DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for compensation which was advanced under both s 663B of the Criminal Code and the Criminal Offence Victims Act 1995 (“the Act”).  On 9 February 2006 the respondent pleaded guilty relevantly to one count of maintaining an unlawful relationship of a sexual nature with a child with a circumstance of aggravation between 3 December 1994 and 15 April 1996.  The offence was alleged to have been committed against the applicant who was at the relevant time aged between 7 and 8.  A sentence of imprisonment was imposed on 31 March 2006.

2. [2]
   It will be immediately apparent that the offence straddles the commencement of the Act on 18 December 1995.  By s 46 of the Act, the compensation provisions do “not apply to injury suffered by anyone because of an act done before the commencement”, and chapter 65A of the Code applies to such an injury; the compensation provisions in part 3 apply only, “for applications under s 24 – to injury suffered because of a personal offence mentioned in s 24(1) that happens after the commencement.”  Effectively if the act or acts constituting the offence were done prior to 18 December 1995, compensation for any consequent injury is available only under chapter 65A of the Criminal Code; however, if the offence “happened”, that is presumably was committed, on or after that day, any consequent injury is to be compensated under the Act.

3. [3]
   According to the applicant’s affidavit the offences had a devastating effect on all aspects of her life. She was terrified of the respondent during the time when she was in contact with him, until she complained to her parents whereupon contact with the respondent on her part was effectively cut off. The police were informed but no action was taken then, though she was unable to forget what had happened. She said that her school performance suffered, and she had difficulties interacting with other students at school, her grades dropped steadily, and she did not like anything she did at high school, particularly having difficulty in dealing with male teachers. At one stage she was suspended from school for two weeks. She was able to complete year 12, and for a time worked in a shop, but she has not had much employment since then.  At one stage she had enrolled in a course at TAFE, but gave it up after three days.  She had poor concentration and mood control so that she could not cope with academic work, and a good deal of anger.  As she became older her behaviour became more difficult, and at 14 she was excluded from her family home.  Her relationship with her parents has settled down somewhat, though it appears not to have entirely recovered, as she describes it as: “we are able to talk to each other now”.^[1]  She has a long history of abusing alcohol and illegal drugs, and of self harm from the age of 12, she explains the self harm as a means of transferring the pain from the inside, in her mind, to the outside, on her body, which at the time made it feel better.  This has left her with a number of pale scars, but she has not done anything of this nature for some months.  She had an eating disorder in early adolescence and she remains significantly under weight for her height.

4. [4]
   She has apparently on three occasions been hospitalised in psychiatric wards, because of drug‑induced psychosis.  The first occasion occurred after she had been involved in bringing charges against the respondent while she was 17, having been approached by police after a complaint by another person about other conduct.  She said she has now stopped taking drugs, because they were making her sick and because she feared another psychotic episode.  She has difficulty in relating to males, and will not have a male doctor, and is reluctant to be examined even by a female doctor.  As a result she has not received as much medical attention as she ought to have received, a situation which has become more serious because at the time of swearing her affidavit^[2] she was pregnant.  She also refuses to go to the dentist because any examination of her mouth produces flashbacks of some of the things that occurred during the sexual abuse by the respondent.  She has not learnt to drive, and she is nervous about being in public places or using public transport.  She has in the past experienced panic attacks in public, and is wary about being driven by people other than her partner or a member of her family, so that she is pretty much homebound; she is unable to use public transport.

Medical evidence

5. [5]
   The applicant was seen on 19 October 2006 by a psychiatrist, Dr Chittenden, who prepared a report for the purposes of this application.^[3]  The applicant told the psychiatrist that she had felt miserable and sad since childhood, often being frightened and panicky, and very restless and agitated, having extremely severe sleeping difficulties from an early age, and always being anxious when she went out on her own.  She had severe nightmares as a child and has occasional nightmares now.  There had been a number of suicide attempts and she feels that life is not worth living.  She reported what the doctor described as a number of obsessive symptoms, but said that at the time of the interview she did not show any symptoms of a psychotic disorder.

