CRJ v JGD[2010] QDC 341

DISTRICT COURT OF QUEENSLAND

Introduction:

1. [1]
   GEFN (as litigation guardian for CRJ (“the applicant”)) claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act’) for alleged injury she sustained arising out of the criminal conduct of JGD (“the respondent”) who was convicted by the District Court at Brisbane on 7 May 2009 of three offences with respect to the applicant, of indecent treatment of a child under 12 years of age. 

2. [2]
   Although the evidence before the court does not establish that the applicant has suffered a “post traumatic stress disorder” the application for compensation is based upon the applicant having suffered an “injury” within the meaning of the Act because of her having suffered a number of “adverse impacts” as defined under s 1A(2) of the Regulations to the Act which have arisen out of the sexual offences committed upon her by the respondent.

3. [3]
   The application for compensation is supported by the following material:

a) The affidavit with exhibits of Katie Louise Worsnop, Solicitor, sworn and filed in this court on 22 June 2010;

b) The affidavit with exhibits of GEFN (litigation guardian of the applicant), sworn 28 June 2010 and filed in this court on 29 June 2010;

c) The affidavit of Dr Barbara McGuire, Psychiatrist, sworn 28 June 2010 and filed in this court on 29 June 2010;

d) The further affidavit with exhibits of Katie Louise Worsnop, Solicitor, sworn and filed by leave in this court on 14 July 2010;

e) The affidavit of service of Paul Buxton sworn 12 May 2010 and filed in this court on 19 January 2010;

4. [4]
   The respondent was served personally with the application and supporting documents and indicated to the applicant’s solicitors by letter of 8 July 2010 that he would not be contesting the claim for compensation and would not be attending the application hearing.^[1] The hearing of the application therefore proceeded in his absence.

Background Facts:

5. [5]
   On 7 May 2009 the respondent pleaded guilty to four counts of unlawfully and indecently dealing with a child under 12. Three of these counts were with respect to the applicant with the offences against her occurring on the “16^th October 2007”.^[2]

6. [6]
   The applicant was born on 6 October 1998. At the time of the offending the applicant was aged 9 years.

7. [7]
   The circumstances of the respondent’s offending are set out in the transcript of proceedings dated 14 August 2009 being exhibit “KLW1” to the affidavit of Katie Louis Wornsnop which confirm that the respondent committed three separate offences upon the applicant during her overnight stay at the respondent’s residence.

8. [8]
   The respondent was convicted and sentenced to a term of imprisonment for each of these offences.

Injury:

9. [9]
   As stated in paragraph [2] above, the applicant’s claim is based upon the “injury” she has suffered arising out of her diagnosed “adverse impacts” directly related to the respondent’s sexual offending. On the evidence before the court the applicant does not suffer from a “post traumatic stress disorder”.^[3]

10. [10]
    Frequently in claims relating to sexual offending an applicant’s injury primarily involves a “mental or nervous shock” condition characterized by “a recognisable illness or disorder” which satisfies the meaning of “injury” under section 20 of the Act. Any further “injury” such as “adverse impacts” is then a matter for further consideration by the court.

What is mental or nervous shock? – “Adverse Impacts”

11. [11]
    The recent decision of RMC v NAC [2009] QSC 149 revisited this question and what was said by Thomas JA in Ferguson v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320. His Honour Byrne SJA analysed the legal history of the condition in paragraphs [25] to [37] of his judgment and ultimately came to the conclusion in paragraph [38] thereof that:

“Nervous shock” in the Act is confined to a recognisable psychiatric illness or disorder”.

His Honour’s analysis is comprehensively set out in the judgment and I accept the conclusion he reached as to the meaning of “nervous shock” under the Act.

“Adverse Impacts”

12. [12]
    An applicant’s claim for compensation under s 1A of the Regulation is comprehensively discussed in the matter of Re JI v AV [2001] QCA 510 and in particular in the reasons of Chesterman J as he then was at paragraph [20] when discussing the phrase “to the extent to which the impacts are not otherwise an injury under s 20” as contained in Reg 1A(1) of the Regulation:

“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.”

13. [13]
    Further, in paragraph [22] Chesterman J said:

“This construction of the Regulation means that post traumatic stress disorder can only be an adverse impact where it does not amount to mental or nervous shock which will rarely, if ever, be the case. That, however, does not have the effect that the scheme for compensation found in s 1A is unworkable, or even absurd. It means only that that one impact will probably always be assessed under the Act rather than the Regulation. This consequence is not enough to give the words “to the extent to which the impacts are not otherwise an injury” a meaning other than their plain one. Section 1A will still have substantial scope to operate. It makes compensation available to victims of sexual offences for a greater variety of consequences than was available under s 20.”

14. [14]
    Again at paragraph [57] of that authority Atkinson J said:

“Many of the specified adverse effects in s 1A fall squarely within the definition of injury in s 20 of bodily injury or nervous or mental shock. It has been accepted, for example, that “post-traumatic stress disorder”, found in s 1A(2)(c) of the COVA Regulation, is within the definition of mental or nervous shock.^[4] It follows that post traumatic stress disorder, for example, is said to be compensable under s 20 and under s 1A.^[5] The same could be said of many of the specified adverse effects in s 1A and the definition of injury in s 20. The only way of avoiding such an interpretation is by the construction given to the section by the trial judge, i.e., that its purpose is to avoid double compensation by providing that if the injury is one that falls within s 20, as bodily injury, mental or nervous shock, pregnancy or injury specified in the compensation table, then it should be compensated according to that section. Only additional adverse effects of sexual offences fall to be compensated under s 1A of the COVA Regulation.”

