Penny v Scott - [2006] QDC 24

[2006] QDC 024

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3919 of 2005

LEVI CARL PENNY	Applicant
and
RUSSELL FRANCIS SCOTT	Respondent

BRISBANE

..DATE 30/01/2006

ORDER

CATCHWORDS: Criminal Offence Victims Act - applicant awarded compensation for physical and psychological injuries from respondent's offence of grievous bodily harm, by "glassing" - after the glassing the applicant assaulted the offender, and broke his own wrist and suffered other injury, for which compensation was refused.

HIS HONOUR: This situation is another illustration of the unhappiness to individuals and the cost to society which inappropriate use of alcohol leads to.

The applicant is a young man in his early 20s who was "glassed" in a public bar by the respondent, a man about twice his age, of blameless character, it appears, but an alcoholic. His life has been blighted and perhaps even destroyed by his incarceration for nine months of a three year sentence for grievous bodily harm which was imposed by Judge Boyce on the 7th April 2003 in Bundaberg.

The offence occurred about 2 o'clock in the afternoon on the 28th November 2001. The State has had to bear the cost of getting Mr Penny's injuries repaired, which required his evacuation from Bundaberg to Royal Brisbane Hospital and will no doubt have to bear the cost of the compensation under the Criminal Offence Victims Act which the Court awards on this application.

The State has had to support the respondent in prison and it may well be that the events have brought an end to his previously useful working life. It will have had to fund the cost of any medical treatment he may have needed in consequence of injuries the applicant may have succeeded in inflicting on him after the glassing, as also the not inconsiderable cost of the police investigation and the prosecution.

I suppose the bright side of the story is that there was money in it for those plying the protagonists with alcohol.

Mr Penny had been drinking for some hours but contends that although unfit to drive, he had his wits about him. The respondent, who is not here today and doubtless in total ignorance of the application, although Mr Penny and his legal advisers have complied with the requirements of an order for substituted service of notice of today's hearing, was observed to be harassing a lady in the public bar. Mr Penny did not intervene in that situation. Not long afterwards he became the victim of unwanted attention from Mr Scott in the form of comments about a "Labrette" piercing of his bottom lip.

The protagonists' pursuit of that subject led to Mr Penny's telling the respondent to "fuck off" and to interrogation as to what was Mr Scott's "fucking problem." The incident appeared to have come to an end when, unexpectedly, Scott plunged a beer glass into the left side of Mr Penny's face. I would not regard the coarse language of Mr Penny, in the context and circumstances, as contributing to 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.

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Details

Case: [2006] QDC 24
Decision Date: 30/01/2006

CaseChat Overview and Summary

In this matter, Levi Carl Penny, the applicant, sought compensation from Russell Francis Scott, the respondent, for physical and psychological injuries stemming from an incident in which Scott assaulted Penny by striking him with a glass, an act commonly referred to as "glassing." The case was heard in the Queensland District Court, Civil Jurisdiction, by Judge Robin QC. Penny claimed compensation under the Criminal Offence Victims Act for injuries that occurred during and after the assault.

The primary legal issue before the court was whether Scott should be held liable for the full extent of Penny's injuries, including those Penny inflicted upon himself during the altercation. The court had to determine if Scott's liability should be limited or discounted based on Penny's actions and pre-existing conditions. Specifically, the court examined whether injuries Penny sustained from his own actions against Scott, such as a broken wrist, should be included in the compensation award. Additionally, the court had to assess the extent to which Penny's pre-existing psychological conditions and substance abuse contributed to his injuries and should be considered in the award.

The court found that while Scott was responsible for the initial assault that caused Penny's facial injuries, Penny's subsequent self-inflicted injuries, such as the broken wrist, were not attributable to Scott. The court ruled that Scott's liability for compensation was limited to the injuries directly caused by his actions. Furthermore, the court considered Penny's pre-existing psychological conditions and substance abuse, but determined that these factors did not absolve Scott of his responsibility for the initial assault. As a result, the court awarded Penny $25,000 in compensation, two-thirds for physical injuries and one-third for psychological impacts, taking into account Penny's underlying conditions.

The final orders of the court required Scott to pay $25,000 to Penny as compensation for the injuries caused by the assault.

Orders