SUPREME COURT OF QUEENSLAND

[1]  JERRARD JA:  This proceeding is an application for leave to appeal pursuant to    s 118(3) of the District Court of Queensland Act 1967 (Qld) from a decision of that court given on 3 March 2006.  In that decision a learned District Court judge made orders, pursuant to the Criminal Offence Victims Act 1995 (Qld) (“the COVA”), that the respondents Matthew Bickerton and Jonathon Wallace pay Mr Jefferis between them a total of $44,250 as compensation for injuries he had suffered and which were caused by their having unlawfully caused him grievous bodily harm on 19 May 2004.  On this application Mr Hamlyn-Harris contended for Mr Jefferis that the learned District Court judge erred in not awarding Mr Jefferis a separate amount for compensation for chest and heart problems he had suffered, said to be caused by that offence; and argued that in the result the learned judge had awarded a manifestly inadequate sum in compensation for the combined severity of all Mr Jefferis’ injuries and complications resulting from an unlawful attack upon him.

The offence

[2] The circumstances of the offence committed on Mr Jefferis were that on 19 May 2004 he was living at 54 Leichhardt Street in Cloncurry with Joy Heck, with whom he had resided for some 20 years.  He was then 80 and she was 73.  They heard their dogs barking and Ms Heck went outside, and saw two men (Mr Bickerton and Mr Wallace) inside the yard.  She told one of them it was private property, and Mr Wallace punched her with his fist and knocked her to the ground.  She tried to get up and Wallace hit her again, and she called out to Mr Jefferis, several times.  He came out, and as he was making his way to where Ms Heck lay, Mr Wallace hit Mr Jefferis several times on the face knocking him to the ground.  Then Mr Wallace kicked Mr Jefferis a number of times.  Mr Wallace was wearing steel capped boots.  Ms Heck got to her feet, and staggered into the house; Wallace followed her in, telling her he wanted $200, grabbed her bag and got $150 from it.  She managed to call the police.

The injuries

[3] Mr Jefferis principally suffered from multiple facial fractures resulting from that attack, including displaced fractures of the jaw on both sides, and a fracture of the left orbital floor with some displacement.  He needed major surgery to reconstruct his jaw, which was fixed with two reconstruction plates and three titanium plates and screws.  A report from a Dr Yusuf of the Townsville General Hospital recorded that Mr Jefferis’ recovery was slow as it was complicated by a chest infection, exacerbation of cardiac failure, and a heart attack.

[4] He was transferred to Cloncurry in June 2004 but suffered further complications, and received further treatment at the Townsville General Hospital.  A Dr Binder, who oversaw that, provided a report which described the following:

“There is no doubt that extensive facial injuries sustained during the assault resulted in compromise of the upper airway requiring a tracheostomy.  Pneumonia occurred as a direct consequence of the management required to maintain an airway and subsequently achieve a good functional result with the requirement for major surgery. Ongoing weakness and debility due to a prolonged intensive care unit and subsequent in-patient stay was complicated by an acute myocardial infarct, the development of heart failure and the development of pneumonia resulting in ongoing problems that persisted until October 2004.  As a result of these complications, there has been deterioration in his lung function, which has resulted in reduced mobility and increased breathlessness which will persist indefinitely.”[1]

The application

[5] The complaint on this application for leave is that the learned judge, who awarded compensation, either failed to award compensation, or awarded an inadequate amount, for those serious medical complications.  They were broadly described in the written argument on the application for leave as chest, respiratory, heart, and associated injuries, and were distinguished from Mr Jefferis’ facial injuries and specific complications to his face.  It was conceded compensation had been assessed for the latter.

[6] Mr Hamlyn-Harris submitted that the application involved the important issue of whether or not a “secondary” injury could be separately assessed for compensation, and if so, how it should be assessed.  “Secondary” injuries, as his argument described them, are ones directly developing from direct injuries.  In this matter he submitted that both the development of heart problems and of pneumonia were relevant secondary injuries, and each of those had had an adverse effect on Mr Jefferis’ recovery from the primary injuries he suffered.

