fracture of the left iliac bone. [20] The report of Dr Nicolaai to the solicitors for the applicant dated 6 July 2006 states the applicant was seen at Dr Nicolaai’s surgery on 8 June 2005 with the following injuries: (i) Bruised ribs; (ii) Comminuted minimally displaced fracture of the anterosuperior border of L4 vertebra; (iii) Multi-fragmentary comminuted fracture involving the upper half of the left iliac bone with associated haematoma of the overlying iliacus muscle; (iv) Fracture of left clavicle. [21] I accept the respondent in preparing for the determination of the charge at first instance directed his solicitors to obtain a medical report from Dr Morris, a consultant orthopaedic surgeon. [22] Dr Morris was asked by the respondent’s solicitors whether the applicant’s injuries would cause grievous bodily harm. He considered the injuries sustained by the applicant would not fall within the definition of grievous bodily harm. In arriving at his opinion, he commented on the various injuries referred to by Dr Nicolaai. While not denying the applicant had suffered a fractured clavicle and a fractured left iliac crest, regarding the undisplaced fracture involving the upper body of the L4 with minimal displacement, he considered that an old injury and that it was unlikely the applicant had a fracture. [23] The respondent states after he was charged with the grievous bodily harm offence, he consulted a solicitor. He had previously intended to plead not guilty to the charge. He proposed to strenuously defend the charge. He states he had been -- 4 of 8 -- 5 involved in a consensual fight which commenced after he was assaulted by the applicant. Prior to that assault which commenced the fight, there had been a verbal altercation between the applicant and himself only. He was informed by his solicitor that Dr Morris had expressed the views I have referred to above. The solicitor advised that the Crown accepted that the fight was consensual and the applicant had started it. The respondent states his solicitor strongly recommended that he plead guilty to the lesser charge of assault occasioning bodily harm and advised that if he did so then he and the Crown could argue on the facts that would be presented to the District Court on sentence. He advised that in that way the respondent could more certainly expect that the sentence imposed on him would be more lenient than it would be if he was found guilty of the charge of grievous bodily harm after a hearing which would likely take a number of days before a judge and jury. He states a schedule of agreed facts was negotiated by his solicitor and in his understanding, the Prosecutor. [24] He states that he did not ever accept that he kicked the applicant once while he was prone on the ground or that a kick caused the comminuted fracture to the applicant’s pelvis or that it was likely to cause the applicant significant pain in the foreseeable future. He accepted what he understood to be a “plea bargain” on the advices of his solicitor that it would bring about a more certain outcome for him. He was informed that by pleading guilty to the lesser charge on sentence, the Crown would rely only on the pelvic injury being bodily harm caused by or which was otherwise occasioned to the applicant as a consequence of the unlawful assault. He states had he been aware that the applicant would seek to say that other injuries were caused by the unlawful assault that he was pleading guilty to then he has no doubt that he would not have pleaded guilty to any charge and would have required his guilt or innocence to be determined at trial by a judge and jury. [25] The respondent was aware that as a consequence of the consensual fight, the applicant had suffered a number of injuries which were unintended consequence of the fight. The totality of the injuries suffered by the applicant he viewed as serious and the respondent deeply regretted that as an outcome for him. [26] On the hearing of this application, the applicant accepted he could not claim compensation for the fractured clavicle. [27] However, he claimed compensation for the following: (a) Depression with some features of PTSD, with paranoid ideation and self-blame; (b) Closed head injury; (c) Fracture L4 vertebral body; (d) Fractured left hip at pelvis, including the iliac wing; (e) Bruising to the left ribs; (f) Soft tissue injury of the cervical spine. [28] In my opinion, in this application I should take a view of the evidence consistent with that taken at sentencing. In Facer v Bennett & Anor [2001] QCA 395, Philippides J with whose reasons the other members of the Court of Appeal agreed said at paragraph 18 on page 8: “In the criminal compensation hearing, the judge should take a view of the evidence consistent with that taken at sentencing; to do -- 5 of 8 -- 6 otherwise would result in unfairness and would be incongruous. However, since at a criminal trial the evidence must be restricted to what is relevant to the charges, there may be evidence not led at the criminal trial, which is relevant as a result of s 25(7) of the Act to the issue of contribution. Thus although additional evidence may be adduced at the compensation hearing, the evidence which is inconsistent with the jury’s verdict or the view taken of the evidence of sentencing should not be permitted. This accords with principle and flows from the fact that the compensation proceeding is ancillary to the criminal trial.” [29] However, in Lewis v Williams [2005] QCA 314 Wilson J, with whose reasons the other members of the Court of Appeal agreed said regarding a claim for loss of sense of smell on an application for compensation: “Unlike the evidence sought to be led in R v Bennett; ex parte Facer, the evidence of loss of sense of smell is not inconsistent with evidence at the trial or the view taken on sentencing. Rather, it is additional evidence of a sequela of the offence of assault occasioning bodily harm. The shearing of the olfactory nerves was an ‘injury’ within s 20 of the Criminal Offence Victims Act, as well as ‘bodily harm’ within the meaning of the Criminal Code. Assault occasioning bodily harm is a ‘personal offence’ within the meaning of s 21 of the Criminal Offence Victims Act, and it was open to the primary judge to infer that the shearing of the olfactory nerves was an ‘injury suffered by the “respondent” because of the offence’ s 24(2).” [30] The applicant states in the incident his head hit the freezer door and after his head hit the fridge he could not remember exactly what happened. Dr Campbell, a