Eadie v Rudenko & Gordon [2007] QDC 276

[2007] QDC 276 DISTRICT COURT CIVIL JURISDICTION JUDGE O'SULLIVAN No 1902 of 2006 DONALD PHILLIP EADIE Applicant and MICHAEL SHANE RUDENKO First Respondent and DAVID GORDON Second Respondent BRISBANE ..DATE 21/09/2007 JUDGMENT 1 -- 1 of 5 -- 2 JUDGMENT 1 10 20 30 40 50 60 HER HONOUR: This is an application by Ronald Phillip Eadie, for criminal compensation following the conviction of the two respondents of robbery in company with personal violence. The applicant suffered a particularly aggravating circumstance, namely that one of the men had already robbed him and had come back on a second occasion and was very smug and intimidatory. The applicant was born on 24 February 1971. The medical report which has been tendered from Dr Adam Blond, states that the applicant attended at the Princess Alexandra Hospital. He had bruising over his - it says inferior, I'm assuming that's meant to be interior, but I'm not sure about that - left orbit with localised pain on palpation. There was also some bruising of the left occipital region. He notes that neurological examinations were conducted and facial and orbital x-rays were performed and no abnormality was detected. I note that, particularly in the context of the applicant referring to lumps in his head (I can't quite isolate what might be the cause of those). Dr Blond continues that haemotological investigations were performed because of the applicant's understandable concern about infection as the blood of the respondents was splashed on him at the time of the incident. Dr Blond refers to the applicant sustaining bruising, pain and anxiety. -- 2 of 5 -- 3 JUDGMENT 1 10 20 30 40 50 60 I have had regard to the victim impact statement, which was tendered at the time of sentence, and I do not propose to repeat that. I have a report from Dr Larder, psychiatrist, who saw the applicant on the 9th of January 2006. I have made the remark to counsel that this is a somewhat old report and I would have much preferred a more recent one, or at least a more recent affidavit from the applicant. That is not to hand. Dr Larder opines that the applicant is suffering from a syndrome of anxiety symptoms triggered by the incident and exacerbated by physical symptoms which persisted for some months, and the need to seek repeated blood tests to determine if he had been infected by an infectious disease. He also refers to the DS/MV (4) classification of psychiatric condition, and he diagnoses anxiety disorder with phobic avoidance, startle responses complicated by alcohol abuse. He says this disorder has been of mild severity, but it has been complicated by persistent and regular alcohol abuse, and the overall level of impairment reaches the moderate range of dysfunction using the Global Assessment of Functioning Scale (6). The applicant has provided an affidavit sworn on 14 June 2006. I have expressed concern that a more recent affidavit was not prepared and filed, but I have indicated to counsel that this probably makes no practical difference, because the submission -- 3 of 5 -- 4 JUDGMENT 1 10 20 30 40 50 60 he has made is a modest and appropriate one. I am therefore acting on the basis that the symptoms that are disclosed to me are the basis of the criminal compensation. The applicant refers to being in a constant state of paranoia, and always feeling unsure of people and their intentions towards him. As at June 2006, loud or obtrusive noises made him feel uncomfortable, and he got very nervous when people snuck up from behind. The applicant also expressed understandable concern that the third accomplice to the robberies had not been found, and that this might have a threat to his security. He also deposes to the risk of an infection of HIV or similar disease, and I agree that this is an aggravating feature. He deposes to suffering bad headaches for a long time after the second attack, and to having various lumps on the back of his head. He deposes to suffering from severe panic attacks, and as a result he was forced to take time off work to recover, and he subsequently did not continue to work in the shop, but I'm not sure for how long that continued. He says he was no longer able to manage the business and sold it in February 2005. He deposes to attending at the rooms of Dr Blond, and he lists his physical and psychological terms: a), bruising and soft tissue injuries to face, ribs, back and left thigh; b), lumps -- 4 of 5 -- 5 JUDGMENT 1 10 20 30 40 50 60 on the back of the head; c) scratches on the left thigh; d), facial swelling; e), severe carpet burn; f), recurring headaches; g), panic attacks; h), impairment of social functioning; i), short-term memory loss; and j), insomnia. The material, including the photographs, reveals a bruised and swollen left eye socket, and reference is made to a cut to the right middle finger and redness of the right wrist. The applicant was punched to the face, ribs, chest and neck. The fear felt by the applicant must have been real, and it is clear that the problems he has experienced are as a result of the attack. There is no contributory factor to be taken into account. Counsel has submitted that the award for the bruising and lacerations, under items 1 and 2 to the Schedule to the Act, should be 3 per cent, and I agree with that. Counsel has submitted that the award for mental or nervous shock under item 2 should be 20 per cent, and I agree. I order the respondents to pay jointly to the applicant the sum of $17,250 by way of criminal compensation. ... ----- -- 5 of 5 --