Nomoa v Bally

[2010] QDC 248

DISTRICT COURT OF QUEENSLAND

CITATION:

Nomoa v Bally [2010] QDC 248

PARTIES:

MARSAT MENGUI NOMOA
(Applicant)
v
HERBERT CHARLES BALLY
(Respondent)

FILE NO/S:

227 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 $11,250.00.

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 29 March 2007, namely assault occasioning bodily harm while armed.

Facts

1. On the evening of 12 April 2006 the respondent approached the applicant with a piece of timber and threatened him with it.  The respondent swung the piece of timber at the head of the applicant and struck the applicant in the left forearm with it (“the incident”).

Injuries

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

·A fractured left ulna.

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 16 Fracture/loss of use of the arm/wrist

(displaced and immobilised) …  8% - 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. The only medical evidence before me concerning the applicant’s physical injuries is a statement from Ms Layton, Director of Nursing at the Lockhart River Health Centre dated 28 August 2006.  This suggests that the applicant suffered a fractured distal ulna with minimal displacement which healed uneventfully following immobilisation in plaster.  In his affidavit dated 13 August 2009, the applicant complains of a loss of strength in this arm following the incident.

1. A report of Mr Ritchie, psychologist dated 1 July 2009, before me confirms that the applicant did not report experiencing any post-traumatic symptoms as a result of the incident and that he was not suffering from a diagnosable psychiatric or psychological disorder.  The applicant therefore does not have a claim for mental or nervous shock as a consequence of the incident.[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 16 – 15%  $11,250.00

Order

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