SMR v LJC[2010] QDC 285

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  The applicant seeks compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 (QLD) (The Act) for the physical and emotional injuries caused by the attack of the respondent on 28 April 2006. The Act was repealed by section 149 of the Victims of Crime Assistance Act 2009 (QLD) (The 2009 Act) which commenced on 1 December 2009.

The transitional provision in section 155(1)(a) of the 2009 Act requires the application to be determined in accordance with the Act as it was made on 28 January 2010.  This was before the end of two months after the commencement as required by section 155(2)(b), it being the earlier of the dates required in that subsection.

On 27 August 2009 the respondent pleaded guilty to one count each of rape and sexual assault committed upon the applicant. He was sentenced on 28 August 2009 to 25 years' imprisonment for the rape and to three years' imprisonment for the sexual assault. The sentences were to be served concurrently.

On 16 February 2010 the Queensland Court of Appeal set aside the sentence of 25 years' imprisonment and substituted a sentence of 16 years' imprisonment. The sentence for the sexual assault was confirmed. The success of the appeal to this extent is irrelevant to the determination of the application.

The application and the supporting affidavits from Dr Thompson, and an affidavit of Ms Dunlop exhibiting the transcript of my sentencing remarks, and the relevant certificate of conviction was served on the respondent at the Wolston Correctional Centre by a letter addressed to the general manager and mailed on 19 May 2010 by ordinary prepaid post. This was in accordance with rule 110(c) of the Uniform Civil Procedure Rules 1999 (QLD) (The UCPR) under which a document required to be served personally on a prisoner must be served on the person in charge of the prison in which the prisoner is imprisoned unless the Public Trustee is managing the prisoner's estate or the prisoner has a litigation guardian. The affidavit of Mr Miles deposes that the Public Trustee is not actively managing the affairs of the respondent. There is no suggestion that the respondent has a litigation guardian.

Both the letter to the general manager and the letter dated 19 May 2010 which was addressed to the prisoner at the same correctional centre state: "It is intended to rely on an affidavit of the applicant which would be forwarded to him. The respondent was advised that this would happen in due course. The general manager was advised that this would happen in the near future." The letter to the respondent also advised this matter was listed for hearing on 4 June 2010 at 9 a.m. Out of an abundance of caution, the same material was served on the Public Trustee in purported reliance on rule 110(a) of the UCPR by being forwarded by ordinary post on 19 May 2010.

The affidavit of Ms Dunlop states that this included advice that the matter was listed for hearing on 4 May 2010. However, I take this to be an error in that the intention was to refer to 4 June 2010 in the affidavit. This matter has never been listed for 4 May 2010.

In any event, since that date, as Ms Dunlop deposes, she has served both the respondent and the Public Trustee with the applicant's affidavit by letters sent on 31 May 2010. This confirmed the date of the hearing of the application as 4 June 2010 at 9 a.m.

The Public Trustee has been served on the basis that a staff member of that office advised that the Public Trustee was able to accept service in the manner adopted on behalf of the respondent. Because the Public Trustee is not actively managing the prisoner's affairs, rule, 110(a) of the UCPR is inapplicable. However, as Mr Miles' affidavit demonstrates, this has had the effect of the respondent writing to the Public Trustee on 2 June 2010 advising he had received the application and supporting affidavits, was aware of the date of the hearing, and he did not desire to take part in the proceedings. This was after the applicant's affidavit had been sent to him.

I am, therefore, satisfied that the respondent has been served with and is aware of the application and all relevant material relied on in support of it. The Public Trustee has not surprisingly indicated that it has no wish to participate in the proceedings. As indicated, the respondent has expressed he does not desire to do so. As a consequence neither appeared when the matter came on for hearing before me at 9 a.m. on 4 June 2010. On that date, I adjourned the matter to today, 18 June 2010, for hearing.

CIRCUMSTANCES OF THE OFFENCES

As I stated in my sentencing remarks, these offences occurred early in the morning when the respondent lunged from behind a car and tackled the applicant who was proceeding past him so as to bring her to the ground. In relation to the charge of sexual assault, he put his hand over her face and pinned her head to the ground. He put his hand up under her bra and pinched her nipples firmly.

In relation to the count of rape, he inserted fingers into her vagina and moved them from side to side for two to three seconds. She suffered abrasions to her body and neck pain as a result.

I observe that the respondent hid behind a car in a driveway to provide him with cover to facilitate his actions in lunging out and taking the applicant by surprise.

According to the applicant's statements, which are exhibited to her affidavit, she left home at approximately 5 a.m. She was then 36 years of age. She took a route which she ran regularly. At about 5.45 a.m., she was walking or slowly running up a hill along a footpath when she past the car, which was parked at the crest of the hill. The respondent lunged at her from the vicinity of the driver's side door. She described him as rushing at her. He tackled her forcing her down on the road so that she ended up on the middle of the road.

