SP v Estate of TP[2011] QDC 285

DISTRICT COURT OF QUEENSLAND

Introduction:

1. [1]
   SP (“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 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 1 count 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 an alleged “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 offence committed against her.

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 litigation guardian’s affidavit with exhibits sworn 15 November 2010 and filed in this court on 12 August 2011;

2. (b)
   The affidavit with exhibits of Dr Barbara Anne McGuire, Psychiatrist sworn 15 November 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 an offence committed against the applicant “between 3 July 2002 and 10 January 2003” when the applicant was between 7 and 8 years of age, her date of birth being “24/8/1994”. A summary of the circumstances of the respondent’s criminal conduct in respect of the offence concerning the applicant is as follows:^[2]

“The applicant was the granddaughter of the respondent and was aged between 7 and 8 years. The respondent was a resident of New Zealand who was holidaying with the family of the applicant. The applicant remembered going to bed in the same bed as her mother, MP. She was awoken by her grandfather who was kissing her on the face. He then put his hand up her pyjama top and rubbed her on the chest. He then ran his hands over her body and down her legs. He kissed her repeatedly on the face and this is when she woke her mother, who yelled at the respondent to get out of the room. The applicant told her mother that the respondent had been touching her all over, feeling her private parts and kissing her.”

Injuries:

6. [6]
   The applicant makes no claim for any physical injury.

“Mental or nervous shock”:

7. [7]
   In respect of this aspect of the claim the applicant relies on the evidence of her mother contained in the affidavit filed 12 August 2011 and that of Dr Barbara McGuire, Psychiatrist, contained in Dr McGuire’s report of 7 July 2010^[3] following her interview with the applicant on 5 July 2010 i.e., 8 years post the index offence.

8. [8]
   Dr McGuire reports:^[4]

“She said that she was 7 when she was sexually abused by her paternal grandfather. She said the incident occurred just once. She was in bed asleep with her mother. She woke up to find her grandfather kissing her on the lips, rubbing her breasts and abdomen down towards her genitalia and attempting to lie on top of her. She said that she yelled. Her mother woke up and told him to get out. She stated that at the time they had been visiting family and he had been staying with the family. He abused other family members.”

9. [9]
   Dr McGuire further states that the “psychological effects of the incident” include:^[5]

• She felt very anxious;
• She was very worried about coming to talk of the abuse;
• She wakes during the night;
• She has a lot of nightmares about her grandfather;
• She said she had changed a great deal;
• She has flash backs to the incident when she is alone.

10. [10]
    Dr McGuire’s diagnosis is in the following terms:^[6]

• “Diagnosis is posttraumatic stress disorder which she experiences to a moderate degree. I base this diagnosis on her exhibition of nightmares, flashbacks, avoidant behaviour, security fears, hypervigilance. I believe that the condition is moderate because although she has difficulty going out she is managing to attend her TAFE course.”

11. [11]
    In respect of the alleged “adverse impacts” suffered by the applicant over and above those sequelae attributable to a posttraumatic stress disorder, Dr McGuire states that the applicant suffers from:^[7]

(h) adverse effect of the reaction of others in that “she has been distressed by the family of the respondent who have said she is lying.”

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.^[8] It follows that post traumatic stress disorder, for example, is said to be compensable under s 20 and under s 1A.^[9] 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 sexual offence”.^[10]

Applicant’s Submissions:

21. [21]
    The applicant submits that her compensation should be assessed under Item 32 of the Compensation Table under Schedule 1 of the Act and that an assessment of $11,250.00 be awarded representing 15% of the scheme maximum. The applicant further submits that she should also receive an assessment of $3750.00 for adverse impacts suffered representing 5% of the scheme maximum.

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)
   I am satisfied that the applicant has suffered a “mental or nervous shock” disorder “to a moderate degree” within the terms of s 20 of the Act arising out of the respondent’s criminal conduct the subject of the application and I therefore find that the applicant is entitled to an award of compensation under this category item 32 set out in the compensation table under Schedule 1 of the Act. I make this finding on the basis of the mother’s evidence and that of Dr McGuire who confirms that the applicant suffers from a “posttraumatic stress disorder to a moderate degree.” I asses the applicant’s compensation under this category in the sum of 15% of the scheme maximum representing $11,250.00.

2. (b)
   I am further satisfied on the balance of probabilities that the applicant has suffered an “adverse impact” within the terms of s 1A(2) of the Regulation arising out of the respondent’s criminal conduct, in 1 respect only namely:

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

I make this finding on the basis of the whole of the evidence before the court including that contained in the affidavit with exhibits of the applicant’s mother and in Dr McGuire’s report of 7 July 2010. I assess the applicant’s compensation under this category in the sum of $1500.00 representing 2% of the scheme maximum.

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.

Orders:

25. [25]
    My orders in this application are as follows:

1. (a)
   The respondent The Estate of TP Deceased pays to the applicant SP the sum of $12,750.00 compensation for injury suffered by her including adverse impact pursuant to s 1A(1) of the Regulation caused by TP to the applicant for which TP was convicted by the District Court at Beenleigh on 28 November 2005.

2. (b)
   The monies are to be paid to the Public Trustee of Queensland who is hereby authorised to receive and hold such monies n behalf of the Applicant until she attains the age of 18 years.

3. (c)
   The Public Trustee of Queensland is hereby further authorised to advance such monies from time to time for the maintenance, education or treatment (including counselling) of the Applicant as the Public Trustee in his or her discretion considers appropriate.

4. (d)
   The Public Trustee of Queensland is hereby further authorised to pay out of such monies received the reasonable costs of the present application to Legal Aid Queensland.

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