Bonke v Evans[2007] QDC 329

[2007] QDC 329

DISTRICT COURT

CIVIL JURISDICTION

JUDGE RACKEMANN

No 3085 of 2007

BRISBANE

DATE 26/11/2007

ORDER

HIS HONOUR: This is an application for criminal compensation under the Criminal Offence Victims Act and regulation. It relates to an event on the 10th of October 2004 when the applicant was the victim of an attack by the respondent to this application.

The attack led to the respondent being dealt with by this Court sitting at Townsville on the 20th of February 2007 where he was sentenced for one count of doing grievous bodily harm. The sentencing remarks of his Honour Judge Durward SC include that:

"On the 10th of October 2004 the complainant man was walking down Flinders Street going about his own business when you came from behind him and without warning struck him with a closed fist. You then confronted him and threatened him further by asking him if he, 'wanted some more.'

There is nothing in the facts that were outlined to me that could suggest that there had been any provocative behaviour towards you by this man, but certainly nothing that would have in any way entitled, justified you to resort to physical violence of this level."

It is apparent there is no question in this case about compensation being affected in any way by reason of the conduct of applicant.

As a result of the attack the applicant suffered what the sentencing Judge described as, in simple terms, a complex fracture involving the right cheekbone and the eye socket. He was operated on in respect of those matters and continued thereafter to suffer some difficulties including a permanent defect in his vision. I was referred to a number of the medical reports which are in evidence. I will not go through them in detail; it is unnecessary for me to do so.

The items that have been claimed by the applicant relates to bruising (item 1); loss or damage to teeth (injury) (item 5); facial fracture (severe) (item 8); and loss of vision (one eye) (item 29). Of those, I am not persuaded to make any separate assessment in relation to the teeth. The evidence of the injury to the teeth appears simply to be a numbness around the area of the tooth and it seems to me that that particular matter can be taken into account with respect to the facial fracture.

Looking at the other matters, the bruising and laceration, counsel suggested a figure of three per cent, being $2,250, and I think that that is reasonable.

In relation to the facial fracture and the loss of vision, I was referred to the decision in Franklin v. Timu (2007) QDC 237 in respect of a somewhat different matter but one which has similarities in relation to those two particular items.

I accept the submission that it is appropriate to make allowances under each of those items in this case.

In relation to the facial fracture, I think that even having regard to the matters I have referred to, the amount claimed of 30 per cent is a little high and in the circumstances I am going to attribute a amount of 25 per cent, being $18,750, for that item.

In relation to the loss of vision in relation to one eye, the best evidence about the extent of that injury comes from the report of Dr Vandeleur, who has assessed a 25 per cent permanent loss of efficiency of that one eye. The schedule in the regulations allows up to 70 per cent for the loss of an eye. In the circumstances, I think allowing an amount of 25 per cent of that, being 17.5 per cent, is an appropriate allowance in the circumstances.

Accordingly, I assess compensation in the amount of $34,125.

Accordingly, I order that the respondent to pay the applicant compensation in the amount of $34,125.