DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for compensation under the Criminal Offence Victims Act 1995 (“the Act”).  On 23 October 2000 the respondent pleaded guilty to one count of sexual assault and one count of sexual assault with two circumstances of aggravation, both committed on 22 August 1999 on the applicant at Brisbane.  The circumstances of aggravation were that the indecent assault partly consisted of penetrating the vagina of the applicant with part of his body other than the penis, and that the indecent assault partly consisted of bringing the respondent’s mouth into contact with part of the genitalia of the applicant.  These two offences were personal offences so s 24(1) of the Act is satisfied.

2. [2]
   The applicant claimed that, because of these offences, she suffered three injuries: (a) Two one millimetre haematomas on the edge of her hymen; (b) Mental or nervous shock, in the form of post-traumatic stress disorder; (c) The injury prescribed by Regulation 1A of the Criminal Offence Victims Regulation 1995, namely the totality of the adverse impacts of sexual offences suffered by the applicant, to the extent to which the impacts are not otherwise an injury under s 20.

The offences

3. [3]
   Because of the issues that arise in this matter, it is necessary to identify with some precision the content of the offences of which the respondent was convicted. That depends on the sentence hearing,^[1] a transcript of which is in evidence.^[2]  At the hearing the Crown Prosecutor relevantly described the offence in the first count as occurring while the applicant and the respondent and others were in a car, with the applicant and the respondent at either end of the back seat, someone else being in the middle.  The respondent reached over the person in the middle, reached inside the top of the applicant’s bra and touched her left breast.  The applicant moved and turned away.  There was no relevant factual dispute raised by the respondent.

4. [4]
   The second count was alleged to have occurred later the same evening, after the party had arrived at the home occupied by three female friends of the applicant where both the applicant and the respondent were staying the night. The applicant had been physically ill, and subsequently the respondent made up a sofa bed in the lounge room for her. He was with her there, speaking to her and apparently trying to comfort her, after the other three had gone upstairs to bed. The respondent moved his hand up her leg, and used his fingers to rub her between the legs through her tracksuit pants. He then removed her tracksuit pants and underpants, put his face between her legs and licked and sucked her genitalia. She felt a sharp pain as if she had been bitten in that area. He then put his hands in that area and inserted his fingers inside her. He tried to kiss her on the lips and the neck. He grabbed her breasts and reached down and tried to position his penis to go inside her. One of the other occupants of the house began to come downstairs and he desisted. The applicant had been struggling and resisting, but she was tired and not well and was not able to resist effectively. At the time the applicant was 17 years of age;  the respondent was 29 years of age.

5. [5]
   The sentencing remarks were not included in the filed material, but I was provided with a copy during the hearing. The sentencing judge referred to a statement from the applicant, presumably Exhibit B to her affidavit, and continued:  “The victim has indicated that she now feels very vulnerable whereas she was previously an independent person.  She feels that she has lost control over her life.  It has affected her relationships with friends and her parents and she finds difficulty when being touched by anyone and requires counselling.  They are all significant matters that you should recall and remember will have an impact upon her for an unknown period of time into the future.”

Other events

6. [6]
   The complicating feature in this matter is that the applicant alleges that, apart from the matters the subject of the charges as described by the Crown Prosecutor, and forming the basis of the sentencing hearing, the respondent did other, and indeed more serious, things of a sexual nature to her in the course of that evening. She provided a statement to the police on 25 August 1999, a copy of which is exhibited to her affidavit.^[3] 

7. [7]
   At paragraph 13 she described how, in the course of the events constituting count two, the respondent had taken his penis out of his underwear and began to rub it on her genitals.  She also said^[4] that after the incident amounting to count two, later in the evening after the other person had gone back upstairs, the respondent came back to where she was sleeping, rubbed his penis on her genitalia and then penetrated her, but only for a short time, before getting off and going back upstairs.  The indictment originally also included a third count, of rape, but the Crown did not proceed with that count, and the respondent pleaded guilty to the first two counts.  The applicant also put in evidence a victim impact statement she had prepared which however does not describe the details of the offences. 

Expert evidence

8. [8]
   Also in evidence was a report dated 30 May 2001 from a psychiatrist, Dr McGuire,^[5] who had seen the applicant on 25 May 2001 for the purposes of preparing the report.  That report included a description of the circumstances, which included reference to rubbing the penis on the genitalia, attempting to penetrate her, and, later in the evening, penetrating her.  Dr McGuire was of the opinion that the applicant had after this incident suffered from post-traumatic stress disorder, although she thought that it was likely that she had satisfied all the criteria for that condition only for a period of about 12 months.  To some extent however her symptoms had persisted, and it was likely that they would continue although they would probably lessen.  She had been receiving some counselling from a general practitioner, which she thought would be beneficial and likely to continue.

