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VH v CBE

 

[2006] QCA 561

Reported at [2007] 2 Qd R 393

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO/S:

DC No 65 of 2006

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

Miscellaneous Application – Civil

ORIGINATING COURT:

DELIVERED ON:

22 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2006

JUDGES:

McMurdo P, Holmes JA and Chesterman J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal allowed
2. Appeal dismissed with no order as to costs

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO THE DISPOSAL OF PROPERTY – QUEENSLAND – where appellant awarded $19,500 in criminal compensation after respondent convicted of two counts of assault occasioning bodily harm and one count of rape – application of s 20 Criminal Offence Victims Act 1995 (Qld) and s 1A Criminal Offence Victims Regulation 1995 (Qld) – relevance of pre-existing traits or vulnerabilities – nature of injury relevant to assessment of compensation for sexual offences – whether learned judge made inadequate assessment

Criminal Offence Victims Act 1995 (Qld), s 20, s 22, s 24, s 25

Criminal Offence Victims Regulation 1995 (Qld), s 1A

Re JI v IV [2002] 2 Qd R 367; [2001] QCA 510, considered

R v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320; [2000] QSC 156, considered

SAY v AZ; ex parte A-G (Qld) [2006] QCA 462; Appeal No 5783 of 2006, 10 November 2006, cited

COUNSEL:

L R Smith for the applicant

No appearance for the respondent

S A McLeod, for the Attorney-General, as amicus curiae

SOLICITORS:

Collas Moro Ross for the applicant

No appearance for the respondent

Crown Law for the Attorney-General

[1]  McMURDO P:  I agree with Holmes JA.

[2]  HOLMES JA:  The applicant seeks leave, pursuant to s 118 of the District Court of Queensland Act 1967 (Qld), to appeal from the judgment of a District Court judge in a criminal compensation application.  The respondent, against whom the compensation order was made, was the applicant’s former de facto husband and had been convicted of two counts of assault occasioning bodily harm and one count of rape of the applicant at the end of their relationship.  He did not appear to resist the application for leave to appeal, but counsel briefed by the AttorneyGeneral did appear, as amicus curiae, to assist the Court on this application.

The criminal compensation application

[3] At first instance the applicant sought compensation under the Criminal Offence Victims Act 1995 (Qld) for “bodily injury, mental or nervous shock” (as s 20 defines “injury”) and “the totality of the adverse impacts of [the] sexual offence” (the prescribed injury under s 1A of the Criminal Offence Victims Regulation 1995 (Qld)).  The learned judge at first instance awarded a total of $3,000 in respect of the applicant’s physical injuries sustained on the two occasions on which she was assaulted by the respondent.  No complaint is made as to that award.  Rather the applicant submits that his Honour erred in making what is said to have been an inadequate assessment (15 per cent) and corresponding award ($11,250) for mental or nervous shock and in concluding that only one “adverse impact”, which he assessed at seven per cent ($5,250), had been demonstrated. 

[4] In seeking criminal compensation, the applicant relied on the report of a psychiatrist, Dr Andrew Byth, who diagnosed her as suffering from an adjustment disorder with depressed mood (reactive depression).  He noted that after the assaults the applicant had “gradually developed a psychological reaction of depressed mood, accompanied by high anxiety, social withdrawal and reduced confidence”.  The severity of her depressed mood was mild to moderate; it did not reach the level of dysthymic disorder or major depression.  The social withdrawal was part of the depression, not warranting any additional diagnosis of agoraphobia or panic disorder. The applicant’s psychological state had caused a moderate degree of impairment in her ability to run an interior design business. Dr Byth referred to evidence that the applicant had pre-existing dependent and obsessive personality traits and possibly an underlying personality disorder.  In addition, he observed, she had a pre-existing and prolonged grief reaction after her father’s death.  All of those factors were likely to have made her more vulnerable to a depressive reaction as a result of the assaults on her. 

