Butler v Fleming [2007] QDC 369

1 [2007] QDC 369 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No 124 of 2007 BRIAN JOHN BUTLER Applicant and GRAEME JOHN FLEMING Respondent TOWNSVILLE ..DATE 14/05/2007 JUDGMENT Catchwords Criminal compensation - physical and developing psychological consequences to victim of assault who had tried to intervene to protect a boy being set upon by the perpetrators. -- 1 of 5 -- 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: This is an application by Brian John Butler under the Criminal Offence Victims Act 1995. He seeks compensation under the Act against Graeme John Fleming who pleaded guilty in the course of a trial in which he faced a charge of grievous bodily harm on the 24th of November 2003. Sentencing by the trial Judge, Judge Hoath, did not occur until the 26th of August 2004. The offence happened on the 11th of March 2000. It can been seen that there is an undesirable amount of delay attending this matter. Part of that is attributable to the respondent not having been picked up by police until the 7th of September 2002. It seems that he was the only one of the defendants to suffer conviction although he was not the only one charged. He pleaded guilty to assault occasioning bodily harm. He was a young man and not, it seems, one of the party of three or so young Aboriginals who were observed by Mr Butler on the night of the 11th of March 2000 attacking a young boy on a bike. The boy was pulled off his bike and subjected to a cowardly attack of three against one. Mr Butler, who is now 50, was staying with his sister overnight in anticipation of recreational activity in the bush the next day. Somehow or other his attention was attracted to what was going on and in a commendable but ill-fated gesture he intervened to try to protect the boy. It was made known to him by the boy's assailants that his intervention was unwelcome, that the -- 2 of 5 -- 3 JUDGMENT 1 10 20 30 40 50 60 affair was nothing to do with him, but he persisted, only to be struck unexpectedly from behind by a brick or a piece of concrete or something similar. The respondent is another young Aboriginal person, not among the original group, who came along and took it upon himself to intervene by the reprehensible act of kicking Mr Butler in the head while he was down on the ground. There were other injuries including bruising in the back. It seems accepted there was some soft tissue injury to say the least. Mr Butler complained about that in his police statement given very close to the time and in his victim impact statement of 2003 he complained about it again. Otherwise there might be room for concerns to be held about the claims in respect of the back injury. He has a claim for the laceration which required cleaning and suturing under local anaesthetic. The most significant of the physical injuries was a fractured skull which caused troubling headaches to Mr Butler for some time but those fortunately resolved. He was kept in hospital after his principal wound had been attended to for four days. It appeared at the time of the sentence that he had made a good recovery but there were lurking psychological consequences which have been very sad for Mr Butler. Although it seems he was physically capable of continuing his longstanding employment he became psychologically incapable of doing so. -- 3 of 5 -- 4 JUDGMENT 1 10 20 30 40 50 60 A couple of years ago in that period his relationship with his partner, which was not enormously longstanding but which was very important to him, fell apart. Although only 50, Mr Butler sees himself as a broken down man. It is the advice of those he has seen for medico/legal purposes, being Mr Walkley, a psychologist, and Professor James, a psychiatrist, that he undertake treatment or programs to deal with those matters which might help him. Dr James has recommended an increase in the drug regime which had been prescribed already when he saw Mr Butler last month. Things appear to have gone downhill in the psychological realm given Mr Walkley's conclusion in March 2006 that Mr Butler does not appear to have any of the salient characteristics of post-traumatic stress disorder. Notwithstanding that, Mr Walkley found he would conform to the diagnosis of a major depressive disorder and a generalised anxiety disorder and could reasonably be described as a person: "with a shattered sense of self confidence and self esteem and with a great deal of anger and animosity towards his assailants whom he believes have escaped unpunished." Even the respondent, it seems, because of his youth, escaped actual custody. Professor James, when he saw Mr Butler for a couple of hours last month, reached the opinion that Mr Butler does suffer from post-traumatic stress disorder and major depressive -- 4 of 5 -- 5 JUDGMENT 1 10 20 30 40 50 60 disorder. He wrote a special letter to Mr Butler urging him to seek treatment which he hopes may alleviate the situation. Among the other consequences for Mr Butler are a revision of his previous understanding or favourable attitudes towards Aboriginal people. ... HIS HONOUR: I am grateful to Mr Greggery for that clarification. It is incumbent on the Court to avoid double compensation. The pertinent items in the schedule in the circumstances are items: 1, 9, 22, and 33. The major laceration is related to the fractured skull, but there were others, along with bruising in some areas. Without assigning percentages I will award the following amounts under them: Item 1: $1,500; Item 9, fractured skull: $9,000; Item 22, the back injury: $4,000; Item 33, the psychological injury: $22,000 The total is $36,500. The respondent will be ordered to pay that amount to the applicant under the Act. It is not necessary to separate the respondent's contribution; although last on the scene, he adopted what the other assailants had done and became responsible for all of the harm. ----- -- 5 of 5 --