Duncan v Busch [2010] QDC 24

DISTRICT COURT OF QUEENSLAND CITATION: Duncan v Busch [2010] QDC 24 PARTIES: LISA JOANNE DUNCAN (Applicant) v WILLIAM JOEL BUSCH (Respondent) FILE NO/S: 310 of 2009 DIVISION: PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: District Court, DELIVERED ON: 12 February 2010 DELIVERED AT: Cairns HEARING DATE: 29 January 2010 JUDGE: Everson DCJ ORDER: That the respondent pay the applicant the sum of $26,250.00 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 COUNSEL: SOLICITORS: Williams Graham Carman 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 10 June 2009, namely assault occasioning bodily harm. Facts [3] The applicant was viciously assaulted when a group of people, including the respondent invaded her home at approximately 12.30 am on 15 March 2008. She -- 1 of 3 -- 2 was struck in the face with a piece of timber with sufficient force to cause her to lose consciousness and fell to the ground (“the incident”) Injuries [4] The applicant suffered the following injuries as a consequence of the incident: • A fracture to the tip of the nasal bone; • Bruising and grazing to the left orbit; • Superficial abrasions to the chest wall and left side of her neck; • A 2 cm laceration to the inside of her lower lip which required four sutures; • Dental injuries; • 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 1 Bruising/laceration etc (minor/moderate) … 1%-3% • Item 3 Fractured nose (no displacement) … 5%-8% • Item 5 Loss or damage of teeth … 1%-12% • 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 1 [2002] 2 QdR 303 at 310 2 s 25(8) referring to s 22(4) -- 2 of 3 -- 3 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 report of Dr Tapp of the Cairns Base Hospital Emergency Department dated 16 March 2008 record the applicant’s injuries in a general way. At this stage it was not clear whether or not she had suffered a broken nose. The slight fracture was subsequently conformed by Dr Evans in his report dated 17 March 2008. One of the applicant’s front teeth was knocked out in the incident and two others appear to be non vital. A bony segment emerged from the midline of her papilla resulting in an unsightly papilliary defect. She required extensive dental treatment. Long term orthodontic treatment is recommended. She has not returned to her former pastime of modelling. Dr De Leacy, psychiatrist expresses the view in his report dated 29 October 2009, that the applicant is suffering from a Post Traumatic Stress Disorder towards the more severe end of the moderate range as a consequence of the incident. [10] I am satisfied that the applicant did not contribute to the injury. [11] 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 – 3% $ 2,250.00 • Item 3 – 5% $ 3,750.00 • Item 5 – 12% $ 9,000.00 • Item 32 – 15% $11,250.00 $26,250.00 Order [12] I order that the respondent pay the applicant the sum of $26,250.00. 3 s 25(6) -- 3 of 3 --