[5] The learned judge at first instance concluded that a number of the applicant’s difficulties, described in submissions as “reduced self-worth or perception”, “reduced physical capacity”, “increased fear or increased feelings of insecurity”, “adverse effect of the reaction of others” and “adverse impact on feelings”, were encompassed by the diagnosis of adjustment disorder with depressed mood.  Similarly, other described effects - the “impact upon [the applicant’s] future earning capacity and employment prospects” and her “need for ongoing psychological and psychiatric therapy and medication” - were directly related to the diagnosis of adjustment disorder.  The only adverse impact (for the purposes of s 1A) the learned judge found and ordered compensation for, considering it not otherwise part of the mental or nervous shock injury, was an adverse impact on intimate relationships.  In arriving at a 15 per cent assessment for the adjustment disorder with depressed mood, he had regard to the fact that Dr Byth had rejected more substantial diagnoses of dysthymic disorder, major depression or post-traumatic stress disorder, and took into account the applicant’s pre-existing problems with dependent personality traits and grief over her father’s death.

The applicant’s submissions on s 20 and s 1A

[6] The applicant’s submissions before this Court were largely based on this proposition: that there was a distinction to be drawn between injury, on the one hand, and, on the other, the disability, consequences or effects flowing from that injury.  Under s 20 of the Act, the injury per se was to be the subject of compensation, quarantined from what preceded or followed it; so that any pre-existing traits or vulnerabilities were irrelevant, and adverse consequences were to be compensated separately, if at all, under s 1A of the Regulation.  The example was given of a one-eyed person rendered blind by the loss of his remaining eye, who, the applicant said, would receive precisely the same statutory compensation as an individual of previously normal vision who lost one eye but retained the other, and his sight.  It was only in respect of sexual offences that compensation for associated disability or other consequences of injury could be obtained, by virtue of s 1A.

[7] For this argument, the applicant sought support from a statement of Thomas JA (sitting in the trial division) in R v Kazakoff; ex parte Ferguson.[1]  His Honour, considering whether the applicant’s injuries there amounted to “mental or nervous shock”, said this:

 

“I consider that if the legislature had intended that compensation be awarded for every mental consequence including consequential feelings of the complainant there would have been no specification in s 20 requiring proof of mental or nervous shock.  The legislature would have either adopted the civil system of damages for all effects of the offence, or have defined injury to include all results both physical and mental”.

 

That supported the view, it was contended, that s 20 was confined to injury, to the exclusion of the effects of the offence.  I think, however, that the passage, read in context, adds nothing to the argument.  Thomas JA was not seeking to draw a bright line between symptoms and consequences, but rather between normal responses and reactions sufficiently abnormal to amount to mental or nervous shock.

[8] The applicant also suggested that this approach would overcome the apparent conflict identified by Chesterman J in Re JI v AV[2] between the listing of post-traumatic stress disorder in s 1A and its obvious status as mental or nervous shock within s 20.  The proper approach, according to the applicant, was that a victim suffering post-traumatic stress disorder arising from a sexual offence would be entitled to compensation for the disorder as mental or nervous shock under s 20 and also to separate compensation for the disability, consequences or effects of the disorder as an adverse impact under s 1A.

Applying the applicant’s construction to the facts

[9] Applying this construction to the facts of the present case, it was argued, there were two steps to be taken: first, under s 20, to assess compensation for the applicant’s physical and physiological injuries by reference to the Compensation Table in Schedule 1 to the Act and, second, under s 1A, to assess compensation for the disability, consequences or effects flowing from the sexual offence, which would include the effects of the psychiatric injury.  Thus the learned judge at first instance ought, it was contended, to have drawn a line between the symptoms of the adjustment disorder (the injury) and its consequences.  The latter included the applicant’s reduction in work capacity and a need for ongoing psychological or psychiatric treatment.  That argument was taken even further:  because Dr Byth had described the applicant as having a “psychological reaction of depressed mood, accompanied by high anxiety, social withdrawal and reduced confidence”, his report should be read as meaning that the depressed mood fell on the injury side of the line and the high anxiety, social withdrawal and reduced confidence on the consequence side.

[10]  The applicant ought, it was said, to have received compensation for her adjustment disorder at 20 per cent of the scheme maximum, an amount of $15,000.  Since that injury ought to have been considered in isolation, no reduction should have been made in respect of her dependent personality traits or grief reaction at her father’s death. Then, in addition, the applicant should have been compensated for anxiety, social withdrawal, fear, insomnia, embarrassment, feelings of fragility and weakness, reduced confidence, reduced work capacity, reduced motivation and drive and the need for ongoing psychiatric treatment as adverse impacts, the award for which should have been 60 per cent of the scheme maximum.

