Flanigan v Ramm[2010] QDC 166

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 3 October 2007, namely assault with intent to commit rape.

Facts

3. [3]
   On 5 August 2006, at approximately 4.30 am the applicant was awoken from her sleep. After stating his intention to have sexual intercourse with her, the respondent, a stranger to the applicant, smashed his way into her unit by kicking in the French doors. She fought him off until neighbours arrived and he left (“the incident”).

Injuries

• A major injury to her left knee;
• Psychological sequelae.

The relevant law

4. [4]
   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.”

5. [5]
   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.”

6. [6]
   Relevantly the Compensation Table prescribes:

• Item 20 Fracture/loss of use of the leg/ankle (severe) … 8% - 25%
• Item 27 Facial disfigurement or bodily scarring (minor/moderate)… 2% - 10%
• Item 33 Mental or nervous shock (severe) … 20% - 34%

7. [7]
   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]

8. [8]
   Section 1A of COVR is also relevant to this application. It is in the following terms:

“For section 20 of the Act, the totality of the adverse impacts of a sexual offence suffered by a person, to the extent to which the impacts are not otherwise an injury under section 20, is prescribed as an injury.

An adverse impact of a sexual offence includes the following –

1. (a)
   a sense of violation;

2. (b)
   reduced self worth or perception;

3. (c)
   post-traumatic stress disorder;

4. (d)
   disease;

5. (e)
   lost or reduced physical immunity;

6. (f)
   lost or reduced physical capacity (including the capacity to have children), whether temporary or permanent;

7. (g)
   increased fear or increased feelings of insecurity;

8. (h)
   adverse effect of the reaction of others;

1. (i)
   adverse impact on lawful sexual relations;

10. (j)
    adverse impact on feelings;

10. (k)
    anything the court considers is an adverse impact of a sexual offence.

In this section-

Sexual offence means a personal offence of a sexual nature.”

The effect of section 1A was considered in R v Atwell ex parte Julie^[3] as “creating a new category of injury, but one which excluded the existing categories, those found in s 20.” As Holmes J noted in Vlug v Carrasco:^[4]

“The regulation in its terms recognises its role as expansive, rather than as providing a discrete addition to what is classed as injury: it prescribes as injury “the totality of adverse impacts of a sexual offence suffered by a person, to the extent to which the impacts are not otherwise an injury under section 20…”

9. [9]
   Pursuant to section 2A of COVR the prescribed amount of compensation pursuant to section 1A is up to 100% of the scheme maximum.

The Assessment

10. [10]
    The injury to the applicant’s knee which she sustained while fighting off the respondent involved a fracture in her patella and cartilage damage. She required two operations including a chondral replacement. In his report dated 3 November 2009, Dr Pentis orthopaedic surgeon, expresses the view that the applicant has suffered “a moderate to severe injury to her knee”. The applicant has also suffered from a cosmetic change in the appearance of her left knee including a longitudinal surgical scar. She has suffered from significant psychological sequelae for which she has sought counselling. Dr Richardson, psychologist, assess her as suffering from a Post Traumatic Stress Disorder (“PTSD”) in the moderate to severe range and moderate depressive symptoms in her report dated 22 May 2009. Dr Richardson also confirms that the applicant is suffering from symptomatology associated with s 1A(a) of COVR which is outside the diagnosis referred to above.

11. [11]
    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 and section 1A of COVR as follows:

• Item 20  -  10%$  7,500.00
• Item 27 –  4%$  3,000.00
• Item 33 – 20%$15,000.00
• Section 1A COVR –  5%$  3,750.00

39%$29,250.00

Order

12. [12]
    I order that the respondent pay the applicant the sum of $29,250.00 by way of compensation.