Ryan v Ziebarth[2001] QDC 57

DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant seeks compensation pursuant to s. 24 of the Criminal Offence Victims Act 1995 (the Act).  The respondent pleaded guilty in the District Court at Ipswich to one count of rape committed on the 26^th February 1998 at Leichhardt, Queensland.  On 1^st of May 1998 I sentenced the respondent to imprisonment for 2½ years with the recommendation that he be eligible for release on parole after serving six months.

2. [2]
   At the time of the offence the applicant was 23 years of age. She had been in a de facto relationship with the respondent for some 5½ years. The relationship had ended some short time before the incident and the applicant was living separately and apart from the respondent with her daughter. On the day of the offence the respondent called at the house, and he and the applicant took the child to her pre-school and then returned to her residence. It was on this occasion that the respondent forced the applicant to have sexual intercourse with him. During the commission of the offence the applicant struggled violently to prevent intercourse occurring but she was unsuccessful. Immediately after the respondent left the house the applicant vomited as a result of her distress. Examination of the applicant by the Government Medical Officer soon thereafter revealed no physical injury but that the applicant was very distressed and crying intermittently.

3. [3]
   The applicant has seen Dr Nigel Prior, Consultant Psychiatrist, who has provided an affidavit to which is annexed a report dated 15^th of June 2000.  In that report Dr Prior says:

“Ms Ryan shows evidence of the following conditions as defined by the Diagnostic and Statistical Manual of Mental Disorders (4^th Edition).

1. Anxiety Disorder (Not Otherwise Specified)
2. Social Phobia.

The anxiety disorder has arisen as a result of the assault … The severity of this disorder is in the mild to moderate range and has persisted in varying intensities since the assault.

The social phobia pre-existed the assault and continues to the present time.  It does not seem to have been aggravated by the experience of the rape.  This is also in the mild to moderate degree of severity.

Other factors that may have contributed towards the emergence of the anxiety disorder are pre-existing personality traits, specifically anxious, perfectionistic traits associated with low self-esteem and poor confidence … However it appears that prior to the assault she was more independent than she currently is and has developed significantly more agraphobic, dependent and claustrophobic symptoms since the assault.

Therefore I consider that Ms Ryan was more vulnerable by virtue of her pre-existing personality traits.  Although it is not inevitable that she would have developed the subsequent Anxiety Disorder the assault certainly hastened its emergence.  Despite this I consider that the assault, even in a person not afflicted with these vulnerabilities may have been sufficient to precipitate the emergence of such an Anxiety Disorder. 

…

An estimate would be that these pre-existing factors have contributed at least 50% to the emergence of the Anxiety Disorder.”

4. [4]
   It follows that the applicant has suffered a mental or nervous shock injury described as an anxiety disorder which is in a mild to moderate degree of severity and which is 50% attributable to the offence.

5. [5]
   The applicant submits that her award for compensation is to be assessed by reference to Regulation 1A of the Criminal Offence Victims Regulation 1995.  Regulation 1 was introduced by the Criminal Offence Victims Amendment Regulations (No. 1) 1997 which came into effect on the 19^th of December 1997. The offence of rape is clearly a sexual offence and the regulation would apply to this application:  Whyte v. Robinson [2000] QCA 999.  Regulation 1A provides:

“Prescribed injury

1A.(1)  For section 20 of the Act, 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 section 20, is prescribed as an injury.

2. (2)
   An “adverse impact” of a sexual offence includes the following-

1. (a)
   a sense of violation;

2. (b)
   reduced self worth or perception;

3. (c)
   post-traumatic stress disorder;

4. (d)
   disease;

5. (e)
   lost or reduced physical immunity;

6. (f)
   lost or reduced physical capacity (including the capacity to have children), whether temporary or permanent;

7. (g)
   increased fear or increased feelings of insecurity;

8. (h)
   adverse effect of the reaction of others;

1. (i)
   adverse impact on lawful sexual relations;

10. (j)
    adverse impact on feelings;

11. (k)
    anything the court considers is an adverse impact of a sexual offence.

