L v L[2008] QDC 71

DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant seeks compensation, pursuant to Section 24 of the Criminal Offence Victims Act, against the respondent, her father.  On 29 September 2005 her father was convicted, on his own pleas of guilty, of two counts of incest. 

2. [2]
   The offences were committed when the applicant was 20 years of age. They involved two occasions on which her father had sexual intercourse with her. The first occurred on or about New Year’s Day in 2004. The second occurred some days or weeks later. As a consequence, she fell pregnant and subsequently suffered a miscarriage.

3. [3]
   The offences have had serious impacts upon the applicant, who has had to suffer much in her difficult life. Those difficulties are set out in her affidavit affirmed on the 20^th of April 2007, which I accept.

4. [4]
   The applicant was born on the 19^th of February 1983.  Her mother left the family when she was only a couple of months old.  She was raised by her father, who was physically abusive.  Her childhood memories are of sadness and isolation. 

5. [5]
   When the applicant was about 6 years of age her father started a relationship with a woman who had two children by a previous relationship. That woman was also physically abusive towards her. That woman’s former partner sexually molested the applicant. He was jailed for the offences committed against the applicant and she received a compensation payment under the scheme in New South Wales.

6. [6]
   From the age of 14 she was sexually abused by her father. By the time she was 16 she had commenced self harming. At the same age she moved out of home. She was physically assaulted by her father on the day that she left.

7. [7]
   She describes her life thereafter as “chaotic”. She formed a relationship with a man to whom she fell pregnant. She gave birth to twins on the 9^th of January 2003.  She thereafter had a falling out with her boyfriend and became a single mother.  She did not cope well with that role and became depressed.  Ultimately, out of desperation, she moved back in to live with her father in April 2003.  By the time the twins were about 6 months of age she had begun to attempt suicide.  One such attempt left her with a fractured pelvis and leg.

8. [8]
   The offences of incest, which give rise to the current compensation claim, were the first occasions on which her father had sexual intercourse with her. On the first occasion, she recalls crying herself to sleep, not knowing what to feel. She felt a sense of blame and was confused, scared, hurt and sad. After the offences her father behaved as if nothing had happened. A few weeks after the offences she was horrified to discover that she was pregnant. She says that she was “sick and unbelievably distressed”. She was opposed to abortion, but believed she could not keep the child. She decided upon a termination, but then suffered a miscarriage. She did not see a doctor, because she was humiliated and could not imagine what she would say.

9. [9]
   She describes the devastating effect which the humiliating and degrading offences have had upon her life. She blames those offences for pushing her over the edge, and describes her life thereafter as “worse than a nightmare”. She has been hospitalised for psychiatric treatment. She has been unable to properly care for her children. She has no family support. She has had bad relationships. She is unable to trust people. She self harms. She has tried alcohol to “try and forget the pain”. She has very low self esteem and poor self confidence.

10. [10]
    The applicant was assessed by a consultant forensic psychiatrist, Dr Lana Kossoff, on 25 January 2007. In Dr Kossoff’s opinion the applicant suffered personality difficulties and oppositional behaviour prior to the first time her father sexually abused her, at the age of 14, but subsequently developed a post traumatic stress disorder which became severe after sexual intercourse occurred, particularly when she became pregnant. The condition is likely to become chronic and will wax and wane with external stress.

11. [11]
    In Dr Kossoff’s opinion the applicant also developed alcohol abuse as a result of the abuse by her father. The applicant commenced drinking heavily at the age of 15. In Dr Kossoff’s view, her alcohol abuse is severe.

12. [12]
    Dr Kossoff also believes that there are other adverse impacts which the applicant has suffered. These particularly relate to a sense of violation, reduced self worth, increased feelings of insecurity, and adverse impacts on her sexual relationship with her partner.

13. [13]
    Dr Kossoff also expressed the view that the applicant suffers from borderline personality disorder which is manifested by a pervasive pattern of instability of her interpersonal relationships and marked impulsivity, with reckless recurrent suicidal behaviour. She notes the applicant has demonstrated difficulty controlling her anger and has a marked instability of her mood. This borderline personality disorder was evident prior to the sexual offences but, in her view, the subsequent post traumatic stress disorder and alcohol abuse have undoubtedly caused deterioration in the severity of that disorder. Further, her personality vulnerabilities influenced the way in which she coped with the sexual offences, resulting in more acting out behaviour, in the form of self harm and mood instability, with resultant depression.

14. [14]
    On the 24^th of April 2007 the applicant was seen by Dr De Torres, a plastic reconstructive and cosmetic surgeon.  His report states that “this has been one of the most harrowing medico legal documents I have had to prepare”.  The report deals with the applicant’s self harming.  It notes that, whilst the self harming commenced prior to the relevant offences, the episodes thereafter escalated.  She presented with approximately 35 scars on her left arm and forearm, 22 scars on her right arm and forearm, 12 scars on her left thigh and 25 on her right thigh.  The scars are permanent and, to a great extent, cannot now be improved.  They disturb her normal life, are a constant reminder of the events which led her to her self harm and are a constant reflection of her feelings and her lack of self esteem.

