Cooper v Wilkinson [2005] QDC 286

1 DISTRICT COURT OF QUEENSLAND CITATION: Cooper v Wilkinson [2005] QDC 286 PARTIES: ROBERT GORDON COOPER Applicant v DANNY LEE WILKINSON Respondent FILE NO/S: 61/2005 PROCEEDING: Application for criminal compensation ORIGINATING COURT: Southport DELIVERED ON: 30 September 2005 DELIVERED AT: Southport HEARING DATE: 26 September 2005 JUDGE: Dearden DCJ ORDER: The respondent, Danny Lee Wilkinson, pay the applicant, Robert Gordon Cooper, the sum of $58,500.00 CATCHWORDS: Criminal compensation - Unlawful Wounding – laceration on cheek – permanent eye injury – facial scarring – mental or nervous shock – anxiety – post-traumatic stress disorder. Criminal Offence Victims Act 1995 s 22(4), 24, 25, 26, Cases cited: 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 S Kerrigan (Solicitor) for the applicant No appearance for the respondent SOLICITORS: Adamsons Solicitors for the applicant No appearance for the respondent -- 1 of 9 -- 2 [1] The applicant, Robert Cooper, seeks compensation in respect of injuries suffered by him arising out of an incident which occurred on 23 February 2004, which resulted in the respondent, Danny Wilkinson, pleading guilty before Senior Judge Trafford-Walker in the Southport District Court on 26 August 2004, to one count of unlawful wounding. The respondent also pleaded guilty to an assault charge in respect of another complainant, arising out of the same incident. The respondent was sentenced to 18 months imprisonment, suspended after six months, for an operational period of two years. FACTS [2] The applicant and his friend Stuart Mitchell (the complainant in respect of the assault charge) attended at Fisherman’s Wharf, Main Beach, Surfers Paradise at approximately 7.30pm on 23 March 2003. The applicant and Mr Mitchell consumed mid-strength beer, as well as rum and cokes. At about 10.30pm, the applicant and Mr Mitchell had decided to go home, but were approached by a Ms Brown, who was present with the respondent. The respondent was known to Mr Mitchell (although not to the applicant) and Mr Mitchell had spoken to the respondent earlier in the evening. [3] Ms Brown introduced the applicant to the respondent and there was some conversation. Then (for reasons which were not explained by either the prosecution or the defence at the sentence), the respondent hit the applicant in the face with a glass which broke on impact, close to the applicant’s ear. The applicant fell back on the bar, felt blood running down his face and saw the blood going onto the ground. -- 2 of 9 -- 3 [4] Mr Mitchell subsequently ran after the respondent, approached him near a boat at Fisherman’s Wharf, and received at least one punch from the respondent when confronting him about what had happened to the applicant. [5] The applicant was subsequently taken to the Gold Coast Hospital for treatment and was later transferred to the PA Hospital1 . The only explanation (if it could be described as such) offered by defence counsel on the sentence of the respondent was that the assault on the applicant was “an aberration…caused by a mixture of alcohol and a misapprehension of the circumstances [the respondent] found himself in.” 2 Defence counsel, Mr Maher, described what had occurred as a “stupid reflex action, caused by anger or alcohol, or both…[while the respondent] was holding a glass at the time.” 3 INJURIES [6] The applicant sustained the following injuries in the altercation: 1. A small laceration of the left eyelid; 2. A 1.5cm laceration through the skin on the left cheek near his nose on the left-hand side with division of a small artery which was spurting from the wound; 3. A 3cm laceration to the left cheek through the skin, it appeared to be deep. It was in the region of the parotid gland duct; 4. Left corneal (clear part of eye) laceration involving the eye4 . 1 This summary of the facts of the offence is taken from the submissions outlined by the prosecution at the sentence at T 3 2 T p 5 3 T p 5 4 Report of Dr Paul Bowe, physician, Gold Coast Hospital Emergency Department dated 11 May 2004 – Exhibit SAK4 to the affidavit of Scott Kerrigan sworn 10 February 2005 -- 3 of 9 -- 4 [7] The report of Dr Bowe went on to note that “Injuries 1 and 2 were treated at the Gold Coast Hospital, injury 2 required sutures, [for] injuries 3 and 4, the patient was sent for assessment at Princess Alexandra Hospital [and] injury 4 involving [the patient’s] left eye required at least eight follow-up clinics at the Gold Coast Hospital and the patient was eventually discharged from the ophthalmology clinic on 12 January 2004.” 5 THE LAW [8] This is an application under s 24 of the Criminal Offence Victims Act 1995 (“COVA”). COVA commenced operation on 18 December 1995 and provides for compensation in respect of convictions on indictment of a personal offence for 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 in comparison with 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. COMPENSATION [9] Mr Kerrigan, solicitor for the applicant, seeks compensation pursuant to the following items in schedule 1 of COVA, namely: 5 p 2, report of Dr Paul Bowe, Exhibit SAK4 to the affidavit of Scott Kerrigan sworn 10 February 2005 -- 4 of 9 -- 5 (1) Item 26 – Gunshot/stab wounds (severe) The applicable range is 15%-40% of the scheme maximum, and Mr Kerrigan submits that an appropriate award is 20%. (2) Item 28 – Facial disfigurement or bodily scarring (severe) The applicable range under this item is 10%-30% of the scheme maximum, and Mr Kerrigan submits that an award of 15% should be made in this regard. (3) Item 29 – Loss of vision (one eye) The schedule sets a figure of 70% of the scheme maximum in respect of this item, but COVA s 25(4)(a) relevantly provides that where there is only one percentage figure listed in respect of an item, then the Court is limited (in respect of that specific item on the schedule) to an amount up to the listed percentage (i.e. the relevant range is 1%-70%). Mr Kerrigan submits that the appropriate award under this item would be a figure of 56% of the scheme maximum. (4) Item 32 – Mental or nervous shock (moderate) The relevant range for this item is 10%-20% of the scheme maximum, and Mr Kerrigan submits that an appropriate award would be 15%. Gunshot/Stab Wounds and Facial Disfigurement or Bodily Scarring [10] In Riddle v Coffey6, McMurdo P noted that while COVA “intends to provide full compensation within the limits it imposes; it does not encourage or authorise duplication of compensation for what is effectively the same injury. 