[7] He developed the submission that pneumonia alone could be considered as an injury, referring to Webster’s Medical Desk Dictionary, and submitted that it should be compensated for by comparison with item 22 in the Compensation Table in the Schedule to the COVA.  That item reads:

“22. Neck/back/chest/ injury (moderate)... 5%-10%.”

[8] He submitted that the learned trial judge had erred in assessing the secondary injury suffered by Mr Jefferis only when determining the amount of compensation under item 8 in that schedule, which reads:

“8. Facial fracture (severe)....20%-30%.”

He contended that the overall 26 per cent allowed for the severe facial fractures experienced by Mr Jefferis, when that figure was treated as including compensation for the secondary injury, resulted in an award that was too small compared to what should appropriately have been awarded, had the item 8 calculation been considered separately from the compensation properly assessable for the secondary injury of at least pneumonia.

The Attorney’s argument

[9] On the application the Attorney-General appeared in a role described by the Attorney-General as amicus curiae, and opposed it. Counsel for the Attorney-General, Mr Fenton, pointed out that when making the assessment the learned judge had said:

“So far as his facial fractures are concerned this item, in my view, falls to be assessed under item 8.  Making allowance for associated bruising and for the complications that are clearly associated with those various head injuries, and these were obviously the most significant of the physical injuries suffered by the applicant, I consider that an award of 26 per cent of the maximum or $19,500 would be appropriate.” [My italics].[2]

Mr Fenton argued that the italicized words showed that the learned judge had made all appropriate allowance for those injuries the applicant now contends were not the subject of any awarded amount, and that that was all the learned judge was able to do. 

[10]  The Attorney referred in that regard to the need to avoid compensating a victim for the same injury under more than one head, and so overcompensating the victim, citing R v Jones; ex parte Zaicov [2002] 2 Qd R 303[3], and submitted that the learned judge had had regard to everything relevant, as required by the judgment of the Court in that case.  Mr Fenton submitted that the compensation table provided in Schedule 1 of the COVA permitted a maximum percentage of 30 per cent for item 8 Facial fracture (severe), and that the 26 per cent (of the total amount which could be awarded to a victim for all of the victim’s serious injuries) had responsibly recognised that Mr Jefferis had suffered severe facial fractures, with the described complications.

[11] I agree with that submission, but consider that an underlying error unduly limits the amounts that could be awarded on the Attorney’s approach.  The error is revealed in the written outline, which argues (at paragraph 5) that the starting point is that the Court is limited to make an order for an injury specified in the compensation table (my italics again), for an amount that is within the listed range of percentages of the scheme maximum.  The submission then refers to s 25(4)(b) of the COVA.  Mr Fenton initially made a similar oral submission.

The COVA

[12]  Section 19 of the COVA provides that Part 3 of it establishes a scheme for the payment of compensation to a person for injury suffered by that person, and caused by a “personal offence” committed against the victim.  Section 20 defines “injury” as meaning “bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table or prescribed under a regulation.”  The definition does not limit injury to those specified in the compensation table or those prescribed under a regulation.

[13]  Section 21 describes a “personal offence” as an “indictable offence committed against the person of someone”; Mr Jefferis was unquestionably the victim of an indictable offence.  Mr Wallace and Mr Bickerton pleaded guilty to having unlawfully done him grievous bodily harm.  Continuing, s 25 is worth quoting in full.

“25. What amount may be required to be paid under a compensation order

1. In making a compensation order, a court is limited to ordering the payment of an amount decided under this section.
2. A compensation order may only order the payment to the applicant of a total amount of not more than the prescribed amount (the scheme maximum).
3. If more than 1 amount is payable under subsections (4) to (6), the amounts must be added together, and, if the total is more than the scheme maximum, only the scheme maximum may be ordered to be paid.
4. In deciding the amount that should be ordered to be paid for an injury specified in the compensation table, the court is limited to making an order for—

1. if there is only 1 percentage listed opposite the injury — an amount up to the amount that is the listed percentage of the scheme maximum; or
2. if there is a range of percentages listed opposite the injury—an amount that is within the listed range of percentages of the scheme maximum.

