Hicks v Minister for Justice & Attorney-General
[2005] QSC 44
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- Notable Unreported Decision
- Hicks v Minister for Justice & Attorney-General[2005] QSC 44
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Hicks v Minister for Justice & Attorney-General[2005] QSC 44
Hicks v Minister for Justice & Attorney-General[2005] QSC 44
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 11 March 2005 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 17 January 2005 |
JUDGE: | Byrne J |
ORDER: | |
CATCHWORDS: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – where applicant injured in knife attack – where applicant suffered from recognized psychiatric illnesses in the form of acute stress disorder and generalised anxiety disorder – whether the applicant was entitled to criminal compensation for “mental or nervous shock” Criminal Code (Qld), s 3, s 323, s 663A Criminal Offence Victims Act 1995 (Qld), s 19, s 20, s 21, s 22, s 33, s 36, s 39, Schedule 1 Judicial Review Act 1991 (Qld), s 20, s 23 B v B [2004] WASC 6, considered Beardsley v Loogatha [2001] QCA 438, considered Fletcher v Commissioners of Public Works in Ireland [2003] IESC 13, considered Gifford v Strang Patrick Stevedoring Pty Limited [2003] HCA 33; (2003) 214 CLR 269, considered Hancock v Nominal Defendant [2001] QCA 227; [2002] 1 Qd R 578, considered Hinz v Berry [1970] 2 QB 40, considered Jaensch v Coffey (1984) 155 CLR 549, considered Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, considered Page v Smith [1996] AC 155, considered R v Atwell, ex parte Jullie [2001] QCA 510; [2002] 2 Qd R 367, considered R v Chong, ex parte Chong [1999] QCA 314; [2001] 2 Qd R 301, considered R v Kazakoff, ex parte Ferguson [2000] QSC 156; [2001] 2 Qd R 320, considered R v Moffatt [2000] NZCA 252, considered R v Morrison, ex parte West [1998] 2 Qd R 79, considered R v Tiltman, ex parte Dawe (unreported, Qld Sup Ct, 22 June 1995), considered Re Fripp and Fripp (1996) 125 FLR 456, considered Stokes v Pedersen (Brisbane DC, 13 December 2000, D 4909 of 2000), not followed Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317, considered Vanek v The Great Atlantic & Pacific Co of Canada Ltd (2000) 48 OR (3d) 228, considered Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 77 ALJR 1797, considered X v Y (unreported, WA Sup Ct, 2 September 1996, 13 September 1996), considered Young v Northern Territory of Australia [2004] NTSC 16; (2004) 183 FLR 121, considered |
COUNSEL: | A J Kimmins for the applicant A A J Horneman-Wren for the respondent |
SOLICITORS: | Adamsons Solicitors for the applicant Crown Solicitor for the respondent |
Review sought
[1] The applicant was stabbed with a knife in November 2002. Despite extensive police inquiries, the offender could not be found.
[2] The applicant applied for payment of compensation by the State.[1] By s 33(4) of the Criminal Offence Victims Act 1995 (“the Act”):
“The State may pay all or part of the amount requested up to the amount that could have been ordered to be paid … under a compensation order if the person who committed the act or offence were convicted on indictment…”
[3] The application fell to be decided by the Attorney-General as delegate of the Governor in Council.[2]
[4] Part 3 of the Act establishes a scheme for compensation “for injury suffered … caused by a personal offence committed against the applicant”.[3] “Injury” is defined to mean “bodily injury, mental or nervous shock … or any injury specified in the compensation table …”.[4] That table[5] includes three items for “mental or nervous shock”: minor, moderate and severe. It is common ground that the incident in which the applicant sustained his injury was a “personal offence” as defined.[6]
[5] The applicant claimed compensation for nervous shock, as well as for his physical injury and scarring.
[6] The Attorney-General approved a payment of $15,000. However, the claim for an award for nervous shock was rejected.
[7] The applicant seeks an order of statutory review, contending that the exclusion of an allowance for nervous shock involved either (i) an error of law[7] or (ii) “an improper exercise of power” on the footing that an irrelevant consideration was taken into account in arriving at the determination.[8]
Facts
[8] In stating his factual conclusions, the Attorney-General wrote:
“13.The applicant attended Dr Chittenden, Psychiatrist, on 8 July 2003 and the following diagnosis and observations were outlined in the medico legal report dated 28 July 2003.
