Danaher v Henry[2009] QDC 337

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 December 2007, namely assault occasioning bodily harm whilst armed.

Facts

3. [3]
   The respondent in a drug affected and intoxicated state, entered the applicant’s home on the evening of 5 September 2006. He threatened the applicant’s elderly mother and briefly assaulted her. She called out to the applicant who emerged from the shower. The respondent grabbed a knife and lunged at the applicant, inflicting a small wound to the applicant’s right hand at the base of his third finger. The applicant disarmed the respondent and restrained him until police arrived and arrested the respondent. (“the incident”).

Injuries

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

• A small laceration over the 3rd metacarpal joint of his right hand on the dorsal side; and
• Mental or nervous shock

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] Holmes 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 24 Gunshot/stab wounds (minor) ... 6% - 10%
• 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]
   The applicant was treated at the scene by ambulance officers immediately following the incident. He did not require stitches to close the wound. In his report dated 30 April 2008, Dr Mahler, general practitioner, noted the “small healing laceration” sustained by the applicant and the presence of “psychological symptoms” which were “consistent with anxiety and post traumatic stress” when he examined him on 8 September 2006. Dr Mahler further stated that the applicant’s “psychological symptoms were treated by supportive counselling on subsequent consultations”.

10. [10]
    In her report dated 10 June 2009 Ms Rawlings, psychologist, noted that the applicant presented with certain symptoms “consistent with the incident” including sleep disturbance, excessive or unrealistic fear and the distrust of others and their intentions, however she was unable to validate his reported symptoms. Consequently, she could not conclude that he was suffering from a recognised mental disorder.

11. [11]
    Having regard to what Thomas JA stated in Ferguson v Kazakoff^[4] that compensation for mental or nervous shock is not confined to conditions that are recognised as psychiatric disorders and the term “connotes something more than ordinary or normal reactions”^[5], I am of the view that the applicant did suffer some minor mental or nervous shock as a consequence of the incident which caused him to seek counselling from his general practitioner.

12. [12]
    A claim is also made for scarring. There is no evidence before me to justify such a claim which would need to be based on consequences other than those that could be expected as a result of a minor stab wound.

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 that the respondent pay the applicant the sum of $8,250.00