WHG v LJC[2010] QDC 395

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 emotional injuries caused by the attack of the respondent on 9 June 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The Act was repealed by section 149 of the Victims of Crime Assistance Act 2009 (Qld) (the 2009 Act) which commenced on 1 December 2009.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 12 January 2010. This was within two months after the commencement of the 2009 Act 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 of sexual assault upon the applicant and was sentenced to three years' imprisonment.

I'm satisfied that the originating application was served in accordance with rule 110(c) of the UCPR by service on the person in charge of the prison in which the respondent is imprisoned, in this case, the correctional supervisor of the Wolston Correctional Centre. I am also satisfied that the respondent was served by post with all supporting affidavits pursuant to rule 112(d) of the UCPR.

The covering letter advised him that the hearing date was 19 July 2010 at 10 a.m. The mail attendant at the Correctional Centre confirmed that this correspondence was received by him.

In addition, the Public Trustee has received written confirmation from the respondent that he has been served with the material and is aware of the hearing date. He has advised, in writing, that he wishes to take no further part in these proceedings. Consequently, he did not appear when the matter was called on for hearing on that date. I, therefore, proceeded in his absence and adjourned the matter to 13 August 2010 to hear oral submissions.

Circumstances of the offence

As I said in my sentencing remarks as the respondent, who was 51 years of age, passed the applicant, he reached out and squeezed her left breast. She had left her home at approximately 5.30 a.m. for her regular walk with her dog through Paddington and Rosalie.

Close to sunset at about 5.55 a.m. she walked on a footpath towards the respondent. In accordance with her usual friendly practice she said, "Good morning."  He did not reply, instead he committed the offence. Not surprisingly, she was startled and shocked. She screamed out at him. She was "frightened, shocked and confused" and ran directly home.

Injuries and medical reports

Fortunately, the applicant did not suffer any physical injuries as a result of this attack. However, as she stated in her victim impact statement about two years and two months later, it has had a significant impact on her emotional well-being, in particular, her sense of security when walking in her neighbourhood and outdoors.

For the previous 15 years she had confidently exercised and walked in her neighbourhood each weekday morning and evening. She had also confidently walked in other localities. She had done so with a sense of confidence, safety and calm. This enhanced her quality of life.

At the time of the statement she no longer felt confident or safe when she walked subsequent to the attack. She avoided walking alone. If she was alone, she had a raised sense of anxiety. This was so even in her own neighbourhood and in full daylight. She described herself as hyper vigilant with a heightened sensitivity. She avoided passing other people who may be approaching, by crossing the road or making a wide arc. She never walked without a mobile phone and would shorten her walk if her anxiety became too heightened.

This anxiety and loss of trust detracted from her enjoyment of the outdoors and her interaction with fellow workers.   It had limited her freedom and sense of general well-being. Consequently, it has had a negative impact on her life. As she puts it in her affidavit sworn four years after the offence, "Prior to the assault I was a self-confident and trusting person. I no longer have this self-confidence and consequently, my lifestyle has been severely affected, in particular, I do not have the same sense of security and well-being I once had."

She describes how after another assault was reported her husband started walking with her because she did not feel safe going alone. In addition, she says, in her victim impact statement, that she is extra sensitive to unexpected noises, movement and the presence of others. She takes extra care in locking her house.

There has been media interest in the case which has led to her being contacted by journalists seeking an interview. Her name was made public during Court proceedings related to the case. She found the notoriety distressing.

Since the attack, she has suffered Meniere's disease. While she has been told there is no medical connection between the offence and her disease she feels her symptoms are exacerbated when she becomes stressed about the incident.

This is also referred to in a report from Dr McGuire, a psychiatrist who assessed her for the purpose of this application. Dr McGuire refers to her being afflicted by an attack of the disease two months after the offence, and in November 2009. There is reference to a medical report saying there is no documented connection between trauma and the onset of the disease. However, she is still disabled by tinnitus and balance problems. She has some deafness but has also been told there is no connection with the disease.

The consultation with Dr McGuire was about three years eight months after the attack. She told Dr McGuire that she always had a level of anxiety. She does not walk alone in the early mornings. Although she can go out alone later in the day she is hyper vigilant. She has an exaggerated startle reflex. She is much more careful locking her house. She felt very much better after the assailant was arrested and sentenced.

