RMC v NAC[2009] QSC 149

SUPREME COURT OF QUEENSLAND

Criminal compensation for personal offence

[1] On 28 July 2008, on his plea of guilty, the respondent was convicted of two offences committed against the applicant: supplying a dangerous drug; and rape.

[2] By this application, the applicant seeks criminal compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (“the Act”) for the “injury” she suffered as a result of the oral sex the respondent forced on her. 

[3] The applicant was 27 years old at the time of the offences and in those days often experienced a deal of pain.  On 11 September 2007, seeking pain relief, she attended a medical clinic where she encountered the respondent, a male nurse, who gave her two injections.  He then forced the applicant to perform oral sex on him, which ended with his ejaculating into her mouth.

[4] The consequences of the sexual offence have been devastating.

Pre-assault vulnerability

[5] A psychiatrist, Dr Varghese, had treated the applicant since mid-1999.  When first seen, she had what Dr Varghese describes as “a number of complex problems in a number of domains”.  Before long, Dr Varghese detected an unusual sleep/wake cycle and an eating cycle with features of a disorder.  She also ingested codeine-based analgesics.  Dr Varghese became concerned about drug dependency problems.

[6] In the years that followed, the applicant developed symptoms of anxiety and mood instability that became more symptomatic.  She experienced panic disorder with secondary agoraphobia and, at times, major depression.  There were also episodes of depersonalisation – an acute anxiety state where perceptions, cognitions and sense of reality are altered. These were often associated with panic attacks.

[7] The applicant became dependent, physiologically and psychologically, on sedative and anti-anxiety medications.

[8] In early 2007, the applicant was admitted to a private psychiatric facility where she was an in-patient for four weeks.  The admission was to aid her withdrawal from a complex medication schedule and to institute psychological techniques to enable her to master her anxiety.  It was only partially effective.

[9] The applicant was working full-time at a pharmacy by June 2007.  She was, however, still taking a considerable quantity of drugs – mostly anti-anxiety agents, an anti-depressant and a major tranquiliser.  She soon found that she was unable to work because of panic attacks and anxiety.  She began to suffer gynaecological problems. 

[10] Dr Varghese saw the applicant the day before the sexual offence.  She was suffering from severe headaches and constant anxiety.  At that period, she needed injections of morphine for pain relief.

Impact of the sexual offence

[11] After the offence, the applicant became increasingly agitated. Dr Varghese had her admitted to a private psychiatric facility in early October 2007 where she remained for two months. 

[12] When Dr Varghese saw her in late October 2007, the applicant was cognitively confused.  She was frequently washing out her mouth and washing her hands in response to traumatic memories of the assault.

[13] By the time Dr Varghese next saw her on 18 December 2007, the applicant had made attempts at self-harm, including cutting her wrists. She attributed that behaviour to flashbacks of the incident.  Once, she felt like jumping from a patio. 

[14] The applicant continued to show mood instability and erratic behaviours. She was re-admitted to hospital in mid-February for about three weeks. During that admission, she was weaned off most of her benzodiazepams. In June 2008, Dr Varghese prescribed the mood stabiliser, lithium. 

[15] A long-standing relationship with her boyfriend came to an end.  The sexual assault significantly contributed to that. The applicant, however, eventually entered a new relationship. When Dr Varghese saw her in September 2008, her mood appeared to be reasonably stable, her anxiety symptoms were under better control, and she was enjoying the new relationship.

Psychiatric and non-psychiatric effects

[16] In October last year, Dr Varghese examined the applicant to identify the issues “related to the rape”. The applicant was then working up to 15 hours a week, which was all that she could manage. The 10 week relationship with the new boyfriend was progressing well.  The applicant told Dr Varghese that the rape was always in her head.  She was not comfortable with male general practitioners. 

[17] Dr Varghese considers that, in part because of the applicant’s pre-existing vulnerabilities, the assault left her “significantly traumatised”, with marked exacerbation of anxiety symptoms and mood instability. There was a tendency to self-harm. Her condition had required the three in-patient admissions.  He reports:

“Following the assault, given the combination of marked exacerbation of Anxiety symptoms in the form of depersonalisation, Panic Attacks and increased generalised Anxiety in association with intrusive memories, flashbacks and nightmares, she would have met criteria for an Acute Stress Reaction.  An alternate diagnosis would have been a marked exacerbation of pre-morbid Anxiety and Mood symptoms in association with an Adjustment Disorder in a vulnerable young lady.

