Bernard v Bernard [2010] QDC 454

DISTRICT COURT OF QUEENSLAND CITATION: Bernard v Bernard [2010] QDC 454 PARTIES: IAN GORDON BERNARD (Applicant) v TERRANCE IVAN RANDALL BERNARD (First Respondent) TEDDY WILFRED BERNARD (Second Respondent) ALVIN JAMES BERNARD (Third Respondent) FILE NO/S: 296 of 2009 DIVISION: PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: District Court, Cairns DELIVERED ON: 26 November 2010 DELIVERED AT: Cairns HEARING DATE: 19 November 2010 JUDGE: Everson DCJ ORDER: 1. That the respondents jointly pay the applicant the sum of $24,750.00. 2. That each of the respondents be severally liable to pay the applicant the following amounts: The first respondent : $14,850.00 The second respondent: $ 4,950.00 The third respondent: $ 4,950.00 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 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 of 4 -- 2 [2] The injuries giving rise to the application were suffered as a result of personal offences for which the respondents were convicted on indictment. On 6 February 2008, the first respondent was convicted of one count of grievous bodily harm. On 24 August 2009, the second respondent and the third respondent were each convicted of one count of assault occasioning bodily harm with a circumstance of aggravation. Facts [3] On 7 September 2005 the respondents went to a residence in Kowanyama. The applicant was dragged outside by the first respondent and viciously assaulted. The second respondent and the third respondent joined in the assault (“the incident”). Injuries [4] The applicant suffered the following injuries as a consequence of the incident: • Loss of consciousness; • A left sided pneumothorax and associated rib fractures; • Psychological sequelae. The relevant law [5] 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”. [6] 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 Zaicov1 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.” [7] Relevantly, the Compensation Table prescribes: • Item 23 Neck/back/chest injury (severe) … 8% - 40% • Item 31 Mental or nervous shock (minor) … 2% - 10% [8] 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 1 [2002] 2 QdR 303 at 310 -- 2 of 4 -- 3 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 The assessment [9] The applicant’s physical injuries are set out in a statement of Dr McCullagh of the Cairns Base Hospital Emergency Department dated 28 July 2006. The applicant required hospital admission and the insertion of a chest drain, however there was no evidence of head injury or cervical spine tenderness. His injuries were stated to be such that if left untreated they could have led to significant respiratory distress and possibly death. [10] In her report dated 1 June 2010, Dr Richardson, psychologist concluded that the applicant was suffering from a Post Traumatic Stress Disorder “in the mild range” and “mild to moderate depressive symptoms” which “he asserts is associated with the incident”. Her conclusion is based on an interview and assessment “by video link,” in the absence of any context other than the most cursory background information concerning the applicant’s life. It must therefore be approached with caution. [11] Pursuant to s 26 of COVA a single compensation order may be made against the respondents and the order may provide for both joint and separate liability. Despite all respondents going to the house with the common intention of assaulting the applicant, the first respondent initiated the attack and was convicted of the more serious offence of grievous bodily harm. It was noted in the course of sentencing the second respondent and the third respondent, that the conviction of them of lesser charges, necessarily implied that the rib injuries and the pneumothorax were not injuries for which either of them could be held criminally responsible. I am therefore satisfied that each of the respondents should be jointly liable for the compensation order but in the respective shares of 60% for the first respondent and 20% for each of the second respondent and the third respondent. [12] I am satisfied that the applicant did not contribute to the injury. [13] 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 23 – 25% $18,750.00 • Item 31 – 8% $ 6,000.00 $24,750.00 Order [14] I order that the respondents jointly pay the applicant the sum of $24,750.00. I further order that each of the respondents be severally liable to pay the applicant the following amounts: 2 s 25(8) referring to s 22(4) 3 s 25(6) -- 3 of 4 -- 4 • The first respondent $14,850.00 • The second respondent $ 4,950.00 • The third respondent $ 4,950.00. -- 4 of 4 --