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 personal offences for which the respondents were each convicted on indictment, namely assault occasioning bodily harm in company.

Facts

3. [3]
   The applicant was viciously assaulted when he went to the assistance of a disabled man who was being attacked by a group of men, including the respondents, in Lake Street Cairns in the early hours of 6 January 2007. The applicant was “king hit” by both respondents simultaneously and fell to the ground unconscious. The first respondent subsequently dragged the applicant’s unconscious body onto the roadway (“the incident”).

Injuries

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

• Facial lacerations, including an irregular 6 cm laceration to the right side of his forehead and a semi-circular 4 cm laceration over the lateral side of his right eye, both of which required suturing;
• Bruising, including a large swelling, 3 cm x 4 cm over his right cheek bone;
• A chipped right upper canine tooth;
• Scratches to his left index finger;
• An injury to his cervical spine;
• 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 2 Bruising/laceration etc (severe)….3%-5%
• Item 5 Loss or damage of teeth………….1%-12%
• Item 9 Fractured skull/head injury (no brain damage)….5%-15%
• Item 21 Neck/back/chest injury (minor)….2%-7%
• Item 27 Facial disfigurement or bodily scarring (minor/moderate)…2%-10%
• Item 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 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]
   The only physical assessments of the applicant which have been placed before me were undertaken immediately following the incident. The only assessment of any disability is contained in the statement of Dr McAuliffe, general practitioner, who examined the applicant on 8 January 2007. He noted that movement throughout the applicant’s cervical spine was limited to 50% in all directions. In his affidavit the applicant records that his right eye was “completely shut with severe bruising for one month”. He has altered sensation in his forehead and suffered from “massive headaches for weeks” after the incident. He reports some functional difficulties in opening his left eyelid after sleeping. He has minor permanent scarring in the region of his eyes which is shown in photographs exhibited to his affidavit. The applicant did not report any difficulties with resuming his career on active duty with the navy.

10. [10]
    In her report dated 7 March 2008, Dr Richardson, psychologist, concluded that the applicant was suffering from a Post Traumatic Stress Disorder in the moderate range.

11. [11]
    Pursuant to s 26 of COVA a compensation order may be made against more than one convicted person and may provide for joint or separate liability or both. Despite the simultaneous assault of the applicant by both respondents and his rapid loss of consciousness, Dr Richardson notes in her report that the applicant “reports that 75% of his distress is associated with Mr Mooka’s behaviour with the remaining 25% of his distress being associated with Mr Abai’s behaviour”. It is important to note that there is no suggestion in any of the material before me that the dragging of the unconscious applicant by the first respondent contributed to the injuries suffered by him. The nature of the incident is such that I am of the view that the respondents should be jointly liable for the compensation order but severally liable to the extent of 50% each.

12. [12]
    I am satisfied that the applicant did not contribute to the injury.

13. [13]
    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

14. [14]
    I order that the respondents jointly pay the applicant the sum of $28,500.00 with each respondent severally liable for 50% of this sum.