Tidd v Murray

[2006] QDC 361

DISTRICT COURT OF QUEENSLAND

CITATION:

Tidd v Murray [2006] QDC 361

PARTIES:

SIMON JAMES TIDD

(Applicant)

v

DOUGLAS CHARLES MURRAY
(Respondent)

FILE NO/S:

D163 of 2005

DIVISION:

Civil Jurisdiction

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court, Beenleigh

DELIVERED ON:

11 October 2006

DELIVERED AT:

Beenleigh

HEARING DATE:

15 August 2006

JUDGE:

Tutt DCJ

ORDER:

The respondent pay to the applicant the sum of $11,250.00 by way of compensation for injuries caused by the respondent to the applicant for which the respondent was convicted by the District Court at Beenleigh on 31 March 2005.

CATCHWORDS:

Criminal compensation – assault occasioning bodily harm – bruising and lacerations – head injury and scarring.

Criminal Offence Victims Act 1995 ss. 24, 25(6) and (7) and 31.

Ferguson v Kazakoff [2000] QSC 156.

SOLICITORS:

Mr G D Wooler for GD Lawyers for the applicant.

No appearance for the respondent.

Introduction

1. The applicant, Simon James Tidd, claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for bodily injury he sustained arising out of the criminal conduct of the respondent, Douglas Charles Murray, who was convicted by the District Court at Beenleigh on 31 March 2005 for the offence of assault occasioning bodily harm to the applicant on 26 December 2003 at Hillcrest, Queensland.

1. In accordance with the order for substituted service made by this court on 12 May 2006 the applicant’s solicitors caused an advertisement to be placed in the Public Notices section of The Courier Mail newspaper on 19 May 2006 advising that this application was before the court together with other relevant details in respect of the application and that publication of the advertisement perfected service on the respondent of the material before the court.[1]  Despite those efforts there was no appearance of or for the respondent at the hearing.

   [1]           See affidavit of Garry Douglas Wooler sworn 15 August 2006 and filed by leave.

1. The application for compensation is made pursuant to s 24 of the Act and is supported by the following material:-

(a)        the affidavit with exhibits of the applicant, sworn 27 September 2005 and filed 14 December 2005; and

(b)        the affidavit with exhibits of Garry Douglas Wooler, solicitor, sworn 17 November 2005 and filed 14 December 2005.

Facts

1. The respondent attacked the applicant at the applicant’s girlfriend’s house at Hillcrest, Queensland on 26 December 2003 when the respondent struck the applicant on the head with a crystal vase; bit the applicant on various parts of his body including his upper right arm, chest and finger as well as striking the applicant with a chair.  The applicant had eight stiches in his forehead; two deep lacerations to his left middle finger and bruising to his chest and forearm.  The respondent left the scene and a short time thereafter the ambulance and two police officers arrived to attend the applicant.

Injuries

1. The applicant was treated at the Logan Hospital emergency department and his injuries were recorded as follows:

§“6cm scalp laceration slightly to the left of the midline

§Superficial laceration to the right upper chest as part of a defined bite mark

§Bite mark to the right upper arm with skin unbroken

§1cm laceration near the tip of the left middle finger

§1cm laceration near the base of the left middle finger

§10cm x 3cm abrasion on the left forearm.”[2]

[2]           See Exhibit “L” to the affidavit of Garry Douglas Wooler.

1. The applicant’s wounds were cleaned and sutured; he was prescribed analgesics and antibiotics and requested to attend on his general practitioner for review of the injuries.[3]

[3]           Ibid.

Applicant’s Contribution

1. In deciding the amount of compensation payable to the applicant the court must also take into account the behaviour of the applicant that directly or indirectly contributed to the injury (see s 25(7) of the Act).

1. I have referred to the circumstances of the incident in paragraph [4] above and I am of the opinion that the applicant’s behaviour at the relevant time did not either directly of indirectly contribute to the injuries complained of by him.

The Applicant’s Claims

1. The applicant makes the following claims for compensation arising out of the injuries he sustained[4]:

   [4]           Paragraph 12 of the applicant’s written submissions.

Affidavit Reference	Schedule 1 Injury No.	Scale	Claim	Value
Exhibits B & C	28	10%-30%	12%	$9,000
Exhibits D & E (L/H finger)	2	3%-5%	3%	$2,250
Exhibit D (R/H finger)	1	1%-3%	1%	$ 750
Exhibit F	1	1%-3%	1%	$ 750
Exhibits G & H	1	1%-3%	1.5%	$1,125
Total	$13,875

Categories of Injuries

1. It seems to me that the applicant’s “categories” of injuries in Schedule 1 of the Act as distinct from the separate or individual injuries he sustained in the assault are as follows, namely:

(a)        Item 2 – Bruising/laceration (severe) (percentage of scheme maximum 3% - 5%);

(b)        Item 9 – Fractured skull/Head injury (no brain damage) (percentage of scheme maximum 5% - 15%); and

(c)        Item 27 – Facial disfigurement or bodily scarring (minor/moderate) (percentage of scheme maximum 2% - 10%).

1. The applicant’s submissions in paragraph 12 particularise the applicant’s respective injuries from the assault and refer to the photographic exhibits taken by the Queensland Police Service on 27 December 2003, depicting the applicant’s respective injuries, but it seems to me that the respective categories of injuries to which the exhibits refer are as follows (my emphasis):

(a) Exhibits B & C refer to Item 9 and inferentially Item 27 of the Schedule to the Act; and

(b) Exhibits D, E, F, G and H refer to Item 2 of the Schedule to the Act.

1. I therefore make the formal finding that the applicant’s injuries fall under the following categories of injuries in Schedule 1 of the Act namely:

(a)        Item 2 – Bruising/laceration (severe) (percentage of scheme maximum 3% - 5%);

(b)        Item 9 – Fractured skull/Head injury (no brain damage) (percentage of scheme maximum 5% - 15%); and

(c)        Item 27 – Facial disfigurement or bodily scarring (minor/moderate) (percentage of scheme maximum 2% - 10%).

1. Taking all relevant matters into account I assess the quantum of the applicant’s compensation for the bodily injuries he sustained on 26 December 2003 as follows:

(a)   In respect of Item 2, the sum of $3,000.00 representing 4% of the scheme maximum;	$3,000.00
(b)   In respect of Item 9, the sum of $4,500.00 representing 7% of the scheme maximum; and	$5,250.00
(c)   In respect of Item 27, the sum of $3,000.00 representing 4% of the scheme maximum.	$3,000.00
TOTAL	$11,250.00

1. I therefore order that the respondent pay to the applicant the sum of $11,250.00 by way of compensation for the injuries sustained by the applicant. 

1. In accordance with section 31 of the Act, I make no order as to costs.