Sutton v Davies[2008] QDC 37

DISTRICT COURT OF QUEENSLAND

1. [1]
   On the 12.10.05, in this court, Adam Lyndon Davies was convicted of attempting to rape Clair Louise Sutton on 11.6.04 at Maroochydore. Ms. Sutton now seeks compensation pursuant to  s. 24 of the Criminal Offence Victims Act 1995  “for injury suffered by (her) because of the offence”.

2. [2]
   The case is unusual in that Ms. Sutton is claiming compensation for serious injuries suffered as a result of a tragic car accident which occurred soon after the commission of the offence. She is not claiming for any injury suffered during the commission of the offence. She claims that as a direct result of the offence she drove away from the house where it occurred with her two young children in an hysterical state, which resulted in the car proceeding through a T junction into an embankment. In the accident she suffered severe injuries and her son Aiden aged 2 was tragically killed.

3. [3]
   Mr. Davies has not appeared, as is usual in these matters, however he filed an affidavit in which he asserts that there is no causal link between Ms. Sutton’s injuries and the offence of attempted rape committed by him.

4. [4]
   Ms. Sutton’s Counsel has been unable to refer me to any case in which compensation has been awarded under the Act for injuries suffered in a separate incident but soon after the commission of the offence.

5. [5]
   It will be necessary for me therefore to consider the circumstances and to apply the approach to causation mandated by the Queensland Court of Appeal in SAY v AZ; ex parte A-G (Qld) [2006] QCA 462.

The background facts

6. [6]
   Ms. Sutton and Mr. Davies had been in a de facto relationship in 2002 and had a son together, Aiden who was born on the 16.5.02. Ms. Sutton also had another child Jacob at the time she commenced the relationship with Mr. Davies. By September 2003, the relationship had broken down and Mr. Davies had moved out of the family residence. He had regular access to the children, and on occasions was permitted to stay over at the family residence. During the period leading up to the offence, there were occasions when the parties had consensual sexual relations.

7. [7]
   On the evening of the offence it was arranged that he stay over to look after the children while she went out to a Tupperware party. She could not locate the party and returned to the residence. She consumed some wine both before she went out and after she returned. After consuming 4 glasses of wine upon her return Ms. Sutton has very little memory of what occurred.

8. [8]
   What occurred next comes from what Mr. Davies later told a counsellor and the police. He admitted that after she had in effect passed out on the lounge he carried her to her bed, removed her underwear and attempted to have sex with her. She woke distressed and immediately got up, took both children in their pyjamas, strapped them into seatbelts and harness and drove off in a distressed state. He tried to stop her driving and offered to leave and for her to stay but she left anyway. Approximately 7 kilometres away at a notorious T intersection, she drove straight through into an embankment and Aiden was killed. Jacob sustained a fractured leg and Ms. Sutton suffered grievous injuries which required her to be hospitalised for some months. Her blood alcohol level later at the hospital suggested a reading of between .05 and .08 at the time of the accident. The range is because there was no witness to the actual accident and it was discovered about 2:30 a.m. by a bus driver. The applicant relies on a coronial report which concludes that the accident may have been caused because of the earlier incident at the house. The report refers to a faulty light over the intersection which may not have been operating at the time of the accident.

9. [9]
   The Chief Judge who sentenced Mr. Davies made a number of observations in her sentencing remarks which touch on the issue of causation:

“There is no doubt that had you not committed the attempted rape there would have been no accident”.

And almost immediately thereafter:

“…when she picked up the children and took them to the car, you did  attempt to prevent her driving them in the car. You offered to leave, but she went”.

Her Honour’s observations on sentence are relevant, but do not bind me on the issue of causation which arises on the application for compensation.

SAY v AZ

10. [10]
    This case is factually distinguishable from SAY v AZ which involved the quite common occurrence of significant psychological injury occurring as a result of sexual abuse only some of which is reflected in the offences of which the respondent was ultimately convicted. Having said that, the decision is clear authority for the correct approach to causation under the Act. The leading judgment is that of Holmes JA (with whom Mullins and Jones JJ agreed). Her Honour’s analysis was informed by McGill DCJ’s judgment in LMW v Nicholls [2004] QDC 118 although she reached slightly different conclusions. She agreed with McGill DCJ that as “common law tests of causation are not excluded by the Act; it can be accepted, therefore, that in order to render an injury compensable, it is sufficient to show the offending behaviour materially contributed to it.” Where she differed from his Honour was in her conclusion that although she agreed with him that s. 25(7) of the Act did not mandate apportionment of compensation on the basis of causation, she thought that because the section does not preclude it therefore it “deals with both causation and quantification”.

11. [11]
    s 25(7) is in these terms;

“In deciding whether an amount, or what amount, should be ordered to be paid for an injury, the court must have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury”.

12. [12]
    I have to say that although I am bound by her Honour’s conclusions it does seem to me that s. 25(7) in its terms is really only dealing with quantification. That is because the reference to “injury” must refer back to “the injury suffered by the applicant because of the offence” in s. 24(2). However, that issue has for now been settled by SAY v AZ.