The respondent pushed the applicant's head on the road and placed one of his hands on her face. She tried to struggle away from him, but he was very strong and was kneeling over her. She struggled as hard as she could and screamed as loud as she could for help. While kneeling over the applicant, the respondent moved his free hand up under her top and squeezed her nipples two or three times. He fondled her chest for several seconds before moving his hand in behind her shorts and underwear. He then forced his fingers into her vagina leaving them in there for about two or three seconds. She thought he used two fingers. He then removed his hand, stood up and ran away.

As I have said, during the assault she screamed out as loudly as she could. Residents of homes in the street emerged and provided assistance. However, she thought that she also sat on the road and cried for a while. The residents called the police on her behalf. After they attended at the scene, the police took her to the hospital for examination and treatment.

INJURIES AND MEDICAL REPORTS

The applicant's description of her physical injuries in her statement 10 months after the attack is: "He hurt my neck at the time from when he was pinning my head down during the attack. I kept trying to get up and he was forcing me down which strained my neck. I also suffered some cuts to my right shoulder."

When Dr Mobbs examined her at 8.30 a.m. on that date, less than three hours after the offence, she identified the following physical injuries:

• Two red lines on the right side of the midline of her back.  It was thought that they may be early bruising.  These measured seven centimetres and five centimetres respectively.
• A one-centimetre circular abrasion on the back of her left elbow
• A boomerang-shaped abrasion with dried blood on the middle finger of her left hand.  The part of the finger nearest the hand was swollen and tender.
• 0.2 centimetre linear abrasion on the left thumb.
• An area of six abrasions within eight centimetres by six centimetres on the outside of her right knee.
• On the outside of her right thigh there was a red area with some small abrasions.  This was possibly an early bruise.  It measured 12 centimetres by eight centimetres at the back, and four centimetres at the front.

For completeness, I add there was no abnormality revealed by the genital examination.

Dr Mobbs makes no reference to the applicant's neck.  This is perhaps not surprising given that this was more in the nature of discomfort than a visible injury.  The discomfort to her neck may also have developed in the days following the attack because as the applicant says about it in her affidavit:  "In the days following the attack, my neck began to cause me discomfort due to the fact that I was straining against the respondent when he pinned my head to the road.  I took Panadol to assist me manage the discomfort.  As time progressed, the injury healed itself."

There is no claim for an award of compensation made on the basis of the neck injury under item 21 of schedule 1 of the Act or otherwise. The claim is confined to minor or moderate bruising and lacerations under item 1 of the schedule. Therefore, I will not further refer to the neck injury.

In sentencing the respondent, I said that his victims, as there were other victims of his offending over a 27-month period, were violated and degraded with many suffering more devastating, psychological consequences than their immediate physical injuries. As I observed, the victims were simply trying to enjoy and obtain pleasure from their environment as they went about their daily exercise. This was particularly the case with the applicant.

In her affidavit sworn on 27 May 2010, four years and one month after these offences, the applicant sums up her emotional injuries as a result of the attack as follows:

• Panic attacks
• Nightmares
• Flashbacks
• Sleep disturbance
• Security fears
• Avoidant behaviour
• Low self-esteem

She describes this in detail in that affidavit as follows:

"7) At the time the offence was committed against me, I felt I was living some bizarre nightmare...although I survived the attack that morning, I didn't feel lucky. I felt violated. I was utterly and embarrassingly at the respondent's mercy. I felt humiliated when a kind homeowner on the street where I was attacked, following the offence, took me into their home while the police were called..."

In paragraph 8, she describes the medical examination as a humiliating experience which made her feel like something was wrong with her. She describes in paragraph 9 how she continued to feel embarrassed while being driven home from the hospital by the police. She started wondering if she had been foolish to go jogging in the morning. When she returned home she felt scared, and with more embarrassment called her brother to return from work because she felt scared.

The affidavit continues:

"11) That night I hung towels over the windows to block out the night. The TV stayed on with no sound to illuminate the room. I sobbed into my pillow until I fell into an exhausted sleep only to wake the next day agitated and anxious. This night-time ritual continued for months. As time went on it became more and more difficult for me to sleep. I suffered from nightmares when I did manage to fall asleep. I found that I would suffer from periods where I simply couldn't stop crying. I attended upon my GP who prescribed me Valium to help manage my anxiety and emotions. I still suffer from episodes of anxiety and have suffered from panic attacks. I have had flashbacks to the incident.

...

"13) I became terrified of the dark - a grown woman unable to leave my house until the sun was well and truly up. I had simply lost the ability to trust that other people would not hurt me. I had lost the feeling of loving my life. I could no longer go running. Running gave me confidence and cleared my mind; gave me a sense of joy. I felt good about my ability to exercise and it kept me lean and fit. Running would help me to sort out ideas and would assist me to renew my determination in meeting my goals. It helped me feel in control of my life. I lost that. I stopped running. I just couldn't be outside on my own. I hated the thought of exercising and hated myself for being weak. I felt that my love of running had made this all happen. With the help of my elder brother I gradually began to go running again. He was always with me. I could never go alone. I am now able to run with my husband and have finally allowed myself to walk alone - provided that it is well and truly daylight and only in very public places like main streets. I panic if I find myself in an area where I can't see other people close by and am hypervigilant about obstacles and corners where people could be hiding.

