Martin v. Claude

[2008] QDC 290

DISTRICT COURT OF QUEENSLAND

CITATION:

Martin v Claude [2008] QDC 290

PARTIES:

STELLA MARTIN
(Applicant)
v
BENNETT DEVON CLAUDE
 (Respondent)

FILE NO/S:

280 of 2008

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

12 December 2008

DELIVERED AT:

Cairns

HEARING DATE:

27 November 2008

JUDGE:

Everson DCJ

ORDER:

That the respondent pay the applicant $75,000 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:

Mr A Kimmins for the applicant
No appearance for the respondent

SOLICITORS:

Tony Bailey Solicitor 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 13 September 2007, namely grievous bodily harm.

Facts

1. On or about 27 December 2006 at Kowanyama, the respondent brutally attacked the applicant, striking her face many times with a sharp stick while she slept (“the incident”).

Injuries

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

·    A left eye sub-choroidal haemorrhage;

·    Swelling around the left orbit;

·    A left sided facial laceration requiring suturing in theatre;

·    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 28: Facial disfigurement or bodily scarring (severe) 10%-30%

·Item 29: Loss of vision (one eye) 70%

·Item 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] If an injury is not specifically listed in the Compensation Table the court must decided 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. In his statement dated 23 July 2007, Associate Professor Margolis noted that the applicant had not demonstrated any improvement in the vision in her left eye such that her condition “is consistent with legal blindness in her left eye”.

1. In her report dated 31 May 2008, Dr Richardson, psychologist, stated that the applicant was “reporting moderate symptomatology associated with Post Traumatic Stress Disorder (PTSD) and mild Depression”.

1. Photographs of the horrific injuries suffered by the applicant are Exhibit “G” to the affidavit of Ms Campbell.  Photographs depicting the current state of the scarring of the applicant’s face are Exhibit “A” to her affidavit.

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 28:            15%  $11,250.00
Item 29:            70%  $52,500.00
Item 32:            15%  $11,250.00
  $75,000.00

Order

1. I order the respondent pay the applicant the sum of $75,000.