6. [6]
   Dr Chittenden expressed the opinion that the applicant is suffering from drug‑induced psychosis, which is intermittent, and post‑traumatic stress disorder, which is long‑standing, chronic and severe.  Both are said to be due to the actions of the respondent which constituted the offending, because she had reacted to the untreated post‑traumatic stress disorder by taking excessive drugs and alcohol, which produced the second psychiatric illness.  Dr Chittenden listed various symptoms of the post‑traumatic stress disorder at pages 8 and 9 of her report, and also said that the post‑traumatic stress disorder had affected virtually every aspect of her life, including her upbringing within her family, her progress at school, and the normal enjoyment of friends and activities appropriate to her age.  She had distanced herself from her family, friends and activities which had resulted in considerable damage to her personality as an adult.

7. [7]
   Dr Chittenden then went on to list a number of what she described as adverse impacts of the sexual molestation.  I will not refer to these in detail, partly because the solicitor for the applicant ultimately did not rely very much on this aspect of Dr Chittenden’s report.  There was some argument about the boundary that is applicable in this case between psychiatric injury and the deemed injury under the regulation, and I will deal with that before considering in more detail the evidence relevant to the claim for the deemed injury.

8. [8]
   Dr Chittenden thought that the plaintiff required long-term psychotherapy to treat the post‑traumatic stress disorder, but was doubtful whether the plaintiff would take part in such treatment.  She thought that there was a serious risk of further substance abuse, and the possibility of further hospital treatment in the future.  She described the applicant's psychological injury as being in the severe range.

Approach

9. [9]
   The approach to be adopted in relation to a matter where the offence straddles the commencement of the Act was determined by the Court of Appeal in HV v LN [2002] 1 Qd R 279, in particular at p 283 per Thomas JA.^[4]  This is not a case where the medical evidence permits a different view to be reached as to the apportionment of the harm between what happened before and after the commencement of the Act.  In the present case the period of the offending was about 12 months before the commencement of the Act and four months after its commencement, so the appropriate apportionment is 75% to the Code assessment and 25% to the assessment under the Act.  Although there was some escalation to the severity of the offending in this matter, the evidence suggests that during the period covered by the Code the offending would have been quite traumatic to the applicant, so that there is nothing in the nature of the offending during the particular periods which would suggest any other basis for apportionment.  Overall no better approach to apportionment has appeared, so the appropriate basis of apportionment is on the basis of time.

Assessment under the Code

10. [10]
    Under the Code compensation is assessed on common law principles subject to the operation of the maximum prescribed under the statute.^[5]  The prescribed amount for mental or nervous shock is $20,000.  There was only one offence, so the assessment under the Code is necessarily limited to a maximum of $20,000.  It is clear from the medical evidence that if the assessment were made on common law principles damages would be assessed at well above $20,000, so the assessment under the Code is appropriately made in the amount of $20,000, the maximum for mental or nervous shock.

Assessment under the Act – mental or nervous shock

11. [11]
    The effect of the medical evidence is that the plaintiff’s post‑traumatic stress disorder has been severe for some time and is continuing severe and is likely to remain so.  There is also the second significant psychiatric condition which has in the past, and may well in the future, lead to periods of actual hospitalisation.  There have been suicide attempts, and other examples of self harm, and the applicant’s life generally since the time of the abuse seems to have been quite miserable.  The medical evidence does not hold out any great prospect of any substantial improvement, though the applicant’s affidavit does suggest that to some extent her life is becoming more stable and there may be some hope that in time this may produce an improvement in her situation.  Nevertheless, this does seem to be quite a severe example of psychiatric injury, and, bearing in mind the young age of the applicant and the length of time she has already suffered, and the very young age at the time when the condition must have been first suffered, the severity of the condition and the limited prospects for improvement in the future, I consider that it is appropriately assessed within Item 33, severe mental or nervous shock, and indeed towards the upper end of the range for that item.  I accept the submission that an assessment of 33% should be made.