...

15)...My now husband has now waited in the wings while I have tried to straighten myself out and learn to trust again. I met him a few months before the offence and he has been in my life ever since. I have developed intimacy problems as a result of the offence. We have worked very hard to reach the point in our relationship where we were able to marry. The intimacy we share as a couple has not come easily or quickly, but I now know that he is one of the people that I can completely love and trust. However, I do continue to experience intimacy problems with my husband. I sometimes have an aversion to sexual encounters. After the offence there were times that I did not want my husband to desire me. The thought of sexual intimacy made me feel dirty, dangerous, shameful and embarrassed. I have been able to overcome some of these intimacy problems. However at times some of the things my husband does continues to remind me of what happened with the respondent and I cannot continue with such intimate behaviour.

16)  My self-confidence has been eroded by this incident. Prior to the offence, I considered myself to be outgoing and extroverted. Now, I do my best not to draw attention to myself. I am very self-conscious. After the offence in 2007, I tried to reinvent myself. I spent all of my money and wages as well as exhausting my credit cards. I found great comfort in shopping and even calls from my bank didn't slow my spending...It goes without saying that my plan failed miserably. I was miserable...All I seemed to do was to shop and cry. I am still paying off my credit card. I closed myself off to my many friends...

17) I have become obsessed about my appearance and constantly worry about what other people will think. I can go through three (3) or four (4) outfits in one day. I keep thinking about what others must be thinking of me and cannot control these feelings. At times I can become so distressed with the day's events that I need to take Valium in order to calm myself enough for sleep.

"18) My career has been affected by the offence.  In 2007, I had to take time off from work because I was finding it difficult to manage. When I went back to work, I felt flat and unmotivated. Following my marriage, I moved [interstate] where I have found it particularly difficult to find work. I was required to complete further study to gain the necessary qualifications to work as a full-time teacher in the [jurisdiction]. I found studying particularly difficult as I was unable to concentrate and worried incessantly. On occasions it would take me half the day to overcome my fear of making a mistake in public and particularly in new surrounds. As a result I officially withdrew from my studies at the university...and sought work as a relief teacher...After a few weeks of relief teaching, I felt unable to return to the classroom. I'm currently unemployed, though I have applied for some advertised secretarial positions.

19) Since the offence was committed against me, I have found it difficult to form close relationships with people of both sexes due to a lack of trust in others. I do not really like to go out to restaurants and bars and would prefer to stay home where I feel safer. Since I have moved [interstate] I particularly feel fearful of meeting new people. The move has been tough. I would like to socialise and resume my interests, but I can only do this with my husband to accompany me. I have become very dependent upon my husband for company".

it difficult to form close relationships with people of both February 2010. This was about three years nine months after the attack and before the applicant swore her affidavit. Dr Thompson's findings are consistent with that affidavit, although it does appear that the applicant's hopes to return to teaching which she expressed to Dr Thompson have not been fulfilled.

Dr Thompson has 39 years' experience as a psychiatrist.  She has a certificate in forensic psychiatry which she has held for 18 years. She was a psychiatrist to the Mental Health Review Tribunal in the jurisdiction in which she practises. This was for 10 years. She has worked with the prison service and takes referrals from probation and parole.

In her opinion, the applicant is suffering from a post-traumatic stress disorder as a result of the offence. While she describes this as moderate, she also says the applicant cannot function alone in most areas of her life. Her opinion is that it is likely to persist indefinitely. She considers it unlikely that the applicant can return to teaching and, as I have said, despite the applicant's hopes in that regard, her optimism has not been fulfilled as her affidavit reveals.

Dr Thompson also opines that the applicant continues to have:

• A sense of violation
• Reduced self worth
• Reduced physical capacity in her running
• Increased fear and increased feelings of insecurity
• Adverse impact on her sexual relations with her husband
• Adverse impact on feelings

These are "adverse impacts of a sexual offence under regulation 1A of the Criminal Offence Victims Regulation 1995 (QLD) (The Regulation). In Dr Thompson's opinion, these impacts are moderate in severity and separate to the post-traumatic stress disorder and not simply symptoms of this disorder. This is an important matter in the assessment of compensation to which I will return.

In her report, Dr Thompson describes how before the attack the applicant was never afraid. She would take risks and was optimistic. The applicant was a vibrant, active staff member who enjoyed socialising. She was gregarious and had fun.

After the attack, Dr Thompson observes she would often burst into tears in the staff room and her "stomach would drop" every time this attack, which was well publicised, would appear in a newspaper. Although in the applicant's second statement 10 months of the attack, she said she was speaking to a psychologist after the attack and this had helped her a lot, Dr Thompson says that after seeing the psychologist twice, she was too overwhelmed, scared and confused to return. The applicant had not sought further treatment.

