Motton v Karyuka

[2010] QDC 199

DISTRICT COURT OF QUEENSLAND

CITATION:

Motton v Karyuka [2010] QDC 199

PARTIES:

BERYL CHARLOTTE MOTTON
(Applicant)
v
JOHN BARRY KARYUKA
(Respondent)

FILE NO/S:

67 of 2008

DIVISION:

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court, Cairns

DELIVERED ON:

17 May 2010

DELIVERED AT:

Cairns

HEARING DATE:

7 May 2010

JUDGE:

Everson DCJ

ORDER:

That the respondent pay the applicant the sum of $4,500.00.

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”).

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 14 June 2005, namely assault occasioning bodily harm whilst armed.

Facts

1. The applicant was the de facto partner of the respondent.  On 4 September 2004, following an argument the respondent struck the applicant forcefully on her legs with a stick (“the incident”).

Injuries

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

·A fractured left ankle;

·Minor bruising to her left knee and right lower leg.

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 1 Bruising/laceration etc (minor/moderate) …    1% - 3%

·Item 19 Fracture/loss of use of leg/ankle (minor/moderate) …  4% - 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. A statement dated 9 December 2004 from Mr Fenton, the director of nursing at the Aurukun Primary Health Care Centre records that after initially being non-compliant with treatment upon presentation at the Health Centre, the applicant was ultimately x-rayed five days later which revealed a fractured left distal fibula.  This was treated with a support plaster and the applicant appears to have made a satisfactory recovery although in her affidavit she complains that she still gets pain in her ankle.

1. I have been provided with a report from Mr Ritchie, psychologist dated 12 October 2007.  He concluded that the applicant was not suffering from any post traumatic symptoms as a consequence of the incident and that she did not have a diagnosable psychiatric or psychological disorder.  The applicant therefore does not have a claim for mental or nervous shock as a consequence of the incident.

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 1 – 1%  $     750.00

·     Item 19 – 5%  $  3,750.00

$  4,500.00

Order

1. I order that the respondent pay the applicant the sum of  $4,500.00.