9. [9]
   In a later report of 27 May 2003,^[6] Dr McGuire said:  “It’s my view that if only the two sexual assaults had occurred and there had been no other sexual abuse that the probability is that [the applicant] would have still experienced a period of post-traumatic stress disorder as described in my report.  It would have been similar in nature and type but may possibly have been of less severity.  On the balance of probabilities she would have experienced the injury I observed from the two sexual assault offences alone and it’s my view that the two sexual assaults for which the respondent was convicted did make a material contribution to the psychological injury suffered by her.”

10. [10]
    Apart from this there was oral evidence from Dr McGuire that the matters referred to by the applicant, other than the conduct the subject of the charges, were the most serious aspects of the whole incident, would have been most repulsive and humiliating to her, and would have caused the most psychiatric injury to her, and most of the problems that she complained of: p. 11. The applicant also said under cross-examination that the penile penetration was the most serious of the various incidents that night: p. 30.

The submissions

11. [11]
    The applicant of course relies only on the offences of which the respondent was convicted, and on any injury suffered because of those offences. Counsel for the applicant submitted that the offences of which the respondent was convicted made a significant material contribution to the injury in fact suffered by the applicant, and, perhaps in the alternative, that those offences on their own would have been sufficient to cause such an injury anyway even if there had been no other conduct. The respondent was represented, but put no evidence before the court. There was no admission on the part of the respondent that there was any additional conduct, but the respondent relied on those parts of the applicant’s evidence to which I have referred, and submitted that on that basis I was entitled to and should find that there had been other conduct for which the respondent had not been convicted, and indeed that, on the basis of the applicant’s account, that other conduct had been more serious and more traumatic to her.

12. [12]
    It was submitted on behalf of the respondent that the applicant was only entitled to compensation for injuries suffered because of the offences of which the respondent had been convicted, and that compensation was not to be awarded for injury caused in another manner. It was submitted on behalf of the respondent that it was necessary to apportion the injury and only award compensation for that part of the injury which was attributable to the offences for which the respondent had been convicted, as distinct from other things that the applicant said happened to her. The material, and some statements by the applicant and Dr McGuire, indicated that it was the other conduct, of which the respondent had not been convicted, which was the major cause of the psychiatric problems, and hence the mental and nervous shock, suffered by the applicant. Accordingly most of that condition should be attributed to non-compensable causes, and the compensation reduced proportionately.

The legislation

13. [13]
    The issue here is essentially one of causation. The Act indicates that a causal relationship is required between the offence or offences of which the respondent was convicted and any compensable injury, but does not identify the nature of that causal relationship. Section 19(1)(a) indicates that the purpose of Part 3 is to provide a scheme for payment of compensation, “for injury suffered by the applicant caused by a personal offence committed against the applicant …”^[7]  Section 24(2) refers to an application to the court for an order that the convicted person “pay compensation to the applicant for the injury suffered by the applicant because of the offence.”  Subsection (3) permits the court to make a compensation order.  In my opinion this terminology indicates a causal relationship is required, but it does not require that there is to be any proportionality between the extent of the causal relationship and the amount of compensation.^[8] 

14. [14]
    Obviously a situation can arise where a person suffers an indivisible state of injury as a result of factors which include the offence or offences committed by the respondent, and other matters. There is some provision in the legislation in s 26 to deal with a situation where a particular injury has been suffered as a result of the criminal activities of more than one convicted person, but otherwise this situation is not expressly considered at all in the legislation.  This however is not the first legislation dealing with compensation in respect of injuries suffered in such circumstances.  It superseded Chapter 65A of the Criminal Code, which applied, and indeed continues to apply, in respect of any act done before the commencement of the Act, which was on 18 December 1995. 

15. [15]
    At the time when the Act was passed, the test of causation in applications under the Code was that described by Lee J in R v Tiltman; ex parte Dawe (SC 324/95, 22 June 1995, unreported).  His Honour held that the approach to causation in applications under the Code was to be equated with the approach in a tortious action, so that if the conduct constituting the offences of which the respondent had been convicted could be said to have materially contributed to the total damage, the respondent was liable to pay compensation in respect of the total damage unless the respondent could separate the effects of the compensable and non-compensable conduct on the applicant with some reasonable measure of precision.  That approach appears subsequently to have been approved by the Court of Appeal in Steinback v Steinback [2001] QCA 12.  It is I think now taken as settled that this is the correct approach in applications under the Code, which are still made from time to time.

16. [16]
    It may be that the position was not as clearly established in December 1995 when assent was given to the Act, but the decision in Tiltman had been given and represented at that time the best authority on the point.  If parliament had wished to produce a change in this respect in the new Act, it could have said so.  There were after all other substantial changes in the way in which compensation was to be awarded under the new Act.  In these circumstances, I think there is some significance in the absence of any indication in the Act that the approach to causation adopted under the Code was not to apply under the Act.

