Tooley v Eyears

Case [2010] QDC 20

DISTRICT COURT OF QUEENSLAND

CITATION:  Tooley v Eyears [2010] QDC 20
PARTIES:  Laurence Tooley
(Applicant)
v
Alan James Eyears
(Respondent)
FILE NO/S:  6/2009
DIVISION:  Civil
PROCEEDING:  Application for Criminal Compensation
ORIGINATING 
COURT: 		 District Court Beenleigh
DELIVERED ON:  5 February, 2010
DELIVERED AT:  Beenleigh
HEARING DATE:  8 May 2009
JUDGE:  Dearden DCJ
ORDER:  The Respondent Alan James Eyears pay the Applicant
Laurence Tooley the sum of $36,000.
CATCHWORDS:  Application – Criminal Compensation – Grievous bodily
harm – Bruising and laceration – loss or damage to teeth –
facial fracture – fractured skull – head injury – fractured wrist
– facial disfigurement or bodily scarring – mental or nervous
shock
LEGISLATION:  Criminal Offence Victims Act 1995 (Qld)
CASES:  Paterson v Chand & Chand [2008] QDC 214
Jacobson v Hearn [2009] QDC 184
COUNSEL:  Mr. P. de Plater for the applicant
Mr. P. Trout for the respondent
SOLICITORS:  Turner Freeman Lawyers, solicitors for the applicant
Shaw Lawyers, solicitors for the respondent
Introduction 

  1. The applicant, Laurence Tooley, seeks compensation in respect of injuries suffered by him in an incident which occurred on 18 December 2006 at Beenleigh. The respondent, Alan James Eyears, pleaded guilty to a single count of grievous bodily harm, and was sentenced to 18 months imprisonment with a parole release date fixed at 9 May 2008.

    Facts

  2. The respondent was at the relevant time the father of the applicant’s then separated wife. The confrontation occurred in the context of an ongoing matrimonial dispute between the respondent and his wife which resulted in a confrontation in the early hours of 18 December 2006.[1] There was dispute between the prosecution and defence on the respondent’s sentence as to certain key facts leading to the assault, but by agreement, it was not considered necessary for the sentencing judge to resolve the conflicting versions.[2]

    [1]            Exhibit GSV2 (Sentencing Remarks) p. 2 Affidavit of Gregory Black sworn 10 October 2008.

    [2]            Exhibit GSV2, p. 4 Affidavit of Gregory Black sworn 10 October 2008.

  3. During Sunday 17 December 2006 the respondent’s separated wife, Carolyn Eyears, received a number of abusive and threatening phone calls and text messages from the respondent. Ms Eyears was sitting outside the back of her house talking to her new partner on the phone when the respondent appeared and told her to hang up. Ms Eyears refused, so the respondent took the phone out of the wall and Ms Eyears ran inside and locked the door. Ms Eyears then rang the applicant and asked him to come as she was scared the respondent would return. The applicant then came over with his wife and son. The respondent continued to phone and text Ms Eyears. The respondent sat in his car just down the road from the residence of Ms Eyears, so the applicant decided to spend the night at the house.

  4. At about 1.20 am on 18 December 2006 the respondent returned to the house with another male person and confronted the applicant and Ms Eyears. The respondent started to yell abuse at…

Continue reading Tooley v Eyears

Sign in free to access the full text

Details
AGLC
Tooley v Eyears [2010] QDC 20
Case
[2010] QDC 20
Decision Date

CaseChat Overview and Summary

In the matter of Tooley v Eyears, the applicant, Laurence Tooley, sought compensation for grievous bodily harm sustained during an altercation with the respondent, Alan James Eyears, on 18 December 2006. The incident occurred in the context of an ongoing dispute between the respondent and the applicant's then separated wife, Carolyn Eyears. The respondent had pleaded guilty to grievous bodily harm and was sentenced to 18 months imprisonment. The applicant's injuries included bruising, lacerations, loss or damage to teeth, a facial fracture, a fractured skull, head injury, a fractured wrist, facial disfigurement, and potential mental or nervous injury.

The primary legal issue before the court was to determine whether the applicant was entitled to compensation for the injuries he suffered and to what extent the respondent's actions warranted compensation. The court had to assess the severity of the injuries and whether the applicant's actions contributed to his own injuries, which would potentially reduce his compensation award. The court also had to consider the sustained attack by the respondent and the circumstances leading up to the assault.

