Blackwell v. Witheridge [2008] QDC 184 (17 July 2008)

Last Updated: 5 August 2008

DISTRICT COURT OF QUEENSLAND

CITATION:	Blackwell v Witheridge [2008] QDC 184
PARTIES:	MAREE ANNE BLACKWELL (Applicant) v JENNA MAE WITHERIDGE (Respondent)
FILE NO/S:	178 of 2007
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	17 July 2008
DELIVERED AT:	Cairns
HEARING DATE:	17 July 2008
JUDGE:	Everson DCJ
ORDER:	That the respondent Jenna Mae Witheridge pay the applicant Maree Anne Blackwell $18,750 by way of compensation.
CATCHWORDS:	Criminal compensation – Psychological injury – Physical injury. Criminal Offence Victims Act 1995 Criminal Offence Victims Regulation 1995 R v Jones ex parte Zaicov [2001] QCA 442; [2002] 2 Qd R 303 at 310
COUNSEL:
SOLICITORS:	Wettenhall Silva solicitor 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”).
[2] 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 2 July 2004, namely grievous bodily harm.
Facts
[3] The offence occurred on 27 March 2002 at Cooktown when the respondent stabbed the applicant in the abdomen (“the incident”).
Injuries
[4] The applicant suffered the following injuries as a consequence of the incident:
1. A stab wound to the right lower abdomen;
2. A 2.5 cm linear scar;
3. A post traumatic stress disorder and depression.
The relevant law
[5] 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.”
[6] 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.”

[7] Relevantly the Compensation Table prescribes:
24. Gun shot wound/stab wounds (minor)... 6% - 10%
27. Facial disfigurement or bodily scarring (minor/moderate)... 2% - 10%
32. Mental or nervous shock (moderate)... 10% - 20%
[8] 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]
The Assessment
[9] Although there had been a previous altercation between the applicant and the respondent, the respondent was the aggressor and I am satisfied, on the material before me, that the applicant did not contribute to the injury.
[10] In his report Dr Litherland[3] records that in the incident the applicant sustained a stab would to the right lower abdomen which did not penetrate peritoneal cavity. The next morning it was noted that there was a large haematoma underlying the wound resulting in a course of treatment in the Cairns Base Hospital. He notes that there is a 2.5 cm scar at the side of the stab wound which he rates “at the lower end of the minor category” and which occurs 5 cm from a pre-existing 14 cm scar.
[11] The report of Dr Richardson, psychologist[4] summarises the psychological distress which the applicant reports is associated with the incident in the following terms:
“She is reporting moderate symptomatology associated with Post Traumatic Stress Disorder (PTSD) and mild to moderate Depression. However, it must be noted that Ms Blackwell had, prior to the incident, been diagnosed as experiencing difficulty with schizophrenia. She reports that since the incident, the distress she has experienced and that has been associated with schizophrenia has been exacerbated...”
[12] 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 24 – 8%	$6,000
Item 27 – 2%	$1,500
Item 32 – 15%	$11,250
	$18,750

Order
[13] I order the respondent pay the applicant the sum of $18,750.

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[1] [2001] QCA 442; [2002] 2 QdR 303 at 310

[2] s 25 (8) referring to s 22 (4)

[3] Affidavit of Dr Litherland filed 25/1/08 Ex “GLI 1”

[4] Affidavit of Dr Richardson filed 25/1/08, Ex “CR 1”