DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for a compensation order pursuant to section 24 of the Criminal Offence Victims Act 1995 (“COVA”).

2. [2]
   The injuries giving rise to the application were suffered as a result of a personal offence for which the respondent was convicted on indictment on 12 March 2007, namely grievous bodily harm.

Facts

3. [3]
   The offence occurred on 19 August 2005 at Mareeba when the respondent struck the applicant from behind causing him to fall forward and hit his head on a nearby banister before falling face first onto the footpath, striking his head on the footpath (“the incident”).

Injuries

4. [4]
   The applicant suffered the following injuries as a consequence of the incident:

1. A frontal lobe injury, with significant contusions and oedema;

2. Dementia due to head trauma;

3. A small graze on the back of the scalp;

4. A post traumatic stress disorder (“PTSD”) and depression.

The relevant law

5. [5]
   COVA establishes a scheme for the payment of compensation to the victims of certain indictable offences including those who suffer “injury” as defined in section 20, being “bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table as prescribed under a regulation.”

6. [6]
   Pursuant to section 25 of COVA, a compensation order may only be made up to the scheme maximum of $75,000 specified in section 2 of the Criminal Offence Victims Regulation 1995 (“COVR”) using the percentages listed for an injury specified in the Compensation Table in SCHEDULE 1 of COVA. In R v Jones ex parte Zaicov^[1] Homes J described the process in the following terms:

            “Thus, my examination of the section convinces me that a two or three stage process is entailed. Where there is more than one injury, the first step is to arrive at the amounts in respect of each injury, the second is to add those amounts together, and the third, to arrive at the compensation order.”         

7. [7]
   Relevantly the Compensation Table prescribes:

1 Bruising/ laceration (minor/moderate)… 1% - 3%

11 Fractured scull (brain damage – severe)… 25% - 100%

32 Mental or nervous shock (moderate)… 10% - 20%

8. [8]
   Section 25 of COVA also states that the court, in determining the amount that should be paid for an injury, “should have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury.” Furthermore the process of assessing compensation pursuant to COVA does not involve applying principles used to decide common law damages for personal injuries and the maximum amount of compensation provided for is reserved for the most serious cases, with the amounts provided in other cases intended to be scaled accordingly.^[2] If an injury is not specifically listed in the Compensation Table the court must decided the amount of compensation by comparing the injury or injuries under injuries listed in the Compensation Table and having regard to the amounts that may be ordered to be paid for these injuries.^[3]

The Assessment

9. [9]
   The report of Dr Stephenson, Psychologist^[4] notes that the applicant is suffering from a “degree of dementia due to Head Trauma”, exhibiting symptoms “such as attentional problems, irritability, anxiety, depression and affective lability, increased tendency to aggression, and … Other changes in personality.” She is of the view that he is “quite unable to return to work at any level…” Whilst noting that the level of the applicant’s dementia is moderate she concluded that the head injury suffered by him “has proved devastating in its long term consequences.”

10. [10]
    In his affidavit,^[5] the applicant complains of various impairments including memory loss, sexual impairment and loss of the sense of smell. Interestingly loss of the sense of smell is not referred to in the medical evidence before me, however I have no reason to doubt the applicants assertion in this regard. It is not included as a separate injury in the Compensation Table.

11. [11]
    In her report Dr Richardson, psychologist^[6] concludes that as a result of the incident, the applicant “currently experiences psychological distress associated with PTSD and depression.” She assess the PTSD to be in the moderate to severe range and notes a Major Depressive Disorder which she specifies as being moderate.

12. [12]
    Although there is no evidence of the applicant having suffered a fractured skull in the incident, having regard to section 25 (6) of COVA, I am of the view that item 11 is appropriate for assessing compensation in respect of the frontal lobe injury suffered by the applicant.

13. [13]
    I am satisfied that the applicant did not contribute to the injury.

14. [14]
    Having regard to the evidence before me and in particular to the matters set out above, I assess compensation pursuant to COVA and the Compensation Table as follows:

Order

15. [15]
    I order the respondent pay the applicant the sum of $53,250.