Day v Johnson & Ors [2004] QDC 467

DISTRICT COURT OF QUEENSLAND CITATION: Day v Johnson & Ors [2004] QDC 467 PARTIES: RICHARD CLIFFORD DAY Applicant v DAVID RAYMOND JOHNSON First Respondent PAUL ROBERT MISALE Second Respondent DAVID SEAN ROULSTON Third Respondent SHARON JENNIFER TAYLOR Fourth Respondent FILE NO/S: 41 of 2004 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: District Court Ipswich DELIVERED ON: 15 November 2004 DELIVERED AT: Ipswich HEARING DATE: 15 October 2004 JUDGE: Richards DCJ ORDER: The respondents are ordered to pay the applicant the sum of $27,000 by way of compensation as follows: 1. David Sean Roulston and Sharon Jennifer Taylor pay compensation in the sum of $27,000 to the applicant for which they jointly and severally are liable to the applicant. 2. Paul Robert Misale pay compensation in the sum of $5,400 to the applicant which is 20% of the above figure of $27,000 for which he is jointly and severally liable to the applicant with the said Roulston, Taylor and Johnson in respect of that amount of $5,400. 3. David Raymond Johnson pay compensation in the sum of $2,700 to the applicant which is 10% of the above figure of $27,000 for which he is jointly and severally liable to the applicant with -- 1 of 6 -- 2 the said Misale, Roulston and Taylor in respect of that amount of $2,700. CATCHWORDS: Criminal compensation – apportionment between the respondents. COUNSEL: A Stobie for the applicant No appearance for the respondents SOLICITORS: McNamara & Associates for the applicant No appearance for the Respondents. [1] The applicant in this case was acquainted with all of the respondents who lived in his local neighbourhood. On 1 February 2002 he was invited to Taylor’s home for a social visit. Residing at the house at that stage were Driessens, Roulston and Taylor. [2] When Day arrived at the house Taylor, Driessens, Roulston and Misale were all present. Taylor accused him of having indecently dealt with her daughter. He denied the allegation and Driessens, Taylor’s partner, hit him with a closed fist to the right side of the face. The blow split his right eyebrow. He was then punched again in a similar way. [3] Taylor began hitting him with a closed fist all over his face and Roulston punched him on the left side of the face. Roulston then picked up a horse bit and hit him across the legs and left foot causing severe pain. [4] Johnson then arrived and Day attempted to escape the house. He was wrestled to the ground and then tied up and taken to a car. Repeated threats were made to him to the effect that he would be taken away and killed. Ultimately he was driven away and then dropped by the side of the road. -- 2 of 6 -- 3 [5] On 17 October 2002 Taylor, Roulston and Misale pleaded guilty to assault occasioning bodily harm in company and Taylor, Roulston, Misale and Johnson pleaded guilty to deprivation of liberty. [6] The applicant suffered black eyes, swelling over his left cheek and his left foot was swollen, fractured jaw and a fractured cheek. Surgical correction of the fractures was required. Sometimes his jaw still locks and he has continuing pain from the injuries he received to his face and head, however, it is expected that he will not be left with any permanent disability. [7] As a result of the attack the applicant has suffered emotionally. He suffers frequent nightmares, which have affected his ability to sleep and he requires medication on occasions. He has repeated and intrusive recollections of the assault. He is worried for his safety and has become socially reclusive. [8] He was diagnosed by Ian Goldsmith, a psychologist as suffering from posttraumatic stress disorder. Mr Goldsmith supplied an affidavit for the purposes of this application and he says that Day: • finds it hard to relax, • has disturbed sleep • is hyper-vigilant, • suffers from posttraumatic stress disorder of a moderate kind. [9] Mr Goldsmith says the applicant is conscious of the need for ongoing counselling and he estimates he would need 10-15 sessions at an estimated cost of $2,500. -- 3 of 6 -- 4 [10] The applicant is entitled to compensation under the Criminal Offence Victims Act 1995. He did not in any way contribute to his injuries and so no discount needs to be made in that regard. [11] He has suffered the following compensable injuries : • facial injuries [including moderate facial factures] 18% of the scheme maximum. • mental and nervous shock, moderate 15% of the scheme maximum. • facial bruising 3% of the scheme maximum. TOTAL PERCENTAGE: 36% of the scheme maximum [12] There are four respondents named in this application. A question therefore arises in relation to the respondent’s individual liability to pay the compensation. Section 26(5) and (6) of the Act provides: “(5) A single compensation order may be made against more than 1 convicted person. (6) If a single compensation order is made against more than 1 convicted person, the order may provide for— (a) separate liability of a convicted person scaled according to the person’s direct and material contribution to the injury; or (b) joint liability of more than 1 convicted person for an amount payable under the order; or (c) both the separate liability mentioned in paragraph (a) for an amount and joint liability for the amount.” [13] In this case Taylor and Roulston were clearly more culpable than Misale and Johnson. Johnson only came onto the scene after Day had been assaulted and Misale was not physically involved in any of the assaults although he was present -- 4 of 6 -- 5 and providing support. It is therefore appropriate that an apportionment should be made between the parties. [14] During the course of submissions I was referred to a case of Street v Fitzgerald (2002) QSC 235 where the question of apportionment was considered. Justice Mullins in that case made separate awards in relation to each respondent,however ,it was ordered that they be held jointly and severally liable. It seems that this is an appropriate way to deal with this case. [15] In this case given the respective roles of the respondents in the attack on Day, 10% of the total amount of compensation should be awarded against Johnson and 20% of the total amount of compensation should be ordered against Misale. Roulston and Taylor should be liable for the total amount of compensation. ORDER The respondents are ordered to pay the applicant the sum of $27,000 by way of compensation as follows: 1. David Sean Roulston and Sharon Jennifer Taylor pay compensation in the sum of $27,000 to the applicant for which they jointly and severally are liable to the applicant. 2. Paul Robert Misale pay compensation in the sum of $5,400 to the applicant which is 20% of the above figure of $27,000 for which he is jointly and severally liable to the applicant with the said Roulston, Taylor and Johnson in respect of that amount of $5,400. -- 5 of 6 -- 6 3. David Raymond Johnson pay compensation in the sum of $2,700 to the applicant which is 10% of the above figure of $27,000 for which he is jointly and severally liable to the applicant with the said Misale, Roulston and Taylor in respect of that amount of $2,700. -- 6 of 6 --