- For the first two to three months after the attack, the applicant sustained an Acute Stress Disorder. Gradually, this merged into a Generalised Anxiety Disorder.
- ‘The Acute Stress Disorder refers to the traumatic event that occurred, which resulted in serious and frightening injury to Mr Hicks and, certainly in his mind, threatened death. He remembers feeling extremely fearful, quite helpless and was horror struck at what had occurred. He felt he was in a daze at first and would constantly think about the incident in various ways, including nightmares. For a while he could not cope with talking about the incident and if he did so, he had an extreme anxiety reaction. The incident has caused some impairment in his social activities, he was away from work for a length of time and had some slight difficulty with breathlessness and pain which still continues with his fairly physically active job.’
- ‘The Generalised Anxiety Disorder could be seen as a continuation of the above, only in a more moderate but also more chronic form. Mr Hicks still has some anxiety about going out, he is more careful about what he does, he avoids certain situations and he avoids being on his own. He has now tailored his life somewhat differently to cope with his anxieties.’”
[9] One other important fact is common ground: both the “acute stress disorder” and the “generalised anxiety disorder” summarized in those reasons are recognized psychiatric illnesses.[9]
The claim failed
[10] The Attorney-General’s reasons for rejecting the claim for nervous shock are:
“17.The maximum available under Schedule 1 of the Criminal Offence Victims Act 1995 for Item 31 – mental or nervous shock (minor) is 10% or $7,500. The applicant sustained an Acute Stress Disorder, which lasted for first two to three months after the attack, before gradually merging into a Generalised Anxiety Disorder.
18.The case of Stokes v Pedersen (Brisbane DC, 13 December 2000, No.D4909 of 2000) was comparable in terms of the diagnosis and symptoms suffered by the applicants. Therefore it is appropriate that the current applicant not be awarded anything for mental or nervous shock.
19.The applicant’s solicitors made the following submission in regard to quantum for this injury: ‘Mental and nervous shock (severe) 30% $22,500.00’. This submission is rejected because based on the above comparative cases, including those submitted by the applicant’s solicitors, as the applicant has not sustained a psychological injury of a nature that can be compensated.
20.Having regard to the above comparative cases, it was considered appropriate that no award be made under item 31 for the acute stress disorder sustained.”
Nervous shock explained
[11] “Nervous shock” is a familiar expression in discourse concerning the extent to which the common law compensates for unlawfully, typically tortiously, inflicted psychiatric injury. In that context, the expression has been used for decades as a term of art[10] describing a recognizable psychiatric injury or illness.
[12] In Hinz v Berry,[11] Lord Denning MR translated “nervous shock” into medical terms as “any recognisable psychiatric illness”.[12] In Page v Smith,[13] Lord Keith of Kinkel paraphrased the expression as conveying “some recognisable psychiatric illness”;[14] Lord Jauncey of Tullichettle regarded “nervous shock” as synonymous with an impact upon the mind or nervous system “as is recognised by modern medical science as capable of causing physical or psychiatric illness”;[15] and Lord Lloyd of Berwick spoke of a “recognisable psychiatric illness” as being prerequisite to compensation for nervous shock negligently inflicted.[16]
[13] In Scotland, “psychiatric injury, illness or disorder” is the terminology that has replaced “nervous shock”.[17] According to the Supreme Court of Ireland, “nervous shock” “has been used to describe ‘any recognisable psychiatric illness’”.[18] In Canada, it has been said that “nervous shock”, “put in medical terms”, involves “any recognizable psychiatric illness…”.[19] In New Zealand, too, the term indicates “a recognisable psychiatric disorder or illness”.[20]
[14] In Australia, the same usage has long been established. More than 30 years ago, Windeyer J equated “nervous shock” with “recognizable psychiatric illness”.[21] In 1984, Brennan J spoke of it as “some recognizable psychiatric illness…”.[22] And McHugh J has recently said: “‘Nervous shock’ is an outdated term that nowadays is taken to mean a recognisable psychiatric injury”.[23]
[15] When in 1995 the Act was enacted, “nervous shock”, and the interchangeable[24] “mental shock”, had a firmly established connotation in the context of damages claims. No doubt “those responsible for the present legislation”[25] were aware of that usage. It is therefore unsurprising that in R v Morrison, ex parte West,[26] Macrossan CJ said[27] of “mental and nervous shock” in the precursor to the Act[28] that the phrase “should be construed as including the full range of psychiatric illnesses …”.
