HL v Hill[2010] QDC 216

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant seeks compensation for injuries she sustained as a result of a sexual assault by the respondent which occurred at or around midnight on 3 September 2007.  On 16 December 2008 the respondent pleaded guilty before another judge to one count of burglary by breaking and one count of sexual assault.  At the time of the assault the applicant was just under 20 years of age.

2. [2]
   The circumstances surrounding the assault were that on the night in question the applicant was asleep in her cabin in a caravan park. She awoke around midnight to find the respondent sitting on the edge of her bed. She was wearing a top and underwear. He assaulted her by placing one of his hands between her legs and touching her vagina with his fingers through her underpants. At the time, the applicant was suffering from the condition vulvodynia, one of the symptoms of which includes tenderness around the entrance of the vagina. During the assault, the applicant felt a burning sensation and pain where the respondent had touched her. The applicant then stood up from the bed. The respondent pressed her to have sexual intercourse with him, which was refused. A friend of the respondent then entered the cabin and led him away. After the respondent had left the cabin, the applicant noted that her handbag had been taken.

Impact of assault on the applicant

3. [3]
   The applicant described the impact on her life as a consequence of the assault in the following way:

“When the offence occurred I was very scared and shocked.  I constantly feel paranoid and very easily startled if someone approaches me from behind.  I find myself constantly looking behind me of a night and I must have all the windows shut when I sleep.  Prior to the assault I was a very good sleeper but now I find myself constantly waking at night and therefore I am always very tired.  I experience nightmares about the assault almost every night with the content of the nightmares including the perpetrator sitting on the end of my bed.  I find myself constantly checking my room and having to know where everything is.  If something drops on the ground I begin to panic.  I have also found that when there are dark-skinned people around I get very uneasy and this concerns me because I did not have racist views prior to the assault and had no problem with anyone who was dark skinned.  I would like to get treatment for this because I cannot go on being nervous with people of a different coloured skin.

As a result of the offence, I have experienced ongoing emotional difficulties and depression and am currently taking antidepressant medication.  I know that I need to attend counselling but due to financial reasons I have not been able to attend counselling to address all the effects of the assault.”^[1]

4. [4]
   Under the heading “conclusion” Mr Jordan^[2] reports as follows:

“13.1 HL experienced a prejudicial childhood marked by sexual abuse by her father during infancy and later in her early adolescence.  She was sexually abused by others as well, during childhood.  At age 5, she was made a ward of the State and from that time on, lived with her aunt and uncle, who cared well for her.  It is most unfortunate that she was again subjected to abuse by her father after he made application to spend time with her when she was older.

13.2 In her high school years she was severely taunted and bullied by peers after it became known that she had been sexually abused by her father.

13.3 These early experiences affected her personality development.  On assessment, she now shows significant features of a borderline personality disorder, although these may not be of such severity to warrant a diagnosis of same.  This is not uncommon amongst the population of people who have been sexually abused.  Because of her earlier prejudicial life experiences, she was always going to display emotionally vulnerable personality characteristics.  She is a person who is unassertive and has a desire to please others.  She is at grave risk of being taken advantage of in her personal relationships.  This has already happened to date.  She has been involved in two significant relationships.  Her first partner was a drug abuser.  Her second partner was not supportive after the sexual assault and also took advantage of her financially.

…

13.6 The assault by Mr Hill has had a severe psychological impact upon her.  She is now suffering from chronic post traumatic stress disorder and meets all criteria for diagnosis of this condition in accordance with the DSM‑IV‑TR.  She is hypervigilant in many respects, including when she is alone and when she is in the company of males.  She is avoidant of personal relationships and has become socially detached.  Typical of the PTSD sufferer, she avoids discussions and tries to avoid thoughts about the traumatic event.  She experiences emotional ‘blunting’.  She is easily startled.  She is psychologically and emotionally reactive to any triggers that remind her of the event.  She suffers sleep disturbance and continues to experience nightmares about the assault, on a nightly basis.  Her sleep is very disturbed to the point that she gave up her day job to work as a night packer, to avoid sleep at night.

13.7 Her sense of future is foreshortened and she has no immediate career goals.

13.8 Her mood is very reduced.  She is experiencing a range of cognitive, affective and psychological symptoms of depression and anxiety, to the extent that she meets criteria for diagnosis of major depressive disorder.  This condition often coexists with chronic post traumatic stress disorder.

