Burke v. Storer

[2008] QDC 187

DISTRICT COURT OF QUEENSLAND

CITATION:

Burke v Storer [2008] QDC 187

PARTIES:

MICHAEL BURKE
(Applicant)
v
WILLIAM DOUGLAS STORER
 (Respondent)

FILE NO/S:

96 of 08

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:

The respondent William Douglas Storer pay the applicant Michael Burke $16,500 by way of compensation.

CATCHWORDS:

Criminal compensation – Physical injuries – psychological 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:

Daniel Towne & Associates 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”).

1. 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 18 May 2005, namely unlawful wounding.

Facts

1. The offence occurred on 22 July 2004 at Cairns when the applicant was stabbed by the respondent (“the incident”).

Injuries

1. The applicant suffered the following injuries as a consequence of the incident:

1.          A 1.5cm linear wound to the lower left side of the back of the chest;

2.          A Post Traumatic Stress Disorder (“PTSD”) and an exacerbation of pre- existing Depression.

The relevant law

1. 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.”

1. 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] 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 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.”         

[1] [2002] 2 QdR 303 at 310

1. Relevantly the Compensation Table prescribes:

24. Gun shot/ stab wounds (minor) 6% - 10%

32. Mental or nervous shock (moderate) 10% - 20%

1. 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]

   [2] s 25 (8) referring to s 22 (4)

The Assessment

1. The evidence before me does not establish that the applicant contributed to the injury.

1. The report of Dr Noonan[3] recorded that the wound suffered by the applicant did not appear to extend into the chest or abdominal cavity and that at the time of discharge from hospital on 26 July 2004, there was no record of the applicant suffering restrictions or limitations due to the wound sustained in the incident and Dr Noonan did not anticipate any.

   [3] Affidavit of Mr Carman filed 1/5/08, Ex “BJC 2”

1. In the report of Dr Richardson, psychologist[4] it is stated that the applicant is suffering from a PTSD “in the moderate range” and a Major Depressive Disorder which she specifies as being “moderate and without Psychotic Features.” Dr Richardson found it difficult to determine what level of psychological distress could be attributed to the incident, noting that the applicant reported that “his distress associated with PTSD was not part of his behavioural patterns prior to the incident…” and “approximately 80% of the depression he currently experiences is associated with the incident…” She concluded that the incident “had a profound effect” on the applicant.

   [4] Affidavit of Mr Carman Ex “BJC 1”

1. A claim is also made for minor bodily scarring, however having regard to the principles stated above any scarring, which is not mentioned in the medical reports before me, appears to be so trivial as not to warrant comprehension pursuant COVA.

1. 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 24 – 7%	$5,250
Item 32 – 15%	$11,250
$16,500

Order

1. I order the respondent pay the applicant the sum of $16,500.