Burns v Gordon

[2009] QDC 336

DISTRICT COURT OF QUEENSLAND

CITATION:	Burns v Gordon [2009] QDC 336
PARTIES:	MELISSA AUDREY BURNS (Applicant) v MATTHEW JOHN GORDON (Respondent)
FILE NO/S:	88 of 2009
PROCEEDING:	Application for Criminal Compensation
ORIGINATING  COURT:	District Court at Cairns
DELIVERED ON:	6 November 2009
DELIVERED AT:	Cairns
HEARING DATE:	23 October 2009
JUDGE:	Everson DCJ
ORDER:	That the respondent pay the applicant $11,250.00 by way of compensation.
CATCHWORDS:	Criminal compensation – Psychological injuries – physical injuries.
Criminal Offence Victims Act 1995 Criminal Offence Victims Regulation 1995
R v Jones ex parte Zaicov [2002] 2 Qd R 303 at 310
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”).

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 October 2007, namely one count of torture.

   Facts

3. At the relevant time the applicant and the respondent were living in a de facto relationship at Ayton near Cooktown. Upon learning of the applicant’s infidelity, the respondent became extremely aggressive and violent towards the applicant. Between 30 December 2006 and 3 January 2007 he imprisoned the applicant in the home they shared, tieing her up for lengthy periods of time. He verbally abused her, bashed her, choked her, attacked her with a stick and threatened her with a knife. The applicant’s ordeal ended when she was able to untie herself while the respondent was sleeping and escape (“the incident”).

   Injuries

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

• a crush fracture to her left elbow;

• bruising over her right shoulder;

• faint bruising to her right arm, right leg and neck;

• bruising below both eyes;

• sub-conjunctival bleeding of both eyes;

• mental or nervous shock.

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.”

2. 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 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

3. Relevantly the Compensation Table prescribes:

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

• Item 15 – Fracture/loss of use of arm/wrist (minor)…4% - 10%

• Item 31 - Mental or nervous shock (minor)……..2% - 10%

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 under 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

2. A report of Dr Lovstakken of the Cooktown Hospital dated 15 February 2007 documents the injuries suffered by the applicant as a consequence of the incident. A report of Dr Ottley, Orthopaedic Registrar at the Cairns Base Hospital, dated 30 January 2007, records that the fracture of the applicant’s left elbow was treated with a range of motion brace and that no “surgery or intervention” was required.

3. In his report dated 3 March 2009 Mr Ritchie, psychologist, stated that whilst the applicant was suffering from mild symptomatology including occasional nightmares, unwanted memories of the incident and nervousness in the vicinity of where the incident took place, she was not suffering a “diaognosable psychiatric/psychological disorder.”

4. In Ferguson v Kazakoff [4] Thomas JA stated that compensation for mental or nervous shock is not confined to conditions that are recognised as psychiatric disorders and the term “connotes something more than ordinary or normal reactions”.[5] I am of the view that the symptomatology described above by Mr Ritchie is such that the applicant did suffer some minor mental or nervous shock as a consequence of the incident.

   [4] [2000] QSC 156

   [5] Ibid at [15]

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

6. 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 15 – 5%	$ 3,750.00
Item 31 – 5%	$ 3,750.00
$11,250.00

Order

1. I order that the respondent pay the applicant the sum of $11,250.00