Winter v Cant

[2009] QDC 186

DISTRICT COURT OF QUEENSLAND

CITATION:

Winter v Cant [2009] QDC 186

PARTIES:

RAYMOND DAVID WINTER
(Applicant)
v
SHANE LANCE CANT
(Respondent)

FILE NO/S:

19 of 2009

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

26 June 2009

DELIVERED AT:

Mackay

HEARING DATE:

25 June 2009

JUDGE:

Everson DCJ

ORDER:

That the respondent pay the applicant $28,500.00 by way of compensation.

CATCHWORDS:

Criminal compensation – physical injuries.

Criminal Offence Victims Act 1995
Criminal Offence Victims Regulation 1995

R v Jones ex parte Zaicov [2002] 2 Qd R 303 at 310

COUNSEL:

SOLICITORS:

Strutynski Law 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 the respondent was convicted on indictment on 15 March 2007, namely grievous bodily harm.

Facts

1. On 26 October 2007 the applicant was viciously assaulted by the respondent at the Kooyong Hotel in Mackay. The respondent punched the applicant in the head and then kicked him and stomped on his head after he fell to the floor. (“the incident”).

Injuries

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

·     Fractures through the anterior and posterior walls of the right maxillary sinus;

·     An undisplaced fracture of the right zygomatic arch.

·     Fractures of the lateral wall and floor of the right orbit

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 COVA. In R v Jones ex parte Zaicov[1] Homes 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 3. Fractured nose (no displacement) ……………….5%-8%

·      Item 6. Facial fracture (minor) …………………………..8%-14%

·      Item 7 Facial fracture (moderate) ………………………14%-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 under 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. After the incident the applicant was taken to the Mackay Base Hospital where his injuries were assessed. He was then transferred to the Townsville Hospital Maxillofacial Unit where surgery to correct his fractured right cheek bone was performed. This surgery required the insertion of three titanium fixation plates. A report from Dr Hirst, Maxillofacial Registrar at the Townsville Hospital dated 9 May 2008 states that the applicant appeared to make an uneventful recovery and was discharged on 15 November 2005.

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 3:                   8%                  $6,000.00

Item 6:                   10%                $7,500.00

Item 7:                   20%                $15,000.00

$28,500.00

Order

1. I order the respondent pay the applicant the sum of $28,500.00