Kerry v. Minter - [2008] QDC 3

[2008] QDC 003

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBERTSON

No D214 of 2007

DAVID MARK KERRY	Applicant
and
ALLAN HENRY MINTER	Respondent

MAROOCHYDORE

..DATE 24/01/2008

JUDGMENT

CATCHWORDS: Criminal Compensation s.24 of Criminal Offence Victims Act, application of SAY v AZ ex parte A/G (Qld) to case in which contributing causes to injury independent of the respondents' where "broad brush" approach taken, consideration of psychological opinion evidence

HIS HONOUR: This is an application for compensation pursuant to section 24 of the Criminal Offence Victims Act 1995. On the 21st of October 2003, the respondents entered a house of Mr Kerry and assaulted him. The assaults were said to be related to an outstanding debt.

Mr Allan Minter, who is the father of the first respondent, Allan Henry Minter, at some point assaulted Mr Kerry with a baseball bat and he was kicked in the ribs, and punched repeatedly. There is now some dispute as to what injuries were caused during the period of the assault.

There is no doubt that, subsequently, the respondents were convicted either by a jury or on their own plea of various offences which her Honour Judge Dick described, in her sentencing remarks on the 31st of August 2006, as being generally described as home invasions.

As I understand it, the third respondent, Dan Francis, who has not appeared today, pleaded guilty and the Minters went to trial and were convicted by a jury of some of the offences, and acquitted, at least on one other of an offence of robbery. They were sentenced to terms of imprisonment by her Honour.

Unfortunately, I cannot resolve any dispute over what injuries were said to have been caused in the assault at the time of proceedings before her Honour, because the transcript of the sentencing proceedings is not before me, and her Honour makes no reference to the actual injuries.

I can be comfortably satisfied that he suffered injuries which are set out in a report of Dr John Richards, dated the 15th of April 2004. This report is annexed to an affidavit of the applicant, and marked DK4. Dr Richards was the actual treating doctor. He saw Mr Kerry at the Nambour General Hospital Emergency Department at 20 minutes past midnight on the 22nd of October 2003.

He noted the following injuries:

"1. Minor periorbital swelling of the eye, no change to vision/eye movements. Eye movements normal. Minor nose bleed nil zygoma tenderness.
2. Minor haematoma left mastoid. No orthorea, no ataxia or change in gait. No A/LOC, no vomiting and no local neurology.
3. Bruising/grazing to left lateral posterior ribs above level of the spleen. Nil abdomen pain, abdomen soft and tender. Unable to cough due to pleural chest pain, but RR18, O², sats, 100% RA, no collapsed lung or chest X-ray, clinically may have one to two fractured ribs.
4. Pain to back/side of neck. No obvious swelling/bruising, no stridor, no drooling swallowing saliva."

Dr Richards notes his impression as being "Fractured one…

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 Kerry v. Minter

Details

AGLC: Kerry v Minter [2008] QDC 3
Case: [2008] QDC 3
Decision Date: 24 January 2008

CaseChat Overview and Summary

The case of Kerry v Minter involves an application for compensation under section 24 of the Criminal Offence Victims Act 1995. The applicant, David Mark Kerry, was assaulted by the respondents, Allan Henry Minter and another individual, in October 2003. The assault occurred at Mr Kerry's residence and was related to an outstanding debt. The respondents were convicted of various offences related to the home invasion and assault. Mr Kerry sought compensation for physical injuries sustained during the assault, as well as a claim for loss of two teeth and psychological injury.

The court was required to determine the extent of Mr Kerry's injuries and whether they were directly caused by the respondents' actions. Additionally, the court had to consider the psychological impact of the assault on Mr Kerry and assess the appropriate level of compensation under the Criminal Offence Victims Act 1995. The court also needed to evaluate the credibility of the expert evidence provided by the parties and decide whether the assault had materially contributed to Mr Kerry's injuries.

The court found that Mr Kerry had suffered physical injuries during the assault, but the extent of these injuries was not clearly documented in the medical records. The court accepted the evidence of Dr John Richards, who treated Mr Kerry at the hospital, and noted injuries such as periorbital swelling, bruising to the left mastoid, and bruising/grazing to the left lateral posterior ribs. However, the court was not satisfied that Mr Kerry had suffered a loss of teeth during the assault, despite the conflicting evidence from Dr Hanelt and Mr Kerr.

Regarding the psychological injury claim, the court considered the evidence of Mr Barry Kerr, a clinical psychologist. The court found that Mr Kerr's opinion on the causal link between the assault and Mr Kerry's psychological conditions was not convincing, given the lack of antecedent information and the extensive number of pre-existing and post-assault stressors. The court adopted a broad brush approach to causation, as mandated by section 26 of the Act, and significantly discounted the psychological injury claim. The court allowed five per cent of the scheme maximum for the physical injuries and five per cent for the psychological injury, resulting in a total compensation of $7500 to be paid by the respondents to Mr Kerry.

Orders