Bonke v. Evans

[2007] QDC 329

[2007] QDC 329

DISTRICT COURT

CIVIL JURISDICTION

JUDGE RACKEMANN

No 3085 of 2007

SHANE ANTHONY BONKE	Applicant
and
ANDREW JACOB EVANS	Respondent

BRISBANE

..DATE 26/11/2007

ORDER

HIS HONOUR:  This is an application for criminal compensation

under the Criminal Offence Victims Act and regulation. It

relates to an event on the 10th of October 2004 when the

applicant was the victim of an attack by the respondent to

this application.

The attack led to the respondent being dealt with by this

Court sitting at Townsville on the 20th of February 2007 where

he was sentenced for one count of doing grievous bodily harm.

The sentencing remarks of his Honour Judge Durward SC include

that:

"On the 10th of October 2004 the complainant man was
     walking down Flinders Street going about his own business
     when you came from behind him and without warning struck
     him with a closed fist.  You then confronted him and
     threatened him further by asking him if he, 'wanted some
     more.'

There is nothing in the facts that were outlined to me
     that could suggest that there had been any provocative
     behaviour towards you by this man, but certainly nothing
     that would have in any way entitled, justified you to
     resort to physical violence of this level."

It is apparent there is no question in this case about

compensation being affected in any way by reason of the

conduct of applicant.

As a result of the attack the applicant suffered what the

sentencing Judge described as, in simple terms, a complex

fracture involving the right cheekbone and the eye socket.  He

was operated on in respect of those matters and continued

thereafter to suffer some difficulties including a permanent

defect in his vision.  I was referred to a number of the

medical reports which are in evidence.  I will not go through

them in detail; it is unnecessary for me to do so.

The items that have been claimed by the applicant relates to

bruising (item 1); loss or damage to teeth (injury) (item 5);

facial fracture (severe) (item 8); and loss of vision

(one eye) (item 29).  Of those, I am not persuaded to make any

separate assessment in relation to the teeth.  The evidence of

the injury to the teeth appears simply to be a numbness around

the area of the tooth and it seems to me that that particular

matter can be taken into account with respect to the facial

fracture.

Looking at the other matters, the bruising and laceration,

counsel suggested a figure of three per cent, being $2,250,

and I think that that is reasonable.

In relation to the facial fracture and the loss of vision, I

was referred to the decision in Franklin v. Timu (2007) QDC

237 in respect of a somewhat different matter but one which

has similarities in relation to those two particular items.

I accept the submission that it is appropriate to make

allowances under each of those items in this case.

In relation to the facial fracture, I think that even having

regard to the matters I have referred to, the amount claimed

of 30 per cent is a little high and in the circumstances I am

going to attribute a amount of 25 per cent, being $18,750, for

that item.

In relation to the loss of vision in relation to one eye, the

best evidence about the extent of that injury comes from the

report of Dr Vandeleur, who has assessed a 25 per cent

permanent loss of efficiency of that one eye.  The schedule in

the regulations allows up to 70 per cent for the loss of an

eye.  In the circumstances, I think allowing an amount of

25 per cent of that, being 17.5 per cent, is an appropriate

allowance in the circumstances.

Accordingly, I assess compensation in the amount of $34,125.

Accordingly, I order that the respondent to pay the applicant

compensation in the amount of $34,125.

-----