Re R v Johnson; Re Burns & McKenzie

[1998] QSC 63

IN THE SUPREME COURT
OF QUEENSLAND

Brisbane  Application No.2800 of 1998

Before the Hon. Mr Justice Mackenzie

[Re R v Johnson; Re Burns & McKenzie]

IN THE MATTER OF Chapter LXVA Section 663 of the Criminal Code of Queensland

and

IN THE MATTER OF R v Rodney John JOHNSON (Indictment No 255 of 1996)

and

IN THE MATTER OF an application for Criminal Compensation by Maxine Linda Burns, by her next friend CAROLYN FRANCES McKENZIE

CATCHWORDS: CRIMINAL LAW - Compensation for injuries sustained (psychological and physical) - legislative restrictions for damages - Criminal Code of Queensland Ch.65A ss.663AA(1),(3), 663B(1) - Workers’ Compensation Act 1916, s.14(1)(c) - Workers’ Compensation Act 1990, ss.130B, 154 - Workers’ Compensation Amendment Act (No 2) 1995 s.130B.

McClintock v Jones (1996) 1 Qd.R.524
R v Farrell; ex parte Farrell and Lyons (Motion 246 of 1992, unreported, 13 July, 1992, Mackenzie J).
R v Ancell; ex parte Anderson (8190 of 1997, unreported, 2 December, 1997, Lee J).

Counsel:Mr N.E. Ulrick for the applicant

Solicitors:Gregg Lawyers & Attorneys for the applicant   

Hearing date:               6 April, 1998

REASONS FOR JUDGMENT - MACKENZIE J.
  Judgment delivered 14 April, 1998

This is an application for compensation on behalf of a girl upon whom the offences of rape and attempted murder were committed by the respondent.  She was born on 9 May, 1984.  The offences were committed on or about 27 November, 1995 and the conviction was entered on 10 March, 1997.  The respondent was served but did not appear at the hearing.

The application is to be decided according to Ch.65A of the Criminal Code since the acts were committed before the commencement date of the Criminal Offence Victims Act 1995, 18 December, 1995. Section 663B(1) provides that where a person is convicted of an indictable offence relating to the person of the person or of more than one indictable offence arising out of the one course of conduct or closely related courses of conduct, the Court may order the person to pay a sum not exceeding the prescribed by way of compensation for the injury. Where there is more than one injury, s.663AA(3) provides that the prescribed amount is that prescribed in s.14(1)(C) of the Workers’ Compensation Act 1916 as varied from time to time. Section 663AA(1) provides that the prescribed amount in respect of mental shock or nervous shock is $20000.
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The applicant suffered serious injuries, including a depressed fracture of the skull, left hemiplegia, lacerations to her neck and injuries to her genital area.  She has persisting paralysis of the left side with some impairment of her hand function and walking.  Not surprisingly, the terrible ordeal she endured has left her with what has been described as irreversible chronic post traumatic stress disorder and unresolved depression.

The medical and other professional evidence satisfies me that the physical injury to her head has left her with a significant disability quite apart from the psychological component.  Assessment of compensation is in accordance with the ordinary principles for damages, subject to whatever legislative cap is applicable (McClintock v. Jones (1996) 1 Qd.R.524, R v Farrell; ex parte Farrell and Lyons (Motion 246 of 1992, unreported, 13 July, 1992, Mackenzie J); R v Anell; ex parte Anderson (8190 of 1997, unreported, 2 December, 1997, Lee J.).  The award is assessed according to the legislation as it stood at the time of the injuries (Farrell; Anell). The relevant legislation at the time of the injuries was the Workers’ Compensation Act 1990.

It was submitted that the provisions of s.154 applied. I was urged to find that the sum available pursuant to that provision was $100,000, and that by reason of s.130B, an additional sum of up to $100,000 was available. Evidence was tendered in an affidavit of Dr Nurcombe in which it was deposed that the applicant had diffuse brain damage and that she had a total bodily disability of ‘approximately 75%’. The relevance of this was said to be that the amount of additional compensation by reference to Schedule 3 of the Act was $100,000. The evidence establishes only approximately 75%, but that would only reduce the sum slightly at worst, if the argument were correct. A more fundamental difficulty is that at the time of the infliction of the injuries, the maximum entitlement for one incident was $74,050. Prior to the coming into operation of the Workers’ Compensation Amendment Act (No.2) 1995, s.154, as it had become, prescribed a maximum entitlement of $67,000, which, pursuant to the mechanism for adjustment in the Act had been increased to $74,050 as at the date of the injuries.

The same amending Act inserted s.130B upon which the submission in support of increased compensation is based.  The relevant provisions of the Act did not come into force until 1 January, 1996.  Therefore, the applicant is restricted to the maximum amount then applicable,   
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$74,050.  I am satisfied that her injuries would attract a larger award of damages than that.  By reason of the statutory cap she is entitled to an award of the statutory maximum sum of $74,050.  The terms of the draft submitted to me will be amended accordingly.  I am satisfied that a protection order should be made.

I make an order in terms of the amended draft.