15. [15]
    Other reports are exhibited to an affidavit of Lorraine Penshorn, but it is unnecessary to repeat the details thereof.

16. [16]
    It was submitted on behalf of the applicant, that the court should assess compensation under the headings of pregnancy, mental and nervous shock and adverse impacts. Pregnancy is expressly included within the definition of ‘injury’ in Section 20 of the Act, but is not one of the injuries listed in Schedule 1. The assessment of compensation for pregnancy is at large, but is limited by the requirement that the total for all injuries not exceed the statutory maximum. The approach to the assessment of compensation for pregnancy was recently considered by the Court of Appeal in MAV v ABA [2007] QCA 124.  Jones J (with whom Jerrard JA and Cullinane J agreed) said:

“[41]  Considerations relevant to pregnancy as a physical injury would include:-

1. (i)
   its duration;

2. (ii)
   its manner of termination – miscarriage (spontaneous or induced), natural delivery or caesarean section;

3. (iii)
   the level of physical discomfort, inconvenience, incapacity during the term;

4. (iv)
   physical consequences directly related to the pregnancy and its termination e.g. scarring, incapacity for further pregnancies;

5. (v)
   common emotional consequences related to pregnancy e.g. mood disturbance, fear of delivery, self image loss;

Whilst this is not intended to be an exhaustive list of the physical and emotional effects of pregnancy, other consequences which are more related to the individual’s experience ought to be characterised as adverse impacts for the particular claimant and be more appropriately dealt with pursuant to Regulation 1A if not already encompassed in another injury such as mental or nervous shock…

In my opinion pregnancy as an injury should be viewed narrowly for the purposes of Section 20.  Such a conservative approach is in keeping with the manner in which other injuries are dealt with under that section.  Thus compensation for pregnancy would be assessed mainly in terms of its physical, and the usual anticipated emotional effects.  The adverse impacts which in an individual case flow from a pregnancy resulting from a sexual offence are more personal to the victim and thus would be more fairly, and more realistically assessed in terms of either mental or nervous shock or alternatively as a prescribed injury under Regulation 1A to the extent to which the adverse impacts are not already included in the pregnancy injury”.

17. [17]
    The considerations relevant to the subject pregnancy, as a physical injury, include its short duration and the manner of its termination (i.e. by spontaneous miscarriage). There is little guidance for the appropriate range for compensation. In MAV v ABA [supra] reference was made to HW v LO [2000] QCA 377, where the judge at first instance had assessed compensation for a pregnancy terminated early at $15,000.  Reference was also made to Amanda Kiss v Marland, an unreported decision of Nase DCJ, in which His Honour was prepared to award $11,250, being the amount sought by the applicant.  The solicitor for the applicant in this case also submitted that an appropriate assessment would be $11,250, but I consider that a more appropriate amount is $13,125, being 17.5% of the scheme maximum.

18. [18]
    The psychiatric disorder described in the report of Dr Kossoff falls within the meaning of mental or nervous shock for the purposes of the Act. I accept that the applicant’s current condition is appropriately described as severe and indeed towards the top end of the range of 20 to 34% of the scheme maximum specified in Item 33 of Schedule 1. Had this injury been solely attributable to the relevant offences, I would have adopted a figure of 33% of the scheme maximum, being $24,750. The assessment, in this case, is complicated by factors (other than the relevant offences) which contributed to the development of her condition. That includes not only the earlier uncharged acts of sexual and physical abuse committed by her father, but also the earlier sexual offending by a different person.

19. [19]
    Insofar as the earlier uncharged acts of her father are concerned, guidance is provided by the Court of Appeal’s decision in SAY v AZ Ex parte AG (Queensland) [2006] QCA 462.  The applicant, in that case, sought compensation in respect of her stepfather’s conviction on one count of rape, which occurred when she was 14.  That offence was the culmination of uncharged acts of indecent dealing from the time that she was about 10.  The psychologist’s report, relied upon by the applicant, did not deal with the extent to which the applicant’s condition was referable to the uncharged acts which preceded the rape.  The Trial Judge discounted compensation for psychological injuries by 50%.  That discount was overturned on appeal.  The proper approach to the assessment of compensation where other factors contribute to an injury were dealt with by Holmes JA, (with whom Jones and Mullins JJ agree) as follows (my underlining):

“[22] The court must have regard to the various limitations and procedural steps in Section 25 in 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.

