DISTRICT COURT OF QUEENSLAND
CITATION: Barnes v Tumbers [2005] QDC 284
PARTIES: DEREK ROYCE BARNES
Applicant
v
SCOTT JAMES TUMBERS
RespondentFILE NO/S: 382/2005
PROCEEDING: Application for criminal compensation
ORIGINATING COURT:
Southport
DELIVERED ON:
30 September 2005
DELIVERED AT:
Southport
HEARING DATE: 26 September 2005
JUDGE: Dearden DCJ
ORDER: The respondent Scott James Tumbers pay the applicant Derek Royce Barnes the sum of $21,750.00. CATCHWORDS: Criminal compensation – assault occasioning bodily harm whilst in company – bruising over eye and right brow - dental injuries - adjustment disorder - mixed anxiety – depressed mood – psychological impairment- mental or nervous shock.
Criminal Offence Victims Act 1995 s 24, s 25 (7)
Cases cited:
R v Ward ex parte Dooley [2001] 2 Qd R 436
Riddle v Coffey [2002] 133 A Crim R 220; [2002] QCA 337COUNSEL: Mr C F Bagley for the applicant
No appearance for the respondent
SOLICITORS: McLaughlins Solicitors for the applicant
No appearance for the respondent
The applicant, Derek Barnes, seeks compensation in respect of injuries suffered by him arising from an incident which occurred on 24 February 2003 at his residence at 55 Balfour Crescent, Nerang. The respondent, Scott Tumbers, pleaded guilty before Senior Judge Trafford-Walker in the District Court at Southport on 23 March 2005 to one count of assault occasioning bodily harm whilst in company. In respect of that count (the respondent pleaded guilty at the same time to other counts not involving the applicant) the respondent was sentenced to six months’ imprisonment, to be served concurrently with varying terms of imprisonment in respect of the other counts to which he had pleaded guilty.
FACTS
The facts on which the respondent was sentenced are set out in a schedule which was admitted as Exhibit 2 in the sentence proceedings before Senior Judge Trafford-Walker[1]. The relevant facts (extracted from the Schedule of Facts) in respect of this matter are as follows:
“On 24 January 2003, the complainant in this matter was holding a house party for his sister-in-law. Approximately 20-30 people were invited, however by 10pm around 50 people had turned up. At approximately 10.30-11pm, the complainant’s sister-in-law was out the front of the house talking to the accused whom she knew. She states that the conversation degenerated into an argument. A car has then pulled up and about three males and one female have stepped out and introduced themselves to her. About 20 minutes later, she was seated on the brick wall at the front of her house speaking to one of the males when she head screaming and yelling. She saw a group of males, including the accused, run from the front of the house, into the driveway. The complainant was yelling at them, ‘This is my house’.
She then saw the complainant crouch onto the ground with his hands over his head protecting himself from being struck. She states that she recognised the persons hitting the complainant as including the accused. She attempted to intervene and was pushed away and then…
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- AGLC
- Barnes v Tumbers [2005] QDC 284
- Case
- [2005] QDC 284
- Decision Date
CaseChat Overview and Summary
The court had to decide the correct assessment of Barnes' injuries under three specific items of the schedule in the Act. The first issue was the severity of the bruising and lacerations Barnes sustained, for which the court awarded 5% of the scheme maximum, amounting to $3,750. The second issue involved the dental injuries, for which the court awarded 4%, equating to $3,000. The final issue concerned the psychological impact of the assault, assessed under the category of moderate mental or nervous shock. The court awarded 13% of the scheme maximum, totalling $9,000, for the psychological injuries.
The court's reasoning was based on the medical reports and evidence provided, which detailed the physical injuries and their impact on Barnes' daily life and mental health. The court considered the severity and permanence of the injuries, as well as the disruption to Barnes' social and familial relationships. The court awarded a total of $21,750 in compensation to Barnes, covering the assessed injuries and psychological impact.
The final orders of the court required the respondent, Scott James Tumbers, to pay the applicant, Derek Royce Barnes, the sum of $21,750. This amount was broken down into specific compensation for the physical injuries, dental injuries, and psychological impact, as detailed in the court's decision.
Orders
Orders of the court
The respondent Scott James Tumbers pay the applicant Derek Royce Barnes the sum of $21,750.00.
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
Mr Bagley, counsel for the applicant, seeks compensation under three items as follows:(1) Item 2 - Bruising/laceration etc. (severe)The report dated 4 July 2003 from the Emergency Department of the Gold Coast Hospital, under the hand of Dr David Spain (who, it is noted, was not the treating doctor[2]) notes that the applicant presented at the Emergency Department of the Gold Coast Hospital at 2.03 am on 25 January 2003 alleging “that he had been kicked multiple times whilst on the ground and possibly stabbed with some glass”, with examination showing “some bruising over the left eyelid and the right brow region” and a “1.5cm laceration” on the “left lateral chest wall” which was sutured.I accept Mr Bagley’s submissions that an appropriate assessment of this combination of injuries (bruising and lacerations) is to assess the injuries pursuant to item 2 of schedule 1 and accordingly I award 5% ($3,750) in respect of these injuries.(2)Item 5 – Loss or damage of teethThe dental injuries suffered by the applicant are described (briefly) in a report from Dr Stephen Coulson from Riverside Dental Practice, in a report dated 31 January 2003[3] and those injuries are relevantly:§enamel fractures to the distal and buccal of [tooth number] 37;§enamel fracture to the buccal of [tooth number] 36;§suspected left condylar fracture;§incisal fractures to tooth numbers 41 and 42.[2] Exhibit C to the affidavit of Angus Walker sworn 14 July 2005[3] Exhibit D to the affidavit of Angus Walker sworn 14 July 2005 In the absence of any further evidence in respect of the applicant’s dental injuries it is difficult to make an assessment in respect of this item. However, I note that the relevant range in respect of item 5 is 1%-12%. The applicant, himself, at p 4 of his police statement dated 27 February 2003[4], describes the dental injuries as being a “back left-hand tooth … broken in half, and that top is chipped and the front tooth is broken or chipped.” Doing the best I can with the information available, I consider the appropriate assessment under this item is an award of 4% of the scheme maximum ($3,000).[4] Exhibit A to the affidavit of Derek Barnes sworn 18 July 2005 (3) Item 32 – mental or nervous shock (moderate)Paul Elliott, psychologist, provided a report dated 25 June 2005[5]. Mr Elliott diagnoses the applicant as suffering from Adjustment Disorder with Mixed Anxiety and Depressed Mood – Chronic – of moderate severity and assesses his global assessment of functioning (GAF) scale at 70 (based on a pre-morbid GAF level of 100). Mr Elliott assessed the probability of “some permanent psychological impairment” at 25%. Mr Elliott notes that the applicant reports “that his social life is now virtually non-existent because of his current inability to continue his formerly-enjoyed activities at night, and his hypervigilance.” The applicant reported to Mr Elliott that the incident had “cost him many friends” and that his “only social life currently experienced is associated with children’s activities.” Mr Elliott also noted that the applicant’s relationship with his wife had “deteriorated because of their shared heightened anxiety and the stresses involved with their desire to move [which was dependent on the completion of house renovations needed to make their house saleable] and their inability to do so [at least until the completion of the renovations].”[5] Exhibit A to the affidavit of Paul Elliott sworn 11 July 2005