Rush v. Swan & Ors - [2009] QDC 8

DISTRICT COURT OF QUEENSLAND

CITATION:

Rush v Swan & Ors [2009] QDC 8

PARTIES:

KIRSTY ANN RUSH

Applicant

AND

CHRISTOPHER SWAN

First Respondent

AND

DANIELLE POSTLETHWAITE

Second Respondent

KIRSTY ANN RUSH

Applicant

AND

ANTHONY McGLEDE

Respondent

FILE NO/S:

OA3581/08, 3582/08

DIVISION:

PROCEEDING:

Originating applications

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

30 January 2009

DELIVERED AT:

Brisbane

HEARING DATE:

19, 22 January 2009

JUDGE:

McGill DCJ

ORDER:

In OA3581/08, order that the first respondent pay to the applicant the sum of $13,500 compensation in respect of the injuries suffered by her as a result of the offence for which the first respondent was before this court on 25 January 2006, and order that the second respondent pay to the applicant the sum of $4,500 compensation in respect of the injuries suffered by her as a result of the offence for which the second respondent was before this court on 25 January 2006.

In OA3582/08, order that the respondent pay to the applicant the sum of $9,750 compensation in respect of the injuries suffered by her as a result of the offence for which the respondent was before this court on 3 November 2006.

CATCHWORDS:

CRIMINAL LAW – Compensation – psychiatric injury caused by two separate offences by different offenders – causation – assessment.

Criminal Offence Victims Act 1995 s 25(7).

SAY v AZ [2007] 2 Qd R 363 – applied.
Wren v Gaulai [2008] QCA 148 – applied.
Zaicov v Jones [2002] 2 Qd R 303 – applied.

COUNSEL:

AJ Taylor for the applicant

The respondents did not appear

SOLICITORS:

Walsh Halligan Douglas Lawyers for the applicant

The respondents were not represented

The applicant was the victim of two separate assaults, one in October 2004 and one in January 2005, by different people. As a result of each of these she suffered injuries, including psychiatric injury, and because it is necessity to assess compensation for that injury where there were two separate assaults which contributed to the psychiatric injury, the applications were appropriately brought on together. On the initial return date there had been short service of one of the respondents, so the applications were adjourned for a few days to overcome that difficulty. None of the respondents appeared on the hearing of the applications.

First incident

On 25 January 2006 the respondents in the first application each pleaded guilty to one count of unlawful wounding committed on the applicant on 21 October 2004. The circumstances of the offending are set out in the sentencing remarks of the sentencing judge; there had been a dispute between the applicant and the respondent Swan over ownership of an item of property. He went to the applicant’s premises on 20 October 2004 to carry this dispute further, and made threats to petrol bomb her residence. The following day he came back with the other respondent, and they went into the residence while he was armed with a firearm. He threatened the applicant with this, and when he realised he did not have 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 Rush v. Swan & Ors

Details

AGLC: Rush v Swan [2009] QDC 8
Case: [2009] QDC 8
Decision Date: 30 January 2009

CaseChat Overview and Summary

The matter of Rush v. Swan & Ors involved an application for compensation for psychiatric injury caused by two separate criminal offences by different offenders. The case was heard in the Supreme Court of Queensland. The applicant sought compensation for the psychiatric injuries resulting from the offences committed by the first and second respondents, as well as an additional offence by the third respondent.

The primary legal issue before the court was the determination of causation and the assessment of compensation for the psychiatric injuries. The court had to determine whether the psychiatric injuries were a direct result of the criminal offences and whether it was appropriate to apportion compensation to the respective offenders based on their individual contributions to the harm suffered.

The court found that the applicant's psychiatric injuries were indeed caused by the offences and that the compensation should be apportioned accordingly. The court noted the different levels of involvement of the respondents in causing the injuries and applied the relevant legal principles to arrive at the appropriate compensation amounts. The court awarded the first respondent $13,500, the second respondent $4,500, and the third respondent $9,750 for the psychiatric injuries sustained by the applicant.

The court ordered that the first respondent pay $13,500, the second respondent pay $4,500, and the third respondent pay $9,750 to the applicant as compensation for the psychiatric injuries suffered as a result of the respective offences.

Orders

Orders of the court

In OA3581/08, order that the first respondent pay to the applicant the sum of $13,500 compensation in respect of the injuries suffered by her as a result of the offence for which the first respondent was before this court on 25 January 2006, and order that the second respondent pay to the applicant the sum of $4,500 compensation in respect of the injuries suffered by her as a result of the offence for which the second respondent was before this court on 25 January 2006.

In OA3582/08, order that the respondent pay to the applicant the sum of $9,750 compensation in respect of the injuries suffered by her as a result of the offence for which the respondent was before this court on 3 November 2006.

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:	Rush v Swan & Ors [2009] QDC 8
PARTIES:	KIRSTY ANN RUSH Applicant AND CHRISTOPHER SWAN First Respondent AND DANIELLE POSTLETHWAITE Second Respondent KIRSTY ANN RUSH Applicant AND ANTHONY McGLEDE Respondent
FILE NO/S:	OA3581/08, 3582/08
DIVISION:
PROCEEDING:	Originating applications
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	30 January 2009
DELIVERED AT:	Brisbane
HEARING DATE:	19, 22 January 2009
JUDGE:	McGill DCJ
ORDER:	In OA3581/08, order that the first respondent pay to the applicant the sum of $13,500 compensation in respect of the injuries suffered by her as a result of the offence for which the first respondent was before this court on 25 January 2006, and order that the second respondent pay to the applicant the sum of $4,500 compensation in respect of the injuries suffered by her as a result of the offence for which the second respondent was before this court on 25 January 2006. In OA3582/08, order that the respondent pay to the applicant the sum of $9,750 compensation in respect of the injuries suffered by her as a result of the offence for which the respondent was before this court on 3 November 2006.
CATCHWORDS:	CRIMINAL LAW – Compensation – psychiatric injury caused by two separate offences by different offenders – causation – assessment. Criminal Offence Victims Act 1995 s 25(7). SAY v AZ [2007] 2 Qd R 363 – applied. Wren v Gaulai [2008] QCA 148 – applied. Zaicov v Jones [2002] 2 Qd R 303 – applied.
COUNSEL:	AJ Taylor for the applicant The respondents did not appear
SOLICITORS:	Walsh Halligan Douglas Lawyers for the applicant The respondents were not represented