KLW v ACH[2001] QDC 306

DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant seeks compensation pursuant to s. 24 of the Criminal Offence Victims Act 1995 (the Act).

2. [2]
   The respondent was convicted in this court on the 10^th November 1999 of two indictable offences committed against the person of the applicant namely indecently dealing with a child under 16 years, and unlawful assault. Both offences occurred on the 16^th October 1998. He was sentenced by His Honour Judge Robin to concurrent terms of imprisonment wholly suspended.

3. [3]
   Both offences occurred during one course of unlawful conduct by the respondent. The applicant was 15 at the time. She knew the respondent’s wife and had agreed to babysit the respondent’s 10 month old daughter while he took his wife shopping. When the respondent returned home the respondent kissed her on the face and stomach and attempted to touch her vagina by attempting to push his hand up under her shorts. She resisted strenuously, and when he attempted to touch her breast she kicked him in the thigh which caused him to desist. The second count occurred when he grabbed her left arm and attempted to stop her leaving after the indecent dealing.

4. [4]
   On the 20^th October 1998, the applicant was examined by a general practitioner who noted a slightly tender area with mild bruising on her left arm. I am satisfied this is as a result of the assault. She is entitled to 1% of the scheme maximum under Item 1 of the Compensation Table which is $750.

5. [5]
   The applicant has suffered a mental or nervous injury as a result of the offences.

6. [6]
   At the time of sentencing, Judge Robin was informed by the prosecutor that the applicant was “extremely shaken and distressed but (sic.) what had occurred. Initially she says that she suffered from broken sleep and nightmares. The complainant has not seen any long term effects. However, she has on occasion seen the accused either at her work place and/or out-and-about. She has said that this makes her feel extremely scared and worried. She continues to feel scared and threatened by the accused as a result of his actions”. (Here I am quoting from Exhibit KLW.14 to the applicant’s affidavit sworn the 13^th July 2001 and filed the 5^th October 2001.)

7. [7]
   This prompted Judge Robin to note (at p. 34, l.12) in his sentencing remarks on the 10^th November 1999:

“The good news I am pleased to say extends to the present situation of the complainant. She has told the prosecution that at first she was quite upset and had trouble sleeping and so forth. She is still scared and worried when she sees you about. She seems to have managed to get on with her life which is a credit to her.”

8. [8]
   The applicant saw consultant psychiatrist Dr Kathryn Redman on two occasions initially on the referral of the general practitioner. These consultations were on the 1^st February 2001 and the 2^nd May 2001. In light of the submissions made on behalf of the applicant, I will set out in full the opinion expressed by Dr Redman:

“I saw K initially on the 01/02/01 at the request of her general practitioner, Dr John Kenafake who was concerned that this young woman was suffering psychological sequelae from a past sexual assault. At this time, K informed me that she had been assaulted three years previously by the next door neighbour of her best friend. She describes that she was asked to baby-sit for him, and on his return home, she stated, he locked the door, pushed her onto the sofa and put his hand up her skirt.

K described that since this time she has continued to feel unsafe. She states that since this assault, this gentleman has continued to follow her around, drives past her house frequently, and has organised for his friends to yell abusive language at her work place. She describes that s he feels very frightened to be in her parents’ home by herself, and will not stay there alone. She states that she has intermittent nightmares during which she experiences him breaking into her house with an intent to harm her. She describes that she has little appetite. She also describes that she is short tempered with her family, but is unable to understand why. She describes that since the attack, she has not been able to go anywhere outside the house by herself. When she goes outside she is constantly looking over her shoulder, and feels that she is being constantly watched. She states that she is not able to trust anyone older than herself. She does not feel able to engage in normal social activities for her age and is not comfortable with the thought of a physical relationship with a member of the opposite sex. Her mood remains variable and she states that intermittently she has thoughts of not wishing to be alive.

K’s diagnosis is under the Diagnostic and Statistical Manual of Mental Disorders 4^th edition 309.81 Posttraumatic Stress Disorder, Chronic.

This condition from the history provided appears to have been longstanding and permanent at the times I saw K. Currently, in my opinion, her level of disability under the scale provided in Schedule 1 Compensation Table Criminal Offence Victims Act would be consistent with Mental or Nervous Shock (severe) 20% - 34%. It should also be noted that she had not received any appropriate treatment at the time of her examination, and therefore the permanence and continuing severity of these symptoms long-term would need to be assessed in the light of the possible effects of appropriate treatment on these symptoms.

From the information provided by Ms W, her psychological condition appears to be directly attributable to the offence and the alleged (by Ms W) ongoing harassment of Ms W by the person previously convicted of the offence.

Ms W, in my opinion, will need to undertake psychiatric assessment and treatment of this disorder, which may require ongoing care indefinitely if the symptoms do not resolve. It became clear after the first consultation that Ms W did not attend for the purpose of treatment, I wrote back to Dr Kenafake suggesting appropriate professionals for Ms W to receive treatment. Initially, she would require seeing a psychiatrist on a two to three weekly basis for six to twelve months to try addressing her symptoms and a trial of medication. This would be in the vicinity of $2000 - $3000.00 over a year depending on the number of outpatient visits.”

