Beard v Pascoe

[2010] QDC 246

DISTRICT COURT OF QUEENSLAND

CITATION:

Beard v Pascoe [2010] QDC 246

PARTIES:

GREGORY JOHN BEARD
(Applicant)
v
ALLAN GLEN PASCOE
(Respondent)

FILE NO/S:

225 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 $27,750.00.

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”).

1. 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 11 March 2008, namely grievous bodily harm.

Facts

1. On the evening of 27 March 2007 the respondent burst into the applicant’s residence, put him in a headlock and forced his head through a plate glass door (“the incident”).

Injuries

1. The applicant suffered the following injuries as a consequence of the incident:

·A large laceration to his right forehead;

·A partial thickness scalp defect;

·A monocortical fracture of the body of the right mandible;

·The loss of a tooth.

The relevant law

1. 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”.

1. 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.”

[1][2002] 2 QdR 303 at 310

1. Relevantly, the Compensation Table prescribes:

·Item 2 Bruising/laceration etc (severe) …                   3% - 5%

·Item 5 Loss or damage to teeth …  1% - 12%

·Item 7 Facial fracture (moderate) …  14% - 20%

·Item 28 Facial disfigurement or bodily scarring

(severe) …  10% - 30%

1. 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]

   [2]s 25(8) referring to s 22(4)

   [3]s 25(6)

The assessment

1. In respect of the applicant’s physical injuries I have before me a statement from Dr Michelburgh from the Cairns Base Hospital dated 19 April 2007.  This records the applicant’s injuries noted previously.  It also records that the applicant developed an abscess of the tooth overlying the fractured mandible, necessitating surgery for the incision and drainage of the abscess and removal of the tooth as well as the open reduction and internal fixation of the mandible.  Subject to scarring of the applicant’s scalp, there is nothing to suggest anything other than an uneventful recovery of the applicant was foreshadowed by Dr Michelburgh.

1. In his affidavit sworn 22 July 2009, the applicant notes that he has a large scar on his head which is devoid of sensation and more apparent because he is going bald.  Unfortunately, no photographs of the scar are in evidence, although some appreciation of its likely appearance can be gleaned from photographs of the injuries following the incident.

1. A report of Mr Ritchie, psychologist dated 30 June 2009, concludes that the applicant is not suffering from a diagnosable psychiatric or psychological disorder as a consequence of the incident.  He therefore has no claim for mental or nervous shock.[4]

   [4]See RMC v NAC [2009] QSC 149

1. I am satisfied that the applicant did not contribute to the injury.

1. 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 5 – 2%  $  1,500.00

·     Item 7 – 20%  $15,000.00

·     Item 28 – 10%  $  7,500.00

$27,750.00

Order

1. I order that the respondent pay the applicant the sum of $27,750.00.