neurosurgeon, who has provided a report on this application, does not make a diagnosis of closed head injury. [31] There is a conflict between Dr Morris and Dr Day, another orthopaedic surgeon, whether the applicant suffered a fracture of the L4. Dr Day has had the benefit of plain imaging and a subsequent CT of the lumbar spine which confirmed dual pathology in the body of L4. Dr Day says there was a limbus vertebra as well as a comminuted fracture of the anterosuperior border of L4. The fracture was undisplaced. Dr Day says the limbus vertebra was either congenital or developmental in nature and is not related to the events of 2 June 2005. Regarding the comminuted fracture, Dr Day says it is more likely to be related to the events of 2 June 2005. [32] There is evidence on this application from Dr Day the applicant has suffered a soft tissue injury of the cervical spine and from Dr McGuire, psychiatrist, that the applicant has suffered some features of post traumatic stress disorder and depression with some paranoid indeation and self blame from the incident. [33] The applicant told Dr McGuire he was a reformed alcoholic. He started again after he and his wife divorced. He told her he gets drunk quite frequently but never missed work and had worked as a bar tender for a period but never drank then. He -- 6 of 8 -- 7 has significant fears going back into alcoholism. He also told Dr McGuire he saw action in Vietnam and has not had counselling. He said his current situation is very much worse than what he experienced after Vietnam. He said that his feelings about Vietnam were always beneath the surface and this incident has triggered feelings about things that he never spoke about. [34] In my opinion, the schedule cannot be ignored on this application with respect to the applicant’s claim he suffered a fracture L4 vertebral body by reason of the offence. The schedule states the applicant was found to be suffering from injuries that can be clearly attributed (my underlining) to the incident of 2/6/05 and then refers to the fractured left clavicle which the applicant accepts he cannot claim compensation for on this application and the comminuted (multiple fragments) fracture of the left iliac bone of the pelvis. In my opinion the applicant cannot on this application claim compensation for the fractured L4 vertebral body. I am satisfied by reason of the offence he suffered a fracture of the left iliac crest. [35] In my opinion there is no evidence of a closed head injury. There is evidence of bruising to the left ribs. However, I do not accept that can be claimed in this application when the schedule was specific about what the respondent was accepting responsibility for regarding the offence. I do not accept that bruising of the left ribs can be claimed as sequela of the offence. Although there is evidence of soft tissue injury to the cervical spine I do not accept this injury was because of the offence. On the other hand, I accept that some depression with some features of PTSD, with paranoid ideation of self-blame can be claimed as sequela of the offence. [36] Regarding the fracture of the left iliac crest, Dr Day states in the applicant’s case, the fracture did not quite reach the sacroiliac joint, but it is still possible that there will be mild persisting symptoms. [37] Dr Morris has stated the fracture of the left iliac crest would normally unite well and would not cause long term symptoms. This should not prevent the applicant from earning an income. As far as permanent impairment is concerned Dr Morris would put the fracture of the left iliac crest as constituting an impairment of zero percent as does Dr Day. Dr Day stated the applicant had a fracture of the left iliac crest with no involvement of his ligament and no involvement of the sacroiliac joint. [38] Dr Morris agrees with Dr Day that the fractured L4 has left the applicant with a permanent impairment of 5%. Further, using the measurements Dr Day provided, Dr Morris would agree that the applicant would have a 6% impairment of the upper limb. I conclude these were significant injuries for the applicant in the context of all the injuries he suffered in the incident. [39] The applicant states as a result of the “assault” incident he has constant pain to his lower back, left lower rib cage, left hip and his left shoulder. He has been unable to continue his hobby of fishing. He experiences difficulty sleeping and wakes frequently through the night. He has flashbacks and these are often triggered by what he is watching on television. He is now security conscious and avoids leaving his house. He has poor memory and easily forgets dates. He feels quite lonely at times, because he does not go out anymore. This incident has affected his friendships. -- 7 of 8 -- 8 [40] I am satisfied the fractures of the left iliac crest materially contributed to the applicant’s depression with some features of PTSD, with paranoid ideation of self blame. I accept the depression with some features of PTSD, with paranoid ideation of self blame is mental or nervous shock within the meaning of the Act. [41] However, I am satisfied other factors contributed to the applicant’s mental or nervous shock. These factors are the other physical injuries suffered by the applicant in the incident including the fractured clavicle and fractured L4. In my opinion the contribution made by these other factors to the applicant’s mental or nervous shock is significant as they caused him pain and have left him with significant permanent impairment. Therefore I will fix on a lower percentage on the compensation scale to allow for these factors (SAY v AZ (2007) 2 Qd R 363, 370, 371). Instead of 15% under item 32 I allow 2% under item 31. [42] In all the circumstances I compensate the applicant for: (a) Fracture of the left iliac crest; (b) Depression with some features of PTSD, with paranoid ideation of self-blame. [43] Finally, regarding contribution by the applicant for his actions, in my opinion those actions have already been taken into account on sentencing. Further contribution is not called for. I am satisfied the applicant did nothing directly or indirectly to contribute to his injuries caused by the kick for which the respondent accepted responsibility for sentencing. [44] Therefore, I assess the applicant’s compensation as follows: (a) Item 14 - Fracture of left iliac crest, 12% $9,000; (b) Item 31 - mental or nervous shock (minor), 2% $1,500. [45] The total therefore is $10,500. [46] I order the respondent to pay the applicant the sum of $10,500. -- 8 of 8 --