AT by her Litigation Guardian v Estate of TP (Deceased) [2011] QDC 283

DISTRICT COURT OF QUEENSLAND CITATION: AT by her Litigation Guardian v Estate of TP (Deceased) [2011] QDC 283 PARTIES: AT BY HER LITIGATION GUARDIAN MMT (Applicant) v THE ESTATE OF TP DECEASED (Respondent) FILE NO/S: 2960/09 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: District Court Brisbane DELIVERED ON: 18 November 2011 DELIVERED AT: Brisbane HEARING DATE: 13 September 2011 JUDGE: Tutt DCJ ORDER: 1. The respondent The Estate of TP Deceased pays to the applicant AT the sum of $8250.00 compensation for injury suffered by her, including adverse impacts pursuant to s 1A(2) 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. The monies are to be paid to the Public Trustee of Queensland who is hereby authorised to receive and hold such monies on behalf of the Applicant until she attains the age of 18 years. 3. 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. The Public Trustee of Queensland is hereby further -- 1 of 13 -- 2 authorised to pay out of such monies received the reasonable costs of the present application to Legal Aid Queensland. CATCHWORDS: CRIMINAL COMPENSATION – unlawful and indecent treatment of child under 16 under 12 years, lineal descendant (2) – rape (3) – where applicant claims to have suffered a “mental or nervous shock” condition – where applicant claims to have suffered “adverse impacts” of a sexual offence under s 1A(2) of the Criminal Offence Victims Regulation 1995 - where applicant’s behaviour did not contribute to injury. Criminal Offence Victims Act 1995 s 20, 24, 25(7), 31 Criminal Offence Victims Regulation 1995 s 1A Ferguson v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320 LMW v Nicholls (2004) QDC 118 Re JI v AV [2001] QCA 510 RMC v NAC [2009] QSC 149 SAY v AZ: ex parte AG (Qld) [2006] QCA 462 SOLICITORS: Mrs J Fadden of Legal Aid Queensland for the applicant. No appearance on behalf of the respondent. Introduction: [1] AT (“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 2 counts of indecent treatment of a child under 16 years, under 12 years in respect of the applicant who was his lineal descendent and under his care and 3 counts of rape. [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 -- 2 of 13 -- 3 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 her. [3] The application for compensation is made pursuant to s 24 of the Act and is supported by the following material: (a) The litigation guardian’s affidavit with exhibits sworn 20 July 2010 and filed in this court on 12 August 2011; (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 (c) The affidavit of Mandy Albert, Paralegal sworn 29 June 2011 and filed in this court on 12 August 2011. [4] The respondent is deceased and the application is validly filed against his estate according to law.1 Background Facts: [5] The respondent’s criminal conduct relates to offences committed against the applicant “on the 18th day of October 2004” when the applicant was 6 years of age, her date of birth being “11/7/1998”. A summary of the circumstances of the respondent’s criminal conduct in respect of each of the 5 offences concerning the applicant is as follows: 2 1 See section 71(1) of the Uniform Civil Procedure Rules and s 93N(1) of the Supreme Court of Queensland Act 1991. See also Chong v Chong QCA No. 1165 of 1998. 2 Exhibit “E” to the affidavit of Mandy Albert filed 12 August 2011. -- 3 of 13 -- 4 First Offence - Indecent Dealing: “…the accused has taken a seat on the couch in the lounge room of the house with A. The other children home at the time were watching a video in another room. The accused began to fondle A by kissing her and rubbing her on the outside of the vagina. The accused continued to do this for a number of minutes at which time he became aroused.” Second Offence - Indecent Dealing: “The accused then asked A if she would fondle his penis. The accused then pulled his pants down and allowed A to pull his penis. The accused’s penis became erect. He continued to fondle and kiss A while she was pulling his penis.” Third Offence - Rape: “The accused then removed A’s pants and underwear whilst she was seated on the couch. The accused then inserted his finger into A’s vagina. The accused told police that he was only able to insert his finger a small way. The accused then got up off the couch to check on J, his 12 year old grandson who was also in the house, but in another room. The accused told police that he did this to make sure that he was not going to be caught fondling A. The accused then returned to A who was still seated on the couch in the lounge room.” Fourth Offence - Rape: “The accused then again began fondling Asia and inserted his finger into A’s vagina. He stated in his Record of Interview that he was was again only able to insert his finger a small way into her vagina. The accused then walked to the bathroom where he placed a small amount of shampoo into the palm of his hand and returned to where A was seated on the couch in the lounge room.” -- 4 of 13 -- 5 Fifth Offence - Rape: “The accused then rubbed the shampoo on his hand onto A’s vagina. Once again he inserted his finger inside A’s vagina in the hope that the shampoo would lubricate her so he could further penetrate her vagina.” Injuries (Physical): [6] The applicant claims compensation for both physical bodily injury and “mental and nervous shock” arising out of the respondent’s criminal conduct. [7] The evidence of the applicant’s physical injury is contained in the medical report dated 4 December 2004 of Dr Connors of the Mater Children’s Hospital who summarises her examination of the applicant in the following terms: “In summary, AT had evidence of trauma to the genital area with a small abrasion lateral to the hymen. While fingers may have penetrated her labia it is very unlikely they would have penetrated the hymen given the small hymenal opening. There was also a non-specific increased erythema of the hymen and introitus. This may have been from irritation and is in keeping with, but not specific to, the history of having her vagina rubbed with shampoo.” “Mental or nervous shock”: [8] In respect of this aspect of the claim the applicant relies on the evidence of Dr Barbara McGuire, Psychiatrist, contained in her report of 24 November 20093 following her interview with her on 20 November 2009, 5 years post the index offences. [9] Dr McGuire refers to the complainant giving her details of “two instances of abuse” but the offences of which the respondent was convicted occurred on the one day only and Dr McGuire has also noted that “There was some difficulty in obtaining a history (and) A gave very sparse detail….” 