Loading...
Queensland Judgments

beta

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Gore v Courtney

 

[2005] QSC 188

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MOYNIHAN J

Application No 207 of 2005

CEDRIC GORE

Applicant

and

 

ESTATE OF LEROY EARL COURTNEY DECEASED

Respondent

CAIRNS

DATE 14/06/2005

JUDGMENT

HIS HONOUR: This is an application pursuant to section 663B of the Criminal Code.

On the 13th of April 1989 Leroy Earl Courtney pleaded guilty, having unlawfully wounded with intent to do grievous bodily harm the applicant, Cedric Gore. That incident occurred on the 13th of December 1988.

The effluxion of time up to the bringing of the application is explained in the affidavit material in terms of the applicant not becoming aware, until June 2004, that he was able to make a claim. It seems that he may have been advised at some earlier period in terms which did not encourage him to pursue it. When he accompanied his sister to a solicitor on the date that I have mentioned in respect of another matter, it emerged in the course of conversation that he may have a claim and it has now been made.

Mr Courtney died on the 26th of October 1998. The material shows that searches and inquiries have been made which indicate that no probate or letters of administration have been taken out with respect to Mr Courtney's estate. It appears unlikely that he left any estate in any event.

The Court of Appeal in Chong and Chong, CA11,658 of 1998 dealt with a situation comparable to this. Briefly, it reached the conclusion that the cause of action reflected in the entitlement to compensation had survived against the estate. The effect of Uniform Civil Procedure Rule 71(1) in the circumstances requires the estate be named as a respondent to the application. That has been done.

As the Chief Justice pointed out in paragraph 10 of his reasons in Cheong, the curious feature of cases such as this is that there is no-one to take any point about limitations. There is no representatives of the deceased estate and there is no need for representation in the circumstances where there is no estate to protect. The limitation, as the Chief Justice pointed out, operates to bar the remedy, not to extinguish the right, and needs to be expressly taken if it is to be relied on. The question therefore is: what should be the assessment of compensation?

The general principles are of course set out in section 663B(1) in terms of prescribing, referable to the Workers' Compensation Act tables, the limits which govern the grant of compensation. There is nothing, I think, particularly contentious about the application of those considerations to the circumstance of the case.

There is a disparity between the description of the circumstances of the offence in the applicant's statement to the police and the version offered by Mr Courtney in his interview with them. The account Mr Courtney gave was to the effect that the applicant had started picking on him, bringing up his past and had kicked him to the left side of his face. The applicant's account, as it now stands, is that he remonstrated or attempted to remonstrate with Courtney because of Courtney standing over the applicant's sister for money for the purchase of alcoholic drinks.

Given the lapse of time, it is not really possible to reach a concluded view as to the circumstances, but it does seem likely that the instigator of the assault was Courtney and not the applicant.

The assault involved Courtney striking the applicant twice with an axe, which resulted in two injuries. The first was a three-inch laceration to the right side of the neck which was quite deep and in a medical report the doctor’ who ultimately intervened, it “remarkably missed” all the vital areas of the neck. The other scar was described by the doctor as very superficial and consisted of a skin flap approximately three and a half inches long and three-eighths of an inch wide. Each wound has left a significant scar. The applicant deposes that he regards them as disfiguring and grows his hair long to disguise them. They are sensitive when knocked or bumped and he experiences pain in his neck if he has to move it suddenly.

There is no occasion to doubt, on the basis of among other things, the evidence of Mr Richie, a forensic psychologist, that the applicant had a stressful response to the events consistent with some of the symptoms of post-traumatic stress disorder, but not sufficiently comprehensive in its manifestations to constitute such a disorder.

He certainly was adversely affected for some time after the events. It is difficult to know the extent to which they have continued to affect him and it is not the case that they have impacted greatly on his life other than in the short-term.

The other component of the claim relates to economic loss. The applicant was employed as a stockman at the time of the events. He was earning on his current recollection of the order of $300 per week net. He currently estimates that he was unable to work for six months due to the effect of the attack to which I have referred. I think one has to approach those estimates with considerable caution, given the time which has elapsed since the events occurred.

To start with, the scarring, the relevant category under the applicable provisions of the Worker's Compensation and Rehabilitation Act provides is item code number 5103, which provides for a maximum lump sum compensation. I should mention that there are some photographs of the scarring to which I have had regard. I am not persuaded that the scarring and its consequences justify allowing the full scale provision. I allow $6,500 in respect of that.

As I say there must certainly have been some adverse stress reaction. Again, one has to approach its current expression, apart from the considerations I have already mentioned, with caution, given the lapse of time, and the relevant provision under section 663AA(1) is $20,000. I allow $7,000 in respect of that component.

The economic loss component is, I think, satisfied in the circumstances by allowing a lump sum of $5,000 subject to any correction that I think is a total of $18,500, and that is the amount of compensation which I allow.

Close

Editorial Notes

  • Published Case Name:

    Cedric Gore v Estate of Leroy Earl Courtney Deceased

  • Shortened Case Name:

    Gore v Courtney

  • MNC:

    [2005] QSC 188

  • Court:

    QSC

  • Judge(s):

    Moynihan J

  • Date:

    14 Jun 2005

Litigation History

No Litigation History

Appeal Status

No Status