Atkinson v McCallum [2002] QDC 328

DISTRICT COURT OF QUEENSLAND CITATION: Atkinson v McCallum [2002] QDC 328 PARTIES: CHRISTOPHER PETER ATKINSON Applicant v GARY WAYNE McCALLUM Respondent FILE NO: 3218/02 DIVISION: Criminal jurisdiction PROCEEDING: Application ORIGINATING COURT: Brisbane DELIVERED ON: 10 December 2002 DELIVERED AT: Brisbane HEARING DATE: 18 October 2002 JUDGE: O’Sullivan DCJ ORDER: I order the respondent to pay to the applicant by way of criminal compensation the sum of $24,750.00 CATCHWORDS: Criminal compensation: head injury; loss of smell COUNSEL: SOLICITORS: Collas Moro Ross for the Applicant [1] This is an application for criminal compensation by Christopher Peter Atkinson, a 19 year old fork lift driver, following the conviction of the respondent Gary Wayne McCallum of assault occasioning bodily harm on 18 March 2000. [2] The respondent hit the applicant with a Brisbane City Council tree stake following an altercation and various verbal exchanges involving the applicant, the respondent and others. [3] The applicant was hit on the back of the head and was rendered unconscious for some short time. He sustained a 6cm laceration to the occipital area. -- 1 of 4 -- 2 [4] The applicant was admitted to Logan Hospital with what was noted as a “serious head injury” and concussion. A CT scan and an EEG revealed no particular injury capable of diagnosis. The applicant was discharged after three days. [5] When the applicant saw a general practitioner three weeks after the incident he was complaining of very bad headaches, being off balance, bad dizzy spells and one blackout whilst at the wheel of a car. [6] The applicant was referred to a neurologist and a report from Dr Boyle dated 13 December 2001 discounts epilepsy and expresses the opinion that the applicant “was suffering primarily from post-concussion syndrome with some superimposed syncopal episodes”. [7] Dr Scott Campbell, neurosurgeon has provided two reports, dated 15 April 2002 and 12 September 2002. At the time of the examination on 12 April 2002 the applicant was suffering from decreased short term memory and concentration, loss of sense of smell and hypersensitivity over the occipital area to “touch and bumps”. Dr Campbell diagnosed a head injury resulting in organic brain dysfunction, traumatic damage to the olfactory nerves as a result of the contre coup head injury, and sensory nerve damage due to scalp laceration. In his more recent report Dr Campbell diagnoses a 6% whole person impairment, 3% due to decreased short term memory, 2% to the loss of sense of smell and 1% to sensory nerve damage to the scalp. [8] Mr Stoker, clinical psychologist, provided a report dated 20 June 2002. He states that the behaviour of the applicant after the assault, his psychological history and Mr Stoker’s clinical testing are consistent with a psychological diagnosis of post traumatic stress disorder with delayed onset (diagnostic and statistical-manual – -- 2 of 4 -- 3 American Psychiatric Society DSM – IV). He also diagnosed a post-concussional disorder (DSM – IV). Mr Stoker opined that “On a 7 point scale the applicant’s degree of psychological pain and suffering was around 5”. The applicant needed 25- 30 sessions of cognitive behavioural therapy. “The applicant’s psychological inconvenience was at 4, on a 7 point impairment of lifestyle”. Mr Stoker said : “The applicant has developed a clinically significant post traumatic stress disorder and continues to suffer nightmares and flashback imagery of the assault. It is my opinion that the development of a full blown post traumatic stress disorder was figured in mid last year when the offender went to court. He consequently suffered both nightmares and flashback imagery”. He opined that the applicant has suffered a mild head injury and continues to suffer from a post concussional disorder as a result of the assault, the applicant’s prognosis is fair to good, the post-traumatic stress disorder and post-concussional disorder are expected to remit and the applicant has suffered from a moderate degree of nervous shock and will have a permanent partial psychological disability in the order of 19%. [9] The applicant says that the assault has caused some problems around the work site because of decreased short-term memory and concentration. In his affidavit he swears “I am less efficient on the job site and there are concerns that my employment may suffer as a result”. This is economic loss, a head of damage which is not part of an award for criminal compensation. [10] The applicant has totally lost his sense of smell, and he describes this as making his lifestyle less enjoyable. [11] The applicant says that the incident has caused him to be cautious when mixing with people in public. He is constantly on guard when in groups of people. He states that -- 3 of 4 -- 4 this is a source of concern in his day-to-day living, and he did not have to deal with this concern prior to the assault. [12] I have had the benefit of further written submissions by Counsel for the applicant in respect of appropriate compensation awards for total loss of smell. He referred me to a decision of Judge Newton in the matter of an application for compensation by Rodney Raymond Shiel Application 103 of 1998, Order made on 20 February 1998. In his further written submissions Counsel for the applicant contended that an appropriate figure for total loss of smell would be 25% of the maximum, ie: a sum of $18,750, rather than the $6,000 awarded in Shiel. I consider this is too high and an award of 15% is more appropriate. [13] In respect of the laceration I award 3% under item 1 in the table, a sum of $2,250. In respect of the head injury, under item 9 of the table, I award 15%, a sum of $11,250. In respect of the loss of smell there is no particular item, but, by reference to items 29 and 36, and the decision of Shiel, I consider an award of 15% to be appropriate, a sum of $11,250. The total award is 33%, a figure of $24,750. [14] I order the respondent to pay to the applicant by way of criminal compensation the sum of $24,750. -- 4 of 4 --