DISTRICT COURT OF QUEENSLAND

Introduction:

1. [1]
   The applicant JM claims compensation for injury sustained by her as a result of two criminal offences of a sexual nature committed against her by the respondent to the application PB.

2. [2]
   The respondent was convicted by this court at Beenleigh on 26 April 2005 of two counts of unlawfully and indecently dealing with the applicant who was a child under 16 years, then under 12 years, between 1 March 1993 and 1 May 1993 at Brisbane when the applicant was aged 9 years.

3. [3]
   This application is made on the basis of a “mental or nervous shock” disorder assessed by Dr Barbara Anne McGuire, psychiatrist, in her report of 11 January 2007 and supplementary report of 15 February 2007, which are Exhibit A to her affidavit filed 3 May 2007.  There are no physical injuries to the applicant which form the basis for any claim for compensation before the court.

4. [4]
   In addition to the affidavit of the said Barbara Ann McGuire, this application is supported by the following material:

1. (a)
   The affidavit with exhibits of the applicant JM sworn 25 April 2007 and filed in this court on 3 May 2007;

2. (b)
   The affidavits with exhibits of Lorraine Penshorn, litigation support officer, sworn 18 April 2007, and 22 May 2007 respectively and filed in this court on 3 May 2007 and by leave on 24 May 2007 respectively.

Relevant legislation:

5. [5]
   As the offences occurred prior to 18 December 1995, Chapter 65A of the Criminal Code (“the Code”) applies, as if not repealed.^[1] 

6. [6]
   In assessing the appropriate sum for compensation to which the applicant may be entitled it is necessary to consider the relevant “prescribed amount” which applied at the time when the offences were committed.

7. [7]
   Under s 663AA of the Code as amended the maximum “prescribed amount” payable for injury described as “mental or nervous shock” after 1 July 1984 and before the Criminal Offence Victims Act 1995 (“COVA”) was introduced effective from 18 December 1995, is $20,000.00.

8. [8]
   The principles to be applied in the assessment of compensation payable under the Code are in accordance with the ordinary principles of assessment of damages for personal injury in civil cases.^[2]  Where there is a prescribed upper limit applicable, “that amount should be awarded if it is less than the amount of compensation assessed”.^[3]

The injury:

9. [9]
   As stated in paragraph [3] above the basis of this application for compensation is the assessment of the applicant by Dr Barbara McGuire, psychiatrist, in her reports of 11 January 2007 and 15 February 2007 respectively being Exhibit A to her said affidavit.

10. [10]
    Dr McGuire confirms her diagnosis in respect of a “Psychiatric Disorder” in the following terms:

“She exhibits post traumatic stress disorder to a moderate degree which has been present since the age of 9 and the likelihood is that it will persist for an indefinite period.”

11. [11]
    In her supplementary report of 15 February 2007 Dr McGuire states:

“(a)It is my belief that the offences did make a material and significant contribution to her condition of posttraumatic stress disorder. As you note she did have a very difficult childhood characterised by physical abuse and violence and one minor incident of sexual abuse by a neighbour when she was 11. Whilst such a history may have rendered her more vulnerable to the abuse had she experienced the abuse in a setting of a stable and beneficial childhood I believe that her symptoms would be essentially the same as those she is currently exhibiting.”

And further:

“(b)In essence I believe that she would have experienced the same level of posttraumatic stress disorder, that is to a moderate degree.”

12. [12]
    Dr McGuire further states in answer to the question: Is it possible to separate the effects of the two offences for which the offender was convicted from the applicant’s other life experiences?:

“In practice it is extremely difficult to disentangle the clinical manifestations.  However, I believe that her symptoms particularly relating to sex and insecurity and lowered self esteem and her hyper‑arousal in relation to Vietnam veterans and motorbikes etc stem solely from the sexual abuse perpetrated by the respondent.”

Contributing factors:

13. [13]
    While there is no question that the applicant herself contributed to the injury she has suffered the subject of this application within the terms of s 663B(2) of the Code, Dr McGuire has raised the question of “Contributing Factors” on p 4 of her report of 11 January 2007, where she states “A contributing factor is her poor relationship with her mother.  There was one other incident of sexual abuse but it appears to have been fairly trivial.”  Dr McGuire has also made further comment in respect of the causal relationship between the subject offences and the applicant’s condition the subject of this application as referred to in paragraphs [11] and [12] above.

