Albert v O'Burns [2010] QDC 194

DISTRICT COURT OF QUEENSLAND CITATION: Albert v O’Burns [2010] QDC 194 PARTIES: HAYDEN JAMES ALBERT (Applicant) v DAVID PATRICK O’BURNS (Respondent) FILE NO/S: 278 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: That the respondent pay the applicant the sum of $30,000.00. 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 respondent was convicted on indictment on 4 September 2007, namely grievous bodily harm. Facts [3] On 3 June 2006, the respondent attacked the applicant without warning and kicked him in the head (“the incident”). -- 1 of 3 -- 2 Injuries [4] The applicant suffered the following injuries as a consequence of the incident: • A serious injury to his left eye; • Facial fractures; • Severe bruising in the region of his left eye; • 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 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.” [7] Relevantly, the Compensation Table prescribes: • Item 2 Bruising/laceration etc (severe) … 3% - 5% • Item 8 Facial fracture (severe) … 20% - 30% • Item 27 Facial disfigurement or bodily scarring (minor/moderate) … 2% - 10% • Item 32 Mental or nervous shock (moderate) … 10% - 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 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 1 [2002] 2 QdR 303 at 310 2 s 25(8) referring to s 22(4) 3 s 25(6) -- 2 of 3 -- 3 [9] A statement from Dr Fok from the Cairns Base Hospital dated 2 October 2006, records that following the incident the applicant was diagnosed as suffering from a depressed fracture of his left maxillary sinus and a left infra orbital fracture which was non-displaced. The applicant was also found to be suffering from other fractures of the lateral and medial walls of the left orbit and left zygomatic arch and left nasal bones. [10] I also have before me two reports of Dr Field, ophthalmic surgeon dated 10 May 2007 and 27 April 2009. In the former report it is recorded that the incident caused a retinal tear and choroidal rupture and also “a microhyphaema of the anterior chamber, sphincter ruptures of the iris and a mild vitreous haemorrhage”. The applicant was treated by laser surgery. In the latter report Dr Field noted that “at this point, there has been no loss of visual acuity” from the incident although there was a mild posterior displacement of the eye and “a mild reduction of elevation of the left eye which would be secondary to the left orbital fractures”. Dr Field also recorded the left pupil “remained mid-dilated, consistent with traumatic mydriasis” and noted a reduction in colour vision. He assessed “the loss of efficiency in terms of vision at 20%”. Dr Field also noted that there was a possibility of the applicant developing a traumatic cataract or traumatic glaucoma in the future. [11] A report from Dr Richardson, psychologist dated 15 August 2009, expresses the view that the applicant is suffering from a Post Traumatic Stress Disorder “in the moderate range” as a consequence of the incident. [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 2 – 5% $ 3,750.00 • Item 8 – 20% $15,000.00 • Item 27 – 5% $ 3,750.00 • Item 32 – 10% $ 7,500.00 $30,000.00 Order [14] I order that the respondent pay the applicant the sum of $30,000.00. -- 3 of 3 --