Coconut v Footscray - [2002] QSC 370

SUPREME COURT OF QUEENSLAND

CITATION:

Coconut v Footscray [2002] QSC 370

PARTIES:

WARREN MICHAEL COCONUT
(applicant)
v
LESLIE JOHN FOOTSCRAY

(respondent)

FILE NO/S:

SC 6570 of 2001

DIVISION:

Trial Division

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

Brisbane

DELIVERED ON:

13 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

14 August 2001, 27 October 2002

JUDGE:

Philippides J

ORDERS:

That the respondent pay to the applicant the sum of $121,005 by way of compensation for injuries suffered by the applicant by reason of the offence for which the respondent was convicted on 1 May 1992;1.

That the amount awarded to the applicant be paid by the respondent to the Public Trustee whose receipt for such money shall be sufficient discharge;2.

That the applicant’s costs be taxed as between solicitor and own client unless otherwise authorised or agreed to by the Public Trustee; 3.

That the Public Trustee pay to the solicitor for the applicant the said taxed or authorised costs on a solicitor own client basis out of any moneys received from the respondent, or any other person, pursuant to this order;4.

That the Public Trustee hold the balance of such moneys as a separate trust fund on trust for the applicant.5.

CATCHWORDS:

CRIMINAL LAW – COMPENSATION – where respondent convicted of grievous bodily harm – where applicant struck repeatedly on the head – where applicant suffered severe head injuries – where applicant sought compensation for pain and suffering and nervous shock – where compensation assessed under s 66B(3) of the Criminal Code – assessment of amount to be paid – where earlier assault contributed to injuries – whether compensation can be apportioned between assaults – whether applicant contributed to own injuries.

Criminal Code (Qld), Chapter 65A, s 663A,
s 663A(b), s 663AA, s 663AA(1),(2) and (3), s 663B(1) and
s 663B(2)
Criminal Offence Victims Act 1995, Part III, s 46(2)
Limitation of Actions Act 1974, s 5, s 10(1)(d)
Workers’ Compensation Act 1916, s 14(1)(C), s 14(1)(C)(a)
WorkCover Queensland Act 1996, s 167, s 167(1)
WorkCover Queensland Regulation 1997, Schedule 2

Dunbar v Carapellotti & Anor [2001] QSC 101, SC No 2418 of 1995, 9/04/01, considered
Ford v Ford DC No 1634 of 2002, 3/5/02, considered
Hedge v Suncorp Insurance & Finance Appeal No 4911 of 1996, 7/11/997, considered
Hendry v Llorente [2001] 2 Qd R 415, cited
Jacob v Roberts [2002] QCA 87, Appeal No 10194 of 2001, 21/03/02, cited
Josiah v Patterson SC No 19846 of 1999, 10/12/99, considered
McClintock v Jones (1995) 79 A Crim R 238, cited
Mott v Boggan & Fire and All Risks Insurance Co Ltd [1998] QSC 265, SC No 1209 of 1989, 12/11/98, considered
R v Chong; ex parte Chong [2001] 2 Qd R 301, cited
R v Tiltman; ex parte Dawe [1995] QSC 345, SC No 324 of 1995, 22/06/95, applied
Schelker v McColl Appeal No 9412 of 1996, 21/10/97, considered

Whyte v Robinson [2000] QCA 99, Appeal No 7292 of 1999,…

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 Coconut v Footscray

Details

AGLC: Coconut v Footscray [2002] QSC 370
Case: [2002] QSC 370
Decision Date: 13 November 2002

CaseChat Overview and Summary

Coconut, an applicant, brought an action against Footscray, the respondent, seeking compensation for injuries sustained as a result of grievous bodily harm inflicted by the respondent. The applicant had been repeatedly struck on the head, resulting in severe head injuries. The case was heard by the court, which was required to determine the appropriate amount of compensation for the pain and suffering, as well as nervous shock experienced by the applicant. The compensation was to be assessed under section 66B(3) of the Criminal Code. Additionally, the court needed to consider whether the compensation could be apportioned between the current assault and an earlier one, and whether the applicant had contributed to their own injuries.

The court examined the statutory provisions and determined that the compensation could be apportioned between the current assault and the earlier one, as the earlier assault had contributed to the applicant's injuries. However, the court found that the applicant had not contributed to their own injuries. The court took into account the severity of the injuries and the impact they had on the applicant's life in assessing the amount of compensation to be awarded. The court concluded that the appropriate amount of compensation was $121,005, which was to be paid by the respondent to the Public Trustee for the benefit of the applicant.