3 Exh “A” to Dr McGuire’s affidavit filed 12 August 2011. -- 5 of 13 -- 6 [10] Dr McGuire’s conclusions include the following:4 “At this stage it was difficult to conclude that she has suffered a psychiatric disorder on the basis of the symptoms presented to me” although Dr McGuire further states, “However, the abuse was such that it would be highly unlikely that she would not develop psychiatric disorder. At this stage A is pre-pubertal and it is not possible to comment on how the incident will affect her sexually”; “There may also be problems relating to neglect”; “There is a family history of behavioural problems and it is not possible to attribute any behaviour disorder entirely to sexual abuse”; [11] When asked to “address the question of Adverse Impacts of a sexual nature in relation to A” Dr McGuire reports that of those set out in Regulation 1A(2) the only impacts which would seem to apply are:5 “(a) A sense of violation. It is probable that she did experience a sense of violation as she told me that this was the worst thing that had happened to her in her life.” And “(g) Increased fear or increased feelings of insecurity. She has experienced increased fear and anxiety as evidenced by her needing to sleep with her mother.” From Dr McGuire’s report there is little doubt that the applicant comes from a most dysfunctional family environment which more probably than not has a significant impact upon the applicant’s behaviour in any event. 4 Ibid at page 3. 5 Dr McGuire’s Report of 20 January 2010. -- 6 of 13 -- 7 Causation: [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] 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] 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 -- 7 of 13 -- 8 [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] 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] 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 -- 8 of 13 -- 9 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] 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] 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.6 It follows that post traumatic stress disorder, for example, is said to be compensable under s 20 and under s 1A.7 The same could be said of many of the specified 6 MAJ v KM [2000] QCA 410, CA No 6042 of 2000, 6 October 2000, at [13]; Whyte v Robinson (supra); R v Tiltman; ex parte Dawe [1995] QSC, SC No 324 of 1995, 22 June 1995, Lee J. 7 The divergence of opinion on how to compensate victims of sexual offences for post-traumatic stress disorder can be seen in a number of District Court decisions: R v Hagaen; ex parte Townsend (supra); R v Daniel; ex parte Raymond (supra); R v Gilchrist; ex parte Hall (supra); R v Di Fiori; ex parte Anthony (supra); R v Peacock; ex parte Homer (supra); Newby v Mullins (supra); Hoy v Dunbar (supra); Lester v Ahmed (supra); Codd v Codd (supra); Jones v Thompson (supra); Morris v Soper (supra); Steven v Atwell [2001] QDC, DC No 2710 of 2001, 20 June 2001, McGill DCJ. -- 9 of 13 -- 10 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] 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] 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”.8 Applicant’s Submissions:- [21] The applicant’s submissions on the “mental or nervous shock” claim in light of Dr McGuire’s opinion, quite sensibly address “the alternative” i.e. a claim under the regulation for alleged “adverse impacts” but ultimately suggests that the aggregate of the quantum of compensation to be awarded in any event should be the same i.e. $15,750.00. 8 Regulation 1A(2)(k). -- 10 of 13 -- 11 Findings: [22] On the basis of the evidence before the court and the submissions made I make the following findings in this application: (a) I am not satisfied that the applicant has suffered a “mental or nervous” shock disorder 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 not entitled to an award of compensation under this category item set out in the compensation table under Schedule 1 of the Act. I make this finding on the basis of Dr McGuire’s clear conclusion that she “could not make a diagnosis of post traumatic stress disorder on the basis of the history presented to me.”9 (b) I am satisfied on the balance of probabilities that the applicant has suffered “adverse impacts” within the terms of s 1A(2) of the Regulation arising out of the respondent’s criminal conduct, in 3 respects only namely: “(a) A sense of violation; (g) Increased fear or increased feelings of insecurity; and (i) Adverse impact on lawful sexual relations” 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 Mandy Albert and in Dr McGuire’s report of 20 January 2010. (c) I find further that the applicant has suffered a physical injury namely “a small abrasion lateral to the hymen” as set out in the medical 9 See Dr McGuire’s reports of 24 November 2009 and 20 January 2010. -- 11 of 13 -- 12 report of Dr Connors referred to above and that she is entitled to an award of compensation for this injury. (d) I therefore assess the applicant’s compensation in the matter as follows: (i) In respect of her physical injury in the sum of $750.00 representing 1% of the Scheme Maximum under Item 1 of the Compensation Table under Schedule 1 of the Act that is “Bruising/laceration etc. (minor/moderate)… 1%- 3%”; (ii) In respect of her “adverse impacts” in the sum of $7500.00 representing 10% of the Scheme Maximum under s 1A(1) of the Regulation to the Act. Applicant’s Contribution to the Injury: [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] 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. -- 12 of 13 -- 13 Orders: [25] My orders in this application are as follows: (a) That the respondent the Estate of TP Deceased pays to the applicant AT the sum of $8250.00 compensation for injury suffered by her including adverse impacts 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. (b) The monies are to be paid to the Public Trustee of Queensland who is hereby authorised to receive and hold such monies on behalf of the Applicant until she attains the age of 18 years. (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. (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] In accordance with s 31 of the Act I make no order as to costs. -- 13 of 13 --