DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant, Annette Joy Forsyth, claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for alleged bodily injury she sustained on 4 February 2002 arising out of the criminal conduct of the respondent, Wayne William McGrady, who was convicted by this court at Kingaroy on 4 July 2003 for unlawfully and indecently assaulting the applicant on the 4 February 2002.  The respondent although being served with the application made no appearance at the hearing.

2. [2]
   The application for compensation is made pursuant to s 24 of the Act and is supported by the following material:-

1. (a)
   the affidavit with exhibits of the applicant, sworn 29 March 2005 and filed in this court on 21 April 2005;

2. (b)
   the affidavit with exhibits of Michael Mason, solicitor sworn 20 April 2005 and filed in this court on 21 April 2005; and

3. (c)
   the affidavit with exhibit of Manuela Habicht sworn 24 February 2005 and filed in this court on 21 April 2005.

Facts

3. [3]
   The applicant swears that she was the victim of an assault by the respondent the circumstances of which are summarised in his Honour Judge Dodds’ sentencing remarks being Exhibit “1” to the affidavit of Michael Mason. The incident occurred when the applicant had driven the respondent and others to a caravan park where the others alighted from the vehicle after which the respondent commenced to assault the applicant in various ways in an attempt to have sexual intercourse with her. The assault included grabbing the applicant’s leg and breasts and attempting to have her touch his penis and to put his penis into her. The respondent’s attempts were ultimately successfully resisted and finally the applicant left the scene.

Injuries

4. [4]
   The applicant describes her injuries in paragraphs 7 to 10 of her affidavit and primarily come under the general category of “mental or nervous shock” although she also complained of some minor “…pain in right shoulder and her left hipbone”.^[1]

5. [5]
   The applicant was examined by Dr Manuela Habicht on 14 January 2005 (almost 3 years post-incident) and a report of such examination dated 6 February 2005 is Exhibit “A” to the affidavit of Dr Habicht.

6. [6]
   Dr Habicht recites the applicant’s history including the fact that:

“…when she was 11 or 12 years old her mother took her to see a psychiatrist because she was “always angry”.  She stated that she was prescribed medication, which didn’t help.  She stated that in 1992/93 she wanted to deal with her anger and contacted Dr McNamara in Currumbin, Gold Coast who prescribed her Aropax, which she took until 2004.  However she indicated at some point in time she took Zoloft for 6-12 months because she thought that the Aropax was no longer helping her.”^[2]

7. [7]
   Dr Habicht also stated that the applicant reported “…that she suffered some depression and anger before the trauma, but that the depression worsened significantly following the crime committed against her.” ^[3]

8. [8]
   Dr Habicht further stated that the applicant reported:

“… that she started using Marijuana at age 14, Heroine and Amphetamine at age 20 and stopped when she was 21 years old.  She indicated that she used about 1g of Heroine which creating Polysubstance dependence in her early 20s.  She indicated that at present she smokes Marijuana every couple of week (3-4 cones) in social situations.”^[4]

9. [9]
   Dr Habicht summarises her opinion in the following manner:

“In my professional opinion the 27-year old female presents with a history of several “Attempted Rape” by Wayne William McGrady that have been identified as an antecedent for the development as well as the worsening of her mental health conditions.  The event has also been identified as the precipitator for pain in her right shoulder and back which lasted for a few days.  Ms Forsyth suffered a Major Depressive Episode prior to the attempted rape, but it appears as if this condition has worsened as a result of it and is now characterised as a Major Depressive Disorder, Severe, Without Psychotic Features.  While it is possible that Ms Forsyth suffered an anxiety disorder prior to the attempted rape as a result of her previous traumas, she now presents with Posttraumatic Stress Disorder.  She also presents with Panic Disorder With Agrophobia that clearly became evident for the first time following the event that has led to this compensation claim.

A diagnosis of PTSD in DSM-IV (Diagnostic and Statistical Manual for Mental Disorders, 4^th Edition) does not allow for a descriptor of severity of PTSD.  However the tests performed indicated significant elevations (105 on the DAPT on PTS-T) which allows for the conclusion that the client has suffered a severe mental/nervous shock that contributed to the development of a variety of anxiety related as well as depressive features, which appeared to be now stable.”^[5]

10. [10]
    It is now well accepted that to establish a “mental or nervous shock” injury the applicant must prove more than a negative or unpleasant reaction to the offence; what must be proved is “(an) injury to health, illness, or some abnormal condition of mind or body over and above that of normal human reaction or emotion following a stressful event” as distinct from “… fear, fright, unpleasant memories or anger towards an offender…” – Thomas JA in Ferguson v Kazakoff [2000] QSC 156, at paragraphs [15, [17] and [21] respectively.

Causation

11. [11]
    The topic has been the subject of judicial consideration in recent times and is comprehensively discussed by his Honour Judge McGill SC in the matter of LMW v Nicholls [2004] QDC 118.

12. [12]
    In paragraph [15] of the judgment, his Honour referred to the “test of causation in applications under the Code” [see R v Tiltman; ex parte Dawe (SC 324/95, 22 June 1995, unreported)] which was:

“… 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”.

13. [13]
    This test appears to have been approved by the Court of Appeal in Steinback v Steinback [2001] QCA 12.

14. [14]
    His Honour said further at paragraph [24]:

“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”.

15. [15]
    His Honour finally concluded that the proper approach on causation under the Code should be that where the offence or offences “materially contributed” to the injury or condition there should be no apportionment on the basis of causation. The only exception is:

“…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, these aspects of the injury would have to be disregarded.” ^[6]

16. [16]
    I agree with his Honour’s analysis and the principle set out which I followed in the matter of Speechley v Baynes [2004] QDC 408 (unreported judgment of 17 September 2004) whether the claim for compensation is one under the Criminal Code or the Act. 

Applicant’s Contribution

17. [17]
    In deciding the amount of compensation payable to the applicant I must also take into account the behaviour of the applicant that directly or indirectly contributed to the injury (see s 25(7) of the Act).

18. [18]
    I have referred to the circumstances of the incident in paragraph [3] above and I am of the opinion that the applicant’s behaviour at the relevant time did not either directly of indirectly contribute to the injury complained of by her.

Categories of injuries

19. [19]
    The applicant’s injuries fall under the following categories of injury in Schedule 1 of the Act, namely:

1. (a)
   Item 1 – Bruising / laceration etc (minor / moderate) (percentage of scheme maximum 1% - 3%); and

2. (b)
   Item 33 – Mental or nervous shock (severe) (percentage of scheme maximum 20% - 34%).

20. [20]
    Taking all relevant matters into account I assess the quantum of the applicant’s compensation for the bodily injuries she sustained on 4 February 2002 as follows:

21. [21]
    I therefore order that the respondent pay to the applicant the sum of $16,500.00 by way of compensation for the injuries she sustained.

22. [22]
    In accordance with section 31 of the Act, I make no order as to costs.