Eric v Archie [2009] QDC 338

DISTRICT COURT OF QUEENSLAND CITATION: Eric v Archie [2009] QDC 338 PARTIES: PAULINE LENA ERIC (Applicant) v BARNABAS ARCHIE (Respondent) FILE NO/S: 161 of 2009 PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: District Court at Cairns DELIVERED ON: 6 November 2009 DELIVERED AT: Cairns HEARING DATE: 23 October 2009 JUDGE: Everson DCJ ORDER: That the respondent pay the applicant $19,500.00 by way of compensation. CATCHWORDS: Criminal compensation – Psychological injuries – physical injuries. Criminal Offence Victims Act 1995 Criminal Offence Victims Regulation 1995 R v Jones ex parte Zaicov [2002] 2 Qd R 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 personal offences for which the respondent was convicted on indictment on 26 October 2007, namely two counts of assault occasioning bodily harm whilst armed. -- 1 of 4 -- 2 Facts [3] The applicant and the respondent were living in a de facto relationship. The first offence occurred on 30 July 2006 when the respondent attacked the applicant with a rake whilst she slept, ultimately breaking her left arm. The second offence occurred on 15 January 2007 when the respondent attacked the applicant with a shovel while she sat on the toilet in the house they shared, before dragging her to their bedroom and assaulting her further with a broom handle. (“the incidents”). Injuries [4] The applicant suffered the following injuries as a consequence of the incidents: • Superficial abrasions; • Bruising and welts; • A fracture of her left ulna; • 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 COVA. In R v Jones ex parte Zaicov1 Holmes J described the process in the following terms: 1 [2002] 2 QdR 303 at 310 -- 2 of 4 -- 3 “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 15 – Fracture/loss of use of arm/wrist (minor)…4% - 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 under 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] Following the first offence, the applicant presented to the Kowanyama Primary Health Care Centre where she was noted to be in severe pain and suffering from two superficial abrasions to the right lateral chest wall and tenderness consistent with a soft tissue injury. She was found to have suffered a new fracture of her left ulna which had previously required the insertion of a plate for a prior fracture of her forearm bones. She was treated with a plaster half cast and intravenous morphine. 2 s 25 (8) referring to s 22 (4) -- 3 of 4 -- 4 When reviewed approximately two months later she had ongoing pain at the fracture site and the fracture had not yet healed. The applicant did not require medical attention following the second offence. However, welts sustained to her arm and knee are recorded in her statement to police dated 16 January 2007. [10] In her report dated 16 October 2008 Dr Richardson, psychologist, concludes that the applicant is suffering from a Post Traumatic Stress Disorder “in the moderate range”. [11] I am satisfied that the applicant did not contribute to the injury. [12] 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 15 – 8% $ 6,000.00 Item 32 – 15% $11,250.00 $19,500.00 Order [13] I order that the respondent pay the applicant the sum of $19,500.00 3 s 25 (6) -- 4 of 4 --