Dr Thompson says that the applicant felt that it was all her fault and also felt it was not fair that this had happened to her. Importantly, the psychiatrist says: "Any injustice now overwhelms her; she gets carried away emotionally worrying about any injustice and avoids watching or listening to the news. Once upset, it takes time to calm herself down". Dr Thompson notes that shopping is almost an addiction.

In the mental state examination, I make particular reference to the following observations:

• Effect and mood during the interview appeared distressed and tearful particularly talking about the incident.  She is still upset about the injustice of the incident and the consequences.
• She was anxious to an abnormal degree with some obsessional thoughts and ruminations.  She has had panic attacks, but not with her husband present.  She is obsessional about her appearance, always wants to present well.  With others she has "waves of embarrassment" and has to leave the situation in the company of her husband.  She can get dressed and when she walks out, she completely loses confidence, has to change clothes, worried about what people think.  She might go through three or four different outfits a day.  It does not stop, ruminating "what do people think of me?".  She cannot control what she feels.  She knows she needs to stop thinking and analysing.  She knows she needs better ways of coping, but she can't stop the thoughts.  She takes Valium if she becomes excessively distressed.
• She was hypervigilant and defensive.
• She has been unable to do her normal activities such as running without support.
• She has difficulty sleeping, and when she does sleep she has bad dreams and disturbed nights often waking at about 2 a.m.  She often has nightmares about the man.
• Avoidant behaviour; she avoids people and is fearful of any new situation.
• She has control issues.  She felt she was unable to control the Court process and her family response to the Court process and needs to obtain control on her life
• She is very dependent on her husband.  She feels that it is stupid, but she cannot control her feelings.  She feels insecure all the time fearing the reaction of others.
• She did have flashbacks but not many recently.
• She still has the feeling of being violated; she has reduced self-worth.
• No manic episodes.

Dr Thompson describes the applicant suffering from severe immediate effects of the offence. She says the initial effects of the attack on the applicant were as follows: "She was deeply shocked and ashamed, very upset and tearful. She did not sleep and was given Valium. She had nightmares when she did sleep. She tried to pretend it did not happen and went to work, but she became very distressed. She had trouble going to work and being around people; she was frightened to leave the house. She needed and got a lot of support from her family and told her school principal. The incident was widely publicised in Brisbane and although her name was not mentioned, people could identify her. It took over a year before she regained her confidence at work. She tried to "reinvent herself" and spent a lot of money ($30,000) trying to change herself. She is still paying off the credit card."

Dr Thompson describes the long-term effects as:  "She has long-term chronic anxiety with complete lack of confidence. She has problems with intimacy with [her husband] although he is very supportive. She did not tell him initially, but has felt better since telling him. They were good friends for two years before coming intimate. Her social circle diminished as she trusts very few people. Only the immediate family were told and she has tried to keep it a secret from the extended family even trying to maintain the now family secret at the wedding. She has trouble making decisions. She has become very serious, never having fun. She is now 'routine oriented' and she does not deviate from her day schedule".

As to the effect of the incident on the applicant's life, Dr Thompson says: "She has greatly diminished confidence, poor self-esteem, poor self-worth and everything she does is affected by her severe anxiety. She has "dreadful" fears which affect her all the time. To try anything, she worries incessantly and she takes half a day to overcome her fear of making a mistake. She seeks constant reassurance from [her husband] and demands his presence to have confidence to do anything. She has difficulty trusting anyone apart from [her husband]. When she was at work teaching, she had been there for a long time before the incident and she was able to seek their support at times. In my opinion, she will have great difficulty in a teaching situation even though she is a very experienced teacher."

As I have observed, that observation about the applicant's career has proved to be insightful.

Dr Thompson says that the effect of the incident on the daily living skills of the applicant is: "She can drive alone at night, but she has to know exactly where she is going and she does not get out of the car without checking or knowing the people she sees. She can cook and shop, but she cannot walk on the streets alone even in daylight. She has to keep to the middle of the footpath and stays where other people are present."

Dr Thompson emphasises her recurrent thoughts about the incidence, her flashbacks and her recurrent memories of the assault. She refers to the applicant not wanting anyone to know and of her fears of losing control and feeling powerless. She refers to the applicant becoming more dependent on her husband and his parents. She also says: "Her outlook on life is limited to surviving everyday. She rigidly plans her day and any deviation causes extreme distress."

Dr Thompson recommends that the applicant have about weekly sessions with a psychologist for about two years to reduce the anxiety and anger she feels about the incident. In concluding that the applicant has a post-traumatic stress disorder, Dr Thompson expresses the opinion that it is directly due to the incident. She rules out any other contributing factors and says there has been no behaviour by the applicant which may have contributed to the impact, severity or inevitability of the condition.

The applicant has a diagnosis of hemochromatosis.  Dr Thompson says that in the normal course of events, this condition does not produce symptoms of the disorder. Dr Thompson could also not elicit any pre-existing psychiatric, intellectual or other medical or psychological conditions.

In concluding that the post-traumatic stress disorder is likely to persist indefinitely, Dr Thompson says that in her opinion the applicant will always have difficulty with excessive worrying, recurrent thoughts and severe anxiety.