Analysis

17. [17]
    Logically it seems to me there are three ways in which compensation could be assessed in circumstances where an undivided state of injury can be said to have been caused partly by the events constituting the offences of which the respondent has been convicted, and partly by other matters.^[9]  First, the approach to causation in tort could be adopted, essentially the March v Stramare approach,^[10] where it is sufficient to show that tortious conduct was a cause of subsequent damage, for compensation to be awarded for that damage, not reduced because of the existence and relative strength of other causes.^[11]  Second, compensation could be assessed on the basis of such injury as would have been suffered if there had been only the conduct of which the respondent was convicted.  This was the point addressed in Dr McGuire’s last report, and raises the issue of what consequences would have been suffered by the applicant if there had been the conduct constituting the criminal offences but nothing else done to her.  Third, an indivisible state of injury could be apportioned and compensation only awarded to the extent that the injury was caused by the criminal conduct of which the respondent has been convicted.  This would involve an assessment of the various causes of that single state of injury, and the respective extent to which compensable and non-compensable causes were important in bringing about that state of injury.

18. [18]
    I think that it is reasonable to conclude that the wording of the statute is inconsistent with the second of these three approaches.^[12]  Compensation is to be awarded for the injury, that is, the actual injury, suffered by the applicant, not for some hypothetical injury which would have been suffered by her if the conduct of which the respondent has been convicted had occurred but nothing else happened to her.  To the extent that this approach is attractive, it is only because there is some attractiveness in apportionment because of causation, and because this approach would mean that there would not be any risk that the compensation that a respondent would pay would be reduced because of the existence of other non-compensable causes.  But I do not consider it can prevail, in view of the terms of the legislation.

19. [19]
    On the other hand, there is nothing in the legislation which is necessarily inconsistent with either of the other approaches. Both involve ways of providing compensation “for the injury suffered by the applicant because of the offence.”

20. [20]
    I discussed some of the decisions in relation to causation in Orley v Bath [2000] QDC 338.  In that case I expressed some personal preference for apportionment on the basis of causation, although I did not apply it in that case because the medical evidence suggested that the conduct constituting the offence was at least the major cause of the psychiatric condition identified.  I referred to two Supreme Court decisions, Sanderson v Kajewski [2000] QSC 270, and Stannard v Lane [2000] QSC 86, which appeared to be consistent with some notion of apportionment on the basis of causation, but without any express adoption of that approach.

21. [21]
    I also referred to the approach of the Court of Appeal in HV v LN^[13] [2002] 1 Qd R 279.  Thomas JA, with whom the other members of the court agreed, said at p. 282-3:  “Under the Code scheme, the courts applied principles derived from the common law in the assessment of damages for personal injury.  However, such principles have been expressly excluded from assessments that are to be made under the Criminal Offence Victims Act.  Mr Hardcastle sought to place reliance upon certain observations by Lee J in [Tiltman].  … With respect, I do not think that this affords an answer to the present problem.  In the first place, it is a little unrealistic to speak of the respondent separating out such effects in a jurisdiction where the proceedings are nearly always ex parte.  Secondly and more pertinently, in the present context it would be contrary to s 46 of the Criminal Offence Victims Act to fail to allow a proper discount for the consequences of criminal acts of the respondent committed before 18 December 1995.  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.  No doubt there may be instances in which the claimant’s proof of loss is so vague or incomplete that an assessment is not reasonably possible;  but this is not such a case. … Other solutions to this problem might of course be suggested.  But in my view the essential right conferred upon an applicant by the Criminal Offence Victims Act is to require a convicted person to pay compensation ‘for the injury suffered by the applicant because of the offence’, and the respondent’s liability under that Act is limited to injury suffered as a result of offences committed after the commencement of the Act.”

22. [22]
    That was a case where the court apportioned on the basis of causation, as between offences committed before and after commencement of the Act, but it was one where that outcome was almost compelled by the circumstances and the terms of s 46, to which his Honour referred.  Although apportionment was used to deal with the particular problem that arose in that case, as his Honour indicated, it does not necessarily follow that apportionment is always to be used in dealing with questions of causation arising under the Act.  It may perhaps be seen however as a relatively rare example where courts have “broken the ice” of apportionment on the basis of causation.

23. [23]
    In other contexts, that ice has proved remarkably resistant, or rather courts have proved remarkably reluctant to take such a step. The High Court has emphatically rejected apportionment on the basis of causation in respect of a claim for compensation for breach of trust,^[14] a claim for damages under the Trade Practices Act^[15], and a claim for damages for breach of contract.^[16]  Even contributory negligence was not at common law a matter of apportionment;  where it operated, it was a complete defence.^[17]  Civil law^[18] has generally therefore adopted the approach that there is not to be any apportionment on the basis of causation.  Although there has been some legislative intrusion into that position, for example in Part 2 of Chapter 2 of the Civil Liability Act 2003,^[19] it would seem to me that if the legislature is intending to require apportionment on the basis of causation in a civil proceeding it needs to say so, preferably in unambiguous terms.  That has not occurred with this legislation.