3. (3)
   In this section –

“sexual offence” means an personal offence of a sexual nature.”

6. [6]
   An “adverse impact” of a sexual offence includes matters set out in regulation 1A(2), and pursuant to regulation 2A an injury of this nature would entitle the applicant to an award of between 1% and 100% of the scheme maximum of $75,000. Mr Copley, who appeared for the respondent, argues that unless the applicant satisfies me on the evidence (in this case of Dr Prior) that the “impacts are not otherwise an injury under s. 20” the award to the applicant is governed by the compensation table set out in Schedule 1 of the Act, and not regulation 1A. Section 24(2) is in these terms:

“The person against whom the personal offence is committed may apply to the court before which the person is convicted for an order that the convicted person pay compensation to the applicant for the injury suffered by the applicant because of the offence.”

7. [7]
   Section 20 provides as follows:

““Injury” is bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table or prescribed under a regulation.”

8. [8]
   Mr Copley argues in this matter by reference to the report of Dr Prior that all of the “adverse impacts” set out in the report, and covered by regulation 1A(2) are indeed on the evidence, symptoms or indicators of a mental or nervous shock injury, namely an anxiety disorder; and are therefore a “mental or nervous shock” injury in accordance with s. 20. He submits that an adverse impact is only an injury “to the extent to which the impacts are not otherwise an injury under s. 20”.

9. [9]
   Clearly an anxiety disorder is a “mental or nervous shock” injury: Ferguson v. Kasakoff [2000] QSC 156 per Thomas JA.  Mental or nervous shock is listed in the compensation table in Schedule 1 to the Act at items 31 to 33.  Accordingly Mr Copley argues the applicant’s symptoms in respect of the anxiety disorder are impacts which are otherwise an injury under s.20 and regulation 1A does not apply. 

10. [10]
    Mr Stevenson, who appears for the applicant, argues that the regulation should not be given such a restrictive meaning. For example, he points out that the definition of “adverse impact” in regulation 1A(2) is an inclusive not an exclusive definition and includes commonly pleaded mental or nervous shock injuries such as “post traumatic stress disorder”: regulation 1A(2)(c). He submits that to restrict the application of regulation 1A effectively to victims of sexual offences who have not otherwise suffered an injury of the type defined in s. 20, would be to effectively render regulation 1A of no effect. In his submission, such an interpretation would be unreasonable, and inconsistent with the objects of the Act.

11. [11]
    If Mr Copley’s argument is correct it would follow that in many cases involving sexual offences in which a mental or nervous shock injury is the only injury, regulation 1A would not apply. Logically his argument would have to mean that if a victim of a sexual offence had suffered an injury defined as such in s. 20, and suffers no adverse impacts other than those attributable to the injury, then he or she would not have the advantage of the application of regulation 1A. Regulation 1A must be interpreted as operating to the full extent but not to exceed the power conferred by the law under which it is made: s. 21(1) Statutory Instruments Act 1992.  The reference to a defined mental or nervous shock injury, i.e. post traumatic stress disorder, in regulation 1A suggests at best considerable confusion in the mind of the draughtsperson.  Ambiguity in regulation 1A(1) however does not assist the applicant.  I can find no ambiguity in s. 20 which would enable me to use extrinsic material: s. 14B(1)(a); nor can it be said that the construction contended for by Mr Copley is “manifestly absurd … or … unreasonable”: s. 14B(1)(b).  The ordinary meaning of the provision favours Mr Copley’s argument.  If the legislature intends a different meaning in relation to sexual offences, then it should be made clear.  Nor can it be argued that the construction I favour does not achieve the Act’s purposes. 

