Oram v Ahchoo[2010] QDC 146

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant seeks compensation pursuant to s 24 Criminal Offence Victims Act 1995 (“the Act”) for physical injuries caused by the respondent on 29 January 2006. Section 149 Victims of Crime Assistance Act 2009, which commenced on 1 December 2009, repealed the Act. The originating application was filed on 25 January 2010. Section 155 Victims of Crime Assistance Act 2009 requires the application to be determined according to the Act.

2. [2]
   On 12 September 2008 in the District Court at Brisbane, the respondent pleaded guilty, inter alia, to unlawful wounding. She was sentenced to 3 years imprisonment with a parole release date fixed at the date of the sentence. It was declared that she had served 267 days in pre-sentence custody from 30 January 2006 to 23 October 2006.

3. [3]
   An order for substituted service was made by O'Brien DCJA on 31 March 2010.^[1] Service was effected upon the respondent by means of an advertisement placed in The Courier Mail on 8 April 2010.^[2] There was no appearance by or for the respondent.

Circumstances of the offence

4. [4]
   The applicant was attacked by the respondent on 29 January 2006.

5. [5]
   The applicant was in a relationship with the respondent between June 2005 and January 2006. The respondent lived with her mother and sister at North Rockhampton. On 29 January 2006, the applicant went to the house to visit the respondent. The respondent was in her bedroom. The respondent’s sister was in the lounge room and intoxicated. The applicant sat next to the respondent’s sister on the lounge. When the respondent entered from the bedroom she accused the applicant of sleeping with her sister. He denied it. The respondent walked into the kitchen and returned with what appeared to be a miniature butcher’s knife. The respondent began waving the knife in front of the applicant while moving closer to him, before stabbing him several times. The respondent subsequently returned to the kitchen to obtain a second, smaller knife. The applicant’s attempts to calm and stop the respondent were unsuccessful. At one stage the applicant grabbed hold of the respondent, releasing her thinking that she would stop lunging at him; however, the respondent continued lunging at the applicant with the knife. When the applicant attempted to leave the house for assistance, he was stabbed a further three times in the back.^[3] After leaving the house, the respondent collapsed on a neighbour’s lawn.^[4]

6. [6]
   The photographs of the applicant exhibited to his affidavit filed 2 March 2010 show the nature of the various stab wounds.

Injuries and medical reports

7. [7]
   The applicant sustained a total of nine stab wounds to the chest, back and left shoulder. He was transported by ambulance to the Rockhampton Hospital, where he remained an inpatient until 31 January 2006.^[5]

8. [8]
   In his affidavit filed 2 March 2010, the applicant states:^[6]

“As a result of the offence committed against me by Ahchoo I sustained five (5) stab wounds to my chest. I could see that I was bleeding and could feel air escaping from one of the wounds on my chest. This wound had penetrated my lung and I remember that it caused the doctors treating me some concern. I also sustained three (3) stab wounds to my back and one (1) stab wound to my shoulder. I did not undergo surgery for these wounds. The doctors cleaned the wounds and stitched them up. I was prescribed tablets for pain relief and antibiotics to prevent infection.”

9. [9]
   The applicant was reviewed in the Rockhampton Hospital Emergency Department by Dr Palmer. In his statement dated 20 April 2007, Dr Palmer states:^[7]

“He had five anterior chest wounds with the most significant one being most superior and on the left lateral aspect of the sternum with surrounding surgical emphysema (air in the soft tissues below the skin). This appeared on examination to be deep to the soft tissues of the chest wall. … He was found to be neurovascularly intact in the arms and the limbs. A chest x-ray performed showed a small left pneumothorax. The CT scan also showed a small haemothorax. … A decision was made to treat him conservatively with pain relief and Oxygen. No chest drain was placed. He was admitted to the ward and he remained well and recovered from his injuries. A follow-up chest x-ray showed no progression of his chest injuries.”

The applicable principles

10. [10]
    The assessment of compensation is governed by Part 3 of the Criminal Offence Victims Act 1995. It is necessary to bear in mind that compensation is designed to help the applicant and is not intended to reflect the compensation to which an applicant may be entitled under the common law or otherwise (s 22(3)).

11. [11]
    The maximum amount of compensation provided under the Criminal Offence Victims Act 1995 is reserved for the most serious cases and the amounts provided for in other cases are intended to be scaled according to their seriousness. The amount of compensation cannot exceed the scheme maximum (s 25(2)). The scheme maximum provided by s 2 Criminal Offence Victims Regulation 1995 is $75,000.00. The award for a particular injury cannot exceed a percentage greater than that contained in Schedule 1; the compensation table (s 25(4)).  The assessment of compensation does not involve applying principles used to decide common law damages for personal injuries (s 25(8)).

12. [12]
    The approach to the application of s 22(4) was explained by the Court of Appeal in R v Ward, ex-parte Dooley.^[8] The assessment requires consideration of the most serious example of the relevant injury. The injury being considered must be scaled accordingly. The court explained:^[9]

“But in our opinion the proper method is to fix the compensation for, say, severe mental or nervous shock, at the appropriate place in the range 20 per cent to 34 per cent of the scheme maximum, which is done by considering how serious the shock is in comparison with the “most serious” case, which must be compensated by an award of the maximum, 34 per cent. This illustrates the point that the compensation table has no relationship to what would be awarded as damages in tort; a crime victim permanently institutionalised by the psychological results of an assault could, on that account, get no more than $25,500.”

The applicant’s submissions

13. [13]
    Mr Earl for the applicant submits that the nine stab wounds should be assessed together under Item 26 (Gun shot/stab wound (severe)) in the compensation table. Mr Earl sought an award of 25% of the scheme maximum, which is $18,750.00.

Assessment

14. [14]
    Item 26 in the compensation table provides for a range of between 15% and 40% of the scheme maximum.

15. [15]
    The applicant sustained a total of 9 stab wounds to the chest, back and left shoulder. One stab wound to the chest punctured his lung, causing a small left pneumothorax and a small haemothorax.^[10] The medical evidence is very limited consisting only of the Police Statement of the medical practitioner at the Rockhampton Hospital dated 20 April 2007. There is no evidence of the depth of the wounds. The applicant was treated conservatively. Dr Palmer states that the applicant was admitted to the ward and that he remained well and recovered from his injuries. According to the applicant’s Police Statement the respondent used two knifes; he described the first as a knife similar to a miniature butcher’s knife and the second as a smaller knife with teeth on it that appeared to be sharper.^[11]

16. [16]
    In his affidavit, the applicant says that following discharge from hospital he had to be careful and not undertake any vigorous physical activity as his wounds were healing.^[12] Although he states that he suffered emotional distress there is no evidence of mental or nervous shock, nor is any claim made for any such injury.

17. [17]
    Mr Earl for the applicant placed reliance on Temple v Fewster,^[13] where 25% of the scheme maximum was awarded for stab wounds. However in that case there was medical evidence that the applicant suffered a 6% whole person impairment.^[14]

18. [18]
    I accept the submissions of Mr Earl that the applicant’s injuries should be assessed as a single episode of injury under Item 26. Based on the medical evidence and taking into account the requirement to scale injuries according to their seriousness, I am of the view that an award of 20% of the scheme maximum is appropriate, resulting in an amount of $15,000.00.

19. [19]
    There is no behaviour of the applicant that contributed directly or indirectly to his injuries.

Order

20. [20]
    I order that the respondent pay to the applicant the sum of $15,000.00 pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of unlawful wounding which led to the conviction of the respondent in the District Court at Brisbane on 12 September 2008.