DISTRICT COURT OF QUEENSLAND

Introduction:

1. [1]
   JN (“the applicant”) claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for alleged injury he sustained arising out of the criminal conduct of TP (“the respondent”) who was convicted by the District Court at Beenleigh on 28 November 2005 of a number of offences of a sexual nature against 3 children including 2 counts of indecent treatment of a child under 16 years, under 12 years in respect of the applicant who was his lineal descendent. 

2. [2]
   The application is made on the basis of a “mental or nervous shock” condition together with a claim under s 1A of the Criminal Offence Victims Regulation 1995 (“the regulation”) that the applicant has suffered a number of “adverse impacts” as defined under s 1A(2) of the regulation arising out of the sexual offences committed against him.

3. [3]
   The application for compensation is made pursuant to s 24 of the Act and is supported by the following material:

1. (a)
   The applicant’s affidavit with exhibits sworn 27 April 2010 and filed in this court on 12 August 2011;

2. (b)
   The affidavit with exhibits of Dr Barbara Anne McGuire psychiatrist sworn 19 May 2010 and filed in this court on 12 August 2011; and

3. (c)
   The affidavit of Mandy Albert, Paralegal sworn 29 June 2011 and filed in this court on 12 August 2011.

4. [4]
   The respondent is now deceased and the application is validly filed against his estate according to law.^[1]

Background Facts:

5. [5]
   The respondent’s criminal conduct relates to 2 offences committed against the applicant “between the 3^rd day of July 2002 and the 10^th day of January 2003” and “on the 18^th day of October 2004” when the applicant was approximately 11 years and 13 years of age respectively, his date of birth being “12 August 1991”. The circumstances of the respondent’s criminal conduct in respect of the first count were that the applicant was awakened by the respondent who was the applicant’s biological grandfather “coming into the room and lying next to him. (The respondent) placed his hands down the back and inside of his pyjamas and began to rub (the applicant) on the bottom. (The applicant) pretended to be asleep. (The respondent) then began to undress himself (but not fully) while rubbing his hands all over (the applicant’s) body. (The respondent) was lying directly on top of the applicant who was lying on his stomach. The respondent starting moving his body which the applicant later explained as stating that he felt as if his grandfather was trying to hump him. The respondent was then disturbed by another family member.

6. [6]
   In respect of the second count the applicant saw his 6 year old female cousin sitting on the respondent, positioned in a sexual manner while she was wearing only underwear. The applicant raced over and removed her from the respondent and then took the respondent outside and argued with him. The applicant’s outline of submissions states that the applicant was “exposed to the sight of (the respondent) preparing to have sexual intercourse with his 6 year old female cousin” but this submission is not supported by the Schedule of Facts tendered at the hearing. While it is accepted that the 6 year old cousin was “straddling” the respondent she was “wearing underwear” and the applicant “immediately removed” the cousin from her position on the respondent. The respondent was wearing “his long pants and he had a t-shirt on.”^[2]

Injury:

7. [7]
   The applicant’s affidavit is sworn 5 ½ years post the second incident in 2004 and sets out a number of sequelae which he attributes to the two incidents.

8. [8]
   The alleged consequences to the applicant of the sexual offending are set out in his filed affidavit and in the medical report dated 14 October 2009 from Dr Barbara McGuire, psychiatrist being exhibit “A” to her affidavit.

9. [9]
   Dr McGuire interviewed the applicant “on the 8.10.09 lasting 1 hour” i.e. 5 years post the second incident and sets out the applicant’s “personal history”. Dr McGuire notes that “At interview it was very difficult to obtain a history from him. He exhibited thought disorder.” Dr McGuire also interviewed “his parents” and they seem to contradict a number of facts which the applicant had told her concerning his substance abuse and “auditory hallucinations.”

10. [10]
    Dr McGuire’s ultimate diagnosis is that the applicant: “… does exhibit posttraumatic stress disorder to a moderate degree. In addition he appears to be displaying some psychotic symptoms, notably thought disorder and paranoid ideation and possibly auditory hallucinations.”

11. [11]
    In respect of the applicant’s alleged “adverse impacts” arising from the sexual offences Dr McGuire summarises her diagnosis in this respect by accepting that subparagraphs (e) and (h) of s 1A(2) of the Regulation are applicable to the applicant but that any other alleged “adverse impact” which may be applicable to the applicant falls within the “posttraumatic stress disorder” diagnosis. There is no evidence that any other of the applicant’s symptoms referred to in the report are applicable to the index assaults.

Causation:

12. [12]
    The topic of causation between offences of which a respondent to an application for compensation has been convicted and any compensable injury arising out of those offences has been the subject of much judicial consideration both in respect of applications under the Code and under COVA which repealed Chapter 65A of the Code. The issue of causation was comprehensively discussed by his Honour Judge McGill SC in the matter of LMW v Nicholls (2004) QDC 118 (“Nicholls”), and there has also been more recent discussion on “The analysis in Nicholls” in the matter of SAY v AZ: ex parte AG (Qld) [2006] QCA 462 by Holmes JA and the observations by her Honour at paragraphs [19] and [20] in particular are very helpful in the consideration of the rationale in the awarding of compensation to applicants arising out of sexual offending.