She currently does not meet criteria for an Acute Stress Reaction as her symptoms have improved with time and treatment.  She, however, still meets criteria for an Adjustment Disorder with Anxiety.  …

This Adjustment Disorder and associated symptoms occur independently of previous conditions and it would be fair to say that the previous conditions have made her more vulnerable to psychiatric injury.  I would assess her Adjustment Disorder with Anxiety as producing mental or nervous shock of some moderate severity.

In addition, [the applicant] has suffered significant adverse impacts on her life following the assault.  She meets the criteria of Section 1A of the Criminal Offence Victims Regulations of adverse impacts, including a sense of violation, reduced self worth perception, increased fear or increased feelings of insecurity, adverse impacts on lawful sexual relationships and adverse impacts on feelings.

These conditions are separate from those factors that I took into account in arriving at my diagnosis of Adjustment Disorder with Anxiety.  These adverse impacts, while of moderate severity, have improved with time, but are still present to some extent.  I am unable to give a more precise percentage of the disability with regard to the adverse impacts.”

[18] The applicant feels “worthless, violated and like damaged goods”. She speaks of suicidal thoughts. She engaged in self-harm. She has abused medication, thinking that if she could take more, “the pain would go away”. She is generally untrusting of men. Her relationship with her boyfriend of two years broke up because, she says, of “my psychological issues and discomfort in being intimate”.  And she lost her job as a result of the sexual assault.

Nervous shock 

[19] The acute stress reaction and the adjustment disorder with anxiety are recognisable psychiatric illnesses. Accordingly, they constitute “mental or nervous shock”.[1] 

[20] By s 20 of the Act, compensable “injury” means not only “… mental or nervous shock” but also includes “…any injury…prescribed under a regulation”.

Other adverse impacts

[21] By Regulation 1A of the Criminal Offence Victims Regulation 1995:

“(1)For section 20 of the Act, 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.

(2)An adverse impact of a sexual offence includes the following –

(a)a sense of violation;

(b)reduced self-worth or perception;

…

(f)…reduced physical capacity…whether temporary or

permanent;

(g)increased fear or increased feelings of insecurity;

(h)adverse effect of the reaction of others;

(i)adverse impact on lawful sexual relations;

(j)adverse impact on feelings;

(k)anything the court considers is an adverse impact of a sexual offence.”

[22] So the wider the range of injurious effects comprehended by “mental or nervous shock”, the less the scope for compensation under Regulation 1A.[2]  This matters here: the maximum award for nervous shock is 34% of the $75,000 scheme maximum; $75,000 is the cap for the “other adverse impacts” not serious enough to constitute nervous shock.[3]

[23] Dr Varghese distinguishes between psychiatric disorders, which he calls nervous shock, and other “adverse impacts” of the offence.  If, therefore, “nervous shock” in the Act means recognisable psychiatric disorder, the compensation can be assessed without much difficulty.

Ferguson

[24] A complication, however, arises from R v Kazakoff; ex parte Ferguson,[4] where Thomas JA interpreted “nervous shock” in the Act to include adverse consequences which were not such as to amount to a psychiatric disorder. His Honour was disposed to the idea that:

“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.”[5]

[25] This expansive view of the reach of “nervous shock” in the Act was influenced by his Honour’s understanding of the content of the phrase in the context of civil claims.  He said:[6]

“[13] … In my view, ‘mental or nervous shock’ is a wider term than psychiatric injury or disorder…

[15] … The term ‘nervous shock’ has a fairly long legal history … the term was always used to describe a condition beyond ordinary reaction to trauma. … in the context of civil nervous shock cases an abnormal condition or illness seems to have been contemplated. …

[16] Those responsible for the present legislation would have known that the term has been used in this way for at least a century. …

[17] Clearly, the ordinary usage of the term 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.

…

[18] … The scheme that the Act provides is for payment of compensation to a claimant, ‘for the injury suffered by the applicant because of the offence’ (my emphasis). This supports the view that mental or nervous shock is not proved unless something equivalent to the meaning stated in para. [17] above is shown.

[19] By the same token it would in my view unduly limit the term if it were confined to conditions that are recognised as psychiatric disorders.”

