PEARCE v MOSBY [2000] QDC 430 (16 June 2000)

Last Updated: 27 December 2000

[2000] QDC 430

IN THE DISTRICT COURT

HELD AT CAIRNS Application No.42 of 2000

BEFORE HER HONOUR JUDGE BRADLEY

16 JUNE, 2000

Applicant: DAVID PEARCE

Respondent: JONATHON RICHARD EDWARD MOSBY

REASONS FOR JUDGMENT

¹ On 3 February, 2000 the respondent was convicted of the following offence:-

That on 18^th November, 1999 at Cairns in the State of Queensland he unlawfully assaulted David Pearce and did him bodily harm.

2 The applicant who is currently 67 years of age seeks an order for compensation for injuries received as a result of the offence pursuant to s.24 of the Criminal Offence Victims Act 1995.

3 The respondent who is currently serving a term of imprisonment has been served with the application and supporting documentation but did not appear at the hearing of the application.

4 I have not been provided with a transcript of the sentence proceedings other than the sentencing remarks of His Honour Judge White. However, from the police and witness statements, copies of which have been placed before me, it appears that the facts surrounding the offence are as follows:-

At about 6.15 am on 18 November 1999 the applicant was walking with his dog, a Maltese Terrier, near his home. He heard yelling and screaming coming from some units across the road which he thought sounded like a party. As he got to the end of a pedestrian bridge across a water drain a man came running across the road towards him from the units. The man stopped in front of him and asked him what he was laughing at. The applicant replied that he wasn't laughing at anything and at that point the respondent walked quickly towards him. The first male said something to the respondent and the applicant attempted to move away but the respondent moved in front of him and without warning head-butted him to the face. The applicant was struck just above his right eye. As a result the applicant was forced back and grabbed the railing of the bridge to prevent him falling.

5 The applicant felt blood streaming down the right side of his face and could feel his face around his right eye swelling up. He felt dazed and disoriented for a while before he was able to walk home.

6 The applicant's wife called the police and took the applicant to the Cairns City 24 Hour Medical Centre. A report from that centre dated 23 March, 2000 indicates that the applicant presented to the surgery with his face "dripping with blood" and further that-

"The head butt left him with a deep gash over his right eye. This required sutures, which were removed 5 days later.

Due to other medical problems, he was on medication to "thin his blood" i.e. anti-coagulation. This means he has a tendency to bleed a lot. He developed a very large haematoma and bilateral black eyes. The initial trauma and bleeding resulted in diplopia double-vision, but as the bruise resolved, his vision returned to normal."

7 Also tendered in evidence is a report from Dr. E.S. Williams, the applicant's usual general practitioner. Dr. Williams saw the applicant on the morning of 18 November 1999 and noted the "gross bruising and swelling of the right forehead, eye and upper cheek regions". In his report Dr. Williams stated that-

"Mr. Pearce was on anti-coagulant therapy for a cardiac condition. The anti-coagulant therapy in all probability would have increased the bruising. It was not possible to open Mr. Pearce's eyelids due to the extreme swelling. As his INR ratio was 1.9 I recommended symptomatic treatment of analgesia and cold compresses.

Mr. Pearce was reviewed on 7 December 1999. The peri-orbital swelling had decreased considerably, however a haematoma was still evident above the right eyebrow in the region of the laceration. Mr. Pearce complained of a pins and needles like feeling of his right upper eyelid.

Mr. Pearce was seen on 24 January, 2000. There was still some swelling evidence around the right eye especially in the region that had been sutured. The sutured area was tender to touch. Mr. Pearce again complained of a needle like sensation affecting his upper eyelid, he also complained that his eye felt dry, especially laterally. I prescribed artificial tears for him.

When seen on 1 March, 2000 Mr. Pearce's right eye was clinically normal; however he continued to complain of a pins and needles sensation affecting his upper lid and an irritation beneath the lid. He also complained at this time of right posterior cervical pain, worse in the morning and present since the assault, musculo skeletal in origin and presumably relating to the head trauma he suffered."

8 On 1 March, 2000 Mr. Pearce was psychologically assessed by Marie O'Dea, a psychologist, and Ms. O'Dea's report dated 3 April, 2000 is before me. In her report Ms. O'Dea is of the opinion that -

"Mr. Pearce is a quiet and conventional gentleman who is currently overwhelmed by trauma. Due to the assault, he has become aware of his own frailties, and is now obsessed and depressed by health concerns. His scores on the Trauma Symptom Inventory indicate that he has reduced, or altered contact with the external environment, as well as an uncertain sense of his internal experience or identity.

There is sufficient evidence to suggest that Mr. Pearce is suffering from Post Traumatic Stress Disorder (i.e. Nervous Shock) He has both trauma and self disturbance indicators, indicating that he presents as a complex trauma victim. He is chronically distressed, overwhelmed by intrusive symptoms, and is potentially more likely to act out painful internal states by virtue of lesser self resources."

9 Further in her summary of opinions Ms. O'Dea states -

"As it is just four months since the assault, it is possible that he will eventually recover from some of his psychological trauma. However, in the meantime, his symptoms will severely interfere with his lifestyle, in particular, his ability to socialise and cope with normal pressure.

It is estimated that Mr. Pearce will require counselling over a period of six months at a cost, as per the APS recommended fee of $155 per hour. The suggested program includes weekly sessions for two months, fortnightly for two months and two monthly sessions, being a total estimated cost of $2,170.00."

10 In his own affidavit the applicant states that since the assault he finds it difficult to walk his dog everyday, only says hello to people if he knows them and is distrustful of other people, particularly Aboriginal Islander people (the respondent is of Aboriginal or Islander descent). The applicant goes on to say -

"Since the assault I am more on edge and up-tight. I tend to "bite back" if my wife says something to me. I was not like this before I was assaulted. I get angry and annoyed with myself for behaving like that because my wife and I have been married for over 40 years and she doesn't deserve to have me being snappy at her. I often get frustrated with myself."

11 On the facts before me there is no suggestion whatsoever that any behaviour on the part of the applicant directly or indirectly, contributed to his injury.

12 I assess compensation in accordance with the compensation table as follows:-

1. Item 2 Bruising/laceration etc. (severe) 4% $ 3,000.00

2. Item 27 Facial disfigurement or bodily

scarring (minor) 2% $ 1,500.00

3. Item 29 Loss of vision (one eye) 3% $ 2,250.00

4. Item 32 Mental or nervous shock (moderate) 15% $11,250.00

Total $18,000.00

13 I order that the respondent do pay to the applicant the sum of $18,000.00 by way of compensation.