The court found that despite any potential contribution by the applicant to the altercation, the respondent's actions constituted a sustained and severe attack, leading to a range of serious injuries. The court concluded that it was not appropriate to reduce the applicant's award for contribution to his own injuries. The court awarded the applicant $36,000 in compensation.

Accordingly, the court ordered that the respondent, Alan James Eyears, pay the applicant, Laurence Tooley, the sum of $36,000.

Orders

Orders of the court

The Respondent Alan James Eyears pay the Applicant

Laurence Tooley the sum of $36,000.

Background

Background to the litigation

The applicant, Laurence Tooley, seeks compensation in respect of injuries suffered by him in an incident which occurred on 18 December 2006 at Beenleigh. The respondent, Alan James Eyears, pleaded guilty to a single count of grievous bodily harm, and was sentenced to 18 months imprisonment with a parole release date fixed at 9 May 2008. Facts The respondent was at the relevant time the father of the applicant’s then separated wife. The confrontation occurred in the context of an ongoing matrimonial dispute between the respondent and his wife which resulted in a confrontation in the early hours of 18 December 2006.[1] There was dispute between the prosecution and defence on the respondent’s sentence as to certain key facts leading to the assault, but by agreement, it was not considered necessary for the sentencing judge to resolve the conflicting versions.[2] [1] Exhibit GSV2 (Sentencing Remarks) p. 2 Affidavit of Gregory Black sworn 10 October 2008. [2] Exhibit GSV2, p. 4 Affidavit of Gregory Black sworn 10 October 2008. During Sunday 17 December 2006 the respondent’s separated wife, Carolyn Eyears, received a number of abusive and threatening phone calls and text messages from the respondent. Ms Eyears was sitting outside the back of her house talking to her new partner on the phone when the respondent appeared and told her to hang up. Ms Eyears refused, so the respondent took the phone out of the wall and Ms Eyears ran inside and locked the door. Ms Eyears then rang the applicant and asked him to come as she was scared the respondent would return. The applicant then came over with his wife and son. The respondent continued to phone and text Ms Eyears. The respondent sat in his car just down the road from the residence of Ms Eyears, so the applicant decided to spend the night at the house. At about 1.20 am on 18 December 2006 the respondent returned to the house with another male person and confronted the applicant and Ms Eyears. The respondent started to yell abuse at Ms Eyears and then said to the applicant, “You wanna blue we’ll go over there.” The applicant required, “Don’t think I am scared of you because I am not.” The respondent then said, “I just want to talk,” and words to the effect, “I am going to take Ryan off you.” (a reference to the son of the respondent and Ms Eyears). The applicant replied, “Well, that is a matter for the courts.”[3] [3] Sentence Exhibit 2 p.1. The sequence of events subsequently was the subject of disputed submissions before me on the sentence. The prosecution asserted that the applicant (then 60) was assaulted by the respondent (then 34). The prosecution asserted that the respondent assaulted the applicant and continued to punch him while he was on the ground and unconscious, and the respondent had to be dragged away before he ceased punching the applicant.[4] [4] Sentencing Submissions p.1-18. The respondent’s version of the events is that there was a heated discussion between the respondent and the applicant. The respondent asserted that the applicant, “got in his face”, and the respondent then pushed the applicant away. The respondent asserts that the applicant then got up, put something on the table, walked around Ms Eyears and started swinging punches at the respondent. The respondent accepts that he then, “returned the punches”, and in record of interview states that, “he thought he hit the applicant, “two or three times”, and that the applicant then, “fell backwards towards the dog bed”, at which stage the respondent punched the applicant, “with his right hand another three or four times”.[5] [5] Sentencing Submissions p. 1-21.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Even if, as Mr de Plater concedes, the applicant may have swung a punch at the respondent, it is clear that the respondent replied with a sustained attack causing a range of serious injuries to the applicant. In these circumstances, I do not consider it appropriate to reduce the applicant’s award in any way for contribution to his own injuries.[32] [32] COVA s 25(7). Conclusion Accordingly, I order that the respondent, Alan James Eyears, pay the applicant, Laurence Tooley, the sum of $36,000.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.