Watson-McFarland v Gordon
[2002] QDC 104
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- Watson-McFarland v Gordon[2002] QDC 104
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Watson-McFarland v Gordon[2002] QDC 104
Watson-McFarland v Gordon[2002] QDC 104
DISTRICT COURT | No 40 of 2001 |
CIVIL JURISDICTION
JUDGE RICHARDS
JEFFREY JOHN WATSON-McFARLAND | Applicant |
and
JEREMY LOWIS GORDON | Respondent |
IPSWICH
..DATE 22/03/2002
JUDGMENT
HER HONOUR: This is an application by Jeffrey John Watson McFarland through his mother for compensation as a result of sexual abuse suffered at the hands or the respondent. The respondent, it seems, was the applicant's sister's boyfriend, and from time to time he stayed overnight with the applicant's family, and it was during that time that the offending occurred.
The offences included attempting forceful penile penetration of the anus, forcing the applicant to perform oral intercourse upon him, and masturbating in front of the applicant, including ejaculation. The respondent was sentenced on the 2nd of October 1997, and the applicant was aged 9 when the abuse started.
The offences themselves occurred over a period of 24 months from the 31st of March 1995 and the 24th of March 1997. They occurred on a very regular basis, and were no doubt extremely distressing to the applicant. He finally went to the police at around Easter of 1997.
As a result of the abuse, he had nightmares; he started wetting the bed - he even now has nightmares. He is always on edge; he showers sometimes six times a day to try and stop the feelings of being dirty. His school work suffered; his behaviour at school worsened; he found it difficult to associate with people his age; he felt lonely, isolated and disgusted. He felt as though the abuse had completely take over his life. He has become wary of men; he feels depressed; he describes himself as a loner. He lost his circle of friends; he has been suspended from school on a number of occasions.
He has been to see Dr White who provided a report indicating that he has developed post-traumatic stress disorder and a recurrent co-morbid depressive disorder. He believes that the sexual abuse is causely related to the development of those mental illnesses. He says, “Treatment is likely to be prolonged and intensive”. He expects that treatment would be required for an unforeseeable number of years, and, in fact, the applicant may require hospitalisation during the course of that treatment. It is clear from the description of the events that the applicant has been significantly affected by these events.
A complicating factor in this application is that the offences straddle the period during which the Criminal Offence Victims Act was introduced; namely, the 18th of December 1995. And so the question arising as to how the compensation for nervous shock should be assessed. Under the Criminal Code section 663AA, the prescribed amount for mental or nervous shock was $20,000. Under the Criminal Offence Victims Act, the maximum for nervous shock is 34 per cent of $75,000, plus the victim is also entitled to have their compensation assessed under regulation 1 of the Criminal Offence Victims Amendment Regulations of 1997.
The question is how, if at all, this can be assessed. This matter was discussed in Hollywood v. Levack (2000) QCA 472. In that case Thomas J observed:
“The scheme of section 46 is to preserve rights accrued before the given date and to combine compensation under the new Act to the consequences of criminal activity after that date. An applicant does not lose either right. The applicant's accrued rights under the earlier regime cannot conveniently be swept aside to enable a single assessment to be made under the Criminal Offence Victims Act.
In the present situation, I consider that an applicant is entitled to an assessment in respect of each period, and that the Courts must do the best they can in ascribing appropriate compensation in respect of each period. Where there's a combined affect that is difficult to dissect, the most sensible way to proceed is to attempt to apportion between the affects attributable to each period. And if no better suggest appears, the length of the respective periods over which the offending conduct occurred may be used. In some cases, medical evidence may show that the earlier offences have already produced a serious condition, so that the later offences would be regarded as having merely caused minor aggravation of an already established condition. In which case, the greater part of the overall consequences would be properly ascribed to the earlier offending conduct, or vice versa.”
In this case, there is no way to divide the conditions between the two acts. The offences are all bound up together and there is no medical reports to suggest that one was more significant than the other.
If I were assessing this matter solely under the provisions of the Criminal Code, $20,000 would be appropriate for the complainant. If I were assessing this matter under the provisions of the Criminal Offence Victims Act, an award of 27 per cent for post traumatic stress disorder would be appropriate, namely a sum of $20,250 and in relation to regulation 1A of the regulations, the applicant would be able to recover compensation because of the sense of violation and the reduced self-worth or perception and his problems with showering continuously, finding it difficult to associate with others because he felt lonely, isolated and disgusted, his inability to associate with his peer group and his difficulties in relations with others, namely, other men, in particular, his step-father, in my view, in relation to the regulations, I would allow a sum of $15,000 for adverse impacts and accordingly, in relation to an assessment under the Criminal Offence Victims Act, a total sum of $35,250.
As has been pointed out by Mr Kissick, counsel for the applicant, the period of time under which an assessment under s the Code would be appropriate is three-eighths of the total period of time of the abuse and under the Criminal Offence Victims Act, five-eighths of the period of time of the abuse. Therefore, the assessment under the Code is in the sum of $7,500. Under the Criminal Offence Victims Act, $22,031, making a total of $29,531.
I order the respondent pay 50 per cent of the applicant's costs of this application to be taxed unless otherwise agreed.