…

13.12 In terms of a DSM‑IV‑TR multi‑axial diagnosis, her condition is appropriately expressed as follows:

 Axis (i) – Clinical Disorders

Post traumatic stress disorder, chronic, moderate severity major depressive disorder, moderate severity

Axis (ii) – Personality Disorders

Borderline personality features

Normal cognitive functioning

Axis (iii) – General Medical Conditions

Nil

Axis (iv) – Psychosocial and Environmental Problems

Reduced social network due to social avoidance

Axis (v) – Global Assessment of Functioning

GAF=51 (moderate difficulties in functioning)

…

13.17 Because of her early prejudicial life experiences, she was always going to have emotionally vulnerable personality characteristics.  However, because of the care that she received from her aunt and uncle and also because of the counselling that she received in her adolescence and the cessation of bullying when she left school, she had managed to establish some friendships and was feeling relatively happy with her life.  She reports that she was no longer thinking about the abuse that she experienced as a child.  The likelihood is that she did suffer post traumatic stress disorder as a child but this was in remission prior to the sexual assault by Mr Hill.

13.18 The assault has precipitated the development of a chronic post traumatic stress disorder of moderate severity with a co-morbid major depressive disorder, also of moderate severity.

13.19 In terms of the legal criteria, she fits within the confines of moderate nervous shock.  I consider that she is at the more severe end of the moderate range on this continuum.

…”

The claim

5. [5]
   The applicant seeks compensation in the sum of $37,500 made up as follows:

• mental and nervous shock at 20% = $15,000
• adverse impacts at 30% = $22,500
• total = $37,500

6. [6]
   Pursuant to s 22(4) of the Criminal Offences Victims Act 1995 (COVA)^[3] the maximum amount of compensation provided for under the Act is reserved for the most serious of cases.  The amounts provided for in other cases are intended to be scaled according to their level of seriousness.  The scheme of COVA and its associated regulations is that in respect of the classification of injuries identified, certain percentages are to be applied to the scheme maximum of $75,000 which is prescribed under s 2 of the Criminal Offence Victims Regulation 1995. 

7. [7]
   Schedule 1 to COVA, under the description “mental or nervous shock”, provides for a percentage of the scheme maximum ($75,000) of between 2% to 34%.  The range of 2% to 10% is reserved for the minor injury under this category (item 31); thereafter, 10% to 20% for moderate injury (item 32); and 20% to 34% for severe levels of injury (item 33).

8. [8]
   The words or phrase “mental or nervous shock” is not defined within COVA. However, in the circumstances of this case that is of no real significance. The diagnosis expressed by the psychologist clearly identifies two recognisable psychiatric illnesses or disorders, which constitute “mental or nervous shock” for the purposes of the Act.

9. [9]
   Having regard to all of the relevant evidence concerning this matter and, in particular the opinions of Mr Jordan, I accept that the  applicant’s chronic post traumatic stress disorder and depressive disorder tend to the severe end of the moderate range.  Accordingly, I allow 20% under item 32.

Adverse impacts

10. [10]
    Section 1A of the Criminal Offence Victims Regulation 1995 provides:

“Prescribed injury

3. (1)
   For s 20 of the Act, the totality of the adverse impacts of a sexual offence suffered by a person, to the extent to which the impacts are not otherwise an injury under s 20, is prescribed as an injury (emphasis added).

3. (2)
   An adverse impact of a sexual offence includes the following—

1. (a)
   a sense of violation;

2. (b)
   reduced self worth or perception;

3. (c)
   post traumatic stress disorder;

4. (d)
   disease;

5. (e)
   lost or reduced physical immunity;

6. (f)
   lost or reduced physical capacity (including the capacity to have children), whether temporary or permanent;

7. (g)
   increased fear or increased feeling of insecurity;

8. (h)
   adverse effect of the reaction of others;

1. (i)
   adverse impact on lawful sexual relations;

10. (j)
    adverse impact on feelings;

10. (k)
    anything the court considers is an adverse impact of a sexual offence.

3. (3)
   In this section sexual offence means a personal offence of a sexual nature.”

Section 20 of COVA provides:

“Injury is bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table or prescribed under a regulation.”

11. [11]
    On behalf of the applicant it was submitted, for the purposes of Regulation 1A, that the following adverse impacts existed:^[4]

• sense of violation
• reduced self worth
• increased fear and insecurity
• adverse impact of the reaction of others
• adverse effect on lawful sexual relations
• adverse impact on feelings
• and, under the general heading of “matters considered to be adverse impacts by the court” it was submitted that I should take into account impact on work, education, medication, treatment, susceptibility and residency.