5. In deciding the amount that should be ordered to be paid for an injury specified under a regulation, the court is limited to making an order for the prescribed amount.
6. In deciding the amount that should be ordered to be paid for an injury to which subsections (4) and (5) do not apply, the court must decide the amount by—

1. comparing the injury with injuries to which subsections (4) and (5) apply; and
2. having regard to the amounts that may be ordered to be paid for those injuries.

7. In deciding whether an amount, or what amount, should be ordered to be paid for an injury, the court must have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury.
8. A decision on the amount that should be ordered to be paid under a compensation order—

1. does not involve applying principles used to decide common law damages for personal injuries; and
2. is to be decided by applying the principles mentioned in section 22(3) and (4).”

[14]  While a compensation order may only order an amount up to the scheme maximum, there are three circumstances specified in that section pursuant to which an order for compensation can be made, and the amount calculated.  The first, described in 25(4), is when the court is ordering an amount to be paid for an injury specified in the compensation table, which is clearly enough a reference to the compensation table appearing in Schedule 1.  Section 25(4) limits a court in those circumstances to orders as described in 25(4).

[15]  Then s 25(5) provides for amounts that can be ordered for injuries specified under a regulation.  When so ordering the court is limited to making an order for the prescribed amount; the Criminal Offences Victims Regulation 1995 (Qld), made pursuant to the regulation making power granted to by s 44 of the COVA, provides in s 2A of that regulation that the prescribed amount for s 25(5) of the COVA is an amount equal to an amount not less than one per cent but not more than 100 per cent of the scheme maximum.  That scheme maximum is fixed by s 2 of that regulation as $75,000.

[16]  Then there is s 25(6), which by its terms recognises that a court can order an amount to be paid as compensation for an injury, that being an injury to which subsections (4) and (5) do not apply; i.e. they are not injuries specified in the compensation table or under a regulation.  In that circumstance s 24(6) provides that the court must decide the amount to be awarded by comparing the injury with injuries to which subsections (4) and (5) apply, and having regard to the amounts that may be ordered to be paid for those injuries.  Mr Fenton agreed during his oral argument that s 25 did recognise those three varieties of compensable injury. 

[17]  That means, as the Attorney’s submissions recognised, that the relevant question is whether either or both of the acute myocardial infarct and the pneumonia were an “injury” as defined in s 20, and, if so, whether either such injury Mr Jefferis suffered was caused by the grievous bodily harm done to him; and whether he had already been compensated for that injury.  Mr Fenton argued, regarding pneumonia, that it was a bodily infection, not a bodily injury.  I consider that “injury” should be understood as meaning physical damage or hurt, and that that description certainly applies to the heart condition.  But I do not agree that the evidence allowed the conclusion that that heart condition was caused by the grievous bodily harm.  The only evidence is of a pre-existing heart condition.

[18]  Regarding the tracheotomy which was performed, necessitated by the injury to Mr Jefferis’ upper airways, and leading in turn – on the evidence – to the development of pneumonia, Butterworth’s Medical Dictionary[4] describes pneumonia as a general disease in which the essential lesion is an inflammation of the spongy tissue of the lung with consolidation of the alveolar exudate; and adds the term is often applied to the local pathological lesion only.  “Lesion” in turn is defined as a pathological disturbance, such as an injury, an infection, or a tumour.  From those definitions, the pneumonia could be described as physical damage suffered by Mr Jefferis, and on the evidence it was caused by the grievous bodily harm.  Applying the test approved by this Court, the grievous bodily harm materially contributed to the onset of that pneumonia, even if it was not the sole or even the effective cause of it[5]; and (applying a test suggested by Mr Fenton) the grievous bodily harm was also a substantial or significant cause of that pneumonia. 

