DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant, MMA, as litigation guardian of JTM (“the complainant”) claims compensation under part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for injury the complainant sustained arising out of the criminal conduct of the respondent, DWN, who was convicted by this court at Beenleigh on 26 May 2003 of six offences of indecent treatment of the complainant between 1 July 1998 and 4 December 2000, a period of approximately two and a half years.  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 July 2005 and filed in this court on 30 November 2005;

2. (b)
   the affidavit with exhibits of Andrew Laurence Horton, solicitor sworn 10 August 2005 and filed in this court on 30 November 2005; and

3. (c)
   the affidavit of Robert George Ward sworn 3 April 2006 and filed in this court on 10 April 2006.

Facts

3. [3]
   The circumstances of the respondent’s criminal conduct are summarised in the sentencing remarks of her Honour Judge Richards being Exhibit “ALH2” to the affidavit of the said Andrew Laurence Horton and confirm that the respondent pleaded guilty to six counts of indecent dealing in respect of the complainant who was his step-granddaughter and aged between eight and 10 years over the period in which the offences were committed.

Injury

4. [4]
   The complainant’s injuries are summarised in the medical report dated 10 June 2005 from Dr Barbara McGuire, psychiatrist and being Exhibit “F” to the affidavit of the applicant in the following terms:

“She does exhibit the symptoms necessary for a diagnosis of posttraumatic stress disorder, namely flashbacks, nightmares, increased security fears, hyper vigilance.  During her pre-pubescent period she demonstrated very difficult behaviour resulting in foster placements and difficulties with her parents.  It is difficult to attribute all her personality problems during this period to the childhood sexual abuse as the mother’s change of sexual partners may have had a significant effect upon her.  Also she has some intellectual problems which preceded the abuse.  However, it is probable that difficulties with schooling may have been compounded by the abuse.”

5. [5]
   The applicant also claims compensation under reg 1A of the Regulations to the Act that the complainant has suffered “adverse impacts” as a result of the offences committed on her which is not otherwise an injury for which she can be adequately compensated under s  20 of the Act.

Categories of Injuries

6. [6]
   It is submitted on behalf of the complainant that her injuries fall under the following categories of injury contained in Schedule 1 of the Act and reg 1A of the Regulations to the Act respectively, namely

1. (a)
   Item 32 – mental or nervous shock (moderate), 10-20 percent of the scheme maximum; and

2. (b)
   An assessment under reg  1A of the Regulations under the Act on the basis of the totality of the adverse impacts she has suffered as a result of the sexual offences committed upon her.

7. [7]
   It is submitted on the complainant’s behalf that she should receive an award of compensation based upon the following assessment:

8. [8]
   The applicant relies upon the opinion of Dr McGuire referred to in paragraph [4] above to support the claim under Item 32 of the Schedule, and in respect of the claim under reg 1A it is submitted that the following behaviour can be categorised as “adverse impacts”, namely:

1. (a)
   a sense of violation;

2. (b)
   reduced self worth or perception;

3. (c)
   increased fear and feelings of insecurity;

4. (d)
   an adverse effect of the reactions of others; and

5. (e)
   an adverse impact on feelings.

9. [9]
   Dr McGuire’s opinion is also relied upon for compensation under the Regulations where she has commented upon all of those indicia referred to above at page 4 of her report as well as the following:

“There is a strong likelihood of there being an adverse impact on lawful sexual relations.  A common response by sexually abused girls is to embark upon promiscuity and later an aversion to lawful sexual relations.”

“Mental or Nervous Shock”

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 a 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 paras 15, 17 and 21 respectively.

11. [11]
    Further, as Atkinson J stated in Re JI v AV [2001] QCA 510 (“Re JI v AV”) at [59]: “The courts have interpreted mental or nervous shock in the compensation table broadly.  It does not require a diagnosed psychiatric illness.”  This statement echoes that of Wilson J in MR v Webb [2001] QCA 113, who said in discussing the question of whether compensation should have been awarded under the heading “mental or nervous shock” rather than the heading “totality of adverse impacts of sexual offence”^[1]:

“The principal submission on appeal was that the judge erred in awarding compensation under the heading “mental or nervous shock” rather than the heading “totality of adverse impacts of sexual offence.” I have set out the ranges within which he could have made an award under either head. I am not persuaded that the appellant was denied compensation for elements of her emotional condition because the primary judge adopted the mental or nervous shock rubric. It is often the case that an applicant’s injury could be categorised under more than one head in the compensation table. Of course an applicant is prima facie entitled to compensation for all the component parts of his or her overall condition resulting from the offence, but the court must be careful to avoid compensating for the same component under more than one head and so overcompensating the victim. Professor Nurcombe identified an emotional disturbance, which was not mental or nervous shock in the sense of a diagnosed psychiatric illness. However, the courts have not interpreted mental or nervous shock in the compensation table as requiring such a diagnosed psychiatric illness; indeed in the days before the introduction of the Criminal Offence Victims Amendment Regulation (No 1) 1997 (Qld), awards were regularly made under that head for emotional disturbance falling short of such a diagnosis.”

Causation

12. [12]
    The topic of causation in this context has been the subject of judicial consideration and is comprehensibly discussed by his Honour Judge McGill SC in the matter of LMW v Nicholls [2004] QDC 118 (“LMW v Nicholls”).

13. [13]
    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”.

14. [14]
    This test appears to have been approved by the Court of Appeal in SAM v SAM [2001] QCA 12.

15. [15]
    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”.

