DISTRICT COURT OF QUEENSLAND

1. [1]
   These are two applications for compensation under the Criminal Offence Victims Act 1995 (“the Act”). The injuries relied on are mental or nervous shock, and the deemed injury under the Criminal Offence Victims Regulation.  They reveal an unusual situation, because the applicant had the particular misfortune to be sexually abused whilst a child by two separate individuals, who are the two respondents.  A separate application for compensation has been brought against each, and neither respondent has appeared to resist the applications.  This gives rise to an issue as to how applications of this nature are to be approached.

2. [2]
   The respondent CSP was on 19 February 2003 convicted on a plea of guilty of eight counts of indecent treatment of a child under 16 years occurring between 5 September 2001 and 6 October 2001, one count of indecent treatment of a child under 16 years on 12 October 2001, and two counts of attempted incest between 5 September 2001 and 6 October 2001.  In each case the offence was committed against the applicant.  The respondent was sentenced to a term of imprisonment.  A compensation order may be made against the respondent because of any injuries suffered by her because of the offences:  s 24.

3. [3]
   The respondent Crowhurst was convicted on a plea of guilty on 14 February 2003 of five counts of indecent treatment of a child under 16, which offences were alleged to have occurred between 1 July 1999 and 29 October 2001, all at Stafford Heights and Nudgee.  In each case the offence was committed against the applicant.  A term of imprisonment was imposed.  Again, the court may make an order for the respondent to pay compensation to the applicant because of any injuries suffered by her because of the offences.

4. [4]
   The respondent Crowhurst was a friend of the applicant’s family. The offences in his case involved touching the applicant on the breasts, and digital penetration of the vagina. The respondent CSP was the applicant’s maternal grandfather; his offences began with touching the applicant on the breasts and progressed to digital penetration, and then two occasions of attempted incest. Although the dates of each of the indictments overlap, the applicant told Dr McGuire, a psychiatrist from whom a report was obtained and put in evidence in support of the applications,^[1] that the abuse by the respondent Crowhurst preceded the abuse by the respondent CSP.

5. [5]
   Apart from the report from the psychiatrist, I was also provided with a report from the Child and Youth Mental Health Service dated 24 September 2004,^[2] which provided some background to the applicant, and significantly indicated that there had been some association with the service prior to any of the incidents of sexual abuse.  That report revealed that the applicant first attended a youth mental health clinic on 24 September 1996 when she was nine years old.^[3]  At that stage the applicant had behavioural problems at home, and after some sessions of individual support for her and provision of parenting strategies to her parents the situation improved.  In March 1997 however there was further contact with the parents complaining about similar behaviour.  A speech and language assessment revealed average language development, but some limitation of language processing ability, and a greater limitation of problem solving ability.  Some treatment for this was provided, but it does not appear there was any further contact until June 2000.  That may well have been after, and in response to, the commencement of the sexual abuse.  What it particularly revealed however was a strained relationship with the applicant’s mother, and the applicant at that stage was diagnosed as suffering depressive features, oppositional defiance disorder.  By July 2001 the relationship with her mother had further deteriorated, and later in that year there were behavioural problems at school.^[4]  At that stage she was diagnosed with reactive attachment disorder, and dysthymia.

6. [6]
   It appears that in November 2001 the applicant told a school guidance officer about the sexual abuse. That was reported to the mental health service, along with advice that there had been self-harm. The police were also notified, and as a result a statement about the respondent CSP was made to police on 8 November 2001.^[5]  Accordingly to the report of the psychiatrist, soon after she spoke to police the applicant took an overdose and was admitted to the Royal Brisbane Hospital.^[6]  This is not referred to in the report from the mental health service, although there is reference to many presentations to the hospital and several admissions to the adolescent unit between November 2001 and January 2003.  After discharge from hospital she was apparently in foster care for a time, and then returned home but ran away from home and has essentially been living away from home since then.  On 18 December 2001 she made a statement to police about the respondent Crowhurst.^[7]  She revealed to the psychiatrist considerable hostility towards her mother, which is consistent with the information in the mental health service report.  She also complained that her mother had supported her grandfather rather than herself following her complaint of sexual abuse by him.

7. [7]
   According to the health service report, from January 2003 the applicant has presented with a range of problems. At times she would become extremely distressed; during sessions with the health service however she generally presented as emotionally detached, and sometimes was withdrawn to the point where she would just sit unresponsive for an extended period. Her level of distress was said to have increased significantly when she was reminded of the abuse. She had flashbacks and nightmares associated with the abuse. She experienced ongoing suicidal ideation, with frequent episodes of self-harm including many suicide attempts. She has also cut herself, and burnt herself with cigarettes and lighters. There have been numerous admissions to the psychiatric in-patient ward. She reported having been raped on at least two occasions after she left home.