Adverse impacts – authorities

12. [12]
    With regard to the deemed injury constituted by the adverse impacts of the offending, apart from the psychiatric injury, there is the difficult task of distinguishing between those matters which are appropriately treated as part of the psychiatric injury and therefore covered by it, and those matters which are not part of the psychiatric injury, and are therefore not otherwise an injury under s 20, and therefore may form part of the adverse impacts the totality of which amounts to the deemed injury under s 1A of the Criminal Offence Victims Regulation 1995.  This issue was considered by the Court of Appeal in JI v AV [2001] QCA 510.  Chesterman J said at [20]:

“Impacts are an injury for the purposes of the regulation to the extent that the impacts are not an injury under s 20.  They will be such an injury if they are mental or nervous shock.”

13. [13]
    He added at [24]:

“The regulation was concerned to provide compensation for injuries that were not already compensable ie pursuant to the Act.  It does so by creating a new category of injury, but one which excluded the existing categories, those found in s 20.”

14. [14]
    Williams JA agreed with his Honour; Atkinson J in a separate concurring judgment referred to the context in which s 1A of the regulations was introduced, and said at [47]:

“The sections of the COVA regulation show the unfortunate effect of their being drafted in haste.  As well as specified certain adverse effects of sexual offences, s 1A of the COVA regulation has a catch‑all clause, s 1A(2)(k), to cover all adverse impacts of sexual offences.  Its tabulation of the adverse impacts of sexual offences, together with this catch‑all clause, suggests that s 1A is intended to be comprehensive with regard to sexual offences.  However, the section in its terms appears to exclude injuries already covered by s 20, which suggests that it was intended to be complementary to s 20 and not comprehensive.”

15. [15]
    She concluded at [57]:

“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.”

16. [16]
    Her Honour therefore agreed with the orders proposed by Chesterman J, but added that in her opinion the consequence was most unsatisfactory and sought the amendment of the statutory scheme.  It has, however, not been subsequently amended.

17. [17]
    An assessment under the regulation was considered by the Court of Appeal in MR v Webb [2001] QCA 113, although there was little discussion in relation to the distinction between mental or nervous shock and an adverse impact.  Wilson J with whom the other members of the court agreed said at [16]:

“The court must be careful to avoid compensating the same component under more than one head and so over‑compensating the victim.  [A witness] identified an emotional disturbance, which was not mental or nervous shock in the sense of a diagnosed psychiatric injury.  However, the courts have not interpreted mental or nervous shock in the compensation table as requiring such a diagnosed psychiatric illness.”

18. [18]
    Some further light was thrown on the operation of the regulation by the decision of the Court of Appeal in Vlug v Carrasco [2006] QCA 561.  Holmes JA, with whom the other members of the court agreed, said at [6]

“The applicant’s submissions before this court were largely based on this proposition:  there was a distinction to be drawn between injury, on the one hand, and, on the other, the disability, consequences or effects flowing from that injury.  Under s 20 of the Act, the injury per se was to be the subject of compensation, quarantined from what preceded or followed it; so that any pre‑existing traits or vulnerabilities were irrelevant, and adverse consequences were to be compensated separately, if at all, under s 1A of the regulation.”

19. [19]
    This view, which would have given some support to the argument advanced on behalf of the applicant, was, however, rejected by her Honour at [11]:

“The approach proposed by the applicant is ingenious but highly artificial.  It is, in my view, based on an unsustainable dichotomy between injury and consequence.  I do not consider that s 1A of the Criminal Offence Victims Regulation was intended to introduce a new regime of compensation for ‘disability, consequences or effects’ as distinct from injury; rather it expands the compass of what impacts on the individual may be counted as injury.”

20. [20]
    Her Honour added at [12]:

“The adverse impacts prescribed in s 1A are of the nature of symptoms likely, to a greater or lesser extent, to impair the individual’s psychological, emotional or physical functioning.  In that sense they have the quality of injury, while not necessarily amount to mental or nervous shock.  (Although the last of the categories, s 1A(2)(k) is a catch‑all:  ‘anything the court considers is an adverse impact of a sexual offence’, it must in my view be read ejusdem generis.)  The difference between those impacts and injury as defined in s 20 is not, as the applicant suggests, one of quality but merely of degree.”

