Atkinson v Dimurro [2007] QDC 349

DISTRICT COURT OF QUEENSLAND CITATION: Atkinson v Dimurro [2007] QDC 349 PARTIES: DENIS JOHN ATKINSON Applicant V PETER EDWARD DIMURRO Respondent FILE NO/S: 330/06 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: District Court, Southport DELIVERED ON: 20 December 2007 DELIVERED AT: Beenleigh HEARING DATE: 27 November 2007 JUDGE: Dearden DCJ ORDER: The respondent Peter Edward Dimurro pay the applicant Denis John Atkinson the sum of $33,750. CATCHWORDS: APPLICATION – Criminal Compensation – assault occasioning bodily harm while armed – fractured skull – mental or nervous shock LEGISLATION: Criminal Offence Victims Act 1995 (Qld) ss 22(4), 24, 25(7), 26 CASES: R v Ward; ex parte Dooley [2001] 2 Qd R 436 Riddle v Coffey [2002] 133 A Crim R 220; [2002] QCA 337 COUNSEL: Mr D. Love (Solicitor) for the applicant No appearance for the respondent SOLICITORS: Dale and Fallu for the applicant No appearance for the respondent -- 1 of 7 -- 2 Introduction [1] The applicant Denis John Atkinson seeks compensation in respect of injuries suffered by him arising out of two incidents which occurred on 31 December 2003 at Woolloongabba, resulting in the respondent Peter Edward Dimurro pleading guilty before me in the District Court at Brisbane on 11 March 2005 to one count of common assault, and one count of assault occasioning bodily harm while armed. The respondent was sentenced to a six month intensive correction order in respect of each of the counts, with a special condition requiring him to undergo medical, psychological, psychiatric and/or other treatment or counselling, including as an inpatient, as directed by an authorised Corrective Services officer, in relation to alcohol management. Facts [2] The offences occurred on New Year’s Eve 2003. The applicant was having a small party at his house. The applicant had about half a dozen friends there and the applicant’s 18 year old son also had some friends at the party. Between 8 and 8.30 pm, the respondent walked into the kitchen of the residence through the open front door. The respondent started talking to a person in the kitchen and the applicant assumed that the respondent was there because he was somebody’s friend. The respondent kept calling people by their wrong names, and when he was told that he had their names the wrong way around, the respondent got upset and started yelling and swearing. When the applicant asked the respondent to leave his house, the respondent stood up and punched the applicant several times around the area of his head (Count 1 – common assault).1 1 Exhibit B (Submissions on sentence), p 4, Affidavit of David Love sworn 21 October 2005 -- 2 of 7 -- 3 [3] Another man then grabbed the respondent and then pushed him against a wall. The respondent was then involved in a scuffle with other men at the party before being shuffled towards the front door and thrown down the stairs. During this process, the respondent’s T-shirt was ripped. A short time later, the respondent returned to the house wearing a different T-shirt and was leaning against the front fence. He was asked to leave by a number of persons at the party who recognised him. The applicant and another man went to the front of the house and began to walk down the front steps towards the respondent, having heard that the respondent had returned to the party. As the applicant and the other male person approached the respondent, the respondent began to walk backwards, hit a wheelie bin and pulled a metal bar about 12 inches long out of the bin and hit the applicant once over the head with it, causing the applicant to fall on the footpath outside the applicant’s house. The applicant’s 18 year old son then ran upstairs, grabbed a baseball bat and a knife and chased the respondent away. The respondent, when apprehended by police some time later, told police he had consumed a 370 ml bottle of Wild Turkey that night and a few shots of Baileys between 4.30 and 6 pm.2 Injuries [4] The applicant was taken to the Princess Alexandra Hospital where the following injuries were noted: 1. Black eye. 2. 7 cm laceration to his forehead requiring stitches. 3. Periorbital haematoma (black eye). 2 Exhibit B, pp 4-5, Affidavit of David Love sworn 21 October 2005 -- 3 of 7 -- 4 4. Large subchorial haematoma and depressed fracture of the left frontal bone of the forehead.3 [5] The prosecutor at the sentence tendered a victim impact statement4, which she noted referred to a broken nose which wasn’t borne out on the medical report, and a problem with the applicant’s vision which had not been (as at sentence, at least) the subject of any medical examination. The prosecutor also noted that the applicant at the time of the incident had been suffering post-traumatic stress disorder which was long standing, had suffered previous brain injuries and also suffered from chronic substance abuse.5 The Law [6] This is an application under s 24 of the Criminal Offence Victims Act 1995 (“COVA”). COVA commenced on 18 December 1995 and provides for compensation in respect of injuries 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 with comparison to 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. 