12. [12]
    In paragraph 37 of the written submissions provided on behalf of the applicant, Mr Dollar, counsel for the applicant, said:

“It is a difficult task to separate the adverse impacts from mental and nervous shock.  It is conceded that aspects of the adverse impacts identified would also constitute the injury of mental and nervous shock.  In the circumstances, it is reasonable to make a global award for adverse impacts (reflecting any reduction for overlap with mental and nervous shock) as follows:

1. (a)
   taking a global account of the adverse impact suffered by the applicant not encompassed within the definition of mental and nervous shock, a global assessment of 30% ($22,500) would be appropriate.”

13. [13]
    During the course of submissions, after the recent Court of Appeal decision of PAJ v AAK^[5] was raised, a case not referred to in Mr Dollar’s original submissions, further written submissions were provided which in part said:

“10. It is submitted that there is clearly overlap between the following identified adverse impacts and the mental and nervous shock injury:

• sense of violation
• reduced sense of worth
• increased fear and insecurity
• adverse impact on feelings.

11. It is submitted that the following adverse impacts are clearly separate from the mental and nervous shock injury, and are therefore compensable as adverse impacts:

• adverse effect of the reaction of others
• adverse effect on lawful sexual relations
• the other relevant matters identified as adverse impacts (work, education, medication, treatment, susceptibility, residence)

12. Having regard to all relevant matters, and the principle that compensation is intended to help the victim (but not reflect common law damages), a reasonable assessment of the adverse impacts, being careful to separate out the adverse impacts that do not otherwise fall within the definition of mental or nervous shock, is 30% of the scheme maximum.”

14. [14]
    In R v Atwell, exparte Jullie^[6] His Honour Chesterman J (as he then was) relevantly said:

“The difficulty for the applicant appears in the phrase ‘to the extent to which the impacts are not otherwise an injury under s 20’.  There can be no doubt about its meaning.  Adverse impacts of a sexual offence are an injury and are to be assessed for compensation pursuant to the regulation unless they amount to an injury under s 20, in which case they fall outside the scope of the Regulation and are to be assessed under the Act.  This follows from the phrase.  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.  I cannot see any escape from this conclusion. …”^[7]

15. [15]
    In Vlug v Carrasco,^[8] at paragraph 8 Holmes JA articulated the appellant’s argument in the following terms:

“…The proper approach, according to the applicant, was that a victim suffering post traumatic stress disorder arising from a sexual offence would be entitled to compensation for the disorder as mental or nervous shock under s 20 and also, to separate compensation for the disability, consequences or effects of the disorder as an adverse impact under s 1A.”

16. [16]
    In dismissing that argument, her Honour at paragraph 11 said:

“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.  The regulation in its terms recognises its role as expansive, rather than as providing a discrete addition to what is classed as injury:  it prescribes as injury: ‘The totality of the adverse impacts of a sexual offence suffered by a person, to the extent to which the impacts are not otherwise an injury under s 20.’” (Emphasis added); recognising the potential for overlap discussed in Atwell.

And at paragraph 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 amounting 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.”

17. [17]
    In PAJ v AAK McMurdo P (with Muir and Chesterman JJA agreeing) said:^[9]

“The clear terms of Reg 1A(1) of the Regulation provide that, to be compensable under the Act, the adverse impacts under Reg 1A must be additional to the mental or nervous shock injury under s 20 of the Act.  The onus was on the applicant to establish her claim on the balance of probabilities. …”

18. [18]
    Then at paragraph [32]:

“Ms Yoxall’s evidence did not satisfy the judge that the adverse impacts she listed were separate from and not part of the appellant’s post traumatic stress disorder and low grade chronic depression (mental or nervous shock injury) which was compensable under s 20 and Sch 1 of the Act.  That conclusion was well open on the evidence.  It followed that Reg 1A(2) of the Regulation had no application.  The applicant’s final contention must also fail.”

19. [19]
    Compensation for adverse impacts under the Regulation would be appropriate where they exist but do not amount to or constitute mental or nervous shock for the purposes of the Act and are not a consequence of it. They might also apply where such adverse impacts exist independent of and in addition to the symptoms constituting mental and nervous shock for the purposes of the Act. As was clearly established by the Court of Appeal in PAJ v AAK, the onus is on the applicant to prove on balance of probabilities that such independent and additional impacts exist.

