Dutton v Tacorda - [2010] QDC 164

DISTRICT COURT OF QUEENSLAND

CITATION:

Dutton v Tacorda & Ors [2010] QDC 164

PARTIES:

Annette Leonie Dutton
(Applicant)

v

Alvin Diaz Tacorda
(First respondent)

and

Jerry Jack Siaosi
(Second respondent)

and

William Robert Hui
(Third respondent)

FILE NO/S:

916/09

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

Beenleigh District Court

DELIVERED ON:

23 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

16 July 2009

JUDGE:

Tutt DCJ

ORDER:

The second respondent Jerry Jack Siaosi pays to the applicant Annette Leonie Dutton the sum of $18,750.00 representing 100% of the compensation payable herein for which he is jointly and severally liable with the first respondent for injury sustained by the applicant and caused by the respondent on 3 October 2006 for which the respondent with others was convicted by the District Court at Beenleigh on 13 July 2007;

The first respondent Alvin Diaz Tacorda pays to the applicant Annette Leonie Dutton the sum of $3,750.00 of the above figure of $18,750.00 representing 20% of the compensation payable herein for which he is jointly and severally liable with the second respondent for injury sustained by the applicant and caused by the respondent on 3 October 2006 for which the respondent with others was convicted by the District Court at Beenleigh on 13 July 2007.

CATCHWORDS:

CRIMINAL COMPENSATION – robbery in company – where applicant was robbed at ATM – whether “direct and material contribution to the injury” by offenders – one offender driver of motor vehicle – another offender passenger only in motor vehicle - where applicant “fell on both knees and right hand” – where applicant suffered an aggravation of a serious pre-existing injury – where applicant suffered “mental or nervous shock” – where applicant did not contribute to index injury.

Criminal Offence Victims Act 1995, ss 24, 25(7), 26(6)

Day v Johnson & Ors (2004) QDC 467

Ferguson v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320

LMW v Nicholls (2004) QDC 118

RMC v NAC [2009] QSC 149

SAY v AZ: ex parte AG (Qld) [2006] QCA 462

Street v Fitzgerald (2002) QSC 235

SOLICITORS:

Mr F.J. Tauchmann Solicitor of Gouldson Legal for the applicant

No Appearance by or on behalf of respondents

Introduction:

Ms Annette Leonie Dutton (“the applicant”) claims compensation under Part 3 of the Criminal Offence Victims Act 1995 for alleged injury she sustained arising out of the criminal conduct of Alvin Diaz Tacorda, Jerry Jack Siaosi and William Robert Hui who were convicted by the District Court at Beenleigh on 13 July 2007 in respect of the respondents Tacorda and Siaosi and 24 August 2007 in respect of the respondent Hui for the offence of robbery in company of the applicant on 3 October 2006 at Springwood, Queensland.

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

(a) the applicant’s affidavit sworn 27 February 2009; the affidavit with exhibits of Kim Dianne Douglass solicitor sworn 31 March 2009; the affidavit with exhibits of…

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 Dutton v Tacorda

Details

AGLC: Dutton v Tacorda [2010] QDC 164
Case: [2010] QDC 164
Decision Date: 23 April 2010

CaseChat Overview and Summary

Annette Leonie Dutton sought compensation from Jerry Jack Siaosi and Alvin Diaz Tacorda for injuries sustained during a robbery at an ATM on 3 October 2006. Siaosi was the driver and Tacorda was a passenger in the vehicle used during the robbery. Dutton suffered a serious pre-existing injury, which was aggravated, and also experienced mental or nervous shock as a result of the incident. The applicants argued that both respondents made a direct and material contribution to the injuries sustained, and that Dutton did not contribute to her injuries.