12. [12]
    Regulation 1A was introduced with great haste in December 1997 as a direct response to a media campaign. As the change in law was achieved by regulation, there was no debate in Parliament, and no “extrinsic” material that could have assisted either way: s. 14B of the Acts Interpretation Act 1954.  The applicant is still entitled to compensation under the table and in any event the Act makes it clear that:

“Compensation provided to an applicant … is intended to help the applicant and is not intended to reflect the compensation to which the applicant may be entitled under common law or otherwise”: s. 24(3)

13. [13]
    It follows that the interpretation as submitted by Mr Copley does best achieve the purposes of the Act.

14. [14]
    The Court of Appeal delivered judgment in M.R. v. Webb [2001] QCA 113, the day after the hearing.  One of the grounds of appeal dealt with the very point raised by Mr Copley.  The applicant had suffered a mental or nervous shock injury, and from the evidence recited in the judgment, suffered “adverse impacts” that were not specifically related to the mental or nervous shock injury.  The primary judge had assessed compensation on the basis of the table; not on the basis of regulation 1A.  Unfortunately, the Court of Appeal did not decide the point; essentially preferring to proceed on the basis of a consideration of whether or not the award made was manifestly inadequate.  In that case, the applicant had also suffered some other injuries e.g. bruising, but the award was only made under one item in the compensation table.  Again this was a ground of appeal.  The Court decided that the primary judge was not in error; without considering the applicability of s. 26 of the Act.  This complex and confusing section is well overdue for review by the Court of Appeal.  I did not call for further submissions, because the Court’s judgment does not assist me either way to answer the question raised at the hearing.

15. [15]
    It follows that the prescribed amount for s. 25(5) of the Act for the injury in this case is an amount calculated by reference to one of items 31-33 in the compensation table.

16. [16]
    Section 22(4) of the Act provides:

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

17. [17]
    The Court of Appeal considered the proper construction of s. 22(4) in Dooley v. Ward [2000] QCA 493.  At page 3 of the judgment of the Court, the Court said:

“But in our opinion the proper method is to fix the compensation for, say, severe mental or nervous shock, at the appropriate place in the range 20% to 34% of the scheme maximum, which is done by considering how serious the shock is in comparison with the “most serious” case, which must be compensated by an award of the maximum, 34%.  This illustrates the point that the compensation table has no relationship to what would be awarded as damages in tort; a crime victim permanently institutionalised by the psychological results of an assault could, on that account, get no more than $25,500.”

18. [18]
    Further on in the judgment at paragraph 7 the Court said:

“But it is, in our respectful opinion, reasonably clear that the scaling according to seriousness referred to in s.22(4) must be intended to be scaling within the ranges set out in the compensation table, rather than scaling within the range of 0% to 100% of the scheme maximum, now $75,000.  This view is consistent with the approach taken in Sanderson v. Kajewski [2000] QSC 270; and Buckland v. Estate of Kennedy [2000] QSC 337.”

19. [19]
    In that case, the offence was not a sexual offence so the Court was considering a mental or nervous shock injury falling squarely within the compensation table. It follows by application of the reasoning in Dooley v. Ward that the scaling in this case should be taken having regard to items 31-33 and not the scheme maximum of $75,000, with the higher amounts being reserved for the most serious case.  It has to be said that the result produced in cases to which regulation 1A applies and where the injury is a mental or nervous shock injury; as compared with other offences involving such an injury, produces an artificial result; but that is because the legislature has chosen to put sexual offences in a special category.  Mr Copley submits that the award should be at the lower end of the scale in item 32 because of these factors:

1. (a)
   The nature of the prior relationship and the circumstances of the offence, and

2. (b)
   The report of the psychiatrist to which I have earlier referred.

20. [20]
    In my view, an appropriate award is 15% of the scheme maximum. I order the respondent to pay to the applicant by way of compensation under the Act the sum of $11,250.

21. [21]
    In conclusion, it is regrettable that the Court of Appeal did not decide this point in M.R. v. Webb (supra.).  I recommend that if “adverse impacts” are to be regarded as an “injury” which in effect makes more serious an injury defined in s. 20, this should be made clear by amending s. 20.