Nawia v Walsh
[2010] QDC 405
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- Unreported Judgment
- Nawia v Walsh[2010] QDC 405
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Nawia v Walsh[2010] QDC 405
Nawia v Walsh[2010] QDC 405
DISTRICT COURT OF QUEENSLAND
CITATION: | Nawia v Walsh [2010] QDC 405 |
PARTIES: | MORRIS KIWAMI NAWIA (Applicant) v GREGORY EDWARD WALSH(Respondent) |
FILE NO/S: | 106 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 $18,000.00. |
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: | Legal Aid Queensland 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 27 July 2006, namely unlawful wounding.
Facts
- [3]On 13 February 2005, the respondent stabbed the applicant a number of times in the course of a drunken brawl on Palm Island (“the incident”).
Injuries
- [4]The applicant suffered the following injuries as a consequence of the incident:
- Deep lacerations to the right upper arm, right forearm, right inner thigh, left shoulder blade and back which required suturing or taping.
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 25 Gunshot/stab wounds (moderate) … 8% - 16%
- Item 27 Facial disfigurement or bodily scarring
(minor/moderate) … 2% - 10%
- Mental or nervous shock (moderate) … 10% - 20%
- [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 of Dr Leahy, acting Medical Superintendent on Palm Island dated 20 April 2005 records the applicant’s injuries and the treatment provided to him following the incident in general terms. In his affidavit the applicant details the stitches received as follows:
“On my right upper arm I received two stitches, on my right forearm I received three stitches, on my right upper thigh I received two stitches, on my lower back I received four stitches and on my upper back I did not need stitches.”
- [10]The applicant also exhibits photographs showing minor scarring as a result of these injuries.
- [11]In her report dated 17 January 2009, Dr Richardson, psychologist concluded that the applicant was suffering from a Post Traumatic Stress Disorder in the moderate range as a consequence of the incident.
- [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 25 - 10%$ 7,500.00
- Item 27 - 4%$ 3,000.00
- Item 32 -10%$ 7,500.00
$18,000.00
Order
- [14]I order that the respondent pay the applicant the sum of $18,000.00.