She denies nightmares but experienced flashbacks, in particular, every time she drives by the corner where it happened. She did not sleep well for two years but doesn't know whether this is related to the assault.

She confirmed that she was distressed by the notoriety in connection with this offender. She felt violated and no longer has the same sense of security. Although her condition has improved, she feels it will never completely go away.

Dr McGuire considered that the major effects of the offence are wariness, hyper vigilance and a limitation in her social actions. While the applicant had some of the symptoms of a post-traumatic stress disorder, in her opinion, they are not enough to make a diagnosis of that condition. However, she describes the applicant's condition as mental or nervous shock which she describes as having been minor but, paradoxically, becoming moderate upon realising that her assailant was a notorious sexual predator.

In this regard, I note that the applicant was one of a number of victims whom the respondent had violated and degraded over a 27-month period. She is the fifth of these victims whose application for compensation for injuries as a result of his attacks, I have considered.

Dr McGuire opines that the applicant had no pre-existing psychological condition. She is a Buddhist who has found meditation to be helpful. She has undertaken counselling with a Buddhist practitioner without payment.

Although she works with children who have behavioural problems she has not noticed any change in her capacity to work.

In her report, Dr McGuire also addresses whether the applicant has suffered any adverse impact of the sexual offence for the purposes of section 1A(1) of the Criminal Offence Victims Regulation 1995 (the regulation).

In her opinion the applicant has suffered a number of adverse impacts listed in section 1A(2). These are:

• A sense of violation (para (a));

• A lost or reduced capacity in that she can't exercise as freely and is less fit (para (f)); and

• Increased fear or increased feeling of insecurity (para (g)).

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 or prescribed under a regulation:  Section 20 of the Act.

An award for 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 make an order for the prescribed amount. 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] 2 QdR 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] 2 QdR 367 per Chesterman J at 372; per Atkinson at 382-383; Hornsby at [6]. They would be such an injury if they were nervous or mental shock; AT v FG 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 issue of fact on this application must be decided on the balance of probabilities: Section 30(2) of the Act.

The Applicant's Submissions

Ms Worsnop, who appears for the applicant, submits that there are two alternative methods of assessment which result in the same quantum of compensation.

Her principal submission is that the matters identified by Dr Mcguire meet the test for mental or nervous shock and, therefore, the applicant should be assessed under item 32 of the compensation table for moderate mental or nervous shock. It is submitted that a reasonable assessment under this head would be 15 per cent of the scheme maximum. This is $11,250.

She submits that the totality of adverse impacts under section 1A of the regulation should be assessed at five per cent of the scheme maximum. This is $3,750. Therefore, the total assessment sought for this compensation is 20 per cent of the scheme maximum ($15,000).

Alternatively, if the symptoms do not amount to mental or nervous shock it is submitted that they should be assessed under section 1A of the regulation as adverse impacts of the sexual assault with the same result.

Assessment

I am satisfied on the balance of probabilities that the applicant suffered the psychological injuries as documented in her affidavit and that of Dr Mcguire as a result of the indictable offence of sexual assault committed against her person by the respondent on 9 June 2006.

Mental or Nervous Shock

As I have stated, the principal submission on behalf of the applicant is that she should be compensated on the basis that she satisfies the test for mental or nervous shock within item 32 of the compensation table. This issue arises because it is accepted that a finding cannot be made that the applicant's symptoms constitute a recognisable psychiatric illness or disorder in circumstances where Dr Mcguire opines that while she has some features of a post-traumatic stress disorder these are not enough to make a diagnosis of this disorder.

In RMC v NAC [2009] QSC 149 at [38] Byrne SPJ held that "nervous shock" in the Act is confined to a recognised psychiatric illness or disorder. In doing so he declined to follow the decision of Thomas JA in R v Kazakoff, ex parte Ferguson [2001] 2QdR 320, which is relied on by Ms Worsnop. In that case his Honour said at [17] in relation to "nervous shock" for the purposes of the Act:

"Clearly, the ordinary usage of the term [nervous shock] has been to describe situations of injury to health, illness or some abnormal condition of mind or body over and above that of normal human reaction or emotion following a stressful event."

His Honour said at [19] that it would unduly limit the scope of the term "mental or nervous shock" if it were confined to conditions that were recognised as psychiatric disorders, though it would be going too far to use it as a basis for compensation for natural human emotions felt by people who could cope adequately with the aftermath of an offence and get on with their lives.

