O'Burns v O'Burns

[2010] QDC 201

DISTRICT COURT OF QUEENSLAND

CITATION:

O’Burns v O’Burns [2010] QDC 201

PARTIES:

HENRY ELSWORTH O’BURNS by his Litigation Guardian EVELYN O’BURNS
(Applicant)
v
DAVID PATRICK O’BURNS
(Respondent)

FILE NO/S:

281 of 2009

DIVISION:

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court, Cairns

DELIVERED ON:

17 May 2010

DELIVERED AT:

Cairns

HEARING DATE:

7 May 2010

JUDGE:

Everson DCJ

ORDER:

1. That the respondent pay the applicant as litigation guardian for the victim the sum of $4,500.00 by way of compensation.
2. That any amount paid to the victim pursuant to this order be paid to The Public Trustee of Queensland whose receipt for such sum shall be sufficient discharge.
3. That The Public Trustee of Queensland be appointed manager of and take possession of and manage the said sum on behalf of the victim in accordance with powers and duties defined in The Public Trustee Act 1978 during the minority of the victim.

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

COUNSEL:

SOLICITORS:

Legal Aid Queensland 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 4 September 2007, namely unlawful wounding.

Facts

1. The respondent is the brother of the victim.  On 1 May 2007 when the respondent was aged 20 and the victim was aged 12, the victim was wrestling with his younger brother when the respondent threw an open pocket knife at the victim, striking him in the head (“the incident”).

Injuries

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

·A 5 cm laceration to the right side of his scalp

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 24 Gun shot/stab wound (minor) …   6% - 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 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. I have been provided with a copy of the medical notes from the Yarrabah Health Clinic which relate to the injuries sustained by the victim in the incident.  It is recorded that the wound was approximately 1 cm in depth and required four stitches.  It is also recorded that the victim made a good recovery.

1. I have also been provided with a report from Dr Richardson, psychologist dated 1 June 2008 which expresses the view that the victim is not suffering from a recognisable psychiatric illness or disorder.  He therefore does not have a claim for mental or nervous shock as a consequence of the incident.[4]

   [4]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 24 – 6%  $  4,500.00

Order

1. I order that:

1.          the respondent pay the applicant as litigation guardian for the victim the sum of $4,500.00 by way of compensation.

2.any amount paid to the victim pursuant to this order be paid to The Public Trustee of Queensland whose receipt for such sum shall be sufficient discharge.

3. The Public Trustee of Queensland be appointed manager of and take possession of and manage the said sum on behalf of the victim in accordance with powers and duties defined in The Public Trustee Act 1978 during the minority of the victim.