Jacobson v Hearn

[2009] QDC 184

DISTRICT COURT OF QUEENSLAND

CITATION:

Jacobson v Hearn [2009] QDC 184

PARTIES:

REBECCA ANN JACOBSON
(Applicant)
v
IAN ANDREW JOHN HEARN
(Respondent)

FILE NO/S:

96 of 2008

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

26 June 2009

DELIVERED AT:

Mackay

HEARING DATE:

22 June 2009

JUDGE:

Everson DCJ

ORDER:

That the respondent pay the applicant $43,500.00 by way of compensation.

CATCHWORDS:

Criminal compensation – Psychological injuries – 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:

B.J Hartigan for the applicant

SOLICITORS:

Kelly Legal 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 11 November 2005, namely grievous bodily harm.

Facts

1. The applicant was 29 years of age when the respondent, her former defacto partner, struck her in the face with a beer glass at a party at the Maroochydore RSL Club on 16 October 2004. (“the incident”).

Injuries

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

·     A five centimetre laceration to the left side of her face, resulting in scarring;

·     A fractured nose;

·     Facial nerve damage;

·     Facial fractures;

·     The loss of one tooth;

·     A slight decrease in hearing in the left ear;

·     Major psychological sequelae.

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:

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

Item 3. Fractured nose (no displacement)……………………………..5% - 8%

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

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

Item 27. Facial disfigurement or bodily scarring (minor/moderate) …2% - 10%

Item 33. Mental or nervous shock (severe)…………………………...20% - 34%

Item 35 Loss of hearing ( 1 ear)……………………………………….2% - 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] 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 under 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 appellant has suffered both considerable physical injuries and significant ongoing psychological symptomatology as a result of the incident which have had major impacts on her lifestyle. In her affidavit she records not only the initial injuries suffered by her but also the distress associated with “several infections in my face” which led to the removal of a tooth and the distress associated with facial nerve damage and facial scarring. I have not been provided with a report in respect of her dental injuries, however I accept her evidence that the loss of the tooth in question was consequential upon the injuries sustained in the incident as was the claimed damage to her dentures.

1. Regrettably I have not been provided with any visual or expert evidence in respect of her facial scarring. A report of Dr Agnew, Ear Nose and Throat Surgeon, dated 28 July 2008 contains the only medical record of the assessment of the applicant’s injuries in the period shortly following the incident. Dr Agnew noted:

“A CT scan of the facial bones performed at the time of the injury shows a depressed fracture of the anterior wall of the left maxilla and the medial wall and floor of the orbit with blood in the left antrum. At the time of the injury, she was noted to have a deep cut about 5cm long in the nasolabial fold.”

1. The medical records concerning her treatment following the incident and photographs of the applicants facial scarring would have been of assistance but they have not been included in the evidence put before me. Dr Agnew further noted in her report of 28 July 2008:

“There is caudal dislocation of the nasal septum to the left causing obstruction to the left nostril and then general deviation of the nasal septum to the right. She has weakness in the buccal branch of the facial nerve and in the upper branch of the marginal mandibular nerve. As well, there is hypersensitivity in the maxillary distribution of the trigeminal nerve.”

1. In a subsequent report dated 11 August 2008 Dr Agnew noted that the applicant’s hearing was “essentially normal although there is a slight difference between the left ear and the right ear.” Thereafter Dr Agnew purports to give her “medical opinion” on the appropriate percentages that should be awarded to the applicant pursuant to various items set out in the Compensation Table, including Item 2. This is not an appropriate use of expert evidence. While Dr Agnew can give an expert opinion of the extent of an injury and its consequences for the victim, any assessment pursuant to the Compensation Table is solely a matter for the court. It is patently inappropriate for an expert witness to seek to swear the issues in a proceeding in this manner.

1. I have also been provided with a report of Dr Stones, a psychiatrist dated 19 September 2007. Dr. Stones recorded the impacts of the incident in terms of the applicant’s behaviour and lifestyle. He concluded, inter alia:

“The diagnosis here (is) that of chronic Post Traumatic Stress Disorder. This has been present now for some three years. She has quite marked anxiety to the point of having phobias about anything or anyone similar to the situation she found herself in when she was assaulted. There is no doubt that the assault itself was a major trauma and sufficient to instigate this pathological response.

It may be that at times in the last three years she has also reached the level of having Major Depressive Episode, but there is no depression at that level currently.”

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 3:              8%                  $6,000.00

Item 5:              4%                  $3,000.00

Item 6:              14%                $10,500.00

Item 27:            7%                  $5,250.00

Item 33:            20%                $15,000.00

Item 35:            2%                  $1,500.00

$43,500.00

Order

I order the respondent pay the applicant the sum of $43,500.00