ALLC v JVR [2010] QDC 94

DISTRICT COURT OF QUEENSLAND CITATION: ALLC v JVR [2010] QDC 94 PARTIES: NDO as litigation guardian for ALLC (applicant) V JVR (respondent) FILE NO/S: D 462 of 2009 DIVISION: Civil PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: District Court, Southport DELIVERED ON: 22 March 2010 DELIVERED AT: Brisbane HEARING DATE: 19 October 2009 JUDGE: Tutt DCJ ORDER: The respondent JVR pay to the applicant ALLC the sum of $30,000.00 for injuries suffered by her including adverse impacts caused by the respondent to the applicant for which the respondent was convicted by the District Court at Southport on 24 March 2004. CATCHWORDS: CRIMINAL COMPENSATION –sexual offences against complainant child– lineal descendent - where applicant sustained “no physical injuries”- where applicant suffered “mental or nervous shock” – where applicant suffered “adverse impacts of a sexual offence” under s 1(A)(2) of