Nicholas v Barlow[2010] QDC 247

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 25 March 2009, namely unlawful wounding.

Facts

3. [3]
   The applicant had recently commenced a relationship with the respondent’s former de facto partner of 20 years. In the early hours of 25 August 2007 after they had both been drinking they started arguing. This quickly escalated to a physical fight with each of them punching the other. A friend of the respondent intervened and restrained the applicant. The respondent then struck the applicant on the head with a rum bottle which smashed, cutting the applicant above her left eye. The respondent proceeded to stab the applicant a number of times with the broken rum bottle while she was still being restrained and unable to defend herself (“the incident”).

Injuries

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

• A deep cut to her left shoulder;
• Two deep cuts to her right upper arm;
• Three deep cuts to her back;
• A deep cut to her forehead;
• 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 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. [7]
   Relevantly, the Compensation Table prescribes:

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 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. [9]
   I have not been provided with any medical evidence detailing the extent of the applicant’s physical injuries or their treatment. The description above is derived from the facts placed before the sentencing judge which also record that she was taken to Yarrabah Hospital and treated by way suturing under local anaesthetic and with antibiotics. I have no other official information in this regard and this makes an assessment difficult. In her affidavit the applicant makes reference to some loss of sensation at the site of the injury to her forehead and blandly asserts “I have scars where the stitches were”. Regrettably, no photographs of any such scarring have been put in evidence before me.

10. [10]
    As for the applicant’s psychological injuries, I have been provided with a report from Dr Richardson, psychologist dated 17 November 2009 which states, inter alia:-

“She is reporting moderate to severe symptomatology associated with Post Traumatic Stress Disorder (PTSD) and mild depressive symptoms. It should be noted however that Ms Nicholas reported that she has previously been assaulted in August 2005 and has made a claim for compensation in relation to that incident. As Ms Nicholas was assessed after both incidents, it is difficult to determine the level of distress attributable to each incident. However, she was able to articulate each incident separately and although each causes her significant distress for differing reasons she reports approximately 50% of her distress can be apportioned to each.”

11. [11]
    I have not been provided with any particulars of this other incident nor of the claim which resulted. Again this is most unsatisfactory as this information is clearly relevant to my assessment. For present purposes I will assess her claim for mental or nervous shock at the low end of the moderate range.

12. [12]
    I am satisfied that the applicant did not contribute to the injuries. The respondent attacked the applicant in a most disproportionate manner in the context of the preceding consensual fight.

13. [13]
    Having regard to the limited 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 respondent pay the applicant the sum of $16,500.00.