The court further ordered that the costs of the application be taxed as between solicitor and own client unless otherwise authorised or agreed to by the Public Trustee. The Public Trustee was instructed to pay the taxed or authorised costs to the solicitor for the applicant out of any moneys received from the respondent or any other person pursuant to the court's order. The balance of the moneys was to be held by the Public Trustee as a separate trust fund on trust for the applicant. The court's decision provided the applicant with compensation for the injuries sustained and a clear process for the payment of costs.

Orders

Orders of the court

That the respondent pay to the applicant the sum of $121,005 by way of compensation for injuries suffered by the applicant by reason of the offence for which the respondent was convicted on 1 May 1992;1.

That the amount awarded to the applicant be paid by the respondent to the Public Trustee whose receipt for such money shall be sufficient discharge;2.

That the applicant’s costs be taxed as between solicitor and own client unless otherwise authorised or agreed to by the Public Trustee; 3.

That the Public Trustee pay to the solicitor for the applicant the said taxed or authorised costs on a solicitor own client basis out of any moneys received from the respondent, or any other person, pursuant to this order;4.

That the Public Trustee hold the balance of such moneys as a separate trust fund on trust for the applicant.5.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Coconut v Footscray [2002] QSC 370
PARTIES:	WARREN MICHAEL COCONUT (applicant) v LESLIE JOHN FOOTSCRAY (respondent)
FILE NO/S:	SC 6570 of 2001
DIVISION:	Trial Division
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	Brisbane
DELIVERED ON:	13 November 2002
DELIVERED AT:	Brisbane
HEARING DATE:	14 August 2001, 27 October 2002
JUDGE:	Philippides J
ORDERS:	That the respondent pay to the applicant the sum of $121,005 by way of compensation for injuries suffered by the applicant by reason of the offence for which the respondent was convicted on 1 May 1992;1. That the amount awarded to the applicant be paid by the respondent to the Public Trustee whose receipt for such money shall be sufficient discharge;2. That the applicant’s costs be taxed as between solicitor and own client unless otherwise authorised or agreed to by the Public Trustee; 3. That the Public Trustee pay to the solicitor for the applicant the said taxed or authorised costs on a solicitor own client basis out of any moneys received from the respondent, or any other person, pursuant to this order;4. That the Public Trustee hold the balance of such moneys as a separate trust fund on trust for the applicant.5.
CATCHWORDS:	CRIMINAL LAW – COMPENSATION – where respondent convicted of grievous bodily harm – where applicant struck repeatedly on the head – where applicant suffered severe head injuries – where applicant sought compensation for pain and suffering and nervous shock – where compensation assessed under s 66B(3) of the Criminal Code – assessment of amount to be paid – where earlier assault contributed to injuries – whether compensation can be apportioned between assaults – whether applicant contributed to own injuries. Criminal Code (Qld), Chapter 65A, s 663A, s 663A(b), s 663AA, s 663AA(1),(2) and (3), s 663B(1) and s 663B(2) Criminal Offence Victims Act 1995, Part III, s 46(2) Limitation of Actions Act 1974, s 5, s 10(1)(d) Workers’ Compensation Act 1916, s 14(1)(C), s 14(1)(C)(a) WorkCover Queensland Act 1996, s 167, s 167(1) WorkCover Queensland Regulation 1997, Schedule 2 Dunbar v Carapellotti & Anor [2001] QSC 101, SC No 2418 of 1995, 9/04/01, considered Ford v Ford DC No 1634 of 2002, 3/5/02, considered Hedge v Suncorp Insurance & Finance Appeal No 4911 of 1996, 7/11/997, considered Hendry v Llorente [2001] 2 Qd R 415, cited Jacob v Roberts [2002] QCA 87, Appeal No 10194 of 2001, 21/03/02, cited Josiah v Patterson SC No 19846 of 1999, 10/12/99, considered McClintock v Jones (1995) 79 A Crim R 238, cited Mott v Boggan & Fire and All Risks Insurance Co Ltd [1998] QSC 265, SC No 1209 of 1989, 12/11/98, considered R v Chong; ex parte Chong [2001] 2 Qd R 301, cited R v Tiltman; ex parte Dawe [1995] QSC 345, SC No 324 of 1995, 22/06/95, applied Schelker v McColl Appeal No 9412 of 1996, 21/10/97, considered Whyte v Robinson [2000] QCA 99, Appeal No 7292 of 1999,…