Butcher v Short

[2010] QDC 403

DISTRICT COURT OF QUEENSLAND

CITATION:	Butcher v Short [2010] QDC 403
PARTIES:	SHARON CHARLOTTE BUTCHER (Applicant) v LAWRENCE PERCY SHORT (Respondent)
FILE NO/S:	359 of 2009
DIVISION:
PROCEEDING:	Application for Criminal Compensation
ORIGINATING
COURT:	District Court, Cairns
DELIVERED ON:	29 October 2010
DELIVERED AT:	Cairns
HEARING DATE:	7 October 2010
JUDGE:	Everson DCJ
ORDER:	That the respondent pay the applicant the sum of $17,250.00.
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:	ILS QLD Limited 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 23 September 2008, namely assault occasioning bodily harm whilst armed.

   Facts

3. The applicant was the de facto partner of the respondent. On 5 September 2007, they argued after they had both been consuming alcohol at the Lockhart River canteen. The respondent attacked the applicant with a solid piece of timber which was about one metre in length. He struck her forcefully on a number of occasions (“the incident”).

   Injuries

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

   1. Head injuries, including a possible loss of consciousness and a
   scalp laceration approximately 4 cm long;
   2. Soft tissue injuries to the right shoulder;
   3. Lacerations to the right forearm;
   4. Lacerations to the left forearm extending down to the bone and
   severing superficial arties;
   5. Closed fractures of the right third and fourth fingers;

   6. Other minor lacerations and abrasions.

   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.”

   [1] [2002] 2 QdR 303 at 310

7. Relevantly, the Compensation Table prescribes:

•	Item 2 Bruising/laceration (severe)	…	3% - 5%
•	Item 17 Fracture/loss of use of finger …	2% - 8%

• Item 27 Facial disfigurement or bodily scarring

(minor/moderate) … 2% - 10%

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] 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 to injuries listed in the Compensation Table and having regard to the amounts that may be ordered to be paid for these injuries.[3]

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

   [3]            s 25(6)

   The assessment

2. The injuries suffered by the applicant are described in the report of Dr Rohella, Principal House Officer in Orthopaedics at Cairns Base Hospital and photographs of injuries to her arms reveal that they no doubt resulted in unsightly scarring.

3. A claim is also made for mental or nervous shock, however in his report exhibited in support of this claim dated 11 December 2009, Mr Ritchie, psychologist states that the applicant is not suffering from a diagnosable psychiatric or psychological disorder. Applying RNC v NAC[4] the applicant therefore has no claim for mental or nervous shock.

   [4] [2009] QSC 149 at [38]

4. I am satisfied that the applicant did not contribute to the injury.

5. 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 - 5% $ 3,750.00

•	Item 17 -	5% x 2	$ 7,500.00
•	Item 27 -	8%	$ 6,000.00 $17,250.00

Order

1. I order that the respondent pay the applicant the sum of $17,250.00.