24. [24]
    In HV v LN (supra) Thomas JA referred to ss 22(3) and 25(8) of the Act.  The latter is expressly concerned with the amount of the award, not the question of causation, and refers back to s 22(3) and (4).  These are also, in my opinion, concerned with the amount of the award, as is obvious in s 22(4).  Parliament was concerned to change from the situation under the Code, where the assessment follows a common law damages assessment, subject to the statutory ceiling, to a fairer scheme of scaling awards according to seriousness, with the maximum amount for the most serious cases.  But this in my opinion says nothing about causation.  There is an important difference between causation – whether a particular injury qualifies for compensation – and quantification:  how much compensation is to be awarded for that injury.  The fact that the amount of compensation is to be assessed in a specified way, which is different from common law damages, does not necessarily mean that the common law test for causation is also not to be followed, particularly when the legislature has not specified what other approach to causation is to be used instead.

25. [25]
    I should also mention that s 25(7) of the Act provides as follows:  “In deciding whether an amount, or what amount, should be ordered to be paid for an injury, the court must have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury.”  This subsection has received some consideration, but only in the context of the behaviour of an applicant.^[20]  It contemplates some consideration being given to reducing, or perhaps excluding, any order on the basis of behaviour of the applicant contributing to the injury, and that is something which must be assessed by reference to all of the circumstances of the case.  Because of the wording used in this subsection, in my opinion the widest scope for this power was intended, and I think it would be unduly restrictive to treat the subsection as merely providing for apportionment on the basis of causation in that context. 

26. [26]
    The question arises whether it allows for apportionment on the basis of causation, or something like that, in the present context. I think there are three reasons why it does not provide an answer which assists the respondent. The first is that, in my opinion, this subsection is also concerned with quantification rather than causation, because of the reference to “amount … to be paid.” The second is that, to some extent, the argument is circular. Whether there were other matters which contributed to the suffering of an indivisible psychiatric injury is only something “relevant” if one proceeds on the basis that the test for causation is something different from the test that I would apply. On the test for causation that I apply, so long as the offence or offences materially contributed to the suffering of that injury, that is sufficient, and whether or not there were other factors which also contributed is irrelevant. The other factors are therefore not to be taken into account under this subsection. The third is that, bearing in mind the nature and context of this legislation, there is something inherently unattractive in the notion that an award of compensation should be reduced, under a broad discretionary power such as this subsection confers, because the injury was in part, perhaps even in a large part, caused by other criminal conduct of the respondent, or indeed just other conduct of the respondent, of which the respondent has not been convicted. In the circumstances of this case, if I had a broad discretion under this subsection because the other conduct of the respondent was also a cause of the injury, I would not exercise that discretion in favour of the respondent.^[21] 

27. [27]
    This is not to say that the idea of apportionment on the basis of causation is without attraction. I recognised that in my judgment in Orley v Bath [2000] QDC 338, at [28], [32].  Bearing in mind the factors referred to above however, I am not persuaded that that is the appropriate approach to adopt when dealing with an application under the Act.  If it is to be used, that step should be taken by the Court of Appeal.

28. [28]
    In those circumstances, in my opinion the approach to causation to be applied under the Act is the same as the approach applied under the Code, and indeed the same as the approach applied in relation to liability in tort. There is not to be any apportionment on the basis of causation. As long as the relevant conduct of the respondent, that is the conduct constituting the offences of which he has been convicted, amounted to a cause in the legal sense, that is, was a material contribution to the suffering of the particular injury the subject of the application, then compensation can be awarded for that injury.

29. [29]
    The position would be different if it were possible to identify aspects of a psychiatric condition (or in principle any other injury) which were able to be specifically associated with something other than the conduct constituting the offences. In such circumstances, those aspects of the injury would have to be disregarded. But that is not the situation here; the evidence of Dr McGuire addressed a hypothetical consequence if there had been the conduct constituting the offences but no other conduct, but there was no suggestion that any particular aspect or feature of the applicant’s actual psychiatric problems was associated with any particular thing that the respondent did. I am satisfied that the effect of the whole of the evidence is that the applicant has suffered one indivisible psychiatric injury from the whole of the things done to her that night, including those things constituting the offences of which the respondent has been convicted, which I am satisfied materially contributed to the suffering of that psychiatric injury, although they were neither the sole nor the dominant cause of it. I find that they were a cause according to the test of causation in tort, the March v Stramare test.  That is sufficient.