Construction of s 20 and s 1A

[11]  The approach proposed by the applicant is ingenious but highly artificial.  It is, in my view, based on an unsustainable dichotomy between injury and consequence.   I do not consider that s 1A of the Criminal Offence Victims Regulation was intended to introduce a new regime of compensation for “disability, consequences or effects”, as distinct from injury; rather it expands the compass of what impacts on the individual may be counted as injury.  The Regulation in its terms recognises its role as expansive, rather than as providing a discrete addition to what is classed as injury: it prescribes as injury “the totality of the adverse impacts of a sexual offence suffered by a person, to the extent to which the impacts are not otherwise an injury under section20” (emphasis added); recognising the potential for overlap discussed in Re JI v AV

[12]  The adverse impacts prescribed in s 1A are of the nature of symptoms likely, to a greater or lesser extent, to impair the individual’s psychological, emotional or physical functioning. In that sense they have the quality of injury, while not necessarily amounting to mental or nervous shock. (Although the last of the categories, s 1A(2)(k) is a catch all: “anything the court considers is an adverse impact of a sexual offence”, it must in my view be read ejusdem generis.) The difference between those impacts and injury as defined in s 20 is not, as the applicant suggests, one of quality but merely of degree. 

[13]  The applicant’s approach, isolating injury so as to detach, for example, disability from its compass would produce extraordinary inequity for the victims of crime other than sexual offences.  But the example offered, of the one-eyed and two-eyed victims receiving the same compensation, is flawed, because it overlooks the fact that the Compensation Table does not deal in absolutes.  Where it specifies a single percentage, rather than a range (as it does for the loss of vision), that percentage represents the maximum, not the only, amount that may be ordered.  Section 22(4) requires that the amount of compensation to be provided is to be scaled according to the seriousness of the case.  Plainly, in determining that level of seriousness, the resultant disability must be crucial.  More generally, the applicant’s argument ignores the impact of s 25(7), which makes it clear that compensation for injury is not an exercise to be carried out in isolation from other considerations.

Conclusions

[14]  It follows that I do not consider that the learned judge at first instance was required to undertake the proposed exercise of separating out symptoms and effects.  The suggestion that the disorder described by Dr Byth should be further dissected into, on the one hand, adjustment disorder with depressed mood and on the other, symptoms of “high anxiety, social withdrawal and reduced confidence” was also misconceived.  Dr Byth’s reference to “depressed mood” was clearly no more than identification of the predominant trait of the adjustment disorder; it did not constitute some indication that other, lesser, symptoms were not equally manifestations of the disorder.  His Honour correctly identified the single adverse impact which was not integral to the diagnosis of adjustment disorder. And Dr Byth’s expert opinion that the applicant’s “pre-existing dependent and obsessive-compulsive personality traits, and possibly Personality Disorder … and … pre-existing prolonged grief reaction over her father’s death” probably made her more vulnerable to a depressive reaction following the assault was sufficient basis to warrant the learned judge’s taking those features into account as relevant under s 25(7) of the Act.[3]

[15]  The learned judge’s order that the respondent pay criminal compensation of $19,500 was, in my view, within a proper exercise of the discretion to make an order pursuant to s 24(3) of the Act.  In this context, it is worth noting s 22(3) which makes it clear that compensation is intended to help victims, but is not intended to reflect common law compensation.

[16]  Because of the question of construction involved, I would allow the application for leave to appeal, but I would dismiss the appeal and make no order as to costs. 

[17]  CHESTERMAN J:  I agree with Holmes JA.

Footnotes

[1] [2001] 2 Qd R 320 at 324.

[2] [2002] 2 Qd R 367.

[3] See SAY v AZ; ex parte A-G (Qld) [2006] QCA 462.

Close

Editorial Notes

  • Published Case Name:

    VH v CBE

  • Shortened Case Name:

    VH v CBE

  • Reported Citation:

    [2007] 2 Qd R 393

  • MNC:

    [2006] QCA 561

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Holmes JA, Chesterman J

  • Date:

    22 Dec 2006

Litigation History

Event Citation or File Date Notes
Primary Judgment NA - -
Appeal Determined [2007] 2 Qd R 393 22 Dec 2006 -

Appeal Status

{solid} Appeal Determined (QCA)