At [21] his Honour said:

"It is extremely difficult to define the point at which mental consequences to a claimant from a crime become compensable as 'mental or nervous shock'. I consider, however, that if nothing more is shown than fear, fright, unpleasant memories or anger towards an offender, or a combination of such reactions, the claimant has not shown that he or she has suffered nervous shock. Unless the Court is affirmatively satisfied that mental or nervous shock has been suffered compensation should not be awarded for such reactions."

As McGill DCJ noted in Michael v Christiansen [2010] QDC 157 at [15] that decision has frequently been applied. His Honour cites Summers v Dougherty [2000] QSC 365 and Farragher v Daly [2005] QSC 277 in support of this proposition.

It falls for me to decide which of these interpretations of "nervous shock" to apply in this case. I do so without the benefit of a contradicter. However, I have found the decision of McGill DCJ to which I have referred and Ms Worsnop's balanced submissions of considerable assistance in resolving this issue.

Before addressing this issue I observe that I have assessed compensation for mental and nervous shock upon applications for four other victims of the course of the offending behaviour by LJC. The relevant decisions are KMS v LJC [2010] QDC 284, SMR v LJC [2010] QDC 285, STH v LJC [2010] QDC 303 and SAN v LJC [2010] QDC 349.

In each of those cases a recognisable psychiatric illness or disorder existed in the form of a post-traumatic stress disorder. Therefore, it was not necessary for me to determine whether to apply Ferguson. However, this issue arises for determination in this case. I agree with McGill DCJ when he states in Michael v Christiansen at [15] that the analysis by Byrne SJA in RMC v NAC is persuasive.

This is particularly so when regard is had to the decision of Lee J in R v. Tiltman; ex parte Dawe [1995] QSC 345, a decision concerning section 663A of the Criminal Code which authorised compensation for, "bodily harm" which was defined to mean, "bodily harm and includes pregnancy, mental shock and nervous shock."

In that case speaking of this previous legislative analogue Lee J said:

"At the time of the introduction of chapter LXVA into the Code in 1969, the term, 'nervous shock' had acquired an undoubtedly technical meaning within the common law, which meaning extended to cover and, indeed was confined to cases involving recognisable psychiatric illness...I cannot think that by including the same term within the statute the legislature intended to give it other than its technical meaning."

In RMC v. NAC, Byrne SJA said, Dawe was not drawn to Thomas JA's attention when Ferguson was heard. Although Thomas JA expressly noted that such a view which he expressed as a, "diagnosable mental disorder or psychiatric illness" found some support in the reasoning of Byrne J, as his Honour then was in R v. Horne, ex parte Hill, unreported, Supreme Court No 8829 of 1999, 29 October 1999, he said at [21] that he was of the view this decision was not appropriate to apply to the definition of, "Injury" in section 20 of the Act.

Since that decision, there have been two decisions of the District Court which have expressed different views on this issue. In Willis v. Broadhurst, unreported, D227 of 2009, 23 October 2009, Robertson DCJ said at page 4 that although not binding, RMC v NAC is highly persuasive.

I note that the applicant's counsel did not press the claim for mental or nervous shock in light of that decision.  Accordingly, while recognising that his Honour brought RMC v. NAC to attention after reference had been made to Ferguson, it was not necessary for him to definitively determine the issue of whether that case was to be preferred to the decision in Ferguson. His Honour did not have the benefit of the detailed argument which I have had the advantage of concerning this issue.

On the other hand, in Daley v. Daley, unreported, No 2501 of 2009, 7 December 2009, Samios DCJ expressed a view that on the current state of the law he should apply the Ferguson approach having regard to the wide acceptance in decided cases and the absence of any decision of the Court of Appeal rejecting that approach.

Like McGill DCJ in Michael v. Christiansen, I would follow the analysis in RMC v. NAC if I considered myself at liberty to do so. However, I agree with him that the approach in Ferguson has been endorsed by the Court of Appeal in R v. Webb, ex parte MR [2001] QCA 113. This decision was not referred to by Byrne SJA in his reasons and as stated by McGill DCJ was, presumably, not cited to him in a case where there was no appearance by the respondent.