Scope of mental or nervous shock

30. [30]
    Another issue which arose was as to the boundaries between the injury of mental or nervous shock and the injury consisting of the totality of adverse impacts. The applicant argued that the injury of mental or nervous shock applied only in circumstances where the applicant was actually suffering from the condition of post-traumatic stress disorder, that is, during the period when she met all the criteria for diagnosis of that condition. The evidence from the psychiatrist, Dr McGuire, was that the condition extended for at least a year after the date of the offences (p. 3) but the symptoms had abated to the extent that the diagnosis was not satisfied by the time she first saw the applicant, on 25 May 2001.  The applicant submitted that symptoms after the diagnosis of post-traumatic stress disorder ceased to apply should be dealt with as aspects of the deemed injury under the regulation.

31. [31]
    In my opinion that is not the correct approach in a matter such as this. It is well established that it is not necessary for a person to suffer a specific psychiatric condition in order for the person to have suffered an injury in the form of mental or nervous shock for the purposes of the Act. In Ferguson v Kazakoff [2001] 2 Qd R 320, Thomas JA, after a comprehensive review of the decisions under the Act, and other authorities, said at pp.324-5:  “It would in my view unduly limit the term [mental or nervous shock] if it were confined to conditions that are recognised as psychiatric disorders.  Conversely it over-stretches the term to use it as a source of additional compensation for natural human emotions felt by people who cope adequately with the aftermath of an offence and are able to get on with their lives.  …   It is extremely difficult to define the point at which mental consequences to a claimant from a crime become compensable as ‘mental or nervous shock’.  I consider, however, that if nothing more is shown than fear, fright, unpleasant memories or anger towards an offender, or a combination of such reactions, the claimant has not shown that he or she suffered nervous shock.  Unless the court is affirmatively satisfied that mental or nervous shock has been suffered compensation should not be awarded for such reactions.  …  To limit compensation to cases where a diagnosable mental disorder or psychiatric illness results would give the term ‘mental or nervous shock’ too limited a meaning.”  As I understand the position, that approach has subsequently been generally accepted as the appropriate approach under the Act.

32. [32]
    There is no doubt in this case that the applicant did suffer mental or nervous shock, and the contrary was not argued. But in my opinion a person does not cease to suffer mental or nervous shock merely because the condition moderates such that not all of the diagnostic criteria for the specific condition continue to be met. The continuing psychiatric problems the applicant has as a consequence of what was done to her, although now not amounting to post-traumatic stress disorder, are clearly above the threshold contemplated by Thomas JA for an applicant to be suffering mental or nervous shock. Apart from this, it seems to me that once a person qualifies on that basis as someone who has suffered mental or nervous shock, the whole of that injury is properly compensated under the schedule, including any “tail” of symptoms as they abate. Accordingly I regard the present and future aspects of persisting symptoms of what was formerly post-traumatic stress disorder as properly compensable under the heading of mental or nervous shock in the schedule.

Allocation of particular consequences

33. [33]
    The next issue which arises is in relation to how the particular consequences of the offences to the applicant are to be allocated as between mental or nervous shock and the injury under the regulation. Matters which properly form part of the mental or nervous shock injury cannot be taken into account when assessing the regulation injury.^[22]  A number of specific examples of adverse impact are listed in s 1A(2) of the regulation.  The list is as follows: 

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 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.”

34. [34]
    Within this list item (c) does not apply because it is a separate injury, and the applicant did not seek to rely on items (d) – (f). With regard to item (a), there is no doubt that the applicant felt a strong sense of violation, particularly immediately after the incident, although this has persisted for a considerable time. It is apparent in the statement Exhibit B to her affidavit, and aspects of it are referred to in the reports of Dr McGuire.  The evidence indicates that the sense of violation was accentuated by the fact that this was her first sexual experience with a man, and because of her sexual orientation.^[23]  The evidence of Dr McGuire was to the effect that this is part of the post-traumatic stress disorder in the case of this applicant.^[24] 

35. [35]
    There was also evidence that the applicant has suffered reduced self-worth or perception, and Dr McGuire was of the opinion that this was also part of the post-traumatic stress disorder: p. 15. The same applies to item (g), increased fear or increased feelings of insecurity.^[25]  Item (h) is in a somewhat different category, because it is concerned with the effect on the applicant of a reaction of persons other than the applicant.  This is not part of the post-traumatic stress disorder^[26] and is associated particularly with the reaction of the applicant’s mother, who was seen by the applicant as sceptical about whether anything had occurred.^[27]  It appears that the mother also reacted badly to some aspects of the criminal justice process:  p. 32.  The applicant maintained that it was the circumstances flowing from the offences which led to the breakdown in her relationship with her mother (p. 31), but she conceded that the relationship had been up and down for a period of time:  p. 32.  It appears therefore that this was not the sole cause of problems with the relationship with her mother, which may have been somewhat fragile anyway, but it certainly had some adverse effect on it, and that in turn has to some extent upset and distressed the applicant.