20. [20]
    At pp 7-9 of Mr Jordan’s report, reference is made to “psychological effects” and “other effects”.  As I read the report, this is not an attempt, in an expert medical way, to identify or categorise separate or additional adverse impacts but rather a break up of the various types of impacts as reported by the applicant.

21. [21]
    Under the heading “Beck Depression Inventory second edition (BDI-(II))” it is reported that:

“12.2.2.1 The BDI-II is a self report measure detailing symptoms of depression occurring in the respondent over the immediate two-week period prior to interview.  The instrument is useful in detailing the respondent’s perceived severity of reported symptoms.  Severity scores on the instrument do not necessarily correspond with the severity of any diagnosed condition.

12.2.2.2 Her score of 40 on the BDI-II indicates subjective experience of severe depressive symptoms over the two-week period prior to interview.  Items endorsed on this test indicated the following:

• She feels so sad or unhappy that she cannot stand it.
• She feels discouraged about her future.
• She experiences a range of negative cognitions including feelings of failure, guilt, persecution, self‑dislike, self‑blame and reduced self‑worth.
• She is anhedonic (reduced pleasure in activities previously enjoyed and loss of interest in other people).
• She cried more than she used to.
• She experienced heightened agitation (moderately severe).
• Loss of energy compared to previously with moderately excessive fatigue and tiredness.
• Extreme difficulties concentrating and difficulties making decisions.
• Insomnia and early morning awakenings.
• Heightened irritability (moderate level).
• Mildly increased appetite.
• Complete loss of libido.”

22. [22]
    Under the heading “Posttraumatic Stress Scale” (PTSS) it is reported:

“12.2.5.1 The PTSS measures severity of post traumatic stress symptoms that are in accordance with criteria detailed in the Diagnostic and Statistical Manual for Mental Disorders – 4^th edition … .  The test is normed on an Australian population.  Specifically, the test examines symptoms that are consistent with:

• Persistent re‑experiencing of the traumatic event (ie through dreams / nightmares / hallucination / disassociative flashbacks).
• Persistent avoidance of stimuli associated with the trauma and the numbing of general responsiveness.
• Persistent symptoms of increased arousal (eg sleep difficulties, irritability, anger outbursts, concentration difficulties, hypervigilance and exaggerated startle responses).

12.2.5.2 The test examines the degree and severity of symptoms and also the degree of impairment in family functioning, social functioning, occupational functioning and general coping abilities.

12.2.5.3 Most items on the PTSS were endorsed as occurring either often or always over the past seven months - two years.  A summary of responses follows:

• Always reminded of the assault by triggers including having to discuss it, noises, seeing dark-skinned people.
• Difficulty falling or staying asleep – always.
• Reduced ability for emotions – often.
• Avoidance of situations that remind her of the assault – always (eg one on one interaction with males)
• Difficulty concentrating and completing tasks – always.
• Reliving the event through hallucinations, illusions or flashbacks – always.
• Not interested in things that were previously important – always.
• Strong startle reactions – always.
• Palpitations, tense or nervous when reminded of the assault – always.
• Overly alert or watchful – always.
• Deliberately avoids thoughts, feelings or conversations about the assault – always.
• Recurring memories of the assault – always.
• Feelings of having no future – always.
• Feeling more estranged and cut off from others – always.
• Repeatedly rising from bed and walking about – often.
• Recurring dreams of the events – always.
• Experiencing irritability and outburst of anger – often (loss of temper with family members and always when people touch her belongings).
• Unable to remember certain things about the assault – sometimes.

12.2.5.4 She considers that disturbances from the assault have influenced the following:

• Mixing socially with others outside her family – always (she does not want to interact with others and largely limits her social contact to communication on the Internet through Facebook).
• Family relationships – sometimes.
• Maintaining a normal healthy relationship with a partner – often (note reduced desire to involve herself in a future relationship).
• Coping with everyday situations – often.
• Coping with work – sometimes.

12.2.5.5 It is noted that she did not endorse items on the test designed to elicit exaggeration, indicating that her responses are likely to be truthful.

12.2.5.6 The profile obtained on the PTSS is entirely consistent with the existence of post traumatic stress disorder.”

Most of the conclusions of Mr Jordan have already been reported above.