As McGill DCJ said with reference to MR at [18]-[19]:

“[18] ...It seems to me, therefore, that in this decision the Court of Appeal specifically rejected the argument which Byrne SJA has endorsed and that the decision therefore stands as Court of Appeal authority to the contrary.

[19] I am, of course, bound by a decision of the Court of Appeal. In my opinion, that Court has ruled that mental or nervous shock in the schedule to the Act is not confined to a recognised psychiatric illness or disorder. The decision, to the contrary, in RMC v. NAC (supra) was in my opinion per incuriam. It follows that the absence of evidence of a diagnosable psychiatric disorder is not an impediment to my making an award under the heading of mental or nervous shock."

His Honour reached this conclusion despite his earlier criticism of Ferguson in Orley v. Bath [2000] QDC 338 at [13]-[15] to which Byrne SJA made reference in RMC v. NAC.

Ironically, Margaret Wilson J with whom the other members of the Court agreed in MR, applied RMC v. NAC in WCA v. Willis [2001] QSC 304 at [12]. This decision was delivered on 18 August 2010, however, in that case there was uncontested evidence that the applicant displayed chronic symptoms of post-traumatic stress disorder as a consequence of the offending conduct.

As in previous decisions I have made in such circumstances it was not necessary for her Honour to determine whether to apply Ferguson or to resolve its conflict with RMC v. NAC. Although her Honour referred to Webb this was in support of a discrete and unrelated proposition that I had previously mentioned, namely, that the maximum amount of compensation is reserved for the most serious cases and the amounts provided in other cases are to be scaled according to their seriousness. Again, the respondent was not represented.

In these circumstances I remain of the view I am bound by the decision of MR that mental or nervous shock in the schedule of the Act is not confined to a recognisable psychiatric illness. I do not consider that in her more recent decision her Honour was intending to place a different interpretation upon it.

I am fortified in my interpretation of Webb by the decision and Atkinson J sitting as a member of the Court of Appeal in Jullie where at 382 [59] her Honour cited Webb in support of the proposition that:

"The Courts have interpreted mental or nervous shock in the compensation table, broadly. It does not require a diagnosed psychiatric illness."

Her Honour then went on to say:

"As Thomas JA held in R v. Kazakoff, ex parte Ferguson, compensation for mental or nervous shock is not limited to cases where there is a diagnosable mental disorder or psychiatric illness resulting from the criminal offence although it must be more than fear, fright, unpleasant memories or anger, or other adverse impact on feelings."

Earlier in Beardsley v. Loogatha [2001] QCA 438, Holmes J, as she then was, with whom McMurdo P and Williams JA agreed, referred to the relevant passages which have been cited above from Ferguson as providing, "Some criteria for the assessment of whether mental or nervous shock has been suffered."

This included reference to the passage where Thomas JA said:

"I am equally of the view that the decision in R v. Horne, ex parte Hill, is not appropriate to apply to the definition of, 'injury' in section 20 of the present Act. To limit compensation to cases where a diagnosable mental disorder or  psychiatric illness results would give the term, 'mental or nervous shock' too limited a meaning."

With reference to the issue in Jullie, Atkinson J expressed her conclusion in terms of the test enunciated by Thomas JA in Ferguson by saying that the psychologist's opinion that the applicant developed chronic post-traumatic stress disorder with anxiety and depressed mood as a consequence, clearly, was a conclusion that more than "fear, fright, unpleasant memories or anger towards an offender or a combination of reactions," existed.

She said that unless this opinion were to be rejected (and it was not) the applicant was entitled to be treated and compensated as an individual who had suffered mental or nervous shock for the purposes of the Act.

Consistent with this, Ferguson is said to be followed when it is referred to below the catchwords of the decision. I accept that this was a case in which it was not necessary to determine the issue that arises in the present case because, again, there was uncontradicted evidence of a recognisable psychiatric illness. However, as I have said in applying Ferguson her Honour must have been aware of the rejection by Thomas JA of Byrne J's decision in Hill, which decision has more recently found expression in RMC v. NAC.

I, therefore, proceed on the basis that nervous shock within the schedule to the Act is not confined to a recognisable psychiatric illness.

Assessment for mental or nervous shock

In the present case there have been changes in the applicant's behaviour and personality as a result of the sexual assault committed against her person by the respondent. These suggest, quite strongly, that what she has experienced was more than a normal human reaction or emotion following a stressful event.

