DISTRICT COURT OF QUEENSLAND
CITATION:
Eyears v Tooley [2012] QDC 101
PARTIES:
ALLAN JAMES EYEARS
(Applicant)V
JEFFERY TOOLEY
(Respondent)FILE NO/S:
27/2010
DIVISION:
Civil
PROCEEDING:
Application for Criminal Compensation
ORIGINATING COURT:
Beenleigh
DELIVERED ON:
23 March 2012
DELIVERED AT:
Beenleigh
HEARING DATE:
22 November 2011
JUDGE:
Dearden DCJ
ORDER:
The respondent, Jeffery Tooley, pay the applicant, Allan James Eyears, the sum of $31, 500.
CATCHWORDS:
Application – criminal compensation – assault occasioning bodily harm – facial fractures – bruising/lacerations – mental or nervous shock
LEGISLATION:
CriminalOffence Victims Act 1995
CASES:
Paterson v Chand & Chand [2008] QDC 214
Riddle v Coffey [2002] QCA 337
R v Ward; ex parte Dooley [2001] 2 Qd R 436
Ferguson v Kazakoff [2001] 2 Qd R 320
Pearson v Estate of Mark Stasenes (Deceased) [2011] QDC 226
COUNSEL:
PJ Trout for the applicant
The respondent appeared self represented
SOLICITORS:
Burns Law for the applicant
The respondent appeared self represented
Introduction
The respondent, Jeffery Tooley, pleaded guilty in the Beenleigh District Court on 13 May 2008 to one count of assault occasioning bodily harm, while armed, in respect of the applicant, Allan James Eyears. The respondent was sentenced by me to 18 months imprisonment, wholly suspended, with an operational period of three years.
Facts
The respondent, whose father had been assaulted by the applicant on an earlier occasion, attended at the applicant’s workplace at Brown’s Plains on 22 February 2007 and threw a rock at the applicant which hit him in the head. The rock caused a depressed fracture at the front of the applicant’s skull which required the insertion of a plate.[1]
[1]Exhibit B, affidavit of Allan James Eyears sworn 25 January 2010.
Injuries
The applicant was initially admitted to the Logan Hospital, on 22 February 2007 and then transferred to the Princess Alexandra Hospital. On examination at the Princess Alexandra Hospital, “he was noted to have a full thickness laceration on his forehead (bone exposed) and a depressed skull facture involving his frontal sinus. [The applicant] underwent a computerised tomography scan of his face and skull which revealed a depression of the outer table of the frontal sinus. The injury was compound which meant that the fracture had communication with the outside environment.”[2]
[2]Exhibit A, affidavit of Eileen Tan sworn 8 June 2011.
“[The applicant] underwent a surgical procedure on 23/2/2007 to repair the frontal bone fracture which involved the placement of titanium plates and screws. [The applicant] was not noted to suffer from any ongoing neurological disturbance, and had no nausea or disorientation, which would be signs of a neurological disturbance. [The applicant] was discharged on 23/2/2007 after a period of observation.”[3]
[3]Exhibit A, affidavit of Eileen Tan sworn 8 June 2011.
Dr Tan notes that the applicant was reviewed in outpatients on 28 February 2007 and was well, but failed to turn up for the…
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- Eyears v Tooley [2012] QDC 101
- Case
- [2012] QDC 101
- Decision Date
CaseChat Overview and Summary
The court examined the injuries Eyears claimed to have sustained. Initially, Eyears referenced a small cut and scratch, as well as a bruise on his left arm, in his police statement. However, the police statement itself was not exhibited to an affidavit or tendered in these proceedings, making it difficult to ascertain the nature and relevance of these injuries. Furthermore, the absence of Exhibits 1-5, which presumably contained facts and medical information, complicated the assessment of these injuries. The court highlighted the need to rely on the factual basis upon which the respondent was sentenced, as underscored in Riddle v Coffey. Consequently, the court did not make an award for these minor injuries.
Regarding the more severe injuries, Eyears claimed significant bruising around his face, which allegedly impaired his vision for a week. The court found that this aspect of the bruising was already covered under the assessment for the fractured skull, which required surgical repair. The court concluded that the 5% award sought for the bruising was, in fact, part of the assessment for the fractured skull, leading to no additional award under this item. The court also assessed the severity of the fractured skull, noting the full-thickness laceration and the need for titanium plates and screws to repair the injury. Given the nature of the injury and its ongoing impact, the court determined that the maximum award of 15% of the scheme was appropriate for this aspect of Eyears' injuries.
The court ordered Jeffery Tooley to pay Allan James Eyears the sum of $31,500 in compensation for the injuries sustained during the assault.
Orders
Orders of the court
The respondent, Jeffery Tooley, pay the applicant, Allan James Eyears, the sum of $31, 500.
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
Item 2 – Bruising/laceration etc (severe) – 3%-5% Mr Trout relies on paragraph 42 of the applicant’s police statement in which he refers to “one small cut and a scratch” on his left forearm and “a bruise under my left upper arm”. Unfortunately, the applicant’s police statement has not been exhibited to an affidavit, nor tendered in these proceedings, so apart from the reference to these injuries at paragraph 14 of the applicant’s outline of submissions[5], there is nothing on the material before me in these criminal compensation proceedings to identify the nature of any such injuries, and whether they were part of the material placed before me as sentencing judge. [5]Exhibit 1. The difficulty that arises in respect of those injuries is further compounded by the absence on the sentencing file of Exhibits 1-5. Exhibit 2 is noted in the file exhibit list as “Facts and Medical Info”. Presumably copies of such documents could have been obtained from the Director of Public Prosecution, but the applicant does not appear to have done so. As the Court of Appeal indicated very clearly in Riddle v Coffey [2002] QCA 337, in assessing criminal compensation, the primary judge is required to have regard to the factual basis upon which the respondent was sentenced.[6] In the circumstances, I am not in a position to make any award pursuant to Item 1 for the small cut, scratch and bruise on the applicant’s left arm.[6]Riddle v Coffey [2002] QCA 337 per McMurdo P, paragraph 3. The applicant also seeks an order for the bruising referred to in paragraph 11 of his affidavit, in these terms: “Because of the bruising around my face I could not see for a week”.[7] With respect, I consider that the 5% which the applicant seeks under Item 2 for this particular aspect of his injuries is, in fact, an aspect of the relevant assessment applicable for the fractured skull suffered by the applicant (Item 9). Accordingly I make no award pursuant to Item 2.[7]Paragraph 11, affidavit of Allan James Eyears sworn 25 January 2010. Item 9 – Fractured skull/head injury (no brain damage) – 5%-15% The applicant suffered a full thickness laceration to the bone on his forehead and a depressed skull fracture, which required a surgical procedure to repair the frontal bone fracture by the placement of titanium plates and screws. [8][8]Exhibit A, p. 1, affidavit of Eileen Tan sworn 8 June 2011. The applicant attests to being able to feel the plate in his forehead with his fingers, and states that he has been advised that the plate could move and may require further operations.[9] The applicant further attests that a bump on his forehead can cause pain.[10][9]Affidavit of Allan James Eyears sworn 25 January 2010, paragraph 12.[10]Affidavit of Allan James Eyears sworn 25 January 2010, paragraph 14. The submission on behalf of the applicant is that this is “an extremely serious injury” and that the maximum award should be made pursuant to Item 9 i.e. 15% of the scheme.