Dinsdale v Morse

[2003] QDC 338

DISTRICT COURT OF QUEENSLAND

CITATION:

Dinsdale v Morse [2003] QDC 338

PARTIES:

JASON GRAHAM DINSDALE
  Plaintiff
v

ANDREW WILLIAM MORSE

  Defendant

FILE NO/S:

Plaint 105/1998

DIVISION:

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

26 September 2003

DELIVERED AT:

Brisbane

HEARING DATE:

28 August 2002

JUDGE:

McGill DCJ

ORDER:

Judgment that the defendant pay the plaintiff $34,812 plus costs.

CATCHWORDS:

TRESPASS – To the person – damages.

COUNSEL:

J W Lee for the plaintiff

The defendant did not appear and was not represented

SOLICITORS:

Taylors, town agents for Keith Scott & Associates for the plaintiff

1. This is an action for damages for assault.  The plaintiff alleged that on 14 August 1996 he was punched in the face by the defendant thereby causing injury.  On 2 April 1997 the defendant was convicted of assault occasioning bodily harm on the plaintiff: Exhibit 2.  This is evidence that the defendant committed the offence, i.e. he did the acts and possessed the state of mind which at law constituted the offence:  Evidence Act 1977 s 79.

1. At the trial the defendant did not appear.  He had, shortly before trial, withdrawn his instructions to his solicitors, and a notice that he was acting in person had been filed, and the day before the trial date a Registry officer spoke to him and told him that the trial was on, and gave him notice of the trial by facsimile.  However, he did not appear.  Accordingly, the matter proceeded under Rule 476.  The plaintiff gave evidence and called for two witnesses, and in addition, tendered a number of medical and dental reports.  These were admissible under s 92 (2)(e), although one dentist was called by telephone and gave additional oral evidence.

1. Following the conclusion of the trial when preparing my judgment it occurred to me that there were three matters upon which some clarification would be of assistance, as a result I wrote to counsel for the plaintiff inviting further submissions or, if appropriate, evidence on those points.  There was evidently some difficulty in obtaining clear instructions in relation to these matters, and I did not finally get a response dealing with the issues I had raised until shortly before this judgment was delivered.

Injury

1. The plaintiff had been attending a function at the Moranbah Rugby League Club: p 6.  Shortly after he left the club he was punched in the face by the defendant.  By the time his father got to him, someone else had picked him up and stood him up: p 12.  He could see that the plaintiff was missing a few teeth, and he tried to clean him up, and then they walked home.  The next day they went to the police station at Moranbah to report the incident, and then attended the dentist at Moranbah who found he had lost the upper right central and lateral incisor: Exhibit 3.  In addition, the upper right canine and the upper left incisor were extremely loose, and there was a large amount…