THE APPLICABLE PRINCIPLES

The assessment of compensation is governed by Part 3 of the Act. Section 24 of the Act provides for compensation in respect of convictions on indictment of a personal offence for injuries suffered by an applicant because of that offence: JMRoboSRR v. Hornsby [2009] QDC 147 per Dearden DCJ at [6]. A personal offence is an indictable offence committed against the person of someone: Section 21 of the Act. An injury is bodily injury, mental or nervous shock, pregnancy or an injury specified in the compensation table in Schedule 1 of the Act prescribed under a regulation: Section 20 of the Act. An award of criminal compensation under the Act does not invoke the principles applicable to common law damages: Section 25(8)(a) of the Act. It is intended to help the applicant, not to reflect the compensation to which the applicant is otherwise entitled: Section 22(3) of the Act. A compensation order cannot be made for an amount more than the prescribed scheme maximum, presently $75,000: See section 25(2) of the Act and the Criminal Offence Victims Regulation 1995 (QLD) (the Regulation) section 2; See also Riddle v. Coffey (2002) 133 ACrimR 220; [2002] QCA 337 at [12]. An award for compensation must be made by reference to the compensation table which lists 36 different types of injury, giving each a percentage or range of percentages of the scheme maximum: section 25(3)-(4) of the Act.

In deciding the amount of compensation to be paid for an injury specified under the Regulation, the Court is limited to making an order for the prescribed amount. The prescribed amount for an injury mentioned in section 1A of the Regulation is an amount not less than one per cent but not more than 100 per cent of the scheme maximum: section 2A of the Regulation. If the injury does not come within those itemised in the compensation table or specified under a Regulation, then the Court must decide the amount of compensation by reference to the amounts paid for comparable items in the compensation table: Section 25(6) of the Act.

Section 22(4) of the Act requires compensation under the section to be calculated by assessing the injury as or similar to an item in the compensation table and placing it appropriately within the relevant range of the percentages of the scheme maximum set out in the table: Riddle v. Coffey (2002) 133 ACrimR 220 at 223; [2002] QCA 337 at [15] applying R v. Ward; ex parte Dooley [2001] 2 QdR 436 at 438, 440. It follows that in such cases the amounts of compensation ordered are to be scaled within the ranges set out in the table on the basis that the maximum amount of compensation allowed in respect of each type of injury listed in the table is reserved for the most serious cases: R v. Ward; ex parte Dooley [2001] 2QdR 436 at 440.

Section 26 of the Act, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication: Riddle v. Coffey at 224; and at [18]; JMRoboSRR v. Hornsby at [6]. However, it does not discourage a Judge making a criminal compensation order from calculating and adding together the appropriate amount of compensation for a number of injuries arising from one episode by reference to the relevant items in the compensation table in the manner required by section 25(3) of the Act and Ward: Riddle v. Coffey at 224; and at [18].

Accordingly, where it is practical to make separate assessments under each applicable item in the table, whilst at the same time avoiding duplication, that course should be adopted: Wren v. Gaulai [2008] QCA 148 at [24]; Hornsby at [6]. However, if an injury that is best described in one item of the compensation table is instead assessed together with another injury under another item, in order to avoid duplication it may therefore be necessary to make an adjustment to cater for the differences between the ranges or maximum for each item: Wren at [29]; Hornsby at [6]. Ultimately, the Court should ensure that there is compliance with the use of the methodology proscribed by section 25 of the Act which is mandatory: Wren at [22]; Hornsby at [6].

In respect of sexual offences, it is necessary to commence by compensating the victim in so far as the impact amounted to an injury pursuant to section 20 of the Act and to assess compensation pursuant to section 1A of the Regulation only to the extent that any relevant adverse impacts of a sexual offence were not an injury under section 20 of the Act: R v. Atwell; ex parte Jullie [2002] 2QdR 367 per Chesterman J at 372; per Atkinson J at 382-383; Hornsby at [6]. They would be such an injury if they were nervous or mental shock; AT v. FG [2004] QCA 294 per Jerrard JA at [17].

Section 25[7] of the Act provides that 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 by the applicant that directly or indirectly contributed to the injury. The issues of fact on this application must be decided on the balance of probabilities: Section 30(2) of the Act.

THE APPLICANT'S SUBMISSIONS

In her written submissions, Miss Whitaker for the applicant submits that the applicant has suffered the following injuries and should be compensated on the following basis:

• Item 1 - bruising/laceration etc. (minor/moderate) -three per cent - $2,250
• Item 32 - mental or nervous shock (moderate) - 20 per cent - $15,000
• Regulation 1A - adverse impact of a sexual offence - 20 per cent - $15,000.

Therefore an award is sought of 43 per cent of the scheme maximum which is $32,250.

ASSESSMENT

I am satisfied on the balance of probabilities that the applicant suffered the physical and psychological injuries documented in her affidavit and that of Dr Thompson as a result of the indictable offences of rape and sexual assault committed against her person by the respondent on 28 April 2006. I am satisfied that those injuries involved bruising, abrasions and swelling, mental and nervous shock and separate adverse impacts within regulation 1A of the regulation.