9. [9]
   It is not submitted by Mr Stubbins that the applicant has suffered any adverse impacts which are not otherwise, on the evidence, symptoms of the mental or nervous shock injury described by Dr Redman (see the discussion of s. 1A of the Criminal Offence Victims Regulation 1995 in JI v AV [2001] QCA 510). He does submit however that, by application of the approach to causation adopted by me in SAM v. SAM [2000] QDC 312 which was later approved by the Court of Appeal, I can (as it were) ignore the non-compensable contributors to the injury referred to in the evidence, i.e. the alleged actions of the respondent in continuing to follow her around, driving past her house frequently, and organising his friends to yell abusive language at her work place. On the evidence of Dr Redman these actions are a direct cause (along with the offences) of her psychological injury. My judgment in SAM was based on common law principles, as the claim there was assessed under the now repealed s.663B of the Criminal Code. Mr Stubbins submits that causation issues under the Act should be determined by the same approach. He cites as authority for this approach an unreported judgment of His Honour Judge Samios in Prendergast v. Millar D2292/2000, 12 July 2000 at p7. Having read that decision, I can find no support in it for Mr Stubbins’ submission. His Honour acted on the evidence which clearly established that the offence was the entire cause of the mental or nervous shock injury. The evidence before me is not to that effect.

10. [10]
    I am not at all convinced that resort to common law principles is necessary in determining causation under the Act. The Act expressly declares that compensation “is not intended to reflect the compensation to which the applicant may be entitled under common law or otherwise” (s. 22(3)). The scheme of the Act provides for payment of compensation “for the injury suffered by the applicant because of the offence” (s. 24(2)), and “the court may make an order … for an amount to be paid by the convicted person to the applicant because of the injury” (s. 24(3)). It is not necessary for me to reach a conclusion in this case because the evidence clearly establishes two direct causes of the injury, one compensable and one not. In SAM, there was no attempt by the psychiatrist to tease out the causes of the injury from the compensable and non-compensable actions of the respondent. In that case, I followed the approach adopted by Lee J in R v. Tiltman; ex parte Dawe (Motion No. 324 of 1995, unreported judgment of the Supreme Court, 22.6.95). The circumstances of that case (where the respondent was convicted of a number of sexual offences against the applicant, and others were taken into account under s. 187 of the Penalties and Sentences Act 1992) are now specifically provided for in the Act (s. 24(1)(b)).

11. [11]
    Finally, before turning to an assessment of an appropriate amount, I should make mention of a practice that is developing which I think is of little assistance to the Court. My comments are definitely not meant to be a criticism of Dr Redman, as she was clearly asked to express an opinion by the applicant’s solicitors. I refer to her opinion that (the) “level of disability under the scale provided in Schedule 1 Compensation Table Criminal Offence Victims Act 1995 would be consistent with Mental or Nervous Shock (severe) 20% - 34%”. The difficulty is that she is probably expressing an opinion of law which she is not qualified to do. The difficulty arises I think because lawyers involved in these cases have misconceived the meaning of Schedule 1 which is part of the Act. I rely on the reasoning and approach of the court of Appeal to compensation under the Act approved in D v. Ward [2000] QCA 493. Section 22(4) of the Act states:

“The maximum amount of compensation provided under this part is reserved for the most serious cases and the amounts provided in other cases are intended to be scaled according to their seriousness.”

12. [12]
    In asking a psychiatrist or psychologist to express an opinion in relation to a particular patient by reference to the schedule, is to misconceive what the scheme of the Act is intended to achieve. To demonstrate the point by reference to the facts here, one can readily image a much more serious mental or nervous shock injury – that is much more serious from a clinical point of view, than the injury described by Dr Redman. For example, the victim of a personal offence may suffer such a serious mental or nervous shock injury, as to be incapable of enjoying any reasonable life. Such a person may be confined in hospital and incapable of working or enjoying life. In my opinion, it is such a person who would be entitled to the highest award under the Act. In so far as such opinions are said to be helpful in the scaling process recommended by D v. Ward within the ranges set out in the various item numbers in Schedule 1, I again disagree for the same reasons. Expert witnesses should confine their opinions to diagnostic assessments acceptable within their fields of expertise, and not attempt to give opinions by reference to Schedule 1. I repeat, I do not intend any criticism of Dr Redman. My remarks are designed to assist the legal profession in placing relevant evidence before the Court in support of these applications.

13. [13]
    Based on the evidence here, I am satisfied that the applicant’s injury falls at the lower end of Item 32. The comments of the sentencing judge, and the information placed before him suggest that the applicant has suffered the more significant injury described by Dr Redman (towards the top of Item 32 in my opinion) by reason of the alleged actions of the respondent which are non-compensable under the Act.

14. [14]
    I will allow her 12% of the scheme maximum under this head, namely $9,000.

15. [15]
    I order the respondent to pay to the applicant compensation under the Act in the sum of $9,750.