Orr v Orr[2001] QDC 237

CIVIL JURISDICTION

JUDGE SAMIOS

and

IPSWICH

DATE 02/08/2001

JUDGMENT

HIS HONOUR: This is an application pursuant to section 663D of the Criminal Code. The applicant seeks compensation for injuries suffered by the applicant, by reason of the respondent having committed the offence that between the 1st day of April 1986, and the 20th day of September 1986, the respondent had unlawful carnal knowledge of the applicant against the order of nature.

The applicant is the respondent's son. The applicant was born on 20 September 1980. He was therefore between five and a half and six years of age at the time this offence was committed against him. He is now 20 years of age. When the applicant was interviewed by the police on 27 May 1992, he told the police of this occasion when the respondent offended against him.

The applicant told the police that when the respondent committed the offence against the applicant, the respondent told the applicant not to tell anyone. The applicant said that he did not tell anyone because he was scared. Further, the respondent was his father. The applicant also said to the police that this offence did cause him pain.

There is also medical evidence before me, which I accept, that the applicant's anus was damaged, however, had healed.

What has happened to the applicant since the commission of this offence has extended beyond the circumstances of the offence. The respondent, in general terms, has abused the applicant since the commission of that offence in other ways. That is, not only did the respondent commit that offence upon the applicant, but the respondent also exposed the applicant to pornography and the applicant was used by the respondent to procure other young males who became the respondent's victims.

The respondent appeared on the hearing of this application and, for a little time, took part in the application. He then withdrew from the application. When the applicant was asked whether the matters referred to in the psychological report of Ms Lennon were true and correct, he confirmed, on oath, that they were true and correct. On the basis of that evidence, I am satisfied that all other matters referred to in other medical reports are also true and correct.

What has happened to the applicant is that the general abuse at the hands of his father have led him into other behaviours. In the report of Mr Forday from the Positive Parenting Co-ordination Section, he describes this abuse perpetrated by the respondent as part of a constellation of poor parenting behaviours. This has included an openly hostile and highly conflictual marital relationship, domestic violence, an extremely acrimonious separation and protracted child custody dispute, physical neglect, openly criminal lifestyle and contempt for authority, open abuse of alcohol and drugs, attempted suicide, and other self-harming behaviour.

The effect of these experiences has had a disturbing impact on the applicant's sense of self and it is no surprise to find that he has suffered from the effects described by the psychiatrist, Dr Piaggo and the psychologist, Ms Lennon. The effects include depression. The applicant also has other adverse impacts upon him including low average intelligence, secondary learning difficulties, and possibly Attention Deficit Disorder. The psychologist, Fiona Podolak summarises the circumstances best, I think, by referring to the applicant having a history of depressive symptoms, suicide attempt and self-harming behaviours. And, as the applicant himself says, he did not receive any counselling as he did not disclose the offence or the other abuse he suffered until he was about 10 years of age. He also, throughout his teens and adulthood, had a drug problem. He has felt that that, although behind him, has been the cause of his offending behaviour. He has been gaoled or detained on a number of occasions for offences of dishonesty which he committed to feed his addiction to amphetamines. He states, he believes that the abuse perpetrated by his father, caused his drift into drug abuse and also other use of inhalants. Also, his relationship with other members of the family has been affected due to the abuse he suffered, in particular, initially, after he complained about his father's conduct, the effect being that his family disowned him. While he has contact with his family members, he says, it is not a normal relationship. He has had difficulty with relationships, including relationships with friends and other people. He says, while he does not wish to blame his entire criminal history on his father, he believes that the abuse he suffered as a young child caused him to try and escape from the real world through the use of drugs which led him to committing offences of dishonesty. He felt guilt and shame and general lack of self-esteem during and since the years of abuse. He has trouble trusting people and has some confusion as to his sexuality. He also tended to associate with criminal elements due to his desire to conform as a result of his lack of self-esteem and self-worth. He is not presently receiving counselling and is seeking employment as a labourer.

For the purposes of this application, I am to assess the compensation on the common law principles - see McClintock v. Jones (1996) 1 Queensland Report 524. If those damages assessed at common law are more than $20,000, in the case of mental and nervous shock, then I can only award the sum of $20,000 for that item. See Chong v. Chong Appeal No 11658 of 1998, Court of Appeal, judgment delivered 13 August 1999.

I can assess damages, again on Common Law principles, for any physical injury suffered by the applicant as a consequence of the offence. I mentioned earlier mental and nervous shock and the limit of $20,000. That would come about by an application of the decision of Chong v. Chong and The Queen v. Morrison ex parte West (1998) 2 Queensland Reports at page 79, that is any psychological and psychiatric harm suffered by the applicant is to be dealt with as mental shock and nervous shock to which the limit under the legislation is $20,000.

Assessing the compensation on Common Law principles in this matter has the difficulty that the respondent committed one offence against the applicant. Of course, one offence can cause all the consequences that a victim may suffer from thereafter. However, in the applicant's situation, not only did the respondent commit this offence but it is apparent on the evidence before me the applicant was subjected to a variety of other forms of abuse. Generally speaking, one would have to say the applicant never had a chance.

It seems to me I cannot on the evidence before me assess the damages on the basis that everything that has happened to the applicant since this offence was committed has been caused by that offence. That is, as I have said, because of all the other impacts of so many other matters that must have affected the applicant during his childhood and have led to the difficulties he has had in life since the commission of this offence.

Of course, the fact that the assessment of damage or compensation may be difficult or necessarily imprecise has never been regarded as a reason for the Court failing to make the best assessment it can in the circumstances, see Thomas JA Hollywood v Lavack (2000) QCA 472, paragraph 15.

Doing the best I can on the evidence before me and acknowledging the contribution of many other factors to the outcome for the applicant since the commission of this offence, for mental and nervous shock I would assess his compensation in the sum of $35,0000. For the physical injury he suffered I would assess his compensation in the sum of $5,000. Because of the limit on the amount that I can award for mental and nervous shock, that then must be limited in my order to $20,000. Together then with the compensation I have assessed for physical injury that then is a total of $25,000. I order the respondent to pay the applicant the sum of $25,000. I also order the respondent to pay the applicant's costs of this application, including reserved costs.

I should add in my reasons that on the evidence before me I am satisfied that the applicant did not directly or indirectly contribute to the injury suffered by him, see section 663B subsection 2. Yes, on that basis, Mr Lynch, is there anything else?

MR LYNCH: Your Honour just in your judgment referred to the offence of carnal knowledge. It was, in fact carnal knowledge against the order of nature.

HIS HONOUR: Yes, all right. When I revise the reasons I will have a look at that if I omitted those words, but they are clearly here in Count 18, and I meant to include those words. But I will revise the reasons and I will pick that up, thanks.