6 [2002] QCA 337 -- 5 of 9 -- 6 The correct approach will always depend on what is fair and reasonable on the particular facts of each case, within the limits of [COVA].” 7 [11] As the decision in Riddle v Coffey itself held, in a situation where an applicant received serious injuries which included a head injury, the loss of the use of a right shoulder/arm, a fractured left arm, the loss of the use of a leg, stab wounds and bodily scarring, compensation for the stab wounds in addition to the other items amounted, effectively, to double compensation for the same injury8 . [12] In my opinion, it would clearly be a ‘double up’ to award the applicant an assessment under item 26 (gunshot/stab wound [severe]) in addition to an award under item 28 (facial disfigurement or bodily scarring [severe]). In my view the appropriate methodology is to proceed, in respect of the totality of the facial injuries (exclusive of the injury to the applicant’s eye), by an assessment at the lower end of item 28 (which has an applicable range of 10%- 30%). In reaching such an assessment I am mindful of the requirement under COVA s 22(4), as explained in R v Ward ex parte Dooley9, that compensation in respect of any particular injury requires a comparison with the ‘most serious’ case in respect of each individual item in schedule 1. In the circumstances, having examined the photographs which were tendered as Exhibit 1 on the hearing of the application for compensation, I consider an appropriate award under this item would be 12% of the scheme maximum ($9,000). 7 Riddle v Coffey [2002] QCA 337 at para 18 8 Riddle v Coffey per McMurdo P at paras 22 and 23 9 [2001] 2 Qd R 436 -- 6 of 9 -- 7 Loss of Vision (One Eye) [13] The effective compensation range in respect of item 29 (loss of vision – one eye) is 1%-70% of the scheme maximum 10 . The report of Dr Welch, ophthalmologist, dated 13 January 200511 , relevantly states that the applicant’s “left eye has visual acuity of 6/36 which improves to 6/18 with pinhole.” The report goes on to state that “the significant abnormality is an obliquely- running corneal scar with some ectasia of the cornea. The anterior segment of this eye is dry with reduced tear film.” Dr Welch’s conclusion is that the applicant “has a permanent eye injury”, the effect of which “is to reduce his visual acuity” and “the percentage loss of vision can be considered to be 80% based on reduction of visual acuity”, a loss of vision which Dr Welch deems “moderate to severe.” Dr Welch does not consider that there would be a clear benefit to the applicant from possible corneal graft surgery, and notes that the loss of normal binocular vision, in the dusty environment of the applicant’s work as a panel beater, is a practical impediment to performing at his previous and normal level in that job. [14] Mr Kerrigan submits that, taking into account Dr Welch’s assessment of an 80% loss of vision, and given the effective range of 1%-70% for item 29, the most appropriate assessment would be a figure of 56% (i.e. 80% of the 70% scheme maximum). I accept that Mr Kerrigan’s proposed calculation, viewed in light of Dr Welch’s opinion that the loss of vision is “moderate to severe”, is an appropriate assessment of the injury pursuant to item 29 and accordingly, I award 56% ($42,000) under this item. 10 See COVA s 25(4)(a) read with item 29, schedule 1 11 Exhibit RTW01 to the affidavit of Roger Welch dated 4 February 2005 -- 7 of 9 -- 8 Mental or Nervous Shock [15] The applicant was examined by Dr Jonathan Lichter, psychiatrist, who provided a report dated 6 October 2004 12 . Dr Lichter concluded that the applicant satisfied the DSM IV criteria for “an Adjustment Disorder with Mixed Anxiety and Depressed Mood” which arose as a “direct result of the assault which [the applicant] suffered at Fisherman’s Wharf on 23 March 2003.” 13 Dr Lichter noted that the applicant had “lost self-confidence and self-esteem and developed a prominent anxiety reaction with some features of a post-traumatic stress disorder, namely, hypervigilance, a tendency to startle easily, a fear of being subjected to another assault and for a while, [being] phobic about going out” but noted that the applicant’s mental state had “improved significantly in recent months.” In summary, Dr Lichter concluded that the applicant’s “original psychiatric injury was moderately severe but [that the applicant] now has only minor residual symptoms” which did not require psychiatric treatment, and the applicant had a good prognosis14 . [16] I consider that an appropriate award in respect of mental or nervous shock would fall under item 32 (10%-20% of the scheme maximum) but (based on Dr Lichter’s report) the assessment should be at the bottom of that range. Accordingly, for this item I award 10% of the scheme maximum ($7,500). 12 Exhibit JL02 to the affidavit of Jonathan Lichter sworn 11 February 2005 13 Exhibit JL02 at p 4 14 Exhibit JL02 at p 5 -- 8 of 9 -- 9 CONTRIBUTION [17] It is clear that the applicant did not contribute in any way to his own injuries15 . CONCLUSION [18] Accordingly, I order that the respondent, Danny Lee Wilkinson, pay the applicant, Robert Gordon Cooper, the sum of $58,500. - - - - - 15 See COVA s 25(7) -- 9 of 9 --