Clement v Dagan & Ryan [2010] QDC 453

DISTRICT COURT OF QUEENSLAND CITATION: Clement v Dagan & Ryan [2010] QDC 453 PARTIES: PAUL ALEXANDER CLEMENT (Applicant) v JOEL EDWARD DAGAN (First Respondent) MICHAEL STEPHEN RYAN (Second Respondent) FILE NO/S: 251 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: That the respondents pay the applicant the sum of $43,500.00 apportioned as follows: (a) That the first respondent pay the applicant the sum of $39,150.00; (b) That the second respondent pay the applicant the sum of $4,350.00. 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”). [2] The injuries giving rise to the application were suffered as a result of a personal offence for which the respondents were convicted on indictment. On 7 February 2008 the first respondent was convicted of one count of grievous bodily harm. On 6 -- 1 of 4 -- 2 February 2008, the second respondent was convicted of one count of assault occasioning bodily harm with a circumstance of aggravation. Facts [3] On 9 June 2007, at approximately 2.00 am the second respondent attacked the applicant in the Cairns CBD, punching him in the face a number of times and causing the applicant to fall to the ground. The first respondent then walked up to the applicant and kicked him in the head (“the incident”). Injuries [4] The applicant suffered the following injuries as a consequence of the incident: • A bilateral mandibular fracture; • Bleeding around the mouth; • Permanently altered sensation in the distal branches of his mandibular nerve; • A chronic left sided hearing impairment; • The loss of three teeth; • 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 1 Bruising/laceration etc (minor/moderate) … 1%- 3% • Item 5 Loss or damage of teeth… 1%-12% • Item 8 Facial fracture (severe) … 20%-30% • Item 32 Mental or nervous shock (moderate) … 10%-20% • Item 35 Loss of hearing (1 ear) … 2%-20% [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 1 [2002] 2 QdR 303 at 310 -- 2 of 4 -- 3 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 The assessment [9] The applicant suffered serious facial injuries in the incident. Initially, he underwent a bilateral open reduction and internal fixation of his fractured jaw, however the fracture failed to unite on the left side and the operation needed to be repeated four months later during which all the previously installed plates and screws were removed and both sides of his jaw were replated. He has been left with facial numbness, particularly in his lower lip and compromised functioning of his jaw. He experiences chronic pain and has a propensity to drool. The surgery resulted in the loss of three teeth and he also has a hearing deficit on his left side. [10] In her report dated 4 January 2010, Dr Richardson, psychologist assesses the applicant as suffering from a moderate Post Traumatic Stress Disorder and moderate depression. It is clear that the incident has had a significant impact on his life. [11] Pursuant to s 26 of COVA a single compensation order may be made against the respondents in the circumstances before me and the order must provide for separate liability. On the evidence before me it is clear that it was the conduct of the first respondent which caused the significant injuries to the applicant. I am therefore of the view that the respondents should be separately liable for the compensation payable to the applicant in the respective shares of 90% for the first respondent and 10% for the second 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 1 – 1% $ 750.00 • Item 5 – 2% $ 1,500.00 • Item 8 – 25% $18,750.00 • Item 32 – 20% $15,000.00 • Item 35 – 10% $ 7,500.00 $43,500.00 2 s 25(8) referring to s 22(4) 3 s 25(6) -- 3 of 4 -- 4 Order [14] I order that the respondents pay the applicant the sum of $43,500.00 apportioned as follows: (a) I order that the first respondent pay the applicant the sum of $39,150.00; (b) I order that the second respondent pay the applicant the sum of $4,350.00. . -- 4 of 4 --