[19]  Accordingly, I am satisfied that Mr Jefferis was entitled to an amount of compensation to be paid for that injury, it not being an injury specified in the compensation table or under a regulation.  Comparing it with injuries so specified it was apparently of some months’ duration and delayed his recovery.  It was probably life threatening.  If separately assessed, it could increase an award by a further five per cent to eight per cent of the scheme maximum.

[20]  That means the proper issue is whether the learned judge assessing compensation erred in making a global assessment for the facial fractures and the complications arising from those, or whether the learned judge should have separately assessed the former under item 8, and the pneumonia under s 25(6).

[21]  In R v Jones; ex parte Zaicov this Court (per Holmes J (as Her Honour was then), with whom the other members agreed) relevantly wrote:

“In relation to Mr Zaicov, his Honour made no separate assessment in respect of the surgical scarring.  The applicant might have been allowed a separate amount in respect of this feature (although for my part I would have allowed no more than a percentage at the low end of the minor/moderate range); but it was equally open, in my view, for the learned judge to regard the scarring as part and parcel of the gunshot wounds.  As was observed in R. v. Webb; ex parte M.R.:6

‘It is often the case that an applicant’s injury could be categorised under more than one head in the compensation table.  Of course an applicant is prima facie entitled to compensation for all the component of his or her overall condition resulting from the offence, but the court must  be careful to avoid compensating for the same component under more than one head and therefore overcompensating the victim.’

I do not consider that there is any error shown in the learned judge’s failure to make a separate allowance.”[6]

[22]  I consider it a fair inference that since Holmes J was satisfied that the scarring was at the low end of the minor/moderate range, which has a two per cent to ten per cent range, that Her Honour was also satisfied that the applicant in that case had been adequately compensated by the approach taken there of making one composite assessment, rather than two separate ones.  Both counsel in the appeal accepted that the two critical principles to be applied are that an applicant is to be adequately compensated, but is not to receive double compensation. 

[23]  It follows that the learned judge will only have erred if this Court could conclude that the amount otherwise appropriate as compensation for the facial fractures had not been sufficiently increased to have proper regard for, as the learned judge described it, the complications clearly associated with those facial fractures, or as Mr Hamlyn-Harris would describe it, the secondary injuries.  These were certainly extensive facial injuries, sufficient to require a tracheostomy and the insertion of plates, and the evidence is that the tracheostomy was in place for several weeks.  Other evidence is that Mr Jefferis now lives in constant pain from his jaw, which aches, has lost taste and sensitivity around his face and has trouble eating, and dribbles constantly from the right corner of his mouth.  I consider those facial fractures, without other complications or secondary injury, would justify an assessment of up to 25 per cent.

[24]  I am accordingly satisfied that in this matter the learned judge did err in not making two separate assessments.  The assessment the judge made took into account the consequences of Mr Jefferis’ heart condition, which I am also satisfied was not separately assessable as a secondary injury.  He has accordingly gained some benefit from the approach taken by the learned judge, but not sufficient benefit to avoid the finding of error.  Excluding the pneumonia, the 26 per cent awarded in respect of the facial fractures and other complications can be justified, although at the high end of the available range.  I am satisfied it would be appropriate to add to that amount a further $5,750. 

[25]  Accordingly, I would order:

● that the application for leave and appeal be allowed;

● that the total award in the applicant’s favour be increased by $5,750 to an amount of $50,000; and

● that the respondent Jonathon Gerald Wallace pay the amount of $35,000 and the respondent Matthew James Bickerton pay the amount of $15,000 to the applicant John Owen Jefferis by way of compensation for injuries suffered by the applicant by reason of the offences of which the respondents were convicted in the District Court at Mt Isa on 1 March 2005.

