MacFarlane v Murgha
[2010] QDC 244
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- Unreported Judgment
- MacFarlane v Murgha[2010] QDC 244
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MacFarlane v Murgha[2010] QDC 244
MacFarlane v Murgha[2010] QDC 244
DISTRICT COURT OF QUEENSLAND
CITATION: | MacFarlane v Murgha [2010] QDC 244 |
PARTIES: | GORDON ALEXANDER MacFARLANE (Applicant) v GAVIN JOSEPH MURGHA (Respondent) |
FILE NO/S: | 245 of 2009 |
DIVISION: |
|
PROCEEDING: | Application for Criminal Compensation |
ORIGINATING COURT: | District Court, Cairns |
DELIVERED ON: | 18 June 2010 |
DELIVERED AT: | Cairns |
HEARING DATE: | 4 June 2010 |
JUDGE: | Everson DCJ |
ORDER: | That the respondent pay the applicant the sum of $18,750.00 |
CATCHWORDS: | Criminal compensation – physical injuries – psychological injuries Criminal Offence Victims Act 1995 Criminal Offence Victims Regulation 1995 R v Jones ex parte Zaicov [2002] QdR 303 at 310 RMC v NAC [2009] QSC 149 |
COUNSEL: | |
SOLICITORS: | ILS QLD LIMITED for the applicant No appearance for the respondent |
- [1]This is an application for a compensation order pursuant to section 24 of the Criminal Offence Victims Act 1995 (“COVA”).
- [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 28 February 2007, namely assault occasioning bodily harm whilst armed in company.
Facts
- [3]In the early hours of 13 August 2005, the applicant was assaulted by two males. The respondent was one of them. He was the only person charged with the attack on the applicant. As the applicant was fighting off the other assailant, the respondent attacked him with an aluminium baseball bat striking him to the head with it on a number of occasions (“the incident”).
Injuries
- [4]The applicant suffered the following injuries as a consequence of the incident:
- Bruising and abrasions;
- Two lacerations to the back of his head which were sutured;
- A broken jaw.
The relevant law
- [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]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 the 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]Relevantly, the Compensation Table prescribes:
- Item 2 Bruising/laceration etc (severe) … 3% - 5%
- Item 8 Facial fracture (severe) … 20% - 30%
- [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 to 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]A statement from Dr Fok of Cairns Base Hospital dated 15 November 2005 records that apart from the two lacerations to the back of his head which were sutured, x-rays revealed two fractures to the applicant’s mandible. The applicant underwent an open reduction and internal fixation of his mandibular fractures. There is no other medical information concerning the physical injuries sustained by the applicant in the incident.
- [10]In his statement to police following the incident the applicant alleges he received fourteen stitches for his head wounds. Photographs of the injuries sustained by him in the incident reveal minor abrasions to his shoulders and face and a bruise to his torso.
- [11]A report from Mr Ritchie, psychologist dated 12 May 2008 concludes that the applicant is not suffering from a diagnosable psychiatric or psychological disorder as a consequence of the incident. He therefore does not have a claim for mental or nervous shock.[4]
- [12]I am satisfied that the applicant did not contribute to the injury.
- [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:-
Item 2 – 5% $ 3,750.00
Item 8 – 20% $15,000.00
$18,750.00
Order
- [14]I order that the respondent pay the applicant the sum of $18,750.00.