13. [13]
    It follows that only those injuries “to which the relevant offence has materially contributed will be compensable”. “Materially” means “to an important degree; considerably”: The Macquarie Dictionary. It is a question of fact to be determined by application of the approach set out in SAY v AZ.
14. [14]
    I regret to say that I am unable to conclude here that the offence committed by the respondent materially contributed to the injuries suffered by Ms. Sutton in this tragic accident. It may well be, as the Chief Judge observed that she would not have had an accident if Davies had not attempted to rape her; however the law has long since recognised that in any case of harm there are always multiple causes which can be traced back almost to infinity. It could be said here for example that if the respondent had not been asked to baby sit that night; if the applicant had not consumed alcohol etc; the accident might not have occurred.

15. [15]
    The law of torts has drawn a line in the sand (sometimes shifting), using all sorts of terminology such as “necessary” and “proximate” to limit the extent to which harm is compensable. Here, in accordance with SAY v AZ, the question is did the offence materially contribute to the injuries sustained in the accident, and the answer must be that on the balance of probabilities, it did not. The relevant factors that impact on my decision are (a) Ms. Suttons decision to drive after consuming significant alcohol to pass out, albeit influenced by the criminal actions of the respondent and (b) his attempts to prevent her from driving and offering to leave and her decision to drive in any event. It is not a case where, for example, immediately upon awakening and finding the respondent attacking her, the applicant fled in fear and suffered injury e.g. by falling or running through a glass door. In such a case, the respondent may have found himself charged with other criminal offences e.g. Royall v The Queen (1991) 172 CLR 378.

Quantification

16. [16]
    If I am found to be wrong about the issue of causation then conventionally it is necessary for me to assess the compensation that I would have awarded if I’d reached a different conclusion. The only injuries covered by the evidence are those sustained in the accident. For example, there is no claim for mental or nervous shock injury at all, even one that could sensibly be related to the offence; this is despite reference in her affidavit  (at para 17) to obvious symptoms of mental or nervous shock. It is clear from the material that she was treated at Nambour General Hospital and Royal Brisbane Hospital but I do not have reports from these hospitals. Her injuries were described at sentence by the prosecutor and are set out in Dr. Frank Maloney’s report dated 13.3.07 at page 2:

“She is described on admission as suffering from head injuries, including fractures of her upper and lower jaw, her nasal bones, a serious degloving injury of her forehead scalp, which had to be sutured in the emergency room, serious intraabdominal injuries, including mid-jejunal perforation, a chest injury, and fractures of her left foot, and a fracture of the right clavicle. She was placed in an induced coma and emergency surgery completed. After approximately one week in the Nambour Hospital she was transferred to the Royal Brisbane Hospital for further treatment, particularly including definitive treatment of her maxillofacial injuries. The latter injuries were treated under the auspices of the Department of Oral and Maxillofacial surgery. She underwent open reduction and internal fixation of complex fractures of the lower jaw, including a compound fracture the right mid-body mandible, and bilateral fractures of the necks of the mandibular condyles. This operation involved insertion of three titanium plates with multiple screws. It should be noted that your client’s lower right lateral incisor tooth had been lost at the scene of the accident. She spent approximately 4 weeks as an inpatient in the Royal Brisbane Hospital.”

17. [17]
    The applicant describes her own injuries in her affidavit at para 16 as follows:

3. “a)
   Lacerations to my head.

2. b)
   Broken teeth.

2. c)
   A broken nose.

2. d)
   A broken cheek.

2. e)
   My jaw bone was broken in three places which required surgery and pins in the jawbone.

2. f)
   Five broken ribs in a condition known as flailed chest.

2. g)
   A punctured lung.

2. h)
   A small tear in my bowel which required surgery at Nambour Hospital.

2. i)
   A broken right wrist.

2. j)
   A broken right heel which required surgery and now permanently has eight pins in it.

2. k)
   A broken talis bone in my right ankle which now permanently has three pins in it.

2. l)
   A broken collarbone which required surgery and now permanently has both plates and pins in it.”

18. [18]
    Mr. Stubbins assures me that her statement is based on medical records so I am prepared to act on it as being accurate. These injuries are also to some extent referred to in the reports of Dr. Winstanley and Dr. Kevin Feely annexed to the affidavit of Mr. Boyce filed by leave of the hearing.

19. [19]
    Doing the best I can, I would have assessed her compensation as follows:

20. [20]
    What is notably absent here, as I have observed, is any evidence of mental or nervous shock. No attempt has been made, for example, to link vulnerable personality with the behaviour undertaken by the respondent here, such as would assist on the issue of causation.

21. [21]
    In accordance with SAY v AZ, s. 24(7) must be considered both in relation to causation and quantification. Clearly in this case the broad brush approach accepted by Thomas J (as his Honour then was) in Sanderson v Kajeweski [2000] QSC 270, would apply. As Holmes JA observed in SAY v AZ (at para 23) in assessing the contribution of multiple factors to harm compensable under the Act  “it would be  reasonable to suppose that contributing causes entirely independent of the respondent would be given considerably more weight than those merely reflecting part of a continuum of offending. Whether there ought to be any discount to reflect the fact that other behaviour of the respondent has contributed to the applicant’s state of injury will depend on all the circumstances, which may include the nature of that behaviour, how closely related it was to the relevant offences, and the relationship of victim and offender in which it occurred. The basis on which any reduction in compensation is made must, of course, be clearly identified”.

22. [22]
    In view of my findings, this approach is somewhat artificial, however, if I am wrong in my conclusion that the offence did not materially contribute to the harm; I would hold that the respondents conduct was a 25% contributing cause to the harm. The respondent would therefore have to pay the applicant 25% of the assessment which would amount to $15,375.

23. [23]
    The application is dismissed.