Item 1 - bruising/laceration, etc. (minor/moderate) - 1 per cent-3 per cent."  Ms Whitaker's submission is that the injuries which amount to abrasions, swelling and bruising to various parts of the applicant's back, left hand and arm, right knee and right thigh should be awarded at the top of the moderate range for this type of injury. This is also the bottom of the severe range for this type of injury. In resolving this issue, I proceed on the basis that what the doctor saw within three hours after the incident and which she considered were possible early bruising did become bruises on the balance of probabilities.

In Ward at 438-439, [9] the Court stated:  "To qualify for the five per cent which is the top of the 'severe' range, one would not have to be beaten black and blue from head to toe; but the bruising and laceration must have some claim to be one of the 'most serious cases.'" In that case their Honours reduced an award at the top of the range to one of two per cent for moderate areas of swelling to the upper lip, right side of the mouth, three fingers and the right elbow. They could find nothing in the evidence that this swelling was long lasting or causative of significant pain. There were no lacerations.

Putting aside the neck injury, which is not relied on, I do not consider that the injuries suffered in this case are more serious than in Ward, or at least not sufficiently more serious to cause me to assess the award at a higher level.

While comparisons of awards in cases involved under this legislation can be fraught with difficulty because no two cases are exactly alike, I also take into account my assessment at three per cent of the scheme maximum of the injuries suffered by the applicant in KMS v. LJC, a decision that I delivered earlier today, compensating KMS as a result of an attack as part of the 27-month course of offending by the same respondent.  The offences against the applicant were committed as part of that course of offending.

In that case, as submitted to me by Ms Whitaker, the scratches, abrasions and wheals were to nearly all areas of the applicant's body.  Reference was made to her face, head, arms, torso and legs being injured.  The applicant also suffered from a puncture wound to her upper lip which bled.  The pain and discomfort, the injuries caused the applicant lasted for "some time and required the applicant to take pain killers to assist in the management of the pain".

I consider the injuries suffered by KMS to be more serious than those suffered by the present applicant. In these circumstances, I assess an award at two per cent of the scheme maximum for item 1 of the compensation table, this is $1,500.

"Item 32 - mental or nervous shock (moderate) - 10-20 per cent." It is submitted that item 32 of the schedule is appropriate for application in this case and the award be at 20 per cent of the scheme maximum. This was at the top of the moderate range for mental or nervous shock or at the bottom of the severe range for mental or nervous shock. Reliance is placed on Dr Thompson's opinion that the applicant is suffering from a moderate post-traumatic stress disorder directly due to the incident and which is likely to persist indefinitely.

Reference is also made to the applicant suffering from "severe immediate effects of the offence.", the adverse effect it has had on her relationship with her family and friends and the significant effect on her career such that despite her hopefulness when she spoke to Dr Thompson, the applicant as predicted is now unable to work as a teacher.

In RMC v. NAC (2009) QSC 149, Byrne SJA preferred the view of Lee J in R v. Tiltman; ex parte Dawe [1995] QSC 345 to that of Thomas JA in Ferguson v. Kazakoff [2001] 2 QDR 320; [2000] QSC 156, and held that nervous shock within the Act is confined to a recognisable psychiatric illness or disorder.

In AT v. FG [2004] QCA 293, Jerrard JA made reference to:

"Establishing the existence of post traumatic stress disorder and therefore of mental or nervous shock."

In these circumstances, I accept Dr Thompson's opinion and proceeding on the basis of Tiltman and RMC v. NAC that for the purposes of Item 32 of the table, there must be a recognisable psychiatric illness or disorder, I find that the applicant's post traumatic stress disorder is compensable as mental or nervous shock within the meaning of those words in the Act, and having regard to that opinion, I am satisfied that the respondent's conduct constituting the offences which I have identified, was the material cause of that disorder and is a proper subject for compensation.

In addressing this issue, it is relevant that on the basis of Dr Thompson's opinion, it is submitted the applicant is also entitled to an award of compensation because she meets the criteria under section 1A of the regulation for a prescribed injury, in particular, that she has been adversely affected by those offences. In such cases, the threshold issue is whether any of the adverse impacts of the sexual offences are relied upon to support the diagnosis of mental or nervous shock. If the answer is in the affirmative, section 1A is inapplicable to the assessment of compensation to that extent.

As stated by McMurdo P (with whom Muir and Chesterman JJA agreed) in PAJ v. AAK [2010] QCA 79 at [28]: "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.”

It was for this reason Jerrard JA stated in AT v. FG [2004] QCA 295 at [25]: "Applicants for compensation who are diagnosed as suffering from post-traumatic stress disorder or from depression or from anxiety will benefit from having their legal representatives insist upon the diagnosing practitioner specifically describing the matters experienced by the applicant which are not relied on in support of the diagnosis; those matters may then be capable of being adverse impacts."