8. [8]
   The mental health service diagnosed her as suffering from post-traumatic stress disorder. That is consistent with the diagnosis of Dr McGuire. There has been apparently a good deal of contact in recent times with the mental health service, and her attendance was described as regular. She still finds it very difficult to describe or understand her feelings and still does not speak freely about the abuse,^[8] even with someone with whom she has a long standing relationship as a counsellor.  The report refers to her inability to process her trauma and the severity of her distress.  However it notes that in the last several months she has started to be able to tolerate being able to talk about the abuse, and to understand the impact it has had on her feelings and behaviour, and that she has in recent months had regular contact with her family, and had moved into stable supported accommodation.  She has also given birth to a son.  I find the report from the mental health service of considerable assistance, and I accept it.

9. [9]
   Dr McGuire’s report referred to the applicant’s having suffered nightmares but not recently, and also to flashbacks related to both abusers. She did not find sexual relations a pleasant activity, she had anger towards both respondents, particularly her grandfather although that may be associated with her mother’s support of him. She is concerned about contact with him when he is released from prison. The report of Dr McGuire was prepared in September 2003, and would therefore precede the more recent signs of improvement noted at the end of the mental health service report.

10. [10]
    Dr McGuire assessed her as suffering from severe post-traumatic stress disorder, and noted that there were personality features which would make her life much more difficult, although some of these may have preceded the sexual abuse. In a supplementary report she attributed 80 percent of her symptoms to the sexual abuse.  She did say however that each of the offences would have made a significant material contribution to her symptoms.

11. [11]
    I have also a supplementary report from Dr McGuire, dated 20 October 2004, providing a further comment on the report from the mental health service, and clarification about some of the adverse impacts of the sexual offending referred to in the regulation.^[9]  Dr McGuire noted that there was behavioural disturbance prior to the onset of the abuse, probably caused by a reactive attachment disorder reflecting problems in her relationship with her parents.  She confirms my impression from that report that the abuse had a significant and material contribution to her psychiatric state from the age of 15.  (The applicant is now 17.)  I think it is a reasonable inference from all of the psychiatric evidence however that even if there had been no abuse there probably would have been some behavioural difficulties anyway.  Nevertheless, each set of abuse was clearly a cause of the post-traumatic stress disorder.^[10] 

12. [12]
    In the present case, I think that the mental or nervous shock falls into the severe category, item 33.  Apart from the opinion of Dr McGuire to this effect, the applicant has needed and has received extensive professional treatment.  She has been hospitalised on many occasions because of her psychiatric problems, and she has been receiving a fairly intensive level of counselling for most of the time since the abuse occurred.^[11]  She has frequently attempted suicide or otherwise engaged in self harm.  Overall, her symptoms are, so far as I can recall, the worst of any applicant for compensation before me who has been diagnosed with post-traumatic stress disorder.  Dr McGuire did not hold out any particular hope of improvement, but the report from the Mental Health Service indicates that there has been some improvement in recent months.  It may be that this is associated with her having become a mother.  In any case, there are indications of some growing stability and some hope for the future.  Nevertheless, in my opinion an assessment towards the top of the range is justified in this case, and I will allow 32 percent for the psychiatric injury.

Adverse impacts

13. [13]
    The applicant also relied on the injury constituted by the totality of adverse impacts of a sexual offence, pursuant to the regulation s 1A.  This is only an injury to the extent that the impacts are not otherwise an injury under s 20, and, when the injury relied on under s 20 is mental or nervous shock, that injury cannot be included as an impact under the regulation:  Jullie v Atwell [2001] QCA 510.

14. [14]
    Dr McGuire’s first report referred to the applicant as having suffered a sense of violation, reduced self-worth or perception, increased fear and feelings of insecurity, an adverse effect from the reaction of others, and an adverse effect on lawful sexual relations. That report however did not indicate whether any and which of these were aspects of the condition of post-traumatic stress disorder. It is important, where an applicant is relying on both mental and nervous shock and the injury under the regulation, for the expert evidence in support of the application to make it clear what matters are, and what matters are not, included in any condition which is to be relied on as amounting to mental or nervous shock.^[12]  In a supplementary report dated 20 October 2004, Dr McGuire identified the sense of violation, reduced self-worth or perception, and increased fear or feeling of insecurity as being within the diagnosis of post-traumatic stress disorder.

