Balmer v Westergren - [2010] QDC 262

DISTRICT COURT OF QUEENSLAND

CITATION:

Balmer v Westergren [2010] QDC 262

PARTIES:

DEBIAN JADE BALMER
(Applicant)

v

ANOUK HENRIETTTA SEVERINA WESTERGREN
(Respondent)

FILE NO/S:

2867/09

DIVISION:

Civil

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

28 June 2010

DELIVERED AT:

Brisbane

HEARING DATE:

23 June 2010

JUDGE:

Tutt DCJ

ORDER:

The respondent Anouk Henrietta Westergren pays to the applicant Debian Jade Balmer the sum of $41,250.00 by way of compensation for the injuries she sustained on 15 February 2005 caused by the respondent for which the respondent was convicted by the District Court at Brisbane on 29 February 2008.

CATCHWORDS:

CRIMINAL COMPENSATION – assault occasioning bodily harm whilst armed –– where the respondent attacked applicant with baseball bat– where applicant sustained physical injuries including a number of facial injuries, broken fingers and bruising – where applicant suffered “mental or nervous shock” – whether the index assault “materially contributed” to the applicant’s “post-traumatic stress disorder” – where there are other contributing factors to applicant’s “post-traumatic stress disorder” – where applicant’s behaviour did not contribute to the index-assault.

Criminal Offence Victims Act 1995 ss 24, 31

Ferguson v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320

LMW v Nicholls (2004) QDC 118

RMC v NAC [2009] QSC 149

SAY v AZ: ex parte AG (Qld) [2006] QCA 462

COUNSEL:

Mr C George for the Applicant

No appearance by or on behalf of Respondent

SOLICITORS:

Carter Capner Solicitors for the Applicant

Introduction:

Debian Jade Balmer (“the applicant”) claims compensation under Part 3 of the Criminal Offence Victims 1995 (“the Act”) for alleged injury she sustained arising out of the criminal conduct of Anouk Henrietta Westergren (“the respondent”) who was convicted by the District Court at Brisbane on 29 February 2008 for the offence of assault occasioning bodily harm whilst armed to the applicant on 15 February 2005 at Woodford, Queensland.

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

(a) the applicant’s affidavit with exhibits sworn and filed in this court on 22 October 2009;

(b) the affidavit with exhibit of Trudy Leivesley, clinical psychologist, sworn 13 July 2009 and filed 6 October 2009;

(c) the affidavit with exhibit of Gregory Gillett, orthopaedic surgeon sworn 16 March 2010 and filed 19 March 2010;

(d) the affidavit of service of Robert Hodge, licensed commercial agent sworn 6 November 2009 and filed 13 April 2010.

(e) the affidavit of Sarah Anderson, solicitor, sworn 1 June 2010 and filed 15 June 2010;

(f) the two further affidavits of Sarah Anderson with exhibits sworn 22 June 2010 and filed by leave 23 June 2010.

The respondent was served personally with the application and supporting affidavits but made no appearance at the hearing on 23 June 2010 and the hearing proceeded in her absence.

Background facts:

On 15 February 2005 the applicant was injured after the respondent drove to the applicant’s residence armed with a baseball bat. There, the respondent attacked the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Balmer v Westergren

Details

AGLC: Balmer v Westergren [2010] QDC 262
Case: [2010] QDC 262
Decision Date: 28 June 2010

CaseChat Overview and Summary

The matter of Balmer v Westergren came before the court to determine the extent of the compensation owed by the respondent, Anouk Henrietta Westergren, to the applicant, Debian Jade Balmer, following an assault that occurred on 15 February 2005. The assault resulted in Balmer sustaining physical injuries including facial injuries, broken fingers, and bruising. Additionally, Balmer claimed to have suffered mental or nervous shock leading to post-traumatic stress disorder (PTSD). Westergren had been convicted in the District Court at Brisbane on 29 February 2008 for the assault occasioning bodily harm while armed with a baseball bat.

The central legal issue before the court was whether the index assault materially contributed to Balmer's PTSD, considering there were other contributing factors to her condition. The court had to assess the extent to which the assault caused Balmer's injuries and the subsequent PTSD, and whether these were within the scope of the assault. The court also needed to determine the appropriate amount of compensation to be awarded to Balmer.

The court reasoned that while there were other contributing factors to Balmer’s PTSD, the index assault was a significant contributing factor. The physical injuries sustained during the assault were severe and directly linked to the PTSD diagnosis. The court held that the assault materially contributed to Balmer’s condition, and thus, Westergren was liable for the full extent of the injuries and the resultant PTSD. The court awarded Balmer $41,250.00 by way of compensation for the injuries she sustained on 15 February 2005.

Orders

Orders of the court

The respondent Anouk Henrietta Westergren pays to the applicant Debian Jade Balmer the sum of $41,250.00 by way of compensation for the injuries she sustained on 15 February 2005 caused by the respondent for which the respondent was convicted by the District Court at Brisbane on 29 February 2008.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Balmer v Westergren [2010] QDC 262
PARTIES:	DEBIAN JADE BALMER (Applicant) v ANOUK HENRIETTTA SEVERINA WESTERGREN (Respondent)
FILE NO/S:	2867/09
DIVISION:	Civil
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	Brisbane District Court
DELIVERED ON:	28 June 2010
DELIVERED AT:	Brisbane
HEARING DATE:	23 June 2010
JUDGE:	Tutt DCJ
ORDER:	The respondent Anouk Henrietta Westergren pays to the applicant Debian Jade Balmer the sum of $41,250.00 by way of compensation for the injuries she sustained on 15 February 2005 caused by the respondent for which the respondent was convicted by the District Court at Brisbane on 29 February 2008.
CATCHWORDS:	CRIMINAL COMPENSATION – assault occasioning bodily harm whilst armed –– where the respondent attacked applicant with baseball bat– where applicant sustained physical injuries including a number of facial injuries, broken fingers and bruising – where applicant suffered “mental or nervous shock” – whether the index assault “materially contributed” to the applicant’s “post-traumatic stress disorder” – where there are other contributing factors to applicant’s “post-traumatic stress disorder” – where applicant’s behaviour did not contribute to the index-assault. Criminal Offence Victims Act 1995 ss 24, 31 Ferguson v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320 LMW v Nicholls (2004) QDC 118 RMC v NAC [2009] QSC 149 SAY v AZ: ex parte AG (Qld) [2006] QCA 462
COUNSEL:	Mr C George for the Applicant No appearance by or on behalf of Respondent
SOLICITORS:	Carter Capner Solicitors for the Applicant