Causation:

14. [14]
    The topic of causation between offences of which a respondent to an application for compensation has been convicted and any compensable injury arising out of those offences has been the subject of much judicial consideration both in respect of applications under the Code and under COVA which repealed Chapter 65A of the Code.  The issue of causation was comprehensively discussed by his Honour Judge McGill SC in the matter of LMW v Nicholls (2004) QDC 118 (“Nicholls”), and there has also been recent discussion on “The analysis in Nicholls” in the matter of SAY v AZ: ex parte AG (Qld) [2006] QCA 462 by Holmes JA and the observations by her Honour at paragraphs [19] and [20] in particular are very helpful in the consideration of the rationale in the awarding of compensation to applicants arising out of sexual offending.

15. [15]
    Further to this, her Honour’s comments at paragraph [22] of the judgment are also apposite to the instant case in respect of the principle to be applied, namely:

“The court must have regard to the various limitations and procedural steps in s 25 in the arriving at the amount of a compensation order.  Only those injuries to which the relevant offence has materially contributed will be compensable.  If, as in Stannard, it is possible to identify in the state of injury consequences specifically attributable to the offence, that must be done.  In deciding what amount is payable for a given injury, the court must consider whether there are other relevant factors to which regard must be had, and if so, whether they should operate to reduce the amount which might otherwise be awarded.”

16. [16]
    While the comments by her Honour deal with an application under COVA and the effect of s 25(7) of COVA, the rationale discussed is of relevance in respect of “causation and quantification” of applications under the Code as is this application.

17. [17]
    In paragraph [15] of the judgment in Nicholls, 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”^[4].

18. [18]
    This test appears to have been approved by the Court of Appeal in SAM v SAM [2001] QCA 12.

19. [19]
    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.”

20. [20]
    In this application the psychiatrist’s evidence is that the applicant informed her:

• “She did not have any contact with her biological father until she was aged 13 …
• her mother is an alcoholic …
• she hated her mother at times for not looking after her adequately …”^[5]

21. [21]
    Dr McGuire’s report further indicates that the applicant’s family life generally appears to have been very troubled and dysfunctional with her having a number of half brothers and sisters from her mother’s various relationships.

22. [22]
    Notwithstanding all the above, Dr McGuire has concluded that “it is my belief that the offences did make a material and significant contribution to her (the applicant’s) condition of post traumatic stress disorder.”^[6]

23. [23]
    On the basis of all the evidence before me I am satisfied the applicant is entitled to an award of compensation against the respondent and I find on the evidence that the respondent’s conduct on 26 April 2005 for which he was convicted of the criminal offences set out in paragraph [2] hereof “materially contributed” to the applicant’s injury which arose out of that offending conduct.

Assessment

24. [24]
    Assessment of compensation under the Code is carried out in accordance with the approach in McClintock v Jones (supra) at p 242 namely:

“…compensation is to be assessed in accordance with the ordinary principles of assessment of damages for personal injury in civil cases and economic loss is recoverable; however, where there is an upper limit applicable in all circumstance; that amount should be awarded if it is less than the compensation assessed.”

25. [25]
    The evidence in this application is that the “effect of the offences” upon the applicant are that:

“(a)At the time of the incident she felt uncomfortable, thought that it shouldn’t be happening. She felt frightened and helpless as if she had no control over the situation. The second incident was worse in that it was more intrusive.

2. (b)
   She felt safe because she saw her mother but she felt dirty, scared and embarrassed and didn’t know how to tell her mother.  She said when she did make a disclosure a large body of her friends did not believe it.

3. (c)
   Her mother decompensated at the time of the abuse.  This drove them further apart and the mother started drinking.  She said that while she has friends her social relationships are limited by her lack of trust.

4. (d)
   She feels pessimistic about her future.”

26. [26]
    On the material before me, taking into account the nature of the applicant’s “Psychiatric Disorder” as diagnosed by Dr McGuire; the “Effect of the Offences”; the applicant’s “Personal History” and all other relevant information contained in the applicant’s affidavit and exhibits thereto I assess the applicant’s compensation “in accordance with the ordinary principles of assessments of damages for personal injury in civil cases” as they were at the relevant time in the sum of $15,000.00.

Orders:

27. [27]
    I make the following orders:

1. The respondent pay the applicant the sum of $15,000.00 by way of compensation for the injury suffered by her as a result of the offences of which the respondent was convicted and sentenced by this court on 26 April 2005;
2. The respondent pay the applicant her costs of and incidental to this application to be agreed or assessed on the standard basis under the District Court scale where the amount recovered is less than $50,000.00.