Horne v Kyle

[2010] QDC 168

DISTRICT COURT OF QUEENSLAND

CITATION:

Horne v Kyle [2010] QDC 168

PARTIES:

WILLIAM THOMAS HORNE
(Applicant)
v
DUANE DYSON KYLE
(Respondent)

FILE NO/S:

340 of 2009

DIVISION:

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court, Cairns

DELIVERED ON:

23 April 2010

DELIVERED AT:

Cairns

HEARING DATE:

12 March 2010

JUDGE:

Everson DCJ

ORDER:

That the respondent pay the applicant the sum of $27,750.00.

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:

Williams Graham Carman 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 22 April 2009, namely grievous bodily harm.

Facts

1. On 24 May 2008, at a party at Trinity Beach, the respondent viciously attacked the applicant, apparently with a star picket and a piece of wood (“the incident”).

Injuries

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

·bruising and lacerations to his face, chest area and left forearm;

·a fractured left cheekbone with minor displacement;

·a broken nose;

·the loss of his two upper front teeth.

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 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

1. Relevantly, the Compensation Table prescribes:

·Item 2 Bruising/laceration etc (severe) …  3% - 5%

·Item 4 Fractured nose (displacement/surgery) …                 8% - 20%

·Item 5 Loss or damage of teeth …  1% - 12%

·Item 6 Facial fracture (minor) …  8% - 14%

·Item 31 Mental or nervous shock (minor) …  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

1. The applicant’s physical injuries are documented in a report of Dr Hickey, general practitioner dated 22 September 2009.  In an attached referral to Dr Finn dated 29 May 2008, she records that the applicant was suffering from “marked deviation of his nose to the ® but surprisingly is able to breath (sic) through both nostrils”.  Dr Finn, oral and maxillofacial surgeon, expressed the following view in his report dated 13 February 2009:

“The long-term prognosis relating to the facial fractures is not of great concern.  His nasal fracture has been reduced and is satisfactory.  By far the most significant aspect of his injury however is the loss of his two front teeth.  This is of great aesthetic and functional concern.”

1. In her report dated 7 October 2009, Ms Daniels, psychologist, noted that the applicant suffered from “[n]ightmares, flashbacks and intrusive thoughts for up to two months post-assault” and that he “received some psychological counselling which resolved some of his trauma symptoms”.  She concluded that the applicant still suffered from “some elements” of Post Traumatic Stress Disorder (“PTSD”).

1. On this basis, I conclude that following the incident the applicant experienced PTSD which has now resolved leaving some residual symptomatology.

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

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 2 – 3%  $  2,250.00

·     Item 4 – 10%  $  7,500.00

·     Item 5 – 8%  $  6,000.00

·     Item 6 – 8%  $  6,000.00

·     Item 31 – 8%  $  6,000.00

$27,750.00

Order

1. I order that the respondent pay the applicant the sum of $27,750.00.