Medical Evidence:

15. [15]
    The medical evidence before the court is Dr Barbara McGuire’s report of 28 April 2010 being exhibit “BM1” to her affidavit.^[6]

16. [16]
    Dr McGuire refers to the “psychological effects of the incident” in the following terms:

• “She had trouble sleeping that year. In particular she had a nightmare that she was in a pool and a hand was reaching towards her or that she was opening a fridge and there were hands reaching towards her”;

• “She has flashbacks and had them for about two years. These involve her experiencing visions of the face of the respondent”;

• “She is very frightened of white utilities and initially had a lot of difficulty going near the house of the respondent which was very close to her own house”;

• “..is hyper vigilant when she is on the streets. She denies she feels security fears at night. Her schoolwork is good. She can concentrate. She denies any irritability”;

• “She feels less trusting than she used to. She told me that she has been bullied at school. A boy told her that she had been raped and she became notorious at school and felt embarrassed as a result of this”;

• “She said that this was the worst thing that had ever happened to her and she felt guilty about breaking up the family of the respondent”;

• “When she made the disclosure she was taken to hospital for forensic examination. She described this as awful, embarrassing and very distressing”;

• “She sees a counsellor at school and finds this helpful”;

17. [17]
    Dr McGuire’s conclusions include the following:

• “I believe that she is suffering moderate psychological trauma.

• She has undergone some counselling, about seven or eight sessions from a counsellor in Cleveland and I have suggested to the mother that she take her back there. The mother is considering removing her from her present school because of the difficulty which she is experiencing with bullying as a result of the offence.

• I don’t believe at this stage she can be diagnosed with posttraumatic stress disorder but she exhibits some avoidance and has nightmares and occasional flashbacks. It is possible that posttraumatic stress disorder may develop as she approaches maturity.

• Her functioning at school was compromised for at least a year and her playground relationships have been affected.

• She did experience a sense of violation. She recognised that something was wrong and immediately told her mother although she thought that her mother would be angry with her.

• She did experience lowered self esteem thought she wasn’t as good as others and felt guilty about the incident.

• She did not experience increased feelings of insecurity.

• She has experienced the adverse effect of the reactions of others, in particular boys at the school bullying her.”

The latter four conclusions fall within the definition of an “adverse impact” under s 1A(2) of the Regulation to the Act.

Applicant’s Submissions:

18. [18]
    In addition to the applicant’s claim that she has suffered “adverse impacts” as set out s 1A(2)(a),(b),(g) and (h) of the Regulation, it is also submitted that any award of compensation should include the further consideration under s 1A(2)(k) of the Regulation that the applicant has suffered:^[7]

• a loss of educational opportunities;

• loss of friendship and feelings of isolation from peers;

• future counselling needs; and

• feelings of guilt.

Findings:

19. [19]
    On the basis of the evidence before the court and the submissions made I make the following findings in this application:

1. (a)
   The applicant does not suffer from a “post traumatic stress disorder” and therefore has not suffered a “mental or nervous shock” injury within the meaning of “injury” as described in s 20 of the Act arising out of the sexual offences committed upon her by the respondent. I make this finding on the basis of Dr McGuire’s report of 28 April 2010 wherein she makes the specific diagnosis that “I don’t believe at this stage she (the applicant) can be diagnosed with post traumatic stress disorder but she exhibits some avoidance and had had nightmares and occasional flashbacks.”

2. (b)
   The applicant has suffered an “injury” within the meaning of that term by way of a number of “adverse impacts” described in s 1A(2) of the Regulation to the Act namely:

“(a) a sense of violation;

(b) reduced self worth or perception;

(g)  increased fear or increased feelings of insecurity and

(h)  adverse effect of the reaction of others.”

3. (c)
   I find further that she may need some further counselling and has “feelings of guilt” relative to the respondent and his wife separating and her friend’s estrangement from her father the respondent.

I make these findings on the basis of Dr McGuire’s report; the evidence of GEFN in his affidavit and exhibits thereto together with the evidence contained in exhibits “KLW4” and “KLW5” to the affidavit of Katie Louis Worsnop filed 22 June 2010.

20. [20]
    I am not satisfied on the evidence before the court that the applicant has suffered any long-term loss of educational opportunities despite her schooling being interrupted in the immediate post-incidents period, as Dr McGuire states that the applicant’s “schoolwork is good. She can concentrate. She denies any irritability.”^[8] Further I am satisfied that any alleged “loss of friendship and feelings of isolation from peers” is sufficiently reflected in item (h) of s 1A(2) of the Regulation referred to above.

21. [21]
    In all the circumstances I assess the applicant’s compensation under s 1A(2) of the Regulation to the Act at 25% of the scheme maximum i.e. the sum of $18,750.00.

Applicant’s contribution to the injury:

22. [22]
    In deciding the amount of compensation payable to the applicant I must also take into account any behaviour of the applicant that directly or indirectly contributed to the injury the subject of the claim (see Section 25(7) of the Act).

23. [23]
    I am satisfied the applicant did not either directly or indirectly contribute to the adverse impacts she has suffered arising from the respondent’s criminal conduct referred to herein.

Order:

24. [24]
    I order that the respondent, JGD pays to GEFN as litigation guardian for the applicant JGD the sum of $18,750.00 for injury suffered by way of adverse impacts caused by the respondent to the applicant for which the respondent was convicted by the District Court at Brisbane on 7 May 2009.

25. [25]
    In accordance with s 31 of the Act I make no order as to costs.