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

This is an application for a compensation order pursuant to section 24 of the Criminal Offence Victims Act 1995 (“COVA”).
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
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
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
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”.
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
Relevantly, the Compensation Table prescribes:

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Butcher v Short

Details

AGLC: Butcher v Short [2010] QDC 403
Case: [2010] QDC 403
Decision Date: 29/10/2010

CaseChat Overview and Summary

The case of Butcher v Short involved the applicant, Butcher, seeking compensation for injuries sustained as a result of an assault by the respondent, Short. The respondent had been convicted of assault occasioning bodily harm whilst armed and the injuries in question were sustained during an altercation on 5 September 2007. The applicant suffered a range of physical injuries including head injuries, lacerations to the forearms, and fractures to the fingers. The dispute centered on the appropriate amount of compensation to be awarded under the Criminal Offence Victims Act (COVA).

The court was required to determine the amount of compensation that should be paid to the applicant for the injuries sustained, taking into account the statutory framework set out in COVA. This included interpreting the definition of "injury" under section 20 of the Act, and applying the compensation percentages listed in the Compensation Table in Schedule 1 of the Act, in accordance with section 25 of COVA. The court also had to consider whether the applicant's behaviour contributed to the injuries, as required by section 25 of the Act. Furthermore, the court needed to decide whether the injuries sustained by the applicant were specifically listed in the Compensation Table, and if not, to compare them with injuries listed in the table to determine an appropriate amount of compensation.

The court examined the various injuries sustained by the applicant and assessed them against the Compensation Table. The court found that some of the injuries were listed, while others required comparison with similar injuries in the table. After considering all relevant factors, including the severity of the injuries and any contribution by the applicant, the court determined that the appropriate compensation to be awarded was $17,250.00. The court emphasised that the compensation awarded was scaled according to the seriousness of the injuries, and that the maximum amount provided for under the Act was reserved for the most serious cases.

The court ordered the respondent to pay the applicant the sum of $17,250.00 as compensation for the injuries sustained. This amount was determined by applying the statutory framework set out in COVA and considering all relevant factors in accordance with the legislation.

Orders

Orders of the court

That the respondent pay the applicant the sum of

$17,250.00.

Background

Background to the litigation

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 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 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 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”. 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 Relevantly, the Compensation Table prescribes: 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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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

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