21. [21]
    See also at [14]:

“It follows that I do not consider that the learned judge at first instance was required to undertake the proposed exercise of separating out symptoms and effects. … His Honour correctly identified the single adverse impact which was not integral to the diagnosis of adjustment disorder.”

– applicant’s submissions

22. [22]
    The submissions for the applicant conceded that it is only those impacts listed in regulation 1A which did not go to the assessment of a diagnosable psychiatric disorder which can be claimed as adverse impact under the regulation. Nevertheless, it was submitted that the applicant had suffered the following adverse impacts which were relevant to regulation 1A:

1. (a)
   Loss of educational or occupational opportunities.

2. (b)
   Health issues/weight problems.

3. (c)
   Ability to access medical and dental treatment/long term health issues.

4. (d)
   The scarring.

5. (e)
   Effect on family relationships.

6. (f)
   Learning to drive/no licence/loss of capacity to use public transport.

7. (g)
   Loss of Christian faith.

23. [23]
    The difficulty with most of these submission and the identification of these impacts is that the regulation speaks of the adverse impact of the sexual offence, rather than the adverse impacts of the injury which is otherwise an injury under s 20.  It is only the former which are relevant as constituting the deemed injury under s 1A.  The Court of Appeal has, in Vlug v Carrasco (supra), rejected the notion that the consequences of a psychiatric injury which is compensable under s 20 can be taken into account as adverse impacts of the purposes of the regulation.  That it seems to me is the effect of the decision in that case.  What it is necessary to do is to identify an impact caused by the offence which is not part of the injury, relevantly the psychiatric injuries identified by the doctor, which are compensated on the basis of mental or nervous shock.  Something which is merely a consequence of that psychiatric injury is not an adverse impact for the purposes of the regulation; it is a feature of the injury which is appropriately taken into account in determining the award of compensation to be made in respect of the injury in accordance with the limitations imposed by the schedule.

24. [24]
    As to the first of these, her education was disrupted as a reaction to what had happened, but it is not clear just from the applicant’s affidavit whether this was consequence of the psychiatric reaction, or whether it was a direct consequence of the offending. Dr Chittenden at p 9 identified the loss of interest in normal activities through childhood and adolescence and a difficulty in seeing a future associated with a feeling of hopelessness as some of the avoidance and numbing symptoms of post‑traumatic stress disorder, and anger, irritability, and concentration and memory problems as arousal symptoms of post‑traumatic stress disorder.  She also said on the same page that post‑traumatic stress disorder had “affected virtually every aspect of her life including her upbringing within her family, her progress at school and the normal enjoyment of friends and activities appropriate to her age.”  It seems to me that such evidence as there is suggests that these difficulties at school were a consequence of the at that stage unidentified and of course untreated post‑traumatic stress disorder which the applicant was already suffering from as a child, rather than being a direct consequence of the offending independent of the psychiatric injury.

25. [25]
    With regard to the health issues and the weight problems, the applicant said she developed an eating disorder when she was in early adolescence. Dr Chittenden was aware of this, but does not either relate it to the psychiatric conditions, or list it among the other adverse impacts listed on pp 10 and 11 of her report.  It is the sort of thing I would expect to be an aspect of the psychiatric condition suffered by the applicant, there is no evidence to the contrary, and in those circumstances I will not treat it as relevant adverse impact.

26. [26]
    With regard to the difficulty in being treated by male doctors, or by any dentist, this appears to be related to memories of or flashbacks of the abuse by the respondent, and distressing memories and flashbacks are identified on p 8 of Dr Chittenden’s report as intrusive symptoms of post‑traumatic stress disorder.  It appears therefore that these matters are also a consequence of that psychiatric condition.  The scarring represents the consequences of self-harm by cutting or burning with cigarettes, and self-injury is identified on p 9 by Dr Chittenden as one of the avoidance and numbing symptoms of post‑traumatic stress disorder.  The scarring is not in itself sufficiently significant to be treated as a separate injury under item 17 in the schedule, and is properly seen as a feature or aspect of the mental or nervous shock.