[26]  WHITE J:  I have read the reasons for judgment of Jerrard JA in which he sets out the details of the offence by the respondents against the applicant which gave rise to his claim for compensation pursuant to the Criminal Offence Victims Act 1995 (Qld).  It was a vicious, cowardly attack on an elderly couple with devastating results for the applicant.  Although a man with many health problems, prior to the attack he lived an independent and active life which has been effectively curtailed.

[27]  The issue for decision is whether the learned primary judge erred in making one assessment for the applicant’s facial injuries and the complications which arose from them rather than assessing separately those injuries and the pneumonia which was caused, at least in part, as a consequence of those injuries.

[28]  Jerrard JA has set out the relevant provisions of the Act and discussed the regime for compensation.  There is no dispute that the approach should be to compensate adequately but to avoid double compensation.  The award of a sum of money to compensate for the personal consequences of criminal conduct against the person of the victim involves the exercise of judicial discretion within the parameters of the Criminal Offence Victims Act.  An appeal will therefore only be successful if there is some error manifested in exercising that discretion, House v The King (1936) 55 CLR 499 at 505, per Dixon, Evatt and McTiernan JJ. 

[29]  As is clear from the extracts of the reasons for judgment of the primary judge set out by Philippides J, his Honour below was plainly aware that the specialist doctor considered the onset of pneumonia was a direct consequence of the attack, and accepted that evidence.  He proceeded to make allowance for it in his award. 

[30]  Some injuries may be categorised under more than one head and be so compensated, keeping in mind that there must not be double compensation.  But it is also recognised that there may properly be a more global approach to the assessment particularly where the injuries are very closely connected, R v Jones; ex parte Zaicov [2002] 2 Qd R 303.  That is what occurred here when the primary judge made an award under item 8 for the facial injuries and pneumonia.  Whether he also compensated for the heart failure which was not a consequence of the criminal conduct is in the applicant’s favour and certainly not a ground for giving leave.

[31]  It is not enough, as was said in House at 505, that the judges composing the appellate court consider that had they been the primary judge they would have taken a different course.  It must appear that some error has been made in exercising the discretion and none is discernible here. 

[32]  I would refuse the application for leave to appeal.

[33]  PHILIPPIDES J:  The applicant was awarded $44,250 by the learned primary judge in respect of an application under the Criminal Offence Victims Act 1995 (Qld) (“the Act”) for injuries sustained as a result of an offence of grievous bodily harm committed upon him on 19 May 2004 by the respondents.  The applicant seeks leave to appeal against the award on the basis that an issue arises as to the correct construction and application of the Act.

[34]  I have had the advantage of reading the reasons for judgment of Jerrard JA and adopt the statement contained therein of the background facts of this case.  As stated by his Honour the issue raised in the appeal is “whether the learned primary judge assessing compensation erred in making a global assessment for the facial fractures and the complications arising from those, or whether the learned judge should have separately assessed the former under item 8 and the pneumonia under s 25(6)”.   However, I am unable, with respect, to agree with the conclusion reached by Jerrard JA that the learned primary judge erred in the approach he took.

[35]  Before the learned primary judge it had been urged on behalf of the applicant that the facial fractures fell to be compensated under item 8 of the compensation table “facial fracture (severe)” which provides for a percentage range of 20 per cent to 30 per cent of the scheme maximum and that the maximum of $22,500 ought to be awarded.  A separate claim was sought under item 25, which concerns “neck/back/chest injury (moderate)”, and for which the appropriate range is 5 per cent to 10 per cent.  In the written submissions it was said that the claim made under item 25 was for $7,500 (10 per cent).  That claim was made on the basis that the applicant’s recovery was “complicated by chest infection, exacerbation of cardiac failure and heart attack”.  That is how the medical consequences following the assault were described in the report of Dr Yusuf of the Townsville General Hospital, who first detailed the applicant’s injuries and to whose report the learned primary judge referred in his reasons for judgment.