[26] Thomas JA thought that “nervous shock” was intended to have the same meaning in the Act as in civil claims, even though, as his Honour recognized, “The Criminal Offence Victims Act expressly declares that compensation ‘is not intended to reflect the compensation to which the applicant may be entitled under common law or otherwise’.”[7]

[27] The notion that the use of “nervous shock” – a phrase with an established meaning in civil cases – reveals a legislative intention that the words should have the same content in the Act has, in principle,[8] a deal of support. Cases in South Australia,[9] Western Australia[10] and New South Wales[11] adopting that approach to the interpretation of “nervous shock” in criminal compensation statutes were referred to with approval in R v Morrison; ex parte West.[12]

[28] Similarly, in R v Tiltman; ex parte Dawe,[13] Lee J, speaking of the previous legislative analogue, 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.”

[29] Dawe was not drawn to Thomas JA’s attention when Ferguson was heard. As it happens, however, both judges held that “nervous shock” in the statutes bore the meaning it had in civil claims. The difference between them is that Thomas JA supposed that “an abnormal condition” sufficed to constitute nervous shock in civil cases while Lee J considered that the term connoted a recognisable psychiatric illness.[14]

[30] The wide view of nervous shock taken in Ferguson has been applied since;[15] but not where its correctness has been raised for decision; nor without reservations.[16]

Nervous shock in civil cases

[31] “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”[17] to describe a recognisable psychiatric illness or disorder.[18]

[32] Before the War, the English Court of Appeal spoke of nervous shock as a “form of ill-health” “ascertainable by the physician.”[19] In Hinz v Berry,[20] Lord Denning MR translated nervous shock into medical terms as “any recognisable psychiatric illness”.[21]  In Page v Smith,[22] Lord Keith of Kinkel paraphrased the expression as “some recognisable psychiatric illness”;[23]  Lord Jauncey of Tullichettle regarded it 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”;[24] and Lord Lloyd of Berwick spoke of a “recognisable psychiatric illness” as being prerequisite to compensation for nervous shock negligently inflicted.[25]

[33] In Scotland, “psychiatric injury, illness or disorder” is the terminology that has replaced nervous shock.[26]  In Ireland, nervous shock has been used to describe “any recognisable psychiatric illness.”[27] In Canada, it has been said that nervous shock, “put in medical terms”, involves “any recognizable psychiatric illness…”[28].  In New Zealand, too, the term indicates “a recognisable psychiatric disorder or illness”.[29]

[34] In Australia, the same usage has long been established. In 1965, Burbury CJ called nervous shock “medically recognisable neurosis or damage to the mind.”[30] Almost 40 years ago, Windeyer J equated the term with “recognizable psychiatric illness”.[31] In Queensland, in 1971, Wanstall ACJ accepted that nervous shock meant “recognisable psychiatric illness.”[32] In 1984, Brennan J spoke of it as “some recognizable psychiatric illness…”.[33] A decade later, Gleeson CJ described nervous shock as “a recognizable psychiatric illness or injury”,[34] and Kirby P approved the idea that it signifies “psychiatric illness or psychiatric or psychological disorder.”[35] More recently, McHugh J has said: “‘Nervous shock’ is an outdated term that nowadays is taken to mean a recognisable psychiatric injury”.[36]

[35] Bright lines may not separate psychiatric disorder from pronounced emotional distress.[37]  Over the years, however, the law has insisted on proof of a recognisable psychiatric disorder to sustain an award of damages for nervous shock because, as Gummow and Kirby JJ explained in Tame v New South Wales:[38]

“…the requirement to establish a recognisable psychiatric illness reduces the scope for indeterminate liability or increased litigation.  It restricts recovery to those disorders which are capable of objective determination. To permit recovery for recognisable psychiatric illnesses, but not for other forms of emotional disturbance, is to posit a distinction … that is illuminated by professional medical opinion rather than fixed purely by idiosyncratic judicial perception.”

[36] Against this background, it is not surprising that Thomas JA cites no authority to support his perception that nervous shock in civil cases extended more broadly, encompassing reactions not so serious as to constitute a psychiatric disorder. 

Nervous Shock in the Act

[37] The meaning that Thomas JA attributed to “nervous shock” in the Act is founded on a misapprehension about the reach of the phrase in civil claims.  Lee J’s conception of the boundaries of nervous shock is to be preferred. 

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

Award

[39] The “nervous shock” component is allowed at 15 percent of the scheme maximum. The “adverse impacts” are so serious as to justify an award of 40 percent of the scheme maximum.

[40] The respondent must pay the applicant $41,250.00 by way of criminal compensation.