[23] Where there is a single state of injury produced by a number of factors, some or all of which warrant a reduction in the award, the court must do its best to make allowance for their contribution, although the evidence may not lend itself to any precision.  Often a broad-brush approach of the kind adopted by Thomas JA in Sanderson v Kajewski will be necessary.  The exercise may be one of discounting, or fixing on a lower percentage on the compensation scale to allow for the role of other factors, rather than necessarily a strict process of apportionment.  In that exercise, it is legitimate to consider the nature of the other contributing factors.  Given that the Act’s Scheme is to require an offender to compensate his or her victim, 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 mind 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”.

20. [20]
    Holmes JA acknowledged that it was open to the Judge at first instance to regard as relevant, the prospect that the applicant’s condition was contributed to by conduct of the respondent constituting offences of which he was not convicted, but found that His Honour failed to explain why that factor warranted a reduction of 50% in that case. The case is not authority for the proposition that the effect of uncharged acts of the respondent is irrelevant. Holmes JA observed that:

“[24]  …On the information contained in the applicant’s statement, which sets out other episodes of indecent touching, rape emerges as by far the most significant event.  And His Honour does not seem to have considered that the significance of the earlier events having contributed to the applicant’s ultimate psychological state was very much diminished by the fact that they were also suffered at the hands of the respondent.

…

[26]  While having regard to the fact that earlier events are likely to have contributed to the applicant’s psychological injuries (although to a much lesser extent than the rape), two factors lead me to conclude that no alteration should be made to the percentages allowed; firstly, the uncharged acts were part of a continuing course of similar and reprehensible conduct by the respondent, of which the rape was the culmination; and secondly, the applicant as a child was powerless, both in that course of events and in what seems to have been a relatively arbitrary decision not to charge the respondent in respect of the earlier acts”.

21. [21]
    The two occasions of sexual intercourse, which found the relevant convictions, occurred against the background of earlier abuse of the applicant when she was a child, but the course of offending had been interrupted by the years during which she lived apart from her father. The relevant offences can, however, fairly be said to be an opportunistic return to sexual abuse, albeit of a different and more serious kind, in circumstances where the applicant was relying on her father for support.

22. [22]
    It should also be noted that the acts of uncharged abuse included physical abuse. Dr Kossoff’s report notes, however, that there were no symptoms of post traumatic stress disorder prior to the first time her father sexually abused her when she was a teenager. It was that initial sexual abuse, by means of the uncharged acts, which appears to have triggered the post traumatic stress disorder (and alcohol abuse).

23. [23]
    That the onset of her condition predated the relevant offences is evident from Dr Kossoff’s observation, in January 2007, that “there has been evidence of post traumatic stress disorder for at least five years”. In the circumstances, it would seem appropriate to take into account the finding that the onset of the applicant’s disorder was triggered by earlier uncharged acts, although the disorder did not become severe until after the incidents of sexual intercourse. Consistently with the observations by Holmes JA, consideration ought be given to the nature of the other contributing factors.

24. [24]
    Insofar as the earlier sexual assault by another man, in respect of which the applicant obtained compensation under the New South Wales scheme, I accept the submission that the provisions of the Act dealing with compensation orders (Section 26) are concerned with compensation orders under the Queensland scheme.  I also accept that this application is not to be assessed in light of the amount of compensation previously awarded in another jurisdiction.  Rather, it is appropriate to take into account the impact of the earlier offending upon the applicant’s injury, in accordance with the principles already discussed.

25. [25]
    The report of Dr Kossoff made some attempt to apportion causation as between “the sexual offences committed by her father” and the “prior contributing factors”. Dr Kossoff’s reference to the “sexual offences” committed by the applicant’s father may be a reference to more than the charged acts. She says that the “sexual offence” is a contributing factor to the extent of approximately 75% to the “level of dysfunction” and/or “current impairment” suffered by the applicant. Dr Kossoff’s opinion is helpful, but the percentages which she ascribes are not binding upon me in determining the extent to which the compensation might be reduced on account of the effects of factors other than the relevant offences.

26. [26]
    In a further affidavit, affirmed on 14 February 2008, the applicant acknowledged her very difficult life and upbringing otherwise, but deposed that:

“However, the sexual offences against me by [sic] committed by my father and for which he was convicted were the worst offences ever committed against me by anyone.  The offences involved full penetration and sexual intercourse and resulted in pregnancy.  The fact that I fell pregnant with my father’s child was devastating, degrading and left me feeling that I was completely worthless, unlovable and I simply no longer wanted to live.  I will never understand how my father could have acted with such complete and absolute disregard for my privacy, my person and my welfare.  I have been paying psychologically, psychiatrically, emotionally, financially and socially ever since for the offences he committed against me.  I fear I will never recover and my most desperate wish is to be able to lead a normal life.  I cannot however get the memory of my father’s sexual assault out of my head.”

