Gleeson v Akee

[2010] QDC 22

DISTRICT COURT OF QUEENSLAND

CITATION:	Gleeson v Akee [2010] QDC 22
PARTIES:	JOHN JAMES MARK GLEESON (Applicant) v NATHAN DAVID MARCO AKEE (Respondent)
FILE NO/S:	311 of 2009
DIVISION:
PROCEEDING:	Application for Criminal Compensation
ORIGINATING
COURT:	District Court, Cairns
DELIVERED ON:	12 February 2010
DELIVERED AT:	Cairns
HEARING DATE:	29 January 2010
JUDGE:	Everson DCJ
ORDER:	That the respondent pay the applicant the sum of $7,500.00
CATCHWORDS:	Criminal compensation – physical injuries
Criminal Offence Victims Act 1995 Criminal Offence Victims Regulation 1995
R v Jones ex parte Zaicov [2002] QdR 303 at 310
COUNSEL:
SOLICITORS:	Farrellys 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 22 July 2009, namely assault occasioning bodily harm.

   Facts

3. The applicant was walking along Grafton Street Cairns in the early hours of 9 August 2008, when the respondent punched the applicant twice in the face without warning, causing him to fall to the ground and strike his head heavily (“the incident”).

   Injuries

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

• a parietal contusion with surrounding oedema;

• a laceration to the back of his head which required suturing;

• a cracked 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”.

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 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

3. Relevantly, the Compensation Table prescribes:

•	Item 1 Bruising/laceration etc (minor/moderate)…	1%-3%
•	Item 5 Loss or damage of teeth…	1%-12%

• Item 9 Fractured skull/head injury (no brain damage) …5%-15%

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

2. The discharge report from the Cairns Base Hospital dated 9 August 2008, records the serious closed head injury suffered by the applicant which required hospitalisation for observation and numerous scans and ongoing monitoring. It stated that he was advised not to fly for a week. The applicant records in his affidavit that he was unable to return to work as a carpenter in Melbourne for five weeks following the incident. He eventually had a ceramic crown fitted to his cracked tooth.

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

4. 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 1	-	2%	$ 1,500.00
•	Item 5	-	1%	$ 750.00
•	Item 10 -	7%	$ 5,250.00 $ 7,500.00

Order

1. I order that the respondent pay the applicant the sum of $7,500.00.