The evidence is that the applicant has suffered anxiety and loss of trust such that the sexual assault has changed her from a self-confident and trusting person. She has developed an exaggerated startle reflex and is hypervigilant.

She experiences flashbacks every time she drives past the place where the offence happened. Consequently, the sexual assault has had a negative impact on her quality of life which has continued over four years.

As Dr McGuire opines, her symptoms progressed from minor to moderate once she realised that her assailant was a notorious sexual predator. Part and parcel of this was the distress she experienced at being contacted for media interviews as a consequence of his notoriety.

In my view, this goes beyond, "fear, fright, unpleasant memories or anger towards an offender, or a combination of such reactions," so that she has suffered an abnormal condition of the mind over and above that of a normal human reaction or emotion following a stressful event.

Therefore, on the whole of the evidence I find the applicant did suffer mental or nervous shock for the purposes of the schedule to the Act. However, I do not consider that the symptoms constitute moderate mental or nervous shock for the purposes of item 32 of the compensation table.

In Hill v. Dizo [2010] QDC 71, Dorney QC DCJ adopted the approach that when the Act requires a decision about what item in schedule 1 of the compensation table applies, concern must be directed at what the nature of the "injury" is that was suffered "because" of the offence. That can only be the injury that is originally suffered which, in this case, was minor mental or nervous shock.

Hill v. Dizo was a case where the later diagnosis was that the severity of the original injury had moderated. His Honour held that this was merely something to be taken into account in assessing pursuant to the second limb of section 22(4) of the Act wherein the scaling a particular case falls. I agree with his Honour's approach.

In this case, I consider the fact that the mental or nervous shock became moderate when the applicant realised her assailant was a notorious predator is something which is to be taken into account in scaling where between the two per cent and 10 per cent of the scheme maximum for mental or nervous shock, this case falls.

For reasons that I will give I consider that the applicant's mental or nervous shock is at the top of this range. If I am wrong and the applicant's mental or nervous shock is moderate for the purposes of item 32 of the schedule I consider it falls at the bottom of the 10 per cent to 20 per cent range for that item. In other words, I assess compensation for the applicant's mental or nervous shock at 10 per cent of the scheme maximum, that is $7,500.

In coming to this conclusion I have had regard to the assessment made for mental or nervous shock in compensating the other victims who were attacked as part of the same course of offending by LJC.

In SMR v LJC, given that the applicant's post-traumatic stress disorder which had serious consequences in most areas of her life had persisted for just over four years and was likely to persist indefinitely with a recommendation of two years psychology sessions to reduce her anxiety, I assess compensation at 20 per cent of the scheme maximum. Her career had been affected and at the time of the application she was searching for work in an unrelated area of employment which did not use her professional skills.

I consider that case involved more serious consequences to the victim than those suffered by the present applicant. It is not argued on the applicant's behalf that I should order compensation at any percentage approaching this. However, as the submission is that an assessment at 15 per cent of the scheme maximum should be made it is relevant to compare the applicant's symptoms with those of the victims in SAN v LJC where the assessment was 16 per cent and in KMS v LJC and STH v LJC, where the assessment were at 12 per cent of the scheme maximum in each case.

In SAN v LJC the applicant's post-traumatic stress disorder was persisting after almost four years such that she remained unable to see a counsellor because she found it emotionally distressing to talk about the attack. She had lost her sense of security and become hypervigilant. Also, like the present applicant, she had trouble trusting people and her condition was exacerbated by media interest in the case. She was constantly thinking about her safety. In addition:

• She had not had a stable relationship with a man since the incident;

• She had trouble sleeping and recurring nightmares of being suffocated by the attacker or dreaming he was in her bedroom;

• She had several nightmares leading up to her appointment with Dr Mcguire;

• She developed obsessive tendencies; and

• She often felt depressed as a result of the offence.

I also consider that SAN suffered more serious consequences than the present victim.

The victims in KMS v LJC and STH v LJC each experienced heightened anxiety, became hypervigilant, constantly scanning their environments, being highly suspicious and fearful of men, particularly those wearing similar clothes to the respondent when he attacked, and had struggled to do things away from home. KMS also lost interest in sex. The severity of her original injury had moderated in the three and a quarter years since the attack, although I assessed her compensation on the basis of the moderate mental or nervous shock she had originally suffered.

