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 18 April 2007, namely grievous bodily harm.

Facts

3. [3]
   The applicant was assaulted by the respondent late on the evening of 18 February 2007 following an altercation between two groups, one of which included the applicant and the other the respondent. The respondent head butted the applicant after the applicant threatened him. (“the incident”).

Injuries

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

• Bruising and swelling of the right eye and a small laceration which did not require suturing;
• A fracture of the right medial wall of the orbit with no muscle entrapment;
• A fracture of the nasal bone which required surgery as airflow was obstructed;
• Psychological sequelae.

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:

• Item 1 Bruising/laceration etc (minor/moderate) 1%-3%
• Item 4 Fractured nose (displacement/surgery) 8%-20%
• Item 6 Facial fracture (minor) 8%-14%
• 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]
   Care must be taken in assessing the injuries sustained by the applicant in the region of his right eye because section 26 of COVA provides that “harm that substantially should be treated as a single state of injury is treated as a single injury, even though it may consist of more than one injury…” Accordingly COVA does not contemplate more than one award of compensation for what is effectively the same injury. Therefore compensation awarded pursuant to Item 1 must be for an injury over and above that contemplated for an injury covered by Item 6.

10. [10]
    As for the applicants psychological sequelae, I have been provided with a report from Dr Terace, a psychiatrist dated 11 November 2008 which concludes that he is suffering from a mild adjustment disorder as a consequence of the incident. This has a minimal impact on the applicant’s lifestyle and does not impair his ability to work.

11. [11]
    The incident occurred in the context of an existing altercation between two groups of men in the Mackay central business district late at night after the applicant had been drinking. Immediately before he was struck the applicant had threatened to strike the respondent. In the circumstances I am of the view that the applicant’s behaviour has directly contributed to the injuries sustained by him and that the contribution was significant.

12. [12]
    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:  2%  $1,500.00

Item 4:  12%  $9,000.00

Item 6:  8%  $6,000.00

Item 31:  3%  $2,250.00

     $18,750.00

Less 30% contribution  $5,625.00

     $13,125.00

Order

13. [13]
    I order the respondent pay the applicant the sum of $13,125.00