Barlow v Hollingsworth [2009] QDC 294

DISTRICT COURT OF QUEENSLAND CITATION: Barlow v Hollingsworth [2009] QDC 294 PARTIES: LUELLA ANN BARLOW (Applicant) v WAYNE CRAIG HOLLINGSWORTH (Respondent) FILE NO/S: 160 of 2009 PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: District Court at Cairns DELIVERED ON: 8 September 2009 DELIVERED AT: Cairns HEARING DATE: 21 August 2009 JUDGE: Everson DCJ ORDER: That the respondent pay the applicant $17,250.00 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 19 August 2008, namely two counts of assault occasioning bodily harm. Facts -- 1 of 3 -- 2 [3] The personal offences were committed on the evening of 7 November 2006 when the respondent attacked the applicant in her home. They had recently separated after a lengthy relationship. The respondent grabbed the applicant by the hair, punched her in the head and threw her onto a bed. Subsequently, he grabbed her left breast and squeezed and twisted it violently. (“the incident”). Injuries [4] The applicant suffered the following injuries as a consequence of the incident: 1. A 1 cm x 1 cm bruise on the left side of her neck just below the angle of her jaw; 2. An area of bruising and swelling to the left side of scalp in the region of her temple; 3. Bruising to the inner half of her left breast covering an area of about 10 cm x 6 cm with a small area of broken skin not involving the nipple; 4. 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 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 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 1 [2002] 2 QdR 303 at 310 2 s 25 (8) referring to s 22 (4) -- 2 of 3 -- 3 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] The applicant deposes that while the bruising to her head and neck resolved after a few weeks, the bruising sustained to her left breast took approximately eight to ten weeks to resolve. A photograph of the bruising to her left breast shows it to be extensive. In her affidavit the applicant also records significant psychological impacts as a result of the incident. In her report dated 17 January 2009, Dr Richardson, psychologist, concludes that the applicant is suffering from a Post Traumatic Stress Disorder in the moderate to severe range and moderate to severe Depression as a consequence of the incident. [10] I am satisfied that the applicant did not contribute to the injuries suffered by her. [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 2 3% $ 2,250.00 Item 32 20% $15,000.00 $17,250.00 Order [12] I order that the respondent pay the applicant the sum of $17,250.00. 3 s 25 (6) -- 3 of 3 --