27. [27]
    With regard to the effect on family relationships, this is identified in the applicant’s affidavit as a consequence of her behaviour as she became older, and it is clear enough from the material that I have seen and the report of Dr Chittenden that the behaviour was a consequence of the post‑traumatic stress disorder and the failure to treat it.  The applicant said that her family were very supportive, and it does not appear that this is an example of an adverse effect of the reaction of others referred to in subsection (2)(h) of the regulation, which would cover a situation where the applicant suffers adverse effects because other people react against the applicant as a consequence of the sexual offence or its disclosure.

28. [28]
    The difficulties in driving or using public transport stem from an absence of trust and seeing the world as a dangerous place, and being edgy, anxious, jumpy, and constantly alert for danger are identified as arousal symptoms of post‑traumatic stress disorder by Dr Chittenden at p 9 of her report.  Finally, the loss of Christian faith is related by the applicant to the fact that the abuse occurred, and may well be something which occurred independently of any psychiatric condition, but it is not an uncommon event for young people as they become older, and in any case I doubt whether as a matter of policy it would be proper for a secular court to award compensation for loss of some specific religious belief.

29. [29]
    As I mentioned earlier, Dr Chittenden referred to a number of matters which she said were adverse impacts with regard to the sexual molestation, said to be “apart from the above”, that is to say apart from the psychiatric illnesses.  However, it is quite apparent when the aspects of the psychiatric illnesses described in her report are read that most of the matters listed by her are aspects of the psychiatric illnesses rather than separate adverse impacts.  For example, one of the matters listed is an increase in alcohol consumption and excessive drug usage in the past, whereas on p 10 the taking of excessive drugs and alcohol is listed as a consequence of the post­traumatic stress disorder, which had in turn produced the second psychiatric illness of drug‑induced psychosis.  In addition the list is somewhat repetitive; there are several references to what is listed in the regulation as “adverse impact on lawful sexual relations”, and it is by no means clear that there is any such impact apart from the feeling of numbness and anhedonia which are described by the doctor as some of the avoidance and numbing symptoms of post‑traumatic stress disorder:  p 9.  I suspect that this provision in the regulation was inserted to accommodate a case where a person had no mental or nervous shock but had lost enjoyment in normal sexual relations as a result of the commission of an offence.

30. [30]
    On the whole it is very difficult to identify in the light of all of the evidence in this matter any aspect of adverse impact which is independent of the psychiatric illness. That is essentially because, as Dr Chittenden pointed out, the post‑traumatic stress disorder had affected virtually every aspect of the applicant’s life:  p 9.  However, there may well be some aspects of the extensive consequences which the applicant has suffered in this matter which ought properly to be identified as adverse impacts independent from the psychiatric illness that she has suffered, and therefore independent of the mental or nervous shock compensated under the item in the schedule.  For example, there may be some aspect of the sense of violation, the reduced self-worth or perception, or perhaps the adverse impact on lawful sexual relations which ought properly to be characterised in this way.  It would not be appropriate to make any substantial allowance on this basis in the absence of any clear evidence in support of such a separate adverse impact, but I will make some small allowance on this basis to cover any adverse impact which is independent of the psychiatric illnesses.  I will therefore allow 2% for the deemed injury under the regulation.  Accordingly there is a total assessment under the Act of 35%.

31. [31]
    There is no basis to reduce the assessment under the Act or for that matter the assessment under the Code because of any contribution on the part of the applicant or any of the other similar features. There is nothing to suggest there are any other significant causes contributing to the injuries. This percentage applied to the scheme maximum produces an amount of $26,250.

Combined assessment

32. [32]
    Apportioning the award 75% to the Code period and 25% to the Act period, and performing the calculation in the manner approved by the Court of Appeal, that produces a total award of $21,562.50.^[6]  Accordingly I order that the respondent pay the applicant $21,562.50 compensation for the injuries suffered by the applicant as a result of the offence for which the respondent was convicted on 9 February 2006.  For the reasons given in GKA v Bell [2007] QDC 91 in my opinion an order for costs can be made and I order the respondent to pay the applicant’s costs of and incidental to the application to be assessed.  I adjourn the question of how the assessment is to be conducted to a date to be fixed.