Parker v Dau

[2010] QDC 171

DISTRICT COURT OF QUEENSLAND

CITATION:

Parker v Dau & Ors [2010] QDC 171

PARTIES:

DAVID ROBERT PARKER
(Applicant)
v
GESA HENRY DAU
(First respondent)
AUGUSTINE FRED GIBAS
(Second respondent)
ROBINSON ARAKA GIBUMA
(Third respondent)

FILE NO/S:

266 of 2009

DIVISION:

Trial

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court,

DELIVERED ON:

23 April 2010

DELIVERED AT:

Cairns

HEARING DATE:

12 March 2010

JUDGE:

Everson DCJ

ORDER:

That the respondents jointly pay the applicant the sum of $30,750 by way of compensation.
That each respondent pay the applicant the sum of $10,250 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] QdR 303 at 310

COUNSEL:

SOLICITORS:

Wettenhall Silva 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 each respondent was convicted on indictment namely attempted robbery in company.

Facts

1. The applicant was viciously attacked by a group of youths including the respondents at about 3.30 am on 8 March 2008 in Sheridan Street, Cairns.  They attempted to steal his wallet but despite repeatedly assaulting him they failed (“the incident”).

Injuries

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

·           Multiple cuts, bruises and abrasions;

·           A broken nose;

·           A chipped tooth;

·           A fractured right radius and ulna;

·           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 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 4 Fractured nose (displacement/surgery) …      8% - 20%

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

·Item 16 Fracture/loss of use of arm/wrist

(displaced & immobilised) …   8% - 30%

·Item 27 Facial disfigurement or bodily scarring

(minor/moderate)…  2% - 10%

·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 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. The most serious physical injury sustained by the applicant as a consequence of the incident was his badly fractured right wrist.  This required surgery on two occasions with the insertion of plates.  In his report dated 1 July 2009, Dr Pentis, orthopaedic surgeon notes ongoing symptomatology in the wrist and decreased power, strength and range of movement “up to about 60%”.  This has adversely affected the applicant’s lifestyle and pastimes.  I accept the evidence before me which established that the applicant suffered a minor broken nose in the course of the incident which resulted in the “minimal deviation of the midline septum to the left” noted in the report of Dr Hartman dated 9 December 2009.  He also has some minor scarring to his right wrist as a consequence of the surgery noted above and some burst capillaries below his left eye.  I also accept that he suffered an unspecified chipped tooth in the incident.  The applicant has been left with some significant psychological sequelae which Dr Richardson assesses in her report dated 4 June 2009, as amounting to “moderate symptomatology associated with Post Traumatic Stress Disorder (PTSD) and mild to moderate Depression”.

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 …          3%  $  2,250.00

·     Item 4 …          8%  $  6,000.00

·     Item 5 …          1%  $     750.00

·     Item 16 …        12%  $  9,000.00

·     Item 27 …        2%  $  1,500.00

·     Item 32 …        15%  $11,250.00

41%  $30,750.00

1. Section 26 of COVA contemplates the apportionment of the award of compensation. The respondents were jointly involved in the criminal enterprise constituted by the incident and I am unable to separate out liability for any specific injury. They are therefore jointly liable for the compensation assessed above. I apportion responsibility for the payment of the sum of $30,750.00 equally between the respondents.

Order

1. I order that the respondents jointly pay the applicant the sum of $30,750.00 by way of compensation.  I order that each respondent pay the applicant the sum of $10,250.00 by way of compensation.