[36]  The primary judge observed the applicant was an elderly man who had significant health problems prior to the commission of the offence and that, as a result of the consequences of the offence were thus more serious than they might have been for a younger man.   In his reasons for judgment the primary judge quoted the following extract from the report of Dr Binder, a consultant in respiratory and sleep medicine:

“There is no doubt that extensive facial injuries sustained during the assault resulted in compromise of the upper airways, requiring a tracheotomy.  Pneumonia occurred as a direct consequence of the management required to maintain an airway and subsequently achieve a good, functional result with the requirement for major surgery.

Ongoing weakness and debility due to a prolonged intensive care unit and subsequent inpatient stay was complicated by an acute myocardial infract, the development and heart failure and the development of pneumonia, resulting in ongoing problems that persisted until October 2004.  As a result of these complications, there has been deterioration in his lung function, which has resulted in reduced mobility and increased breathlessness which will persist indefinitely.

[…]

Whilst it is clear that Mr Jefferis’s multiple medical problems unrelated to the assault, he was living independently and enjoyed a relatively active lifestyle, despite  minor limitations due to ischaemic heart disease, chronic obstructive pulmonary disease and myasthenia gravis.  The assault resulted in extensive facial injuries, requiring the insertion of a tracheotomy and medical ventilation, extensive surgery and was complicated by the development of an acute myocardial infract, congestive cardial failure and pneumonia.

His general physical condition deteriorated significantly as a result of his injuries and subsequent complications, and he suffered recurrent chest infections, leading to a reduction in pulmonary function, complicated by further infection and acute coronary syndrome, anaemia and deterioration in myasthenic symptoms, after which he was physically and mentally unsuitable to return to his home in Cloncurry.”

[37]  The approach taken by the primary judge was not to make a separate award under item 25, but rather, in assessing compensation under item 8, to make allowance “for associated bruising and for complications that are clearly associated with those various head injuries”, stating “those were the most significant of the physical injuries suffered by the applicant”.  Accordingly, an award at the upper end of the maximum percentage permitted under item 8 was made, that is 26%, resulting in an award of $19,500.

[38]  The primary judge did not specify whether the additional allowance under item 8 included compensation for both the myocardial infract and the pneumonia.  What his Honour said was that compensation was being awarded for the complications that were clearly associated with the head injuries.  Given the extract from Dr Binder’s report which the judge quoted, it cannot be the case that the primary judge was not alive to the distinction made by Dr Binder between the pneumonia which was said to be a “direct” consequence of the tracheotomy necessitated by the injuries and the other complications detailed in the report, including myocardial infract.  But even if there was some incorrect award made by the judge in including an element of compensation for the myocardial infarct, that worked in the applicant’s favour and is clearly not a basis for the grant of leave.

[39]  As regards the issue of compensation for the pneumonia suffered by the applicant, the approach taken by the primary judge did not in my view reveal any appealable error. In a given case, it may be possible to categorise an applicant’s injury under more than one head in the compensation table.  As observed in Riddle v Coffey [2002] QCA 337 at [18], the correct approach will always depend on what is fair and reasonable on the particular facts of each case, within the limits of the Act, and appeal courts will not lightly interfere with these exercises of discretion.  Further, while an applicant is prima facie entitled to compensation for all the component parts of his or her overall condition resulting from the offence, the court must be careful to avoid duplication of compensation.

[40]  In my view, it was possible in the present case to fully compensate the applicant under the one head of compensation (item 8) and within the percentage range provided for that item as the primary judge did. It was thus open to the primary judge to consider the complications directly resulting from the tracheotomy necessitated by the facial injuries in the assessment made under item 8.  This is not a case where the making of an assessment under the one item of compensation was not available, because on such an approach the maximum percentage permitted for the item would be insufficient to provide appropriate compensation.

[41]  In those circumstances, I do not consider that error has been demonstrated in the approach taken by the learned primary judge in failing to make a separate allowance for the pneumonia suffered by the applicant. 

[42]  Accordingly, I would refuse leave to appeal.