15. [15]
    Initially there was no reliance on lost or reduced physical capacity, and in her first report Dr McGuire said that the applicant had not lost or reduced physical capacity, including the capacity to have children. In her second report she noted that it is highly probable that her post-traumatic stress disorder may hamper her parenting capacity. That was said not to be included within the diagnosis of post-traumatic stress disorder, but it is obviously a consequence of it and therefore a matter to be taken into account when assessing the degree of severity of that injury. It does not amount to an adverse impact which is not part of that psychiatric injury.

16. [16]
    There are two of the specific matters referred to in the regulation which Dr McGuire considered do apply in the present case. There has been an adverse effect from the reaction of others, specifically her mother and indeed other members of her family who have generally taken the side of the grandfather rather than her side, leading to a general alienation from her family. The report from the mental health service suggests that the severity of this has been declining in recent months. It may of course become worse once the grandfather is released from prison. This is not part of the post-traumatic stress disorder; it is a consequence of the attitudes and actions of others. I accept that the applicant has suffered an adverse effect to the reaction of others, as a result of the actions of the respondent CSP. The material in respect of this is largely specific to that respondent; there is no specific indication that there was any particular reaction from the mother or other members of the family as a result of the Crowhurst matter.^[13]  The other matter that was referred to was aversion to ordinary sexual relations, which was not part of the psychiatric condition either.  That was said to be related to the actions of both respondents.  On the evidence of the applicant and Mr. Weaver, she has had serious relationship problems, including with sexual relations.  I accept the evidence of Dr McGuire as to those matters which were or were not part of the post-traumatic stress disorder. 

17. [17]
    The solicitor for the applicant in his initial outline referred to a number of other matters relied on as adverse impacts which could be taken into account under paragraph (k).  The first of these was a poor body image, but it seems to me that this is clearly covered by reduced self-worth referred to in (b) above, which is part of the post-traumatic stress disorder.  The next was loss of educational opportunities.  This was related to behavioural problems;  the applicant said she failed year 9 and did not finish year 10, and she had been expelled and was not entitled to enrol at any school in Queensland.  It seems to me however that this is not something which can properly be taken into account in this way.  Although the matter is not entirely clear from the reports, either this was a consequence of the behavioural problems which were pre-existing, and therefore not relevant as an adverse impact, or it was a consequence of the post-traumatic stress disorder, in which case it is not something which could be taken into account as a separate adverse impact.  There is no reason to think that educational opportunities were lost just because of her being abused.

18. [18]
    The next matter relied on was the effect on family relationships, but this is really an aspect of the effect of the reaction of others which has already been covered. The next was effect on social life, which in my opinion is an aspect or consequence of the post-traumatic stress disorder, and therefore not separate. The next two relied on were drug and alcohol abuse and criminal behaviour. Dr McGuire’s report refers to her use of marijuana and states that she “occasionally drinks” but denies that either of these are a problem. It also states that she has not been involved in offending. I do not consider that compensation should be awarded for matters of this nature. In any case, to the extent that this has been occurring, it would be as a consequence of the post-traumatic stress disorder, and therefore not properly taken into account separately under the regulation. The final matter relied on was accommodation problems, but this is an aspect of the adverse effect of the reaction of others; because of the reaction of her mother and other members of her family, she left home. To the extent that she has had particular accommodation problems because of her psychiatric state, that is not something which is properly the subject of separate compensation.

19. [19]
    In my opinion therefore the only relevant aspects are the adverse effect of the reaction of others, and the adverse effect on lawful sexual relations.

20. [20]
    I said something about the significance of the deemed injury under the regulation in LMW v Nicholls [2004] QDC 118 at [48]-[49].  I will not repeat what I said there.  In the present case it seems to me that the adverse effect of the reaction of others has been more serious than in that matter, although that matter also involved the breakdown of the relationship with the applicant’s mother, a relationship which had previously not always been good anyway.  In the present case it is clear that there were serious pre-existing problems with the relationship anyway;  however, the support from the mother of the offender, and the attitude of other members of the applicant’s family, make this aspect worse.  The applicant has had some adverse impacts of some significance to her, but I think that the psychiatric injury with all its aspects and consequences has been far more serious and significant to the applicant.  In addition the possible adverse consequences of sexual offences could easily be dramatically worse.  In all the circumstances I will allow eight percent in respect of the deemed injury under the regulation.

Two applications

21. [21]
    The Act deals with a situation where there has been harm caused by the action of more than one convicted person in s 26, which provides as follows:

26 When single or multiple compensation orders may be made

1. (1)
   The purpose of this section is to ensure that, for applications, harmthat substantially should be treated as a single state of injury is treated as a single injury, even though it may consist of more than 1 injury or be caused by more than 1 incident.

