PHF v Slee[2010] QDC 223

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for compensation under the Criminal Offence Victims Act 1995.  On 29 January 2004 the respondent pleaded guilty in the court at Rockhampton to one count of indecent treatment of a child under 16years, the offence having been committed on the applicant.  The plea to one count was accepted in discharge of the indictment which alleged two counts.

Evidence

2. [2]
   According to the sentencing remarks the offence was committed on 9 June 2002 at a time when the applicant was aged 12.  The circumstances of the offending were that the applicant was sitting on the lap of the respondent while using a computer, and he touched her in the area of her breast on the outside and then the inside of her shirt.  She became upset and ran out of the room.  In the victim impact statement the applicant said that she felt very uncomfortable while this was going on, and scared, for some time after the incident her sleep was disrupted and she was wary about being in the vicinity of men.  She remained at the time of sentencing confused and angry as to why this happened.

3. [3]
   In her affidavit she confirmed her loss of trust in males. She had difficulties in sport at school, and was distracted and concerned about where boys were in the classroom. She was uncomfortable about being taught by a male teacher. She has in the past had to quit jobs because of an inability to work with men, and she will not go to a male doctor. She avoids dressing in a feminine way in order not to attract men.

4. [4]
   She was seen for the purpose of the report by a psychiatrist, Dr Pryor on 22 January 2007.  Dr Pryor did diagnose any psychiatric disorder, though he did note a moderate apprehension of older, unknown males, and a moderate underlying lack of security.  The applicant advised Dr Pryor that she had had some counselling, but no psychiatric treatment.  There was no history of significant mood change, or symptoms of depression or anxiety.  He recorded that apparently her school reports indicated no particular problems prior to the time when she left school in Year 10 after having become pregnant.  She had no financial or emotional support from the father with whom she was not in a significant relationship.  At the time of the report the child was nine months old and she was coping with caring for the child.

5. [5]
   Dr Pryor was asked about the list of adverse impacts in the Criminal Offence Victims Regulation, and expressed the view that the applicant exhibited a sense of violation, increased fear and increased feeling of insecurity.  He expressed the view that there was a pre‑existing shyness which made her more vulnerable to her feelings of caution around older, unknown males though this would have affected her reaction in a minor way only.  Dr Pryor did not consider that she required ongoing counselling, or any other form of treatment.

Analysis

6. [6]
   The application was advanced on the basis that the appropriate approach was to award compensation in respect of the injury constituted by the adverse impacts of the sexual offending in accordance with the Regulation, because there was no mental or nervous shock because of an absence of any diagnosed psychiatric disorder. Reliance was placed on RMC v NAC [2009] QSC 149.  However, for reasons which I set out in Michael v Christiansen [2010] QDC 157, I consider that I am bound by the Court of Appeal decision in MR v Webb [2001] QCA 113 to apply the test of mental or nervous shock identified by Thomas JA in Ferguson v Kazakoff [2001] 2 QdR 320.  Accordingly the question is whether the applicant suffered mental or nervous shock in accordance with that test.  If that test is satisfied in the present case compensation is to be assessed under the schedule in respect of that mental or nervous shock, and for the deemed injury under the regulation only to the extent that there were adverse impacts not include in that mental or nervous shock.  If that test is not satisfied, then compensation is to be assessed by reference to all of the adverse impacts suffered by the applicant.

7. [7]
   His Honour held that the expression “nervous shock” described a situation of injury to health, illness or some abnormal condition of mind over and above that of a normal human reaction or emotion following a stressful event. It was not satisfied by fear, fright, unpleasant memories, or anger towards the offender, nor did it apply when people had generally coped adequately with the aftermath of an offence and got on with their lives. The applicant in the present case did experience fear, fright, unpleasant memories and anger, but also a sense of violation and has apparently been left with a persistent and moderate distrust of males, and a persistent and moderate lack of security. These matters which are identified in the report of Dr Pryor, although not amounting to a diagnosable psychiatric disorder, do in my view indicate that the applicant’s condition satisfies the test for mental or nervous shock laid down by Thomas JA.  Accordingly I find that there was such an injury, which is to be assessed in accordance with the schedule.

8. [8]
   These features do appear to have been fairly distressing for the applicant, and to have been quite persistent; after she left school there were occasions when she would leave employment because of a dislike of being around men. Dr Pryor did not recommend treatment, possibly because of the absence of a diagnosable disorder, though he did say that positive future life experiences were likely to be beneficial in removing her lack of trust in the opposite sex.  That strikes me as a somewhat conditional favourable prognosis.  I expect that it is also true to say that if in the future she were to have unfavourable life experiences with men the condition might be aggravated.

9. [9]
   Overall, on the material before me and bearing in mind that there is no diagnosable psychiatric condition, I think the mental or nervous shock is a minor one and falls within Item 31, but in view of the relative persistence of the condition I think it falls towards the upper end of the range for Item 31, and I will allow 8% for that injury.

10. [10]
    With regard to any additional adverse impacts, the matters identified by Dr Pryor as adverse impacts are all matters which I would take into account as part of the mental or nervous shock.  Apart from those matters, the applicant relied on a loss of occupational opportunity, problems with obtaining medical treatment, changes in dress and appearance and poor body image, an impact on parenting and a loss of faith in God.  These are essentially consequences of the continuing fear of and difficulty in dealing with men, which is part of the mental or nervous shock, and accordingly should not be assessed as additional adverse impacts.^[1]

11. [11]
    With regard to a loss of occupational opportunity, this applies insofar as that has created difficulties because of a reluctance to work with men. It may well be that the applicant’s curtailed schooling has also caused a loss of occupational opportunity, but there is no basis for relating that to the respondent’s offending. With regard to impact on parenting, there is little evidence of any adverse impact on parenting; Dr Pryor’s report suggests that the applicant is coping well with the child.  I do not consider that a loss of faith in God is something which can properly be the subject of compensation under the Act.  In all the circumstances, I do not consider that any award in respect of adverse impacts should be made.

12. [12]
    There is no reason to think the applicant contributed in any way to the offending or to the psychological consequences to her of it, or to think that those psychological consequences were also caused in part by other matters so that compensation for them should be reduced. It is clear that the matters that I have identified as amounting to mental or nervous shock were caused by the respondent’s offending. When a figure of 8% is then applied to the scheme maximum it produces an amount of $6000.

13. [13]
    I therefore order the respondent to pay to the applicant $6000 compensation in respect of the injuries suffered by applicant as a result of the offending for which the respondent was sentenced on 29 January 2004.