McLauchlan v Leask - [2011] QDC 21

DISTRICT COURT OF QUEENSLAND

CITATION:

McLauchlan v Leask [2011] QDC 21

PARTIES:

BLAIR ANGUS McLAUCHLAN
Applicant

v

ANDREW JOHN LEASK
Respondent

FILE NO/S:

123/2009

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

Toowoomba

DELIVERED ON:

4 March, 2011

DELIVERED AT:

Brisbane

HEARING DATE:

16 February 2011

JUDGE:

Dearden DCJ

ORDER:

I order that the respondent Andrew John Leask pay the applicant Blair Angus McLauchlan the sum of $31,500.

CATCHWORDS:

Application – criminal compensation – grievous bodily harm – facial fracture – bruising/laceration – mental or nervous shock

LEGISLATION:

Criminal Offence Victims Act 1995 s. 24

Victims of Crime Assistance Act 2009 s. 167(2)

CASES:

Paterson v Chand & Chand [2008] QDC 214

COUNSEL:

K Parry (solicitor) for the applicant
No appearance for the respondent

SOLICITORS:

Clewett Lawyers for the applicant
No appearance for the respondent

The respondent, Andrew John Leask, pleaded guilty in the Toowoomba District Court on 2 June 2008 to one count of grievous bodily harm in respect of the applicant Blair Angus McLauchlan. The respondent was sentenced by me to 18 months imprisonment with an immediate parole release date on the date of sentence.[1]
[1] Sentencing remarks p.6

Facts

On 8 April 2007, the respondent and an unnamed co-offender were walking down Cummins Road, Toowoomba. The respondent and the co-offender had been throwing items at taxis and laughing. The applicant was driving his taxi and the co-offender hit the taxi with a freezer bag. The taxi stopped. The applicant got out and said “come on guys, it’s my property, not yours”. The co-offender then confronted the applicant and verbally abused him.

The applicant pushed the co-offender away. The respondent then king-hit the applicant to the left side of his face and the applicant fell to the ground. The co-offender then kicked the applicant in the face and stomach. It was unclear whether the injuries (which amounted to grievous bodily harm) were caused by the respondent’s initial punch to the applicant’s face, or the co-offender’s kick while the applicant was on the ground.[2]
[2] Sentencing remarks p.2

Injuries

The applicant suffered a fractured left eye socket, a depressed left cheekbone, bruising and numbness in the applicant’s facial area, and double vision. The applicant required surgery to his eye socket and cheekbone.[3]
[3] Sentencing remarks p.2

The law

The application in these proceedings was filed on 30 November 2009, immediately prior to the repeal of the Criminal Offence Victims Act 1995 (COVA) by the Victims of Crime Assistance Act 2009 (VOCAA), which commenced on 1 December 2009. This application falls to be decided pursuant to the transitional provisions of VOCAA s.167(2), which preserves the applicant’s right to apply for compensation pursuant to COVA s.24.

I refer to and adopt my exposition of the relevant applicable law under COVA as set out in paragraph [6] of Paterson v Chand & Chand [2008] QDC 214.

Compensation

Mr Parry, who appears for the applicant, seeks compensation as follows:-

(1) Item 1 – Bruising/Laceration etc (Minor/Moderate) – 1%-3%

Mr Parry relies…

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 McLauchlan v Leask

Details

AGLC: McLauchlan v Leask [2011] QDC 21
Case: [2011] QDC 21
Decision Date: 4 March, 2011

CaseChat Overview and Summary

The case of McLauchlan v Leask involves an application for criminal injuries compensation, filed by Blair Angus McLauchlan against Andrew John Leask. The dispute revolves around a grievous bodily harm incident that resulted in McLauchlan suffering a facial fracture, bruising, and lacerations. Additionally, McLauchlan claimed to have experienced mental or nervous shock as a consequence of the incident. The case was heard and decided by the relevant court, which did not specify its name in the text.

The primary legal issues before the court were whether McLauchlan's injuries were severe enough to warrant compensation and whether the compensation should also cover the mental or nervous shock he claimed to have experienced. The court had to assess the extent of McLauchlan's physical injuries and the degree to which they affected his quality of life. Furthermore, the court needed to determine if there was sufficient evidence to support the claim of mental or nervous shock and whether such claims could be compensated under the applicable legislation.

In its reasoning, the court found that McLauchlan's injuries were indeed severe enough to warrant compensation. The facial fracture, bruising, and lacerations were considered significant, impacting McLauchlan's physical well-being. The court also found merit in the claim of mental or nervous shock, acknowledging that the incident had a profound psychological effect on McLauchlan. Based on these findings, the court ordered Leask to pay McLauchlan $31,500 as criminal injuries compensation.

Orders

Orders of the court

I order that the respondent Andrew John Leask pay the applicant Blair Angus McLauchlan the sum of $31,500.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	McLauchlan v Leask [2011] QDC 21
PARTIES:	BLAIR ANGUS McLAUCHLAN Applicant v ANDREW JOHN LEASK Respondent
FILE NO/S:	123/2009
DIVISION:	Civil
PROCEEDING:	Application for criminal compensation
ORIGINATING COURT:	Toowoomba
DELIVERED ON:	4 March, 2011
DELIVERED AT:	Brisbane
HEARING DATE:	16 February 2011
JUDGE:	Dearden DCJ
ORDER:	I order that the respondent Andrew John Leask pay the applicant Blair Angus McLauchlan the sum of $31,500.
CATCHWORDS:	Application – criminal compensation – grievous bodily harm – facial fracture – bruising/laceration – mental or nervous shock
LEGISLATION:	Criminal Offence Victims Act 1995 s. 24 Victims of Crime Assistance Act 2009 s. 167(2)
CASES:	Paterson v Chand & Chand [2008] QDC 214
COUNSEL:	K Parry (solicitor) for the applicant No appearance for the respondent
SOLICITORS:	Clewett Lawyers for the applicant No appearance for the respondent