Bracken v Jackson

[2004] QDC 413

DISTRICT COURT OF QUEENSLAND

CITATION:

Bracken v Jackson & Anor [2004] QDC 413

PARTIES:

REX JOHN BRACKEN (formerly Rex John Peters)
(Applicant)
v
JASON ANDREW JACKSON
(First Respondent)
and
KEITH MARTIN WILSON
(Second Respondent)

FILE NO/S:

4162/02

DIVISION:

Civil Jurisdiction

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

3 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

13 August 2004

JUDGE:

Tutt DCJ

ORDER:

That the respondents, Jason Andrew Jackson and Keith Martin Wilson, or either of them make compensation to the applicant, Rex John Bracken, in the total sum of
$12,000 for injuries caused by them to the applicant for which the respondents were convicted by this Court on 15 October 1999 and 15 September 2000 respectively.

CATCHWORDS:

Criminal compensation – grievous bodily harm – stomping and kicking – unprovoked attack – injuries to jaw, teeth and chest area – compensation Schedule 1.

Criminal Offence Victims Act 1995 ss. 24 and 31.

SOLICITORS:

J Ryan of Ryans Solicitors & Attorneys for the applicant.

1. The applicant Rex John Bracken (formerly Rex John Peters) claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for personal injuries he sustained on 20 February 1998 arising out of the criminal conduct of the first and second respondents, Jason Andrew Jackson and Keith Martin Wilson, both of whom were convicted by this court on 15 October 1999 and 15 September 2000 respectively, for causing grievous bodily harm to the applicant on the said 20 February 1998.

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

(a)        the affidavit with exhibits of James Christian Ryan, solicitor sworn 24 December 2003 and filed in this court on 23 April 2004; and

(b)        the affidavit with exhibits of David John Hawes, medical practitioner sworn 23 December 2003 and filed in this court on 23 April 2004.

1. The material shows that the applicant was viciously assaulted by the respondents in a number of ways which included “stomping” on his ribs and head as well as being kicked in the head with “steel cap boots”.

1. It would appear from the sentencing remarks that the attack upon the applicant was entirely unprovoked and vicious.

1. Needless to say the applicant sustained moderately severe injuries including the following:-

(a)         fractured mandible on right side;

(b)         lower right second incisor fractured with exposed pulp;

(c)upper left central incisor fractured;

(d)bruises to right chest;

(e)general facial injuries.

1. The applicant was more recently examined on 3 March 2003 by David John Hawes, medical practitioner of Buderim who states that:

“My prognosis was as follows:

(i)         The temporo-mandibular joint was normal to examination;

(ii)       The alignment of his jaw following the fracture treatment was normal with a good bite;

(iii)      The cosmetic and functional results from the fractured jaw treatment are very good with complete healing;

(iv)       The right chest wall examination was completely normal;

(v)        The left upper main incisor was chipped with an approximate 25% loss in length;

(vi)       The fracture through the tooth was a horizontal fracture;

(vii)     The second right incisor replacement tooth is discoloured and is poorly matching to his surrounding teeth and is slightly recessed to the normal arch of his teeth.”

1. Dr Hawes summarized his prognosis of the applicant by saying that the applicant’s jaw injury “… has healed very well and has a good cosmetic and functional result from the fracture treatment”.

1. He further stated:

·     “He (the applicant) does report some intermittent right temporo-mandibular joint dysfunction and this could very well be due to some slight dysfunction to that joint as a result to (sic) the severity of the blow to his jaw causing the fracture;

·     He still has a cosmetic problem with two teeth that were damaged.  The left front main incisor is still cracked with a 25% reduction in length of tooth.  the lower right second incisor tooth is very discoloured and different to his normal teeth;

·     Despite some right chest wall discomfort intermittently with hard physical work, his chest wall is normal to examination.”

1. The applicant’s injuries fall under the following categories of injury in Schedule 1 of the Act, namely:-

(a)        Item 5 – Loss or Damage of Teeth (percentage of Scheme maximum 1%-12%);

(b)        Item 6 – Facial fracture (minor) (percentage of Scheme maximum 8%-14%);

(c)        Item 21 – Neck/Back/Chest Injury (minor) (percentage of Scheme maximum 2%-7%).

1. Taking all relevant matters into account, I assess the plaintiff’s compensation for the personal injuries he sustained on 20 February 1988 as follows:-

(a)        In respect of Item 5 the sum of $3,000 representing 4% of the Scheme maximum;

(b)        In respect of Item 6 the sum of $7,500 representing 10% of the Scheme maximum; and

(c)        In respect of Item 21 the sum of $1,500 representing 2% of the Scheme maximum.

1. I therefore order that the respondents or either of them make compensation to the applicant in the total sum of $12,000 as set out above.

1. In accordance with section 31 of the Act, I make no order as to costs.