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 8 June 2006, namely grievous bodily harm.

Facts

3. [3]
   The respondent viciously attacked the applicant just after midnight on 1 January 2006 after the respondent perceived that the applicant had made a homosexual advance in relation to him (“the incident”).

Injuries

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

1. bruising below both eyes;
2. a laceration under his left eye;
3. a right zygomatic arch fracture;
4. a left subdural haematoma
5. scarring
6. a brain injury

Although it is submitted on behalf of the applicant that he also suffered cracked/bruised ribs in the incident, there is no medical evidence before me supporting an allegation of broken ribs and I will therefore make provision for bruising in this area.

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. Item 1 Bruising/laceration etc (minor/moderate) 1%-3%
2. Item 7 Facial fracture (moderate)  14%-20%
3. Item 10 Fractured skull (brain damage – minor/moderate) 10%-25%
4. Item 21 Neck/back/chest injury (minor)  2%-7%
5. Item 27 Facial disfigurement or bodily scarring (minor/moderate) 2%-10%
6. Item 31 Mental or nervous shock (minor)  2%-10%

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 decide 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]
   In his statement dated 16 February 2006, the neurosurgeon who treated the applicant, Dr Rossato, noted that the applicant had suffered seizures following the incident and required surgery to relieve the bleeding into his skull. In his subsequent report dated 27 April 2007, Dr Rossato concluded that the applicant’s recovery had been such that “no neurological deficit of an organic nature can be demonstrated”.

10. [10]
    Ms Daniels, psychologist undertook a neuropsychological assessment of the applicant. In her report dated 13 December 2006, she noted the applicant’s possible “mild exaggeration of complaints and problems” and that there were “insufficient symptoms present to form a definitive diagnosis of Post Traumatic Stress Disorder” (“PTSD”). She concluded, inter alia:-

“There is evidence of a significant decline in cognitive functioning as a result of the injuries sustained in the assault.  There is psychometric evidence of diffuse frontal and parietal lobe dysfunction.  There are also indications of central auditory processing deficits.

…His trauma and personality profiles suggest his current difficulties may be more related to brain injury than excessive psychological trauma related to the assault.  His significant injuries, surgery and subsequent arterial bleed could account for his profile of brain dysfunction.

…

In conclusion, Mr Jamieson has managed to maintain good self-esteem throughout a period of pain and adjustment in which most people would suffer extreme depression.”

11. [11]
    In light of the above findings, the conclusion of Dr Richardson in her report dated 31 May 2008 that the applicant’s profile “is a classic post traumatic presentation and it is apparent that he experiences distress associated with PTSD and Depression” is somewhat baffling.

12. [12]
    I note the observation of Thomas JA in R v Kazakoff; Ex parte Ferguson^[4] that to limit compensation pursuant to COVA “to cases where a diagnosable mental disorder or psychiatric illness results, would give the term ‘mental or nervous shock’ too limited a meaning”.  Accordingly, it is not necessary for me to determine whether or not the applicant is actually suffering from a PTSD as a consequence of the incident for the purposes of this assessment.

13. [13]
    I am satisfied that the applicant cannot be said to have contributed to the injuries suffered by him.

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:

Item 1:  3%  $  2,250.00

Item 7:  15%  $11,250.00

Item 10:  20%  $15,000.00

Item 21:  3%  $ 2,250.00

Item 27:  5%  $  3,750.00

Item 31:  5%  $  3,750.00

     $38,250.00

Order

15. [15]
    I order that the respondent pay the applicant the sum of $38,250.00 by way of compensation.