The legal issues before the court were whether the respondents' conduct constituted a "direct and material contribution" to Dutton's injuries, and whether Dutton's pre-existing injury was an aggravation or a separate injury for the purposes of compensation. The court considered the definition of "direct and material contribution" under the relevant legislation and determined that the respondents' actions directly contributed to Dutton's injuries. The court also found that the pre-existing injury was aggravated rather than a separate injury, and that Dutton's shock was a direct result of the robbery.

The court concluded that both respondents were jointly and severally liable for the compensation owed to Dutton. Siaosi was found to be 75% liable and Tacorda 25% liable, resulting in Siaosi being ordered to pay $18,750.00 and Tacorda $3,750.00. The court found that both respondents' conduct was a direct and material contribution to Dutton's injuries, and that the pre-existing injury was aggravated as a result of the incident. The court also found that Dutton's shock was a direct result of the robbery and not a separate injury.

The final orders were that Siaosi pay Dutton $18,750.00 and Tacorda pay Dutton $3,750.00, both jointly and severally liable for the compensation owed.

Orders

Orders of the court

1. The second respondent Jerry Jack Siaosi pays to the applicant Annette Leonie Dutton the sum of $18,750.00 representing 100% of the compensation payable herein for which he is jointly and severally liable with the first respondent for injury sustained by the applicant and caused by the respondent on 3 October 2006 for which the respondent with others was convicted by the District Court at Beenleigh on 13 July 2007;

1. The first respondent Alvin Diaz Tacorda pays to the applicant Annette Leonie Dutton the sum of $3,750.00 of the above figure of $18,750.00 representing 20% of the compensation payable herein for which he is jointly and severally liable with the second respondent for injury sustained by the applicant and caused by the respondent on 3 October 2006 for which the respondent with others was convicted by the District Court at Beenleigh on 13 July 2007.

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

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CITATION:	Dutton v Tacorda & Ors [2010] QDC 164
PARTIES:	Annette Leonie Dutton (Applicant) v Alvin Diaz Tacorda (First respondent) and Jerry Jack Siaosi (Second respondent) and William Robert Hui (Third respondent)
FILE NO/S:	916/09
DIVISION:	Civil
PROCEEDING:	Application for criminal compensation
ORIGINATING COURT:	Beenleigh District Court
DELIVERED ON:	23 April 2010
DELIVERED AT:	Brisbane
HEARING DATE:	16 July 2009
JUDGE:	Tutt DCJ
ORDER:	The second respondent Jerry Jack Siaosi pays to the applicant Annette Leonie Dutton the sum of $18,750.00 representing 100% of the compensation payable herein for which he is jointly and severally liable with the first respondent for injury sustained by the applicant and caused by the respondent on 3 October 2006 for which the respondent with others was convicted by the District Court at Beenleigh on 13 July 2007; The first respondent Alvin Diaz Tacorda pays to the applicant Annette Leonie Dutton the sum of $3,750.00 of the above figure of $18,750.00 representing 20% of the compensation payable herein for which he is jointly and severally liable with the second respondent for injury sustained by the applicant and caused by the respondent on 3 October 2006 for which the respondent with others was convicted by the District Court at Beenleigh on 13 July 2007.
CATCHWORDS:	CRIMINAL COMPENSATION – robbery in company – where applicant was robbed at ATM – whether “direct and material contribution to the injury” by offenders – one offender driver of motor vehicle – another offender passenger only in motor vehicle - where applicant “fell on both knees and right hand” – where applicant suffered an aggravation of a serious pre-existing injury – where applicant suffered “mental or nervous shock” – where applicant did not contribute to index injury. Criminal Offence Victims Act 1995, ss 24, 25(7), 26(6) Day v Johnson & Ors (2004) QDC 467 Ferguson v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320 LMW v Nicholls (2004) QDC 118 RMC v NAC [2009] QSC 149 SAY v AZ: ex parte AG (Qld) [2006] QCA 462 Street v Fitzgerald (2002) QSC 235
SOLICITORS:	Mr F.J. Tauchmann Solicitor of Gouldson Legal for the applicant No Appearance by or on behalf of respondents