Although STH had not lost interest in sex, her condition had continued for approximately 18 months at the time of her affidavit and was described by her psychologist as a post-traumatic stress disorder involving a severe to extreme impairment, which is ongoing and requires assistance of a clinical psychologist. She continued to be anxious, insecure and fearful of attack as well as suffering social phobias.

I consider their symptoms to be more serious than those of the present victim in the circumstances, including that I recognise that the applicant feels her symptoms of Meniere's Disease are exacerbated when she becomes stressed about the incident, and she feels that her condition will never completely go away.

I find the injury suffered by the applicant as a result of the sexual assault on her by the respondent was minor mental or nervous shock within item 31 of the compensation table and I assess compensation within that item at 10 per cent of the scheme maximum, namely $7,500.

Regulation 1A - Adverse Impact of Sexual Offence

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 by section 1A(2). "Sexual offences" are defined in section 1A(3) of the regulation to mean a personal offence of a sexual nature. There is no doubt that the offence committed by the respondent against the applicant is a sexual offence.

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 section 20 of the Act. The onus was on the applicant to establish her claim on the balance of probabilities."

On the basis of Dr Mcguire's report I find that the adverse impacts which the applicant has suffered additional to mental or nervous shock are her sense of violation (section 1A(2)(a)) and lost or reduced physical capacity (section 1A(2)(f)). I have assessed the applicant's mental or nervous shock on the basis that the distress she experienced at being contacted for media interviews is part and parcel of this I therefore do not include it in the assessment of adverse impacts.

In SAN v LJC I assessed the victim's fear of disease arising from the respondent's blood being on her face in the course of the struggle as an adverse impact under section 1A(2)(k) and at 10 per cent of the scheme maximum. In this case I consider that the applicant's sense of violation as a result of the sexual attack committed in circumstances where she was trying to enjoy and obtain pleasure from her environment through daily exercise is a serious matter. In addition, the impact of the attack causing her to suffer lost or reduced physical capacity is that she cannot exercise as freely and, as a consequence, she is less fit.

Under section 2A of the regulation the prescribed amount which can be awarded is up to 100 per cent of the scheme maximum. I assess the adverse impacts that the applicant has suffered in this case at eight per cent of the scheme maximum, that is $6,000.

Alternative Assessment

If I am incorrect in compensating the applicant on the basis that she has suffered mental or nervous shock although she has not suffered a recognisable psychiatric illness, I find that her symptoms are adverse impacts of the sexual assault for the purpose of regulation 1A.

As Rackemann DCJ stated in Romans-Wallace v Graveur, unreported, No 1315 of 2007, 8 June 2007, in circumstances where it was arguable whether the applicant's symptoms properly fell within the mental or nervous shock items of the schedule or under the adverse impact provisions of the regulation:

"In my view the more appropriate way of treating the matter in this case is to regard it as falling under the adverse impact provisions of the regulation rather than mental or nervous shock, but it would not have made any difference to the amount of compensation which I order had I dealt with it under the mental or nervous shock."

If compensation was to be awarded in this case solely under regulation 1A the adverse impacts of the sexual offences would include not only the applicant's sense of violation and lost or reduced physical capacity, but all of the adverse psychological effects which I have concluded constitute mental or nervous shock. These adverse psychological impacts would be encompassed in the categories of increased fear or increased feeling of insecurity (section 1A(2)(g)) and anything the Court considers to be an adverse impact of a sexual offence (section 1A(2)(k)).

It would make no difference whether I assess compensation as falling under these adverse impact provisions of the regulation rather than as mental or nervous shock. Accordingly, if it were necessary to do so I would alternatively assess the complainant's entitlement for compensation under regulation 1A only at 18 per cent of the scheme maximum, that is $13,500.

Section 25(7) of the Act - Contribution

Finally, I conclude that nothing in the applicant's actions on 9 June 2006 contributed to her injuries, whether they be categorised as mental or nervous shock or as adverse impacts under the regulation. 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 contributed 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. Further, she had no pre-existing psychological disorder that in any way contributed to those injuries. Therefore, there is no reason for any reduction of any assessment of compensation against the respondent.

Conclusion and Orders

For these reasons I order the respondent pay to the applicant the sum of $13,500 by way of compensation pursuant to section 24 of the Act for injuries sustained as a result of the offence of sexual assault which led to his conviction in the District Court at Brisbane on 27 August 2009.