2. (2)
   The objective is to ensure that the way in which incidents of personal offences happen or personal offences are prosecuted does not cause—

1. (a)
   inequity of treatment between applicants; or

2. (b)
   an unjustifiable multiplicity of applications to the State under division 3 about substantially the same harm.

3. (3)
   Subject to subsections (7) and (8), only 1 compensation order may be made in favour of an applicant because of—

1. (a)
   injury suffered from a substantially single incident, whether consisting of 1 or more than 1 personal offence; or

2. (b)
   a substantially single state of injury suffered from a series of incidents of personal offences.

4. (4)
   In deciding whether an applicant has suffered a substantially single state of injury, the court may have regard to the following—

1. (a)
   the applicant’s injuries;

2. (b)
   the time over which the injuries were caused;

3. (c)
   the similarity of, or connection between, the injuries;

4. (d)
   the similarity of, or connection between, the events that caused the injury;

5. (e)
   anything else that is relevant.

5. (5)
   A single compensation order may be made against more than 1 convicted person.

6. (6)
   If a single compensation order is made against more than 1 convicted person, the order may provide for—

1. (a)
   separate liability of a convicted person scaled according to the person’s direct and material contribution to the injury; or

2. (b)
   joint liability of more than 1 convicted person for an amount payable under the order; or

3. (c)
   both the separate liability mentioned in paragraph (a) for an amount and joint liability for the amount.

7. (7)
   Without limiting subsection (5), if each of more than 1 convicted person directly and materially contributed to injury mentioned in subsection (3)(a) and (b), a court may make a compensation order against each of more than 1 of the convicted persons.

8. (8)
   If compensation orders are made against more than 1 convicted person under subsection (7)—

1. (a)
   the total amount payable under all the orders must not be more than the scheme maximum; and

2. (b)
   the orders—

1. (i)
   must provide for separate liability for each of the convicted persons for an amount scaled according to the convicted person’s contribution to the injury; and

2. (ii)
   may also provide for joint liability of more than 1 convicted person for an amount for which a convicted person is separately liable.

9. (9)
   To remove doubt, section 25 is declared to apply to compensation orders mentioned in subsections (5) and (7), subject to subsection (8)(a).

22. [22]
    In the present case the psychiatric evidence does not suggest that the applicant’s mental or nervous shock can be anything other than a substantially single state of injury, and I am satisfied that that is what has occurred in the present case, so far as the mental or nervous shock is concerned. Accordingly a single compensation order could have been made against both respondents under subsection (5), but that is not the only course available under the section, and is not the course sought by the applicant, otherwise there would have been one application against both respondents.^[14]  Compensation orders can be made separately against each respondent under subsection (7), so long as each directly and materially contributed to that substantial single state of injury.  I accept the evidence of Dr McGuire to that effect, and note that there is nothing in the report from the mental health service, or otherwise in the evidence, to suggest to the contrary.  It follows that subsection (8) is applicable.  There is no difficulty about paragraph (a), or paragraph (b)(i).  Indeed, the approach specified in subsection (8)(b)(i) would appear to be consistent with the approach to assessment of damages in analogous circumstances, in accordance with the exposition in Nilon v Bezzina [1988] 2 Qd R 420.

23. [23]
    In the present case there is nothing in the evidence to suggest that either respondent is more responsible for the applicant’s post-traumatic stress disorder than the other. There is some difference: the respondent Crowhurst was the first to abuse the applicant; on the other hand, the abuse by the respondent CSP was more serious in that it extended to attempted incest, and the applicant is apparently more angry about the respondent CSP, although this may be related to the effect on her relationship with her mother. On the whole I think that it is appropriate to treat both respondents as having contributed equally to the post-traumatic stress disorder, and therefore provide for each of them separate liability for half the compensation appropriate for that injury.

24. [24]
    What is less clear, however, is what is intended to be covered by subsection (8)(b)(ii).  Subsection (8) only applies where orders are made under subsection (7), and the use of the word “each” in subsection (7) suggests that an order made under that subsection will be an order against only one convicted person.  In an action for damages tortfeasors will be liable as joint tortfeasors only if they are liable as principal and agent, or one is vicariously liable for the tort of the other, or where they are liable on the basis of the concerted action of all of them.^[15]  They will be several tortfeasors if there is merely concurrent causation, although in cases where there is a concurrence in the damage caused by the independent acts of two or more tortfeasors they will also be jointly liable for the total damage.^[16]  That however only applies where there is concurrency in causation, that is, where the independent acts of the two or more tortfeasors combined in their operation to produce the damage to the plaintiff.  It does not apply when each separately and successively inflicts different injuries on the plaintiff.  In that situation, damages are assessed in accordance with the principles in Nilon v Bezzina (supra).