23. [23]
    While it was submitted that the second three categories of adverse impacts referred to above in paragraph 11 above are “clearly separate from the mental and nervous shock injury”, no part of Mr Jordan’s report is referred to in support of the submission.  Nowhere in his report, as far as I can see, does Mr Jordan state in any clear or meaningful way that the applicant, as a consequence of the assault, suffers from adverse impacts that are independent and additional to the injury of mental or nervous shock.  Most of the impacts relied on appear to me to be part of the diagnosed mental or nervous shock injury or are a direct consequence thereof.  I have been referred to no evidence to support the assertion that following the assault the applicant has suffered from adverse reaction of others.  I recognise though that many of her PTSS and/or symptoms of depression might cause others to react in a negative way towards her.

24. [24]
    Whether an adverse effect of the reaction of others is separate from the mental or nervous shock depends on whether the others are reacting to the applicant’s psychiatric condition which constitutes that mental or nervous shock, and the way she behaves because of it, or whether they are reacting directly to the fact of the offending behaviour. For example, if a significant person (e.g. family member) becomes hostile because of the fact of the offence itself that would be a relevant adverse impact. But if the hostility was a reaction to the applicant’s behaviour resulting from her psychotic state, that is an aspect of the mental or nervous shock and relevant to and covered by the assessment for that injury.

25. [25]
    On the evidence before me I have reached the conclusion that the applicant has not proved, on the balance of probabilities that the adverse impacts upon which she relies are impacts that are independent and additional to the injury of mental or nervous shock. Or, to put it another way, I am not satisfied that the adverse impacts relied on are not part of the appellant’s post traumatic stress disorder and depressive disorder. They are a part of the disability, consequences or effects of the injury of mental or nervous shock.

26. [26]
    I should note here, no doubt in order to save costs, Mr Jordan was not called to expand on or explain his report.

27. [27]
    There are, however, adverse impacts that are compensable in my view pursuant to s 1A(2)(k) of the regulations. First, the pain and discomfort the applicant suffered because of her condition of vulvodynia that she had at the time of the assault. The matter is not dealt with in much detail in the material, suggesting that this adverse impact was not a particularly serious one. However, it is clear that the pain was significant enough for it to have been reported to and addressed by the prosecutor at sentencing and reported by Mr Jordan in his report at paragraph 8.1.2. Second, the applicant felt it necessary to move from where she lived to try and disassociate herself from the place of the attack.^[10] In my view this impact lies beyond what could reasonably be described as a consequence or effect which would fall within the injury of mental or nervous shock.

28. [28]
    In the absence of any reasonable guide as to what would be an appropriate award for these adverse impacts, consistent with the approach adopted in the other cases, I will adopt a global approach. Compensation under this heading must however, in my view, bare some proportionality with compensation for mental or nervous shock. On the material before me I intend to adopt the figure of $5,625 made up of 7½ % of the scheme maximum. .

Contribution

29. [29]
    Section 25(7) of COVA provides:

“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.”

30. [30]
    There is no behaviour on the part of the applicant that directly or indirectly contributed to the injury. However, Mr Jordan identified that prior to the assault in question, the applicant probably suffered post traumatic stress disorder as a child, largely, if not totally, brought about by episodes of sex abuse by her father and the husband of one of her cousins.  As was identified in his executive summary, because of these prejudicial factors in her childhood and adolescence, the applicant developed emotionally vulnerable personality characteristics with borderline features.^[11]  At the time of the assault, the stress disorder the applicant suffered as a child or adolescent was in remission.^[12]

31. [31]
    Where the mental or nervous shock has been caused in part by matters other than the relevant offence, it may be appropriate to reduce the assessment under this section.^[13] In the circumstances of this case I do not intend to make any adjustment, by way of discount, to the compensation for mental or nervous shock because of any vulnerability or predisposition which existed prior to the assault. As I have already identified the previous condition was in remission and, as Mr Jordan reports, the assault precipitated the development of the posttraumatic stress disorder with a comorbid depressive disorder.^[14] He does not say that there were worse than they otherwise would have been because of her history.

32. [32]
    For the reasons expressed above I determine the compensation in the amount of $20,625, made up as follows:

Mental or nervous shock:$15,000

Pain and discomfort (Regulation 1A (2) (k)$  5,625

Total$20,625

Order:

The respondent is to pay the applicant the sum of $20,625 compensation pursuant to the Criminal Offences Victims Act 1995.