36. [36]
    Also relevant under this heading appears to be her distress at being unable to continue a relationship with another woman. This is a matter explored in some detail in Exhibit B to her affidavit;  essentially after the offences she was unable to tolerate any sexual activity with anyone, and became very difficult to live with.  She could see that this was distressing her friend, and was in turn distressed by this.  I think that that is another feature which comes under this heading, although the inability to engage in any form of sexual activity itself falls under item (i).  That was said to be present in the case of this applicant, but again Dr McGuire identified that as part of the post-traumatic stress disorder:  p. 6.  The next item is adverse impact on feelings.  Dr McGuire expressed some uncertainty as to how to deal with that particular heading, because obviously there had been a very substantial impact on the applicant’s feelings:  p. 6.  However, it seems to me that that item must be in the regulation in order to accommodate those cases where there was no mental or nervous shock, but where there was nevertheless some impact on feelings which fell short of that.  Obviously the post-traumatic stress disorder has had an enormous impact on her feelings, but that does not mean that this has to be considered again under this regulation.

37. [37]
    Counsel for the applicant relied on three other matters as adverse impacts for the purpose of item (k). The first was loss of social enjoyment with a particular reference to her no longer being able to participate in indoor cricket. This was an activity in which she had been involved for a number of years, and in which she had obtained some prominence, but she apparently gave it up completely after this incident. The applicant in her affidavit suggests that this was related to her response to the reaction of others, because the people she was with on the night were associated with the cricket team, and she believed that everyone at the cricket games knew what had happened to her. It is not however clearly established that this was a real reaction on the part of these other people rather than simply something happening within her own mind, in which case I think it is properly seen as part of the post-traumatic stress disorder. This was not a matter directly addressed by Dr McGuire.^[28] 

38. [38]
    The next matter relied on was loss of employment opportunity. She had been refused entry into the Navy because of the psychological trauma she had suffered. The Naval psychology report exhibited to her affidavit suggests that she was regarded as unsuitable because of this. The report was prepared on 7 September 1999, only just over two weeks after the offences occurred, and it is unsurprising that at that stage she was still suffering considerable emotional distress, and would be regarded as unsuitable for recruitment.  The report referred to her coming back after the court cases were over or in 12 months, but it does not appear that she did so.  In paragraph 15 of her affidavit she referred to her parents having after the incident put a lot of pressure on her to move on quickly and enlist into the Australian Defence Force.  That evidence casts some doubt on whether there would have been an attempted enlistment at that time had this incident not occurred.  She was then still 17.  This is not a matter addressed in oral evidence, and overall it is likely that there was some interference with any military career. 

39. [39]
    On the other hand, she was certainly working in October 2000 when Exhibit B her affidavit was prepared, and her affidavit sworn in June 2002 gives her occupation as administrative clerk.  On the second page of her statement Exhibit B she says, “work has sort of been my hidden saviour …”  The incident may well have had some effect on her choice of career, but it does not appear to have produced the result that she was unable to work at all, either temporarily or permanently.  It does appear from that statement that she had difficulties in her work, but that she was able to cope.  Presumably she has coped since.  It does appear that there was some interference with her desire to join the Navy, and I think this does amount to an adverse impact, but in the circumstances it is not a serious one.

40. [40]
    The third matter relied on was weight loss. Dr McGuire recorded the applicant having lost 11 kilos in weight.  It is not clear over what period this occurred, but there was a reference to weight loss in the statement of October 2000 so it may well have occurred fairly quickly after the offences.  At the time she gave oral evidence the applicant appeared thin but not to an exaggerated extent, so it may be that this particular difficulty has abated.  Insofar as the weight loss was a by-product of her psychological state, it is something covered by the post-traumatic stress disorder.  Apart from this, there is no evidence to indicate that the weight loss as such was bad for her, or any evidence that it was severe enough to damage her health, and accordingly I am not prepared to treat this as an adverse impact.

41. [41]
    It may be that some of Dr McGuire’s views^[29] as to whether these various adverse impacts were properly regarded as part of the post-traumatic stress disorder are debatable.  But in circumstances where I am asked to rely on Dr McGuire’s evidence as to the impact and significance of the post-traumatic stress disorder, it is necessary in order to avoid double compensation that I am assessing that disorder on the same basis as Dr McGuire has been.  Bearing this in mind, and also the fact that her evidence was not contradicted by another expert, I accept her evidence about which matters were part of the post-traumatic stress disorder.^[30]  The consequence is that the only matters to be taken into account as the regulation injury are the adverse effects of the reaction of others, and the loss of employment opportunity in the Navy.