25. [25]
    Hence if one were dealing with actions in tort, if a plaintiff were raped by two or more defendants acting in concert (that is pursuant to a common plan) they would be joint tortfeasors, and would be jointly liable for a whole of the damages awarded for the injuries suffered by the plaintiff as a result. If the plaintiff were raped by two or more defendants in the course of the same overall incident, but acting independently^[17] they would be several independent concurrent tortfeasors, but they would still be jointly and severally liable for the damage suffered by the plaintiff as a result, that is, the full amount of those damages could be recovered from any or all of them, but not more than that full amount in total.  But if a plaintiff were raped by two defendants, in separate successive incidents, each would be severally liable for the damage caused by that defendant, and if necessary the damages would be apportioned, and judgment given against each defendant for the separate liability of that defendant.

26. [26]
    I suspect that subsection (8)(b)(ii) was intended to deal with those cases where it was appropriate for the offenders to be regarded as jointly liable.  Although a decision on the amount ordered to be paid under a compensation order does not involve applying principles used to decide common law damages for personal injuries (s 25(8)(a)), the logical justification for the boundary between joint and several liability in tort provides a logical justification for a similar distinction when making orders against two or more offenders under the Act.  Orders can be made on separate occasions, just as defendants who are jointly liable can be sued separately.^[18]  Although ordinarily it is not necessary in separate judgments against tortfeasors who are jointly liable expressly to identify their joint liability, if a compensation order is to provide for joint liability under subsection (8)(b)(ii), it seems to me that it must do so expressly.

27. [27]
    The complicating feature however is that paragraph (b) does not really parallel the situation in tort where, if there was joint liability, there would be judgment in respect of the full amount of the damages against all defendants.  When there is separate or several liability, there will be judgment against each defendant in respect of the damage caused by that defendant.  But subsection (8)(b)(i) is mandatory, so in all cases within subsection (7), even in cases where in tort there would be joint liability, there must be an apportionment “scaled according to the convicted person’s contribution to the injury.”  In effect, in all cases compensation has to be assessed as if damages were assessed for tortfeasors severally liable. 

28. [28]
    Those amounts would ordinarily be amount which if added together would come to the amount which would have been awarded if one defendant had been liable for all of the plaintiff’s damages, or if all defendants were jointly liable for those damages. But the provision for joint liability under paragraph (b)(ii) can only be for an amount “for which a convicted person is separately liable.”  It is not immediately apparent how there is any advantage to an applicant in providing joint liability for the amount of the separate liability of the particular respondent.  The advantage of joint liability was that the plaintiff could recover the full amount from any tortfeasor.  But in circumstances where there is provision for the state to pay an amount of compensation to the applicant if the order for compensation is unsatisfied, under division 3 of part 3, this is it seems to me of no real practical advantage to an applicant. 

29. [29]
    It might be possible by making complimentary orders for joint liability against each of the convicted persons to produce a situation similar to that which would have applied in respect of a joint judgment in tort. But it is not immediately apparent how there would be any advantage to an applicant in making that order. The present case is not one of concerted action on the part of the two respondents, nor is it in my opinion one where they would properly be regarded as independent concurrent tortfeasors if they were being sued in tort. In the present case I do not think that there is any reason to make any order under subsection (8)(b)(ii), and I will not do so. 

Conclusion

30. [30]
    The total assessment is therefore 40 percent.  That is to be scaled according to the respondents’ contributions to the injury.  In relation to psychiatric injury their contributions I think are equal, but in relation to the deemed injury the respondent CSP has a greater contribution, because he alone is associated with the adverse effect of the reaction of others.  I will therefore apportion 22 percent to the respondent CSP, and 18 percent to the respondent Crowhurst.  There is no evidence that the applicant contributed in any way to either of the injuries she suffered.  I therefore order that the respondent CSP pay the applicant $16,500 by way of compensation in respect of the injuries suffered by her as a consequence of the offending for which he was before the District Court on 19 February 2003.  I order the respondent Crowhurst to pay the applicant $13,500 in respect of the injuries suffered by her as a consequence of the offending for which he was before the District Court on 14 February 2003. 

31. [31]
    The applicant is not yet 18, and some provision will have to be made for any compensation paid to be held on trust for her, at least until she is 18. There may be some issue as to her capacity to manage the money thereafter. I will publish these reasons, and invite the solicitors for the applicant to suggest a suitable form of order to deal with these matters.