Kerr v Olbar[2010] QDC 456

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 personal offences for which the respondent was convicted on indictment on 28 April 2006, namely unlawful wounding and grievous bodily harm.

Facts

3. [3]
   The applicant and the respondent were in a de facto relationship. On 26 November 2005, without warning, the respondent attacked the applicant with a cane knife and struck him on the jaw giving rise to the offence of unlawful wounding (“the first incident”). On 23 December 2005 the respondent again attacked the applicant without warning and stabbed him twice in the abdominal region with a knife (“the second incident”).

Injuries

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

• As a consequence of the first incident only, a full thickness laceration of his right cheek 4 cm long and 2 cm deep;
• As a consequence of the second incident only, two abdominal stab wounds 8 cm deep resulting in a lacerated stomach;
• Scarring;
• 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:

• Item 26 Gun shot/stab wound (severe) …       15% - 40%
• Item 27 Facial disfigurement or bodily scarring (minor/ moderate)  …      2% - 10%
• Item 32 Mental or nervous shock (moderate)  … 10% - 20%

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]
   In respect of the first incident, a statement from Dr Atkinson dated 25 January 2006 records the presentation of the applicant at the Mossman Hospital and the treatment he received there.  He required layers of sutures to close the wound.  In respect of the second incident, a statement of Dr Pentecost, Medical Superintendent at the Mossman Hospital, records the extensive hospital treatment required including an exploratory laparotomy and repair of the applicant’s stomach at the Cairns Base Hospital and repeated subsequent attendances at the Mossman Hospital dressing clinic.

10. [10]
    Dr Pentecost expresses the view that the injuries sustained in the second incident were “significant enough to endanger his life” and that the applicant “will have residual scarring from these wounds and may develop internal adhesions secondary to the laparotomy performed”.

11. [11]
    I have no evidence before me that any such adhesions developed. Regrettably, I do not have any clear evidence of the extent of the applicant’s scarring from either incident, however it is apparent that an award should be made in this regard.

12. [12]
    In her report dated 30 September 2008, Dr Richardson, psychologist assess the applicant to be suffering from a Post Traumatic Stress Disorder “in the moderate range” which “he asserts is associated with the incidents”.

13. [13]
    I am satisfied that the applicant did not contribute to the injury.

14. [14]
    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 26 – 20% $ 15,000.00
• Item 27 – 5%  $ 3,750.00
• Item 32 – 12% $ 9,000.00

$  27,750.00

Order

15. [15]
    I order that the respondent pay the applicant the sum of $27,750.00.