Mental or nervous shock - assessment

42. [42]
    With regard to the post-traumatic stress disorder, Dr McGuire assessed this as moderate^[31] and noted that although in May 2001 her symptoms no longer met the criteria for that disorder, they had persisted to some extent and it was likely that they would continue.  Some symptoms remained but they were diminishing over time:  p. 2.  Commonly with this condition there is a diminution over time, although some people continue to have symptoms which are lifelong:  p. 3.  It is also apparent from the applicant’s affidavit, and in particular the statement Exhibit B, that she was for a time very distressed by what had happened to her, and it was apparent in the witness box, where at times she became upset and tearful, that she still finds the memory of these events quite distressing.  Although she has not seen a psychiatrist for therapeutic purposes, she was receiving counselling from a general practitioner for some considerable time.^[32]  There were some significant changes in her personal life and behaviour as a result of her reaction to these offences, and her psychiatric condition.  She had a number of distressing symptoms which are set out in more detail in Dr McGuire’s report, which have to some extent persisted, and will continue, although diminishing with time.  All of this evidence supports Dr McGuire’s opinion that her psychiatric condition was of moderate severity, and fell within item 32 rather than 31 or 33 in the schedule to the Act.

43. [43]
    There have now been a large number of cases where courts have made awards in respect of post-traumatic stress disorder, either in cases involving sexual offences or in cases of offences of violence. I was referred to a number of these, and I have identified some others. In M R v Webb [2001] QCA 113, the Court of Appeal declined to interfere with an assessment of 20 percent, the top of item 32, in the case of a girl who when five was indecently dealt with, producing moderate to severe emotional disturbance characterised by anxiety, depression, perfectionism and deterioration in school performance.  The Court of Appeal referred to the decision in Sanderson v Kajewski [2000] QSC 270 where the applicant suffered post-traumatic stress disorder and had after the first twelve months become worse for about two and a half years before there was some improvement, and an award of $35,000 was made.  In Dooley v Ward [2000] QCA 493 the court reduced an award for an applicant who suffered a significant but temporary aggravation of pre-existing severe psychiatric problems from 25 percent to 15 percent.  In Harman v Horne [2001] QCA 349 the applicant suffered a severe chronic post-traumatic stress disorder as a result of being bitten twice by an intravenous drug user said to be suffering from Hepatitis C and HIV.  Once it became apparent that these had not been contracted his prognosis became good.  An assessment of five percent on the basis that the mental or nervous shock was minor was not disturbed. 

44. [44]
    In Ferguson v Kazakoff [2001] 2 Qd R 320 the applicant suffered minor generalised anxiety following an assault which led to some symptoms which did not cross the threshold of post-traumatic stress disorder.  Thomas JA assessed the injury at five percent within item 31:  it appears to have been a good deal less serious than that suffered by the present applicant.  In Jullie v Atwell (D2711 of 2001, 20.6.01) an 86 year old rape victim suffered a psychiatric injury of adjustment disorder with anxiety which was of moderate severity but had partially resolved, and would shortly be overtaken by progressive dementia, and it was not argued on appeal that my assessment of ten percent for mental or nervous shock was inappropriate.  In Hall v Summergreene (D2762/02, Trafford-Walker SDCJ, 28.8.02) an assessment of 18 percent under item 32 was made for moderate post-traumatic stress disorder following conviction for indecent assault.  In Pyritz v Toby (D64/02, Dodds DCJ, 31.5.02) the applicant suffered initially very severe psychiatric problems following an attempted rape which had improved over time, and 20 percent was awarded.  In Warren v Hardy (D2941/02, Shanahan DCJ, 18.11.02) the applicant suffered post-traumatic stress disorder for a period of some months which had eased after the family moved home; 15 percent for mental or nervous shock was assessed.  In KLW v ACH (2001) 22 Qld Lawyer Reps 144 the applicant had suffered indecent dealing and assault when she was 15 and as a result suffered post-traumatic stress disorder of some persistence for which an assessment of 12 percent was made, but this may have been influenced by his Honour’s approach to the question of causation.  In McErlain v McGuiness (D267/03, Howell DCJ, 18.9.03) the applicant when 13 suffered indecent dealing from the respondent as a result of which she developed post-traumatic stress disorder to a moderate degree which had improved to some extent but not abated completely, for which an assessment of ten percent was made.

45. [45]
    In B v G (2003) 24 Qld Lawyer Reps 261 the applicant suffered indecent dealing when she was nine years old as a result of which she suffered psychological disorders resulting in emotional distress and continued recollection of a traumatic event.  Another psychologist suggested that she was suffering post-traumatic stress disorder, and noted that she suffered a panic attack after she saw the respondent following his release from prison.  There appears to have been a finding that there was post-traumatic stress disorder, and an assessment of 20 percent was made.  In Pidgeon v Saverin (2003) 24 Qld Lawyer Reps 271 the applicant who had some pre-existing depression, suffered some further symptoms associated with post-traumatic stress disorder as a result of being stalked by the respondent.  An assessment of ten percent was made.

