O'Dell v Stanley
[2010] QDC 235
•21 May 2010
DISTRICT COURT OF QUEENSLAND
CITATION:
O’Dell v Stanley & Anor [2010] QDC 235
PARTIES:
WILLIAM JAMES O'DELL
(Applicant)
AND
TERENCE JOHN STANLEY
(Respondent)
And
BENJAMIN JOHN WOODHOUSE
(Respondent)
FILE NO/S:
DIVISION:
PROCEEDING:
Application for criminal compensation
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
21 May 2010
DELIVERED AT:
Toowoomba
HEARING DATE:
17 May 2010
JUDGE:
Reid DCJ
ORDER:
1. The applicant be entitled to a sum of $13,500 being 18 per cent of the scheme maximum from the respondent.
CATCHWORDS:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT –ORDERS FOR CRIMINAL COMPENSATION - where applicant victim of arson – where applicant victim of facial disfigurement and bodily scarring
Criminal Offence Victims Act 1995, s 20, s 24, s 25,
Criminal Offence Victims Regulation 1995, r 1A
COUNSEL:
J. Bailey for the applicant
No Appearance for the respondent
SOLICITORS:
Shannon Donaldson for applicant
No Appearance for the respondent
This is an application for compensation under the Criminal Offence Victims Act ("the Act").
The applicant was 65 years of age at the time he was burnt when the respondents set fire to the house in which he was living. This occurred on the 26th of June 2008. The respondents were convicted of arson on the 29th of April 2009. There was nothing the applicant did which contributed to the reasons for the arson. The incident seems entirely to have been due to the respondents' inexplicable decision to gratuitously set fire to his house.
Both have been served with the application and with supporting material but have shown no interest in the application.
Prior to the incident the applicant suffered from a pre-existing schizophrenic illness which was, however, reasonably well controlled. As a consequence of his illness, he lived in a unit with Mr Turvey, a man of similar age, who was effectively his carer. Mr Turvey in fact woke the applicant and helped him from the unit on the night of the fire. If he had not done so, the situation might well have been much more severe. In any case, the applicant first attempted to leave via the carport of the dwelling. This was, however, the seat of the fire. His hair and clothing caught alight. Mr Turvey put the flames out and they escaped through the bathroom window.
As a consequence of these events the applicant suffered burns to his hands, face, scalp and neck. He was initially treated at Toowoomba Base Hospital, then transferred on the 27th of June to Royal Brisbane Hospital Burns Unit. He was again transferred to Toowoomba Base Hospital on the 1st of July for further care and remained there until the 16th of July 2008. He suffered superficial burns to his scalp and face with significant facial swelling, partial thickness burns of his hands with blistering and complete thickness burns of his neck. He required ongoing dressings of his burns from his general practitioner for a further six weeks.
Dr Rauhead, his GP, said as a result of his injuries his schizophrenia actively flared, requiring additional care and support. He was in fact admitted for a period to the Acute Psychiatric Unit of the Toowoomba Base Hospital. Dr Rauhead says that although the burns covered less than 5 per cent of his body, they required specialist care. In all, he spent 19 days in hospital. The applicant in his affidavit refers to suffering pain for some period. Photos taken by police on the 2nd of July 2008, about one week after the arson, show very significant burns to areas of the body that are readily visible. Fortunately, it seems he does not now have significant permanent scarring.
Schedule I of the Act sets out a table of injuries. Each item has a range of percentages of the scheme maximum that might be attributed to such injuries. The relevant scheme maximum is $75,000.
When an applicant suffers injuries under a number of items in the table the amounts are added together provided that no more than the scheme maximum can be awarded. There is not a specific item for burns, perhaps unusually. Consequently, counsel for the applicant sought compensation under item 1, bruising and lacerations, and item 22, a moderate neck, back or chest injury as well as minor mental or nervous shock under item 31.
In my view, this approach to his physical injuries is not entirely appropriate. In my view, his burns are more appropriately dealt with under item 27, facial disfigurement and bodily scarring (minor-moderate), which is a range up to 10 per cent. A range of 10 to 30 per cent is available if the injury is properly categorised as severe.
In my view, although the effect of the burns was largely temporary, that does not alter their characteristic as falling within the description of facial disfigurement or bodily scarring. The photos, in my opinion, bear out that description. They would clearly have constituted for a period significant facial disfigurement and bodily scarring. If his burns and scarring had been permanent they would, in my view, have undoubtedly qualified as severe. They were relatively extensive and more particularly highly visible. They required specialist medical attention, including 19 days in hospital. I would assess them as amounting to 8 per cent of the scheme maximum. I would also assess his aggravation of his prior schizophrenic condition under item 31 as being a minor mental or nervous shock. This item has a range of 2 to 10 per cent. Once again, the immediate effect was relatively severe, requiring admission to the Acute Psychiatric Unit at the Toowoomba Base Hospital. Fortunately, it seems that this acute exacerbation was only of temporary effect. Nevertheless, I'm sure that an event such as this would've had some permanent effect upon the applicant's view of life and of people. In the circumstances, I assess his injury at the top end of the minor category and allow him 10 per cent of the scheme maximum.
There is nothing, as I've said, which might require any reduction of his award under section 25(7).
In all, therefore, I assess his entitlement at 18 per cent of the scheme maximum amounting to $13,500.
The order of the Court is that the respondents, Terence John Stanley and Benjamin John Woodhouse, pay to the applicant, William James O'Dell, the sum of $13,500 by way of compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 for injuries suffered by reason of the offence for which the respondents were convicted upon indictment on the 24th of April 2009.
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