27. [27]
    The solicitor for the applicant urged me to adopt a “broad-brush approach” to the exercise of discounting or fixing on a lower percentage. The approach which I have adopted is one of making what I consider to be an appropriate allowance, having regard to all the evidence. I have done that by fixing on a lower percentage on the compensation scale.

28. [28]
    I accept that the offences for which the respondent was convicted are a substantial cause of the applicant’s psychological disorder. I accept that other factors have contributed to her current condition, but I find that the incidents of sexual intercourse, which form the basis of the relevant convictions, are the main cause of her disorder. In particular, I accept Dr Kossoff’s opinion that the post traumatic stress disorder only became severe as a consequence of those offences.

29. [29]
    Of the uncharged acts, the earlier sexual abuse by the applicant’s father appears to have been the most significant contributory factor. In considering the weight to be given to those uncharged acts I have been conscious of the observations of Holmes JA in SAY v AZ [supra] concerning the relevance of the nature of the concerning factors and that “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”. 

30. [30]
    The non sexual abuse by her father also affected the applicant. Those acts were of a different character than the relevant offences. In assessing the weight to be afforded to those acts, and to other abuse factors, I have been mindful that it was not until her father first sexually abused the applicant that her psychiatric disorder emerged.

31. [31]
    It was submitted, on behalf of the applicant, that a discount of 4% of the scheme maximum would be a sufficient allowance for the other contributing factors. In my view a more appropriate allowance would be 6% of the scheme maximum. Accordingly, I assess compensation for this injury in an amount of 27% of the scheme maximum, being $20,250.

32. [32]
    The remaining (and largest) component of the applicant’s claim is for adverse impacts, under Clause 1A of the Regulation. It was submitted that an allowance of 50% of the scheme maximum ought be made for those impacts.

33. [33]
    I accept that the applicant has suffered adverse impacts of a kind falling within the Regulation and which are distinct from the mental or nervous shock and the physical injury constituted by the pregnancy, which are otherwise compensated.

34. [34]
    I accept that the applicant has suffered adverse impacts of the kind described in her affidavit and in the report of Dr Kossoff. Dr Kossoff describes the adverse impacts as having occurred “uniquely as a result of the sexual abuse”. The sexual abuse referred to may include the earlier uncharged acts of her father however, as I have already observed, the charged acts are by far the most serious. I accept that, whatever impacts have been suffered as a result of earlier abuse, the charged acts likely resulted in impacts of the kind referred to by Dr Kossoff.

35. [35]
    It was submitted that the assessment of adverse impacts should have regard to the applicant’s bodily scarring. It was submitted that should add 30% of the scheme maximum to what the assessment of adverse impacts would otherwise be.

36. [36]
    Bodily scarring is included in the injuries described in Items 27 & 28 of Schedule 1 to the Act.^[1]  Section 24 permits a claim in respect of “the injuries suffered by the applicant because of the offence”.  The direct cause of the applicant’s bodily scarring is the wounds that she inflicted upon herself.  Her decision to inflict the wounds was in turn, influenced by her psychiatric/psychological/emotional state which was, in turn, affected by the relevant offences, although the self harming commenced prior to those offences.  Dr De Torres noted that, while the applicant had been self harming prior to the relevant offences, the episodes of self harming escalated thereafter.^[2]  

37. [37]
    There may be issues as to whether the scarring is too remote to be described as an injury suffered “because of the offence” and, if not, to what extent the behaviour of the applicant in self harming should be taken into account pursuant to Section 25(7). I was not however, asked to make an award of compensation under Item 27 or 28. Rather, I was asked to take account of the scarring in assessing adverse impacts under the Regulation. The Regulation provides that adverse impacts of a sexual offence are a prescribed injury but only “to the extent to which the impacts are not otherwise an injury under Section 20”. Since bodily scarring is otherwise an injury under Section 20, it cannot form part of the adverse impacts, for the purposes of the Regulation. In my view, that is not a bar to finding that the adverse impacts of the sexual offence suffered by the applicant included such severe adverse impacts on her feelings and her perception of self worth and self esteem as to materially increase her propensity to self harm. That is, in my view, an adverse impact this applicant has suffered because of the sexual offences.

38. [38]
    Unsurprisingly, I was not referred to any case which would provide guidance on the appropriate range for assessing adverse impacts in the particular circumstances of this case. While I accept that the applicant’s self harming is relevant to the assessment of adverse impacts, in the way explained, I also consider that the amount contended for by the solicitor for the appellant is somewhat excessive. I assess compensation for adverse impacts in the sum of $30,000, being 40% of the scheme maximum.

39. [39]
    I assess the applicant’s compensation in an amount equivalent to 84.5% of the scheme maximum and order the respondent to pay the applicant compensation in the amount of $63,375.