3 Exhibit B, p 5, Affidavit of David Love sworn 21 October 2005 4 Exhibit C (Sentence Exhibit 4), Affidavit of Dennis Atkinson sworn 23 November 2007 5 Exhibit B, p 6, Affidavit of David Love sworn 21 October 2005 -- 4 of 7 -- 5 Compensation [7] Mr Love, solicitor for the applicant, seeks compensation under three items as follows: (1) Item 10 – Fractured skull (brain damage – minor/moderate) – 10%-25% Mr Love submits that injuries amounting to bruising/laceration, fractured skull and facial disfigurement or scarring should be dealt with under Item 10 (fractured skull (brain damage – minor/moderate)), although he concedes in his submissions that the medical material does not indicate any brain damage. In my view, the injuries which could properly be classified as “fractured skull” are the depressed fracture to the applicant’s forehead and the haematoma under that forehead. In my view, those injuries should be the subject of an award under Item 9 (fractured skull/head injury – no brain damage) in the amount of 10% of the scheme maximum ($7,500). The balance of the injuries which occurred to the applicant’s face (a periorbital haematoma and bruising/laceration to his face as well as a numbness to his left cheek, persisting to the present,6 and the unsightly scar left by the skull fracture) would, in my view, be more appropriately dealt with by way of an order under Item 28 (facial disfigurement or bodily scarring (severe)) at an amount of 15% of the scheme maximum ($11,250). That view as to an appropriate assessment does reflect the difficulties in “shoehorning” the injuries suffered by the applicant into the relevant item numbers on the compensation table (Schedule 1), but pragmatically recognises the relevant injuries and the applicant’s entitlement to compensation for those injuries with the framework of COVA’s Schedule 1 items. 6 Exhibit A, p 2, Affidavit of Trevor Myers sworn 9 May 2007 -- 5 of 7 -- 6 (2) Item 13 – Fracture/loss of use of shoulder – 8%-23% The applicant attests to having suffered an injury to the rear of his left shoulder as well as aggravating back and neck injuries.7 The applicant noted in his victim impact statement that his “existing back and neck injuries have been more problematical since [the date of the assault]”8. Although the shoulder injury was not referred to by the prosecutor on sentence, the circumstances of the offending (in which the respondent hit the applicant over the head with a bar and caused him to fall) indicate, in my view, that there would appear to be a causal link between that assault and the shoulder injury. In those circumstances, it appears reasonable (as submitted by Mr Love) to make an assessment under Item 13 (fracture/loss of use of shoulder), and in the light of the assessment by Dr Trevor Myers of a 4% loss of normal function of his upper limb,9 I assess the applicant’s injury under this item at 10% of the scheme maximum ($7,500). (3) Item 31 – Mental or nervous shock (minor) – 2%-10% Dr Colls, psychiatrist, diagnoses the applicant as suffering both alcohol dependence in early partial remission and post-traumatic stress disorder (‘PTSD’). Dr Colls noted that both conditions were pre-existing at the time of the assault but had been exacerbated by it. Dr Colls described the severity of the PTSD as being “at the lower end of the scale of that condition” and estimated “that the assault is responsible for about 25% of [the applicant’s] current clinical presentation, and in 7 Exhibit C (Victim Impact Statement – Sentence Exhibit 4) which was described as a “brand new ongoing injury to my rear left shoulder which is much worse now and leaves me in severe pain for much of the day without heavy painkillers”, Affidavit of Dennis Atkinson sworn 23 November 2007 8 Exhibit C, Affidavit of Dennis Atkinson sworn 23 November 2007 9 Exhibit A, p 4, Affidavit of Trevor Myers sworn 9 May 2007 -- 6 of 7 -- 7 the two years since the assault, has been responsible for up to 50% of his symptomology”.10 In the circumstances, it seems appropriate to make an award, as submitted by Mr Love, at the top end of Item 31 (mental or nervous shock (minor)) at 10% of the scheme maximum ($7,500). Such an award pragmatically recognises the relevant causality as between the assaults the subject of this application and the previous contributors to those relevant conditions. Contribution [8] I do not consider the applicant has contributed in any way to his own injuries.11 Conclusion [9] I order that the respondent Peter Edward Dimurro pay the applicant Denis John Atkinson the sum of $34,500. 10 Exhibit A, p 5, Affidavit of Ian Colls sworn 19 December 2005 11 See COVA s 25(7) -- 7 of 7 --