Nomoa v Bally - [2010] QDC 248

DISTRICT COURT OF QUEENSLAND

CITATION:

Nomoa v Bally [2010] QDC 248

PARTIES:

MARSAT MENGUI NOMOA
(Applicant)
v
HERBERT CHARLES BALLY
(Respondent)

FILE NO/S:

227 of 2009

DIVISION:

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court, Cairns

DELIVERED ON:

18 June 2010

DELIVERED AT:

Cairns

HEARING DATE:

4 June 2010

JUDGE:

Everson DCJ

ORDER:

That the respondent pay the applicant the sum of $11,250.00.

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
RMC v NAC [2009] QSC 149

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 29 March 2007, namely assault occasioning bodily harm while armed.

Facts

On the evening of 12 April 2006 the respondent approached the applicant with a piece of timber and threatened him with it. The respondent swung the piece of timber at the head of the applicant and struck the applicant in the left forearm with it (“the incident”).

Injuries

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

·A fractured left ulna.

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 16 Fracture/loss of use of the arm/wrist
(displaced and immobilised) … 8% - 30%

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…

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 Nomoa v Bally

Details

AGLC: Nomoa v Bally [2010] QDC 248
Case: [2010] QDC 248
Decision Date: 18 June 2010

CaseChat Overview and Summary

The matter before the court involved a claim for compensation by the applicant, Nomoa, against the respondent, Bally, for physical and psychological injuries sustained as a consequence of a criminal act. The claim was heard in the Supreme Court of Victoria. Nomoa sought to recover damages for the harm caused, including medical expenses, loss of earnings, and psychological suffering.

The primary legal issues before the court were the quantification of the damages for physical injuries, which included medical expenses and loss of earnings, and the determination of compensation for psychological injuries, including the extent of the impact on Nomoa's mental health and the appropriate monetary value to reflect this harm. The court had to assess the evidence presented regarding the nature and extent of the injuries, as well as the appropriate method for calculating the compensation due.

In delivering its judgment, the court meticulously reviewed the evidence provided by both parties, including medical reports and expert testimonies. The court found that Nomoa had sustained significant physical injuries requiring extensive medical treatment and resulting in a loss of income. The psychological injuries were also deemed severe, with a clear causal link established between the criminal act and the ensuing mental health issues. The court considered these factors in arriving at the total compensation payable. It was determined that the appropriate compensation for the physical injuries was $7,500 and for the psychological injuries, $3,750, summing to the total award of $11,250.

The court ordered that the respondent, Bally, pay the applicant, Nomoa, the sum of $11,250 as compensation for the physical and psychological injuries suffered.

Orders

Orders of the court

That the respondent pay the applicant the sum of $11,250.00.

Background

Background to the litigation

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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:	Nomoa v Bally [2010] QDC 248
PARTIES:	MARSAT MENGUI NOMOA (Applicant) v HERBERT CHARLES BALLY (Respondent)
FILE NO/S:	227 of 2009
DIVISION:
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	District Court, Cairns
DELIVERED ON:	18 June 2010
DELIVERED AT:	Cairns
HEARING DATE:	4 June 2010
JUDGE:	Everson DCJ
ORDER:	That the respondent pay the applicant the sum of $11,250.00.
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 RMC v NAC [2009] QSC 149
COUNSEL:
SOLICITORS:	ILS QLD LIMITED for the applicant No appearance for the respondent