16. [16]
    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.” ^[2]

17. [17]
    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. 

18. [18]
    I am satisfied on the material submitted to me that the complainant has suffered a “mental or nervous shock” arising out of the respondent’s criminal conduct and is entitled to an award of compensation under s 24 of the Act.

19. [19]
    An applicant’s claim for further compensation under reg 1A of the Regulations to the Act is also comprehensibly discussed in Re JI v AV above and in particular in the reasons of Atkinson J at paragraph [57] when she said:

Many of the specified adverse effects in s 1A fall squarely within the definition of injury in s 20 of bodily injury or nervous or mental shock. It has been accepted, for example, that “post-traumatic stress disorder”, found in s 1A(2)(c) of the COVA Regulation, is within the definition of mental or nervous shock: (MAJ v KM [2000] QCA 410, CA No 6042 of 2000, 6 October 2000, at [13]; Whyte v Robinson (supra); R v Tiltman; ex parte Dawe [1995] QSC, SC No 324 of 1995, 22 June 1995, Lee J).  It follows that post traumatic stress disorder, for example, is said to be compensable under s 20 and under s 1A: (The divergence of opinion on how to compensate victims of sexual offences for post-traumatic stress disorder can be seen in a number of District Court decisions: R v Hagaen; ex parte Townsend (supra); R v Daniel; ex parte Raymond (supra); R v Gilchrist; ex parte Hall (supra); R v Di Fiori; ex parte Anthony (supra); R v Peacock; ex parte Homer (supra); Newby v Mullins (supra); Hoy v Dunbar (supra); Lester v Ahmed (supra); Codd v Codd (supra); Jones v Thompson (supra); Morris v Soper (supra); Steven v Atwell [2001] QDC, DC No 2710 of 2001, 20 June 2001, McGill DCJ). The same could be said of many of the specified adverse effects in s 1A and the definition of injury in s 20. The only way of avoiding such an interpretation is by the construction given to the section by the trial judge, ie that its purpose is to avoid double compensation by providing that if the injury is one that falls within s 20, as bodily injury, mental or nervous shock, pregnancy or injury specified in the compensation table, then it should be compensated according to that section. Only additional adverse effects of sexual offences fall to be compensated under s 1A of the COVA Regulation.

20. [20]
    It is therefore necessary for an applicant who claims compensation under the regulation for alleged “adverse impacts” to establish additional sequelae of injury not included in the definition of injury under s 20 of the Act.  The court therefore needs to adopt a two-stage approach which was the approach adopted by McGill SC DCJ in LMW v Nicholls and later approved by the Court of Appeal in Re JI v AV.

21. [21]
    The evidence to support the applicant’s claim under the Regulation is contained at paragraph 4 of Dr McGuire’s report and in particular where she says:

• “She has experienced a sense of violation at the abuse which was perpetrated by a senior family member who was responsible for her care at the time.”
• “She suffered a considerable lowering of self-esteem as a result of the abuse.”
• “She has experienced increased fear and feelings of insecurity.”
• “She has suffered an adverse effect to the reaction of others. In particular the support given by her grandmother to the step-father and Jessica’s consequent of a loss of a relationship with her grandmother.”
• “There is a strong likelihood of there being an adverse impact on lawful sexual relations, a common response by sexually abused girls is to embark upon promiscuity and later an aversion to lawful sexual relations.”
• “It is likely that she feels that she is a less valuable member of her family.”

22. [22]
    I am therefore satisfied that the applicant has suffered a number of “adverse impacts” as a result of the sexual abuse she suffered arising out of the respondent’s criminal conduct and I find that she is therefore entitled to an award of compensation under s 1A of the Regulations.

Complainant’s Contribution to the Injury (if any)

23. [23]
    In deciding the amount of compensation payable to the applicant I must also take into account any behaviour of the applicant that directly or indirectly contributed to the injury (see s 25(7) of the Act).

24. [24]
    I have referred to the circumstance 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 or indirectly contribute to the injury complained of by her.

Assessment of Compensation

25. [25]
    Taking all relevant matters into account I assess the quantum of the applicant’s compensation for her mental or nervous shock under s 20 of the Act and for the adverse impacts she suffered under reg 1A of the Regulations respectively, in the following terms:

Orders

26. [26]
    I therefore make the following orders in this claim:

1. (a)
   That the respondent, DWN, pay the sum of $18,750 to the applicant, MMA, as litigation guardian of the complainant, JTM, for injury suffered by the complainant including adverse impacts, caused by the respondent to the complainant, for which the respondent was convicted by the District Court at Beenleigh on 26 May 2003;

2. (b)
   That the Public Trustee be appointed manager to take possession of the said sum on behalf of the complainant with power and duties defined in the Public Trustee Act 1978 (as amended);

3. (c)
   That the Public Trustee be authorised to invest those said funds in any investments in which under the Trusts Act 1974, trustees are authorised to invest monies and to reinvest the proceeds in any such investment;

4. (d)
   That the Public Trustee pay to the solicitors for the Litigation Guardian (whose receipt shall be sufficient discharge) or Legal Aid Queensland the proper legal costs and outgoings out of any monies received from the respondent or any other person including any ex-gratia payment made by the State of Queensland and pursuant to any assessment or order of the Court;

5. (e)
   That the applicant and the Public Trustee be at liberty to apply to the Court in respect of the administration of the trust funds as may be advised; and

6. (f)
   In accordance with s31 of the Act I make no order as to costs of the application against the respondent.