Jurgensen v McDonnell - [2011] QDC 286

DISTRICT COURT OF QUEENSLAND

CITATION:

Jurgensen v McDonnell [2011] QDC 286

PARTIES:

JAMES ARTHUR JURGENSEN

(Applicant)

V

DANIEL WILLIAM MCDONNELL

(Respondent)

FILE NO/S:

D14/2009

DIVISION:

Civil

PROCEEDING:

Criminal Compensation Application

ORIGINATING COURT:

District Court, Kingaroy.

DELIVERED ON:

18 November 2011

DELIVERED AT:

Brisbane

HEARING DATE:

18 August 2011 and Supplementary Written Submissions.

JUDGE:

Tutt DCJ

ORDER:

The applicant’s total compensation for the injuries he sustained on the 22 February 2007 caused by the respondent be assessed in the sum of $57,750.00;

The applicant’s contribution to his injuries by his behaviour be assessed at a percentage of 40%;

The respondent pay to the applicant the sum of $34,650.00 by way of compensation for the injuries sustained by the applicant caused by the respondent on the 22 February 2007 at Blackbutt, Queensland.

CATCHWORDS:

CRIMINAL COMPENSATION – grievous bodily harm – where applicant was struck on the back of the head by respondent with a shovel causing him to fall down – where applicant was struck again whilst lying on the ground – where applicant sustained “right-sided mastoid fracture with cerebrospinal fluid leak; conductive hearing loss on the right side; multiple abrasions” – whether applicant suffered “mental or nervous shock” – whether applicant’s behaviour contributed to the index-assault.

Criminal Offence Victims Act 1995 ss 24, 25, 26, 31

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

LMW v Nicholls (2004) QDC 118

MR v Webb [2001] QCA 113

RMC v NAC [2009] QSC 149

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

COUNSEL:

Mr S Lynch of Counsel for the applicant.

No appearance by or on behalf of the respondent.

SOLICITORS:

Kelly and Frecklington Solicitors for the applicant.

Introduction:

James Arthur Jurgensen (“the applicant”) claims compensation under Part 3 of the Criminal Offence Victims Act 1995 for bodily injury he sustained on the 22 February 2007 at Blackbutt in the State of Queensland arising out of the criminal conduct of Daniel William McDonnell (“the respondent”) who was convicted by the District Court at Kingaroy on 6 February 2008 for causing grievous bodily harm to the applicant on the said 22 February 2007.

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

(a) The affidavit of the applicant, sworn 23 November 2009;

(b) The affidavit of Deborah Frecklington, Legal Practice Director, sworn 23 November 2009;

(c) The affidavit of Steve Morgan, Forensic Psychologist, sworn 11 September 2009;

All filed in the Kingaroy District Court on 23 November 2009; and

(d) The affidavit of Service of Elizabeth Daniels, Law Clerk, sworn 22 January 2010 and filed 22 January 2010.

The respondent was served personally with the application and supporting documents on 18 January 2009. By order of his Honour Judge Koppenol on 31 January 2011 the matter was transferred to Brisbane for hearing. The respondent did not appear at the hearing which proceeded in his absence on 18 August 2011.

Background Facts:

The respondent was the boyfriend of the…

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 Jurgensen v McDonnell

Details

AGLC: Jurgensen v McDonnell [2011] QDC 286
Case: [2011] QDC 286
Decision Date: 18 November 2011

CaseChat Overview and Summary

In the case of Jurgensen v McDonnell, the applicant sought compensation for grievous bodily harm inflicted by the respondent. The incident occurred when the respondent struck the applicant on the back of the head with a shovel, causing him to fall to the ground. The respondent then proceeded to strike the applicant again while he was lying down, resulting in significant injuries to the applicant. These injuries included a right-sided mastoid fracture with a cerebrospinal fluid leak, conductive hearing loss on the right side, and multiple abrasions. The primary dispute centred on whether the applicant had suffered "mental or nervous shock" and whether his own behaviour contributed to the assault.

The court had to determine two main issues. Firstly, whether the applicant suffered "mental or nervous shock" as a result of the assault, which would entitle him to additional compensation. Secondly, the court had to assess the extent to which the applicant's own behaviour contributed to the incident, which could potentially reduce the amount of compensation awarded. The court considered evidence regarding the nature of the injuries, the circumstances of the assault, and the applicant's conduct leading up to the incident.

The court found that the applicant did not suffer "mental or nervous shock" as a result of the assault. However, it did determine that the applicant's behaviour contributed to the incident, albeit not to the extent claimed by the respondent. The court assessed the applicant's contribution to the assault at 40%, which resulted in a corresponding reduction in the total compensation awarded. Ultimately, the court ordered that the respondent pay the applicant $34,650.00 by way of compensation for the injuries sustained, reflecting the 40% reduction in liability.

Orders

Orders of the court

1. The applicant’s total compensation for the injuries he sustained on the 22 February 2007 caused by the respondent be assessed in the sum of $57,750.00;

1. The applicant’s contribution to his injuries by his behaviour be assessed at a percentage of 40%;

1. The respondent pay to the applicant the sum of $34,650.00 by way of compensation for the injuries sustained by the applicant caused by the respondent on the 22 February 2007 at Blackbutt, Queensland.

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:	Jurgensen v McDonnell [2011] QDC 286
PARTIES:	JAMES ARTHUR JURGENSEN (Applicant) V DANIEL WILLIAM MCDONNELL (Respondent)
FILE NO/S:	D14/2009
DIVISION:	Civil
PROCEEDING:	Criminal Compensation Application
ORIGINATING COURT:	District Court, Kingaroy.
DELIVERED ON:	18 November 2011
DELIVERED AT:	Brisbane
HEARING DATE:	18 August 2011 and Supplementary Written Submissions.
JUDGE:	Tutt DCJ
ORDER:	The applicant’s total compensation for the injuries he sustained on the 22 February 2007 caused by the respondent be assessed in the sum of $57,750.00; The applicant’s contribution to his injuries by his behaviour be assessed at a percentage of 40%; The respondent pay to the applicant the sum of $34,650.00 by way of compensation for the injuries sustained by the applicant caused by the respondent on the 22 February 2007 at Blackbutt, Queensland.
CATCHWORDS:	CRIMINAL COMPENSATION – grievous bodily harm – where applicant was struck on the back of the head by respondent with a shovel causing him to fall down – where applicant was struck again whilst lying on the ground – where applicant sustained “right-sided mastoid fracture with cerebrospinal fluid leak; conductive hearing loss on the right side; multiple abrasions” – whether applicant suffered “mental or nervous shock” – whether applicant’s behaviour contributed to the index-assault. Criminal Offence Victims Act 1995 ss 24, 25, 26, 31 Ferguson v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320 LMW v Nicholls (2004) QDC 118 MR v Webb [2001] QCA 113 RMC v NAC [2009] QSC 149 SAY v AZ: ex parte AG (Qld) [2006] QCA 462
COUNSEL:	Mr S Lynch of Counsel for the applicant. No appearance by or on behalf of the respondent.
SOLICITORS:	Kelly and Frecklington Solicitors for the applicant.