[16] There has been some difference of judicial opinion concerning the scope of “nervous shock”[29] in criminal compensation legislation in this State and elsewhere: in particular, whether the expression comprehends an emotional disturbance which falls short of the requirements generally recognized in medical science as constituting a psychiatric illness.[30] Some judges consider that abnormal emotional reactions which do not amount to a recognizable psychiatric illness or disorder can still suffice as “nervous shock” in criminal compensation statutes.[31] Others would confine the reach of “nervous shock” to recognizable psychiatric conditions, influenced by the consideration that, even though the statutory right “is in addition to … any right … under common law”,[32] the use of a term of art having a well-established meaning presents as a distinct indication of a legislative intent that the expression should have that same content in the statute.[33]
[17] But that contentious issue is not presently germane. Even if some abnormal mental states that do not amount to recognizable psychiatric disorders may qualify as “nervous shock” within the meaning of the Act, a victim who sustains a recognizable psychiatric injury thereby suffers “nervous shock”: that is, even if a recognizable psychiatric illness is not essential to a conclusion that a victim has sustained “nervous shock”, such a disability is “nervous shock” within the statute.
“Nervous shock” was proved
[18] As the Attorney-General in his reasons accepted, this applicant suffered two recognized[34] psychiatric disorders through the stabbing. That being so, the applicant proved that he had sustained “nervous shock” compensable in conformity with the Schedule 1 compensation table. There ought therefore to have been an assessment of the sum to be paid for that component of the claim.
[19] As his reasons disclose, the Attorney-General’s decision not to award any compensation for the applicant’s “nervous shock” was decisively influenced by Stokes v Pedersen.[35] In that case, the claimant, a police officer, had suffered burns to the face, neck and back when splashed with boiling water from a kettle that had been thrown at him. A psychiatrist reported that, as a result of the incident, the claimant had experienced an “acute stress disorder” which had settled over a period of weeks. The District Court judge who assessed the police officer’s compensation claim referred to remarks of Thomas JA in Kazakoff that “nervous shock” had been used “to describe situations of injury to health, illness or abnormal condition of mind or body over and above that of normal human reaction or emotion following a stressful event”. The judge found that the claimant’s reactions did “not go any significant amount beyond fear, fright, unpleasant memories and anger towards the offender”, adding that even if the situation qualified for a diagnosis of an acute stress disorder for the purposes of the psychiatric profession, it did not satisfy the legal test for nervous shock under the Act. His Honour then said:
“I do not think that it is simply a matter of saying that if a psychiatrist regards it as nervous shock that is good enough. The analysis adopted by his Honour [a reference to the reasons of Thomas JA in Kazakoff] demonstrates that some sort of abnormal reaction to the unpleasant incident is required and there is nothing in the description of the consequences to the applicant in this case which suggests that his reaction was anything other than what one would expect from a quite unpleasant physical injury.
In those circumstances they are matters which are really covered by the compensation for the physical injury and it is not appropriate in my view to make award for mental or nervous shock in addition.”[36]
[20] But the point of Thomas JA’s reference in Kazakoff to “some abnormal condition of mind or body over and above that of normal human reaction or emotion following a stressful event ...”[37] was to propose that something less (or at least other) than symptoms severe enough to amount a recognized psychiatric illness sufficed [38] to constitute “nervous shock”. His Honour was not suggesting that, even if a recognizable psychiatric disorder was established, the claimant had also to prove that the reactive condition was an abnormal response to the offence that gave rise to the compensation claim.
[21] Stokes v Pedersen decided that a recognizable psychiatric injury sustained as a consequence of a personal offence is not of itself enough to sustain an award of criminal compensation for nervous shock. The Attorney-General’s decision to reject the nervous shock component of the applicant’s claim was based on that incorrect legal proposition.
