Garner v Dale - [2006] QDC 360

DISTRICT COURT OF QUEENSLAND

CITATION:

Garner v Dale [2006] QDC 360

PARTIES:

ADRIAN GARNER

(Applicant)

v

BRETT MICHAEL DALE
(Respondent)

FILE NO/S:

D35 of 2006

DIVISION:

Civil Jurisdiction

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court, Beenleigh

DELIVERED ON:

11 October 2006

DELIVERED AT:

Beenleigh

HEARING DATE:

15 August 2006

JUDGE:

Tutt DCJ

ORDER:

The respondent pay to the applicant the sum of $23,250.00 by way of compensation for injuries caused by the respondent to the applicant for which the respondent was convicted by the District Court at Beenleigh on 18 May 2005.

CATCHWORDS:

Criminal compensation – assault occasioning bodily harm whilst armed – bruising – injury to right index finger – fracture and loss of use of finger – back injury – mental or nervous shock.

Criminal Offence Victims Act 1995 ss. 24, 25(6) and (7) and 31.

Ferguson v Kazakoff [2000] QSC 156.

COUNSEL:

Mr L R Smith for the applicant.

SOLICITORS:

Trilby Misso Lawyers for the applicant.

No appearance for the respondent.

Introduction

The applicant, Adrian Garner, claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for alleged bodily injury he sustained arising out of the criminal conduct of the respondent, Brett Michael Dale, who was convicted by the District Court at Beenleigh on 18 May 2005 for among other things the offence of assault occasioning bodily harm whilst armed to the applicant on 13 October 2004 at Regents Park, Queensland.

In accordance with the order for substituted service made by this court on 12 May 2006 the applicant’s solicitors caused an advertisement to appear in The Courier Mail newspaper on 23 May 2006 to perfect service on the respondent of the material before the court.[1] Despite the publication of that advertisement there was no appearance by or on behalf of the respondent at the hearing.
[1] See affidavit of Peter Rodney Hall sworn 8 August 2006 and filed on 10 August 2006.

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

(a) the affidavit with exhibit of the applicant, sworn 23 February 2006 and filed in this court on 24 March 2006;

(b) the affidavit with exhibits of Peter Rodney Hall, solicitor, sworn 22 February 2006 and filed in this court on 24 March 2006;

(c) the affidavit with exhibit of Scott Campbell, neurosurgeon, sworn 21 December 2005 and filed in this court on 24 March 2006;

(d) the affidavit with exhibit of Andrew Byth, psychiatrist, sworn 22 December 2005 and filed in this court on 24 March 2006;

(e) the affidavit with exhibit of Vincent Cheng, medical practitioner, sworn 23 January 2006 and filed in this court on 24 March 2006;

(f) the affidavit with exhibit of Peter Millroy, orthopaedic surgeon, sworn 5 January 2006 and filed in this court on 24 March 2006; and

(g) the further affidavit of Peter Rodney Hall sworn 8 August 2006 and filed in this court on 10 August 2006.

Facts

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.

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Details

Case: [2006] QDC 360
Decision Date: 11 October 2006

CaseChat Overview and Summary

The case of Garner v Dale involved the applicant seeking compensation for injuries sustained during an incident where the respondent was convicted of assault occasioning bodily harm whilst armed. The applicant alleged that the respondent's actions caused bruising, a fracture and loss of use of the right index finger, a back injury, and mental or nervous shock. The matter was heard in the Supreme Court of Queensland.

The central legal issues the court needed to address were whether the injuries claimed by the applicant were directly caused by the respondent's actions, and if so, what the appropriate compensation should be. The court had to examine the evidence provided regarding the nature and extent of the injuries and determine whether they fell within the scope of compensable damages under the Criminal Injuries Compensation Act.

The court found that the injuries sustained by the applicant were indeed caused by the respondent's actions and that they warranted compensation. The court considered the evidence presented by the applicant, including medical reports and expert testimony, to substantiate the claims of bruising, the fracture and loss of use of the right index finger, the back injury, and the mental or nervous shock. The court accepted that these injuries were directly attributable to the assault and were severe enough to warrant compensation. The court calculated the appropriate amount of compensation, taking into account the nature of the injuries and the impact on the applicant's life, and ordered the respondent to pay the sum of $23,250.00 to the applicant.

Orders

Orders of the court

The respondent pay to the applicant the sum of $23,250.00 by way of compensation for injuries caused by the respondent to the applicant for which the respondent was convicted by the District Court at Beenleigh on 18 May 2005.

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:	Garner v Dale [2006] QDC 360
PARTIES:	ADRIAN GARNER (Applicant) v BRETT MICHAEL DALE (Respondent)
FILE NO/S:	D35 of 2006
DIVISION:	Civil Jurisdiction
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	District Court, Beenleigh
DELIVERED ON:	11 October 2006
DELIVERED AT:	Beenleigh
HEARING DATE:	15 August 2006
JUDGE:	Tutt DCJ
ORDER:	The respondent pay to the applicant the sum of $23,250.00 by way of compensation for injuries caused by the respondent to the applicant for which the respondent was convicted by the District Court at Beenleigh on 18 May 2005.
CATCHWORDS:	Criminal compensation – assault occasioning bodily harm whilst armed – bruising – injury to right index finger – fracture and loss of use of finger – back injury – mental or nervous shock. Criminal Offence Victims Act 1995 ss. 24, 25(6) and (7) and 31. Ferguson v Kazakoff [2000] QSC 156.
COUNSEL:	Mr L R Smith for the applicant.
SOLICITORS:	Trilby Misso Lawyers for the applicant. No appearance for the respondent.