46. [46]
    These decisions are not perhaps all reconcilable. It must also be borne in mind that in a great majority of these cases there was no appearance for the respondent, or the respondent appeared in person, so the court did not have the benefit of reference to earlier decisions other than those relied on on behalf of the applicant, which tend to be the more generous ones. Nevertheless these decisions suggest that where there is moderate post-traumatic stress disorder suffered which then slowly abates but with some persistence of symptoms an award in the range of 10 percent to 15 percent is commonly made.^[33]  In view of the particular circumstances of this matter, and bearing in mind my assessment of the applicant as a witness, I think the assessment should be at the top of this range.  The impact on her life does seem to have been quite substantial, and she is obviously still quite distressed.  Accordingly I will allow 15 percent for this injury.

Assessment of other adverse impacts

47. [47]
    I have been referred to a number of decisions where various judges have made assessments of other impacts under the regulation, in cases where there has been also an assessment in respect of mental or nervous shock. There have been some comments on the difficulty in distinguishing between symptoms of post-traumatic stress disorder and additional adverse impacts.^[34]  Assessments appear to have ranged from nothing^[35] to 28 percent.^[36]  It is apparent from some of these decisions that impacts taken into account when making an assessment under the regulation included various matters which in this case, on the evidence, ought to be seen as part of the mental or nervous shock, being part of the post-traumatic stress disorder.  I suspect that I have had the benefit of more helpful expert evidence in the present case as to the boundaries of post-traumatic stress disorder than has been available to many of those judges, and in this case of course I have had the benefit of cross-examination and submissions on behalf of the respondent.  My assessment in this case must be made on the basis of the evidence in this case, but I would comment that it seems to me in the light of that evidence that some of the assessments made in other cases may well have been in error, because they took into account factors which ought to have been seen as part of the mental or nervous shock.

48. [48]
    As I said in Jullie v Atwell:^[37]  “The consequences of rape can be many and varied and can be in some particular cases very serious and it was no doubt with a view to reflecting that situation and a concern that these were matters not adequately reflected in the formulation of the current schedule and the terms of the legislation [that s 1A of the] regulation was introduced.  It was intended to ensure, in appropriate cases, particularly cases where there were unusually serious consequences, the court would not be unduly confined by a narrow definition of injury from ensuring that compensation was available for anything that may properly be regarded as an adverse impact.”

49. [49]
    Without dwelling on the more serious possible adverse consequences of sexual offences, within the whole range of such consequences those matters which in the present case are properly dealt with under this regulation can be seen as of relatively little significance. The applicant has suffered quite significantly as a result of this offending, but essentially in a way which is properly dealt with in respect of the injury of mental or nervous shock. There is really very little outside the scope of that condition properly the subject of a further award under the regulation, only the adverse effect of the reactions of others, and the (apparently temporary) loss of a specific employment opportunity. I have given some consideration as to whether it is appropriate to make any allowance under the regulation, but there have been some identifiable matters and I will allow two percent in respect of the deemed injury under the regulation.

Physical injury

50. [50]
    The respondent had nothing to say in relation to the physical injury. Although this was put to the sentencing judge by the Crown Prosecutor as associated with the biting which was part of count two, that did not reflect the material on the prosecutor’s brief, which included a medical report from Dr Mobbs which is before me.^[38]  This referred to two one millimetre blood-filled blisters on the edge of the hymen on the left side which in Dr Mobbs’ opinion was indicative of blunt trauma to the area.  That is precisely where one would expect to find some form of injury in the case of penetration of the vagina by a finger or penis, particularly in the case of a woman with no previous sexual experience with a man.  On the other hand, it would be a remarkable coincidence if an injury caused by a bite was in that particular place.  I do not accept that this injury was caused by the bite.  It was caused either by the penetration of the vagina with the fingers which was part of count two, or by the subsequent rape.  If the latter, it is not compensable.  I do not think there is any basis upon which I can rationally determine that the injury was more likely to have been caused by the penetration of the fingers rather than the penetration of the penis.  But even apart from this, the injury is a very minor one, and not one which I consider justifies any award under the Act, bearing in mind that the smallest amount which can be awarded for this particular injury is $750.^[39] 

Conclusion

51. [51]
    Accordingly the total assessment is 17 percent of the scheme maximum, which is $12,750.  Accordingly I order the respondent to pay the applicant $12,750 by way of compensation for the injuries suffered by her because of the offences committed by the respondent of which he was convicted in this court on 23 October 2000.  There is no jurisdiction to make any order for costs.