Disposition
[22] The applicant has therefore established an entitlement to an order of statutory review requiring reconsideration of the claim.
Footnotes
[1] cf Criminal Offence Victims Act 1995, s 33(1)(c) and s 33(2).
[2] The Act, s 36(2) and s 39.
[3] s 19(1)(a).
[4] s 20.
[5] Schedule 1.
[6] See s 21 where “personal offence” is defined as “an indictable offence committed against the person of someone”. The stab wound punctured the lung. So the applicant was the victim of an unlawful wounding (see Criminal Code, s 323) which is an indictable offence: see s 3.
[7] See Judicial Review Act 1991, s 20(2)(f).
[8] Judicial Review Act 1991, s 20(e) and s 23(a).
[9] See Diagnostic and Statistical Manual of Mental Disorders, 4th ed, American Psychiatric Association, 1994, paras 308.3; and 300.02 respectively.
[10] Jaensch v Coffey (1984) 155 CLR 549, 560, per Brennan J.
[11] [1970] 2 QB 40.
[12] At 42.
[13] [1996] AC 155.
[14] At 167.
[15] At 171.
[16] At 189.
[17] Scottish Law Commission, Report on Damages for Psychiatric Injury, No 196 (2004) §1.7.
[18] Fletcher v Commissioners of Public Works in Ireland [2003] IESC 13, [26]; cf [44].
[19] Vanek v The Great Atlantic & Pacific Co of Canada Ltd (2000) 48 OR (3d) 228, 236, citing Duwyn v Kaprielian (1978) 22 OR (2d) 736, 755.
[20] R v Moffatt [2000] NZCA 252, [16]. See also Butler D, “Identifying the Compensable Damage in ‘Nervous Shock’ Cases” (1997) 5 Torts Law Journal 67.
[21] Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, 402.
[22] Jaensch v Coffey at 566.
[23] Gifford v Strang Patrick Stevedoring Pty Limited [2003] HCA 33, [26]; (2003) 214 CLR 269, 280; see also Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317, 378, 382, 402, 427; and Hancock v Nominal Defendant [2001] QCA 227; [2002] 1 Qd R 578 where, at 587, Davies JA spoke of “psychiatric injury formerly called nervous shock”.
[24] Re Fripp and Fripp (1996) 125 FLR 456, 457-8, per Miles CJ.
[25] R v Kazakoff, ex parte Ferguson [2000] QSC 156, [16]; [2001] 2 Qd R 320, 324.
[26] [1998] 2 Qd R 79; cf R v Chong, ex parte Chong [1999] QCA 314; [2001] 2 Qd R 301, 314.
[27] At 82.
[28] See definition of “injury” as meaning “bodily harm and includes pregnancy, mental shock and nervous shock” in the Criminal Code, s 663A.
[29] Or “mental … shock”.
[30] R v Kazakoff.
[31] See, for example, X v Y (unreported, WA Sup Ct, 2 September 1996, 13 September 1996); B v B [2004] WASC 6, [12]; R v Atwell, ex parte Jullie [2001] QCA 510, [59]; [2002] 2 Qd R 367, 382; Young v Northern Territory of Australia [2004] NTSC 16; (2004) 183 FLR 121.
[32] The Act, s 22(1).
[33] Re Fripp and Fripp at 458. See also R v Tiltman, ex parte Dawe (unreported, Qld Sup Ct, 22 June 1995), where 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.”
As to the approach to the interpretation of such statutes, see also Victims Compensation Fund Corporation v Brown [2003] HCA 54, [33]; (2003) 77 ALJR 1797, 1804 [33].
[34] As to the distinction between recognized and recognizable in this setting, see Butler D, “Gifford v Strang and the New Landscape for Recovery of Psychiatric Injury in Australia” (2004) 12 Torts Law Journal 108, 123.
[35] D 4909 of 2000, 13 December 2000.
[36] The reasoning is reminiscent of that of another District Court judge which was rejected in late 2001 in Beardsley v Loogatha [2001] QCA 438 – a case to which, it seems, the Attorney-General’s attention was not drawn.
[37] R v Kazakoff at 324.
[38] In his Honour’s opinion at any rate.