Jenkins v Temple
[2010] QDC 404
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- Unreported Judgment
- Jenkins v Temple[2010] QDC 404
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Jenkins v Temple[2010] QDC 404
Jenkins v Temple[2010] QDC 404
DISTRICT COURT OF QUEENSLAND
CITATION: | Jenkins v Temple [2010] QDC 404 |
PARTIES: | ALFRED CONRAD JENKINS (Applicant) v FANNY ROSE TEMPLE (Respondent) |
FILE NO/S: | 244 of 2009 |
DIVISION: | |
PROCEEDING: | Application for Criminal Compensation |
ORIGINATING COURT: | District Court, Cairns |
DELIVERED ON: | 29 October 2010 |
DELIVERED AT: | Cairns |
HEARING DATE: | 7 October 2010 |
JUDGE: | Everson DCJ |
ORDER: | That the respondent pay the applicant the sum of $7,500.00 |
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 |
COUNSEL: | |
SOLICITORS: | ILS QLD Limited for the applicant |
- [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 23 November 2006, namely unlawful wounding.
Facts
- [3]The applicant and the respondent were drinking alcohol together at Centennial Park, Cairns on 6 July 2006. At about 1.00 pm the respondent struck the applicant to the head with a bottle and proceeded to stab him with a knife in the region of his left knee (“the incident”).
Injuries
- [4]The applicant suffered the following injuries as a consequence of the incident:
- A 4 cm laceration on the lateral aspect of his left knee
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 24 Gunshot/stab wounds (minor) … 6% - 10%
- [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]I have been provided with a statement of Dr Collins, orthopaedic registrar at the Cairns Base Hospital dated 22 August 2006, which records that the applicant presented to the Accident and Emergency Department on 6 July 2006 with a 4 cm laceration on the lateral aspect of his left knee. This was explored in theatre and found to be superficial. It did not involve his knee joint. It is recorded that following his discharge the next day, the applicant required readmission on 27 July 2006 and further treatment after the wound became infected.
- [10]In his affidavit the applicant alleged that he still experiences pain in the region of his left knee and limitations if he attempts prolonged activity.
- [11]I have also been provided with a report form Ms Foley, psychologist dated 8 February 2010. In her report Ms Foley concludes that the applicant is not suffering from a “diagnosable psychiatric/psychological disorder”. Applying RNC v NAC,[4] the applicant therefore has no claim for mental or nervous shock. A claim is also made for scarring but there is no evidence before me which justifies an award in this regard.
- [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 24 - 10%$ 7,500.00
Order
- [14]I order that the respondent pay the applicant the sum of $7,500.00.