Smallwood v Weimer

[2010] QDC 213

DISTRICT COURT OF QUEENSLAND

CITATION:

Smallwood v Weimer [2010] QDC 213

PARTIES:

Jonathan Smallwood
(Applicant)

V

George Raymon Weimer
(Respondent)

FILE NO/S:

246/2010

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

14 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

6 April 2010

JUDGE:

Judge Jones DCJ

ORDER:

The respondent, George Raymond Weimer, pay the applicant, John Smallwood, the sum of $19,375 compensation pursuant to the Criminal Offences Victims Act 1995

CATCHWORDS:

Application – criminal compensation – assault occasioning bodily harm – where there was some uncertainty about cause of rib injury- previous order for compensation under Penalties and Sentencing Act 1992- mental or nervous shock

Criminal Offences Victims Act 1995, s 22(4), s 25(7),
Penalties and Sentences Act 1992, s 35

Cases cited:

Barnier v Campbell [2000] QDC 273 considered
JI v AV[2001] QCA 510 at 59 considered
Perpria v Peterson [2005] QDC 30 considered
RMC v NAC (2009) QSC 149 at 25-28 considered
Wiemers v Lynch [2009] QDC 51 considered
Wilson v Kairouz [2005] QDC 401considered

COUNSEL:

Mr J Byrnes for the applicant
No appearance for the respondent

SOLICITORS:

Shine Lawyers for the applicant

Introduction

[1]      The applicant seeks compensation for injuries he sustained as a result of an assault by the respondent on 26 November 2008.  The respondent pleaded guilty to one count of assault occasioning bodily harm and was sentenced on 14 October 2009 by Judge Dearden to 120 hours of unpaid community service. The respondent was also ordered to pay compensation to the applicant in the sum of $500. At the time of the assault the applicant was about 48 ½ years of age.

[2]      On 26 November 2008, the applicant and the respondent, in the company of two other adults, were drinking alcohol at the applicant’s house.  After about one and a half cartons of heavy beer had been consumed, the respondent increased the volume of music being played.  The applicant asked the respondent to turn the music back down.  The respondent reacted to this request by abusing, then assaulting, the applicant.  The particulars of the assault were described in the agreed Schedule of Facts in these terms:

“(The respondent) jumped up and punched the left side of the complainant’s jaw with one closed fist and his right eye with the other closed fist.  The accused punched the complainant’s left eye.  The complainant fell backwards to the floor and yelled at the accused to stop.  The accused kept punching the complainant while he was on the ground …”

[3]      The next day, 27 November 2008, the applicant attended Dr F Morgan who reported:

“On examination he had an abrasion of the mucosal surface on the left side of the upper lip that runs vertically for 1 cm to the lip margin.  He has swelling and pain over both eyebrows.  He has marked pain of the left posterior lower chest wall.  Pain on movement and inspiration.  Pain to palpitation and AP and lateral compression over the posterior…