13. [13]
    Further to this, her Honour’s comments at paragraphs [22] and [23] of the judgment are also relevant in respect of the principle to be applied when assessing the appropriate award of compensation to be made particularly where her Honour states:

“[23]Where there is a single state of injury produced by a number of factors, some or all of which warrant a reduction in the award, the court must do its best to make allowance for their contribution, although the evidence may not lend itself to any precision. Often a broad-brush approach of the kind adopted by Thomas JA in Sanderson v Kajewski will be necessary. The exercise may be one of discounting, or fixing on a lower percentage on the compensation scale to allow for the role of other factors, rather than necessarily a strict process of apportionment. In that exercise, it is legitimate to consider the nature of the other contributing factors. Given that the Act’s scheme is to require an offender to compensate his or her victim, it would be reasonable to suppose that contributing causes entirely independent of the respondent would be given considerably more weight than those merely reflecting part of a continuum of offending.”

What is “mental or nervous shock”?

14. [14]
    The recent decision of RMC v NAC [2009] QSC 149 revisited this question and in particular what was said by Thomas JA in Ferguson v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320. His Honour Byrne SJA analysed carefully and comprehensively 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”.

15. [15]
    There has been some divergence of opinion among judges following Byrne SJA’s conclusion on point as to the meaning of “mental or nervous shock” and some have come to a contrary view from his Honour on its meaning upholding the previously held view of Thomas JA in Ferguson’s case – with some relying upon the Court of Appeal decision of MR v Webb [2001] QCA 113. With respect, the Court of Appeal in that authority did not embark upon the comprehensive analysis of the topic as did Byrne SJA nor make any definitive interpretation of its meaning. I therefore accept Byrne SJA’s conclusion as to the meaning of the condition which is overwhelming supported by his Honour’s thorough analysis in the paragraphs of his judgment referred to above.

Adverse Impacts:

16. [16]
    An applicant’s claim for further 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.”

17. [17]
    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.”

18. [18]
    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.^[3] It follows that post traumatic stress disorder, for example, is said to be compensable under s 20 and under s 1A.^[4] 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.”

19. [19]
    It is therefore necessary for an applicant who claims compensation under the regulation for alleged “adverse impacts” to establish additional sequelae of injury not included in the definition of “Injury” under s 20 of the Act.

20. [20]
    The applicant’s entitlement to additional compensation under the category of “adverse impacts” must be assessed on all of the evidence before the court including the medical evidence and any other evidence “the court considers is an adverse impact of a sexual offence”.^[5]

Applicant’s Submissions:-

Categories of Injuries:

21. [21]
    It is submitted on behalf of the applicant that his injuries fall under the following categories of injury contained in Schedule 1 of the Act and s 1A of the Regulation respectively namely:

1. (a)
   “Item 32 – Mental or Nervous Shock (Moderate) ….. 10% - 20%” and in respect of this item the applicant claims that the appropriate assessment of compensation should be 15% of the scheme maximum that is $11,250.00;

2. (b)
   An assessment under s 1A of the regulation on the basis of the totality of the adverse impacts he has suffered as a result of the sexual offences committed upon him in the sum of 10% of the prescribed maximum that is the sum of $7,500.00.”^[6]

Findings:

22. [22]
    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 has suffered a “mental or nervous shock” injury within the terms of s 20 of the Act arising out of the respondent’s criminal conduct the subject of the application and is entitled to an award of compensation therefor under the Act.  I make this finding on the basis of the applicant’s own evidence contained in his affidavit filed in this application together with the evidence contained in Dr McGuire’s report of 14 October 2009 wherein she concludes that the applicant “does exhibit post traumatic stress disorder to a moderate degree”;

2. (b)
   I find further that on the basis of Dr McGuire’s report the category of injury under which the applicant is entitled to an assessment of compensation for his “mental or nervous shock” injury is item 32 of the compensation Table under Schedule 1 of the Act that is “mental or nervous shock (moderate) … 10% - 20%”. I assess the applicant’s compensation under this item at 10% of the scheme maximum that is the sum of $7,500.00.

3. (c)
   I am further satisfied that the applicant has suffered some “adverse impacts” over and above the diagnosed “post traumatic stress disorder”, on the basis of Dr McGuire’s report as previously stated and I find that those “adverse impacts” which “are not otherwise an injury under s 20” of the Act are as follows:

3. “(e)
   Lost or reduced physical immunity;

(h)Adverse affect of the reaction of others.”

In all the circumstances I assess the applicant’s compensation under s 1A(1) of the regulation at a further 5% of the scheme maximum that is the sum of $3,750.00.

Applicant’s Contribution to the Injury:

23. [23]
    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 s 25(7) of the Act).

24. [24]
    I am satisfied that the applicant in no way either directly or indirectly contributed to the injury or adverse impacts he has suffered arising from the respondent’s criminal conduct and is entitled to the full award of compensation as assessed herein.

Order:

25. [25]
    I order that the respondent The Estate of TP deceased pay to the applicant JN the sum of $11,250.00 for injury suffered by him including adverse impacts caused by the TP to the applicant for which TP was convicted by the District Court at Beenleigh on 28 November 2005.

26. [26]
    In accordance with s 31 of the Act I make no order as to costs.