Butler v Bamboo [2008] QDC 183

DISTRICT COURT OF QUEENSLAND CITATION: Butler v Bamboo [2008] QDC 183 PARTIES: GREGORY LEE BUTLER (Applicant) v LIONEL KEITH BAMBOO (Respondent) FILE NO/S: 145 of 2008 PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: District Court at Cairns DELIVERED ON: 17 July 2008 DELIVERED AT: Cairns HEARING DATE: 17 July 2008 JUDGE: Everson DCJ ORDER: That the respondent, Lionel Keith Bamboo, pay the applicant, Gregory Lee Butler, the sum of $24,000 by way of compensation. CATCHWORDS: Criminal compensation – Mental nervous shock – 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 a personal offence for which the respondent was convicted on indictment on 17 January 2007, namely grievous bodily harm. -- 1 of 5 -- 2 Facts [3] The offence occurred on 12 May 2006 at the Exchange Hotel in Mossman when the applicant was struck in the head by a bottle thrown by the respondent (“the incident”). Injuries [4] The applicant suffered the following injuries as a consequence of the incident: 1. Hemotypanum of the right ear; 2. Several small lacerations to the face; 3. a compound depressed scull fracture; 4. a major depressive disorder and 5. an exacerbation of a mild to moderate post traumatic stress disorder and alcohol dependence. 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 Homes 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 1 [2002] 2 QdR 303 at 310 -- 2 of 5 -- 3 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: 1. Bruising/laceration etc (minor/moderate)… 1% -3 % 10. Fractured skull (brain damage – minor/moderate)… 10% - 25% 31. Mental or nervous shock (minor) … 2% – 10% [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 The Assessment [9] The evidence before me does not establish that the applicant contributed to the injury. [10] The report of Dr Rossato3 summarised the applicant’s injuries and treatment in the following terms: “He was at all times in the Cairns Base Hospital conscious and alert with normal neurological function. There was a hemotypanum of the right ear and several small lacerations to the face which were sutured prior to the transfer to Cairns. ….. CT head showed a depressed skull fracture in the left temporal area which was compound in nature. No discrete recording of neurological dysfunction in speech disorder were recorded… 2 s 25 (8) referring to s 22 (4) 3 Affidavit of Ms Crabb filed 17/6/08 Ex “C” -- 3 of 5 -- 4 This gentlemen underwent surgery for his compound depressed skull fracture on 16 May 2006…The dura was noted to be lacerated over about 1cm and following removal of bone significant bleeding from a lacerated middle meningeal artery was dealt with. Cortical vessels were also noted to be traumatised. These were routinely arrested. The bone plates were elevated to good position and maintained with micro-plate fixation. He was nursed routinely and in intensive care for 24 hours before returning to the ward, where his speech disturbance particularly of an expressive nature produced some anxiety in the patient but it started to recover quite quickly. He was subsequently transferred to Cairns Base Hospital and was seen as an outpatient on 23 June 2006 where it was noted that his speech was pretty much back to normal, his wound was well healed and no other deficit was recorded.” [11] I have also been provided with a report of Ms Daniels, clinical Psychologist4 which concluded, inter alia: “Mr Butler’s neuropsychological test results were in the Low Average range. His language and attention abilities were in the Average range, while memory and visiospatial/constructional abilities were in the Low Average range. These results are consistent with the injuries he received on 12/5/06. Further test results show cognitive difficulties which would have precluded him from passing tertiary level examinations. It can therefore be concluded these deficits occurred after his time at university, and as there were no head injuries in the intervening period, this assault is the most likely cause of his head injury. Psydometric assessments show indications Mr Butler is suffering from Alcohol Dependence (currently in remission), mild to moderate Posttraumatic Stress Disorder, and Major Depressive Disorder. The Alcohol Dependence and Posttraumatic Stress Disorder (PTSD) preceded the 2006 assault, but are nevertheless exacerbated by it. …. 4 Affidavit of Ms Daniels filed 17/6/08 Ex “A” -- 4 of 5 -- 5 It is impossible to accurately put a percentage disability on Mr Butler’s assault related injuries. However, his memory injuries certainly cause him extreme difficulty in managing his day to day affairs; and are therefore significant.” [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 – 2% $1,500 Item 10 – 20 % $15,000 Item 31 – 10 % $7,500 $24,000 Order [13] I order the respondent pay the applicant the sum of $24,000. -- 5 of 5 --