An attempt has been made to do this in the present case by Dr Thompson identifying six of the adverse impacts listed in regulation 1A and adding that they are separate to post-traumatic stress disorder and are not simply symptoms of that disorder.

However, because she has detailed those impacts in her report, in conjunction with the symptoms of the disorder, it is not entirely clear what are the symptoms and what are the additional adverse impacts upon initially reading her report. The resolution of this issue is relevant in determining what are the separate post-traumatic stress disorder symptoms which are to be taken into account in scaling where a particular case falls in the appropriate item in schedule 1.

This is not an issue with clearly identifiable adverse impacts, such as reduced physical capacity with running and adverse impact on sexual relations with her husband.  Dr Thompson has also referred separately to the applicant suffering from reduced self-worth and a sense of violation.  However, there is a question as to where low self-esteem and avoidant behaviours fall.  Are they symptoms of a post-traumatic stress disorder or are they part of an adverse impact on feelings and security fears respectively?

Issues arise as to whether having regard to Dr Thompson's opinion they are to be taken into account as a symptom of the post-traumatic stress disorder or an adverse impact in scaling the award for those items. It would have been better if Dr Thompson had separately identified the symptoms of the post-traumatic stress disorder which he diagnosed. As a result, it has been left to me to attempt this exercise on an analysis of her report.

Having carefully considered the report in conjunction with the applicant's affidavit, I am satisfied on the balance of probabilities that the separate post-traumatic stress disorder symptoms are:

• Panic attacks and anxiety when she is not with her husband - this is described as "Long-term chronic anxiety"
• Nightmares
• Flashbacks
• Sleep disturbance
• Control issues
• Her persisting sense of injustice about the attack and generally
• Excessive worrying including her obsession with her appearance and worry as to what others think about her.
• Concurrent thoughts.

There may be some overlap between these symptoms and some of the terminology used by Dr Thompson may be a way to express the same symptom.

Without attempting to be exhaustive and repeating all of what I have said before, I note that in the applicant's affidavit, she said at the time the offences were committed against her, she felt she was living some bizarre nightmare. This was undoubtedly exacerbated by being forced to relive the events through the news broadcasts of the attack on her and other attacks linked by the media to the respondent.

In her affidavit, she refers to having difficulty sleeping and having nightmares when she did sleep. She told Dr Thompson she was still having difficulty sleeping and experiencing nightmares about the respondent. She also said that there were periods following the attack when she could not stop crying. Dr Thompson describes her as being distressed and tearful at the interview, and describes her as becoming excessively distressed.

As a result of being unable to concentrate and her incessant worrying, her career has been affected. She has felt flat and unmotivated. This has continued since moving interstate. As a result she has withdrawn from study she has undertaken with a view to progressing her career interstate and is currently searching for work in an unrelated area of employment which does not use her professional skills. Therefore, as submitted, these symptoms have had a significant detrimental effect on her life for over four years, and in accordance with Dr Thompson's opinion, can be expected to continue for the indefinite future.

As stated in Ward, at 438, (5):  "But in our opinion, the proper method is to fix the compensation for, say, severe mental or nervous shock, at the appropriate place in the range, 20 per cent to 34 per cent of the scheme maximum, which is done by considering how serious the shock is in comparison with the 'most serious' case which must be compensated by an award of the maximum, 34 per cent. This illustrates the point that the compensation table has no relationship to what would be awarded as damages in tort; a crime victim permanently institutionalised by the psychological results of an assault should, on that account, get no more than $25,000."

In this case, Dr Thompson describes the post-traumatic stress disorder as moderate. I am satisfied it comes within item 32 of the schedule for the moderate range of mental or nervous shock.

The next task is for me to fix compensation for this at the appropriate place in the range of 10 per cent to 20 per cent of the scheme maximum by considering how serious the shock is in comparison with the "most serious" case, which must be compensated by an award of 20 per cent. Given that this post-traumatic stress disorder with its serious consequences in most areas of her life has persisted for just over four years to date and is likely to persist indefinitely with a recommendation of two years of psychology sessions to reduce her anxiety, I assess the compensation as submitted at 20 per cent of the scheme maximum. This is $15,000. It is relevant that while this is at the top of the range for item 32, it is at the bottom of the range for severe mental or nervous shock under item 33.

In coming to this conclusion, I have had regard to my award at 12 per cent of the scheme maximum to KMS for moderate mental or nervous shock. However, as serious as the attack on her was, the nature and the extent of the post-traumatic stress disorder to the applicant in the present case is greater especially having regard to the persistence of the disorder, its effect on her career and the likely persistence of the disorder in future. In the case of KMS, there had been a degree of abatement or moderation of her post-traumatic stress disorder over time. That does not exist in the present case.

"Regulation 1A - adverse impact of sexual offence - 1 p cent - 100 per cent."  As I have said, a compensable injury under the Act includes an injury under a regulation. Under section 1A(1) of the regulation, 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 section 20, is prescribed as an injury, and "adverse impact" of a sexual offence is then defined to include the six impacts that Dr Thompson has identified as being suffered by the applicant.

"Sexual offences" are defined in section 1A(3) of the regulation to be a sexual offence of a personal nature. There is no doubt that the two offences committed by the respondent against the applicant are sexual offences.

As I have said, these adverse impacts can only be an injury pursuant to the regulation to the extent they are not symptoms of the mental or nervous shock for which I have already compensated the applicant. Based on Dr Thompson's report, the six impacts she has identified are separate to the post-traumatic stress disorder. On the basis of the exercise, I have conducted to base this decision on what I consider to be the symptoms of the post-traumatic stress disorder on the one hand and the separate adverse impacts for the purposes of regulation 1A on the other, I approach the assessment of the award of compensation for this item in the following way:

"Sense of violation."  In her affidavit the applicant describes immediately feeling violated, embarrassed and humiliated. I rely upon this in making my assessment.

"Reduced self-worth."  In her affidavit, the applicant refers to suffering from low self-esteem as a consequence of the attack upon her. She describes how her self-confidence has been eroded by the incident to such an extent that she has changed from being an outgoing and extroverted person to a self-conscious person who takes great comfort from shopping. That has become almost an addiction. I take that into account in assessing the award of compensation under this item.

"Reduced physical capacity".  This is with reference to her running without support. She has changed from a person who enjoyed running and running alone, to, as she said in her second statement about 10 months after the attack, being someone who wouldn't run unless she was with someone such as her elder brother or her husband. She would not even walk by herself. Although, according to her affidavit, she will now do so if it is truly daylight and she is in a very public place such as the main street. I take this into account in assessing an award of compensation for this item.

"Increased fear and increased feelings of insecurity." There is an overlap with her fear of running alone and walking except in certain very public places to which I have referred. In addition, as she deposes in her affidavit, and I take into account in assessing an award for this item, she suffers fears for her security, she is terrified in the dark, she is hypervigilant about obstacles and corners where people could be hiding, she is defensive, and she prefers to stay at home rather than go out because it feels safe to stay at home.

"Adverse impact on her sexual relations with her husband."This speaks for itself and I have referred to it by quoting passages from her affidavit and also from her examination by Dr Thompson. This has clearly been a significant impact which continues and can be expected from the way in which her affidavit is framed to continue in the future. It can be expected to result in some difficulties or tensions within the marriage and can rightly be considered to have enhanced the accommodations that are required to be made in the early stages of establishing a marital partnership.

"Adverse impact on her feelings".  This is dealt with in her affidavit where she talks about her inability to trust that other people would not hurt her. As she has deposed, it has been necessary for her to learn to trust again. She speaks of losing the feeling of loving her life. As a result of this lack of trust, she has found it difficult to form chose relationships with people outside her husband and immediate family members. She says she feels fearful of meeting people and is insecure all the time.

I take this and all of the other matters that I have referred to in relation to the various adverse impacts that have been described by Dr Thompson and by the applicant in assessing compensation for this item.

As with the post-traumatic stress disorder, these have been continuing impacts. There is no suggestion in her affidavit that they do not persist to the present and will not continue to do so despite some improvements. As submitted by Ms Whitaker, the impact upon her has been to restrict her ability to undertake even the most simple, everyday tasks that are often taken for granted, on her own including being in public places where she finds the need to be hypervigilant.

Dr Thompson describes these as moderate impacts.  I agree and I assess them as 20 per cent of the scheme maximum. This is $15,000.

Section 25(7) of the Act - contributionFinally, I conclude that nothing in the applicant's actions on 28 April 2006 contributed to either her bodily injury, mental or nervous shock or prescribed injuries that were suffered by her. For this reason, there is no requirement for any further allowance to be made or a lower percentage of compensation to be fixed as a consequence of section 25(7) of the Act. The applicant did not in any way either directly or indirectly contribute to her injuries. She was engaging in outdoor exercise on a public road as she was entitled to do. She had no previous dealings with the respondent. She did nothing that could be considered any kind of provocation, nor can the circumstances surrounding the offence in any way be construed to involve behaviour or prior conduct of the applicant which might somehow have been contributory to what happened to her.

I noted in my sentencing remarks that the applicant (along with other victims) was attacked "generally at a time when they were exercising and enjoying their environment by walking, jogging and bike-riding in public places where they had every right to feel safe and secure." The applicant in no way contributed to her injuries. Therefore, there is no reason for any reduction of any assessment of compensation against the respondent.

CONCLUSION AND ORDERS

Accordingly, I assess compensation in terms of the compensation table as follows:

• Item 1 - bruising/laceration, etc. (minor/moderate) - two per cent - $1,500.
• Item 32 - mental or nervous shock (moderate) - 20 per cent - $15,000.
• Regulation 1A - adverse impact of sexual offences - 20 per cent - $15,000

Therefore, the total assessment is $31,500.  I order the respondent pay to the applicant the sum of $31,500 by way of compensation pursuant to section 24 of the Act for injuries sustained as a result of the offences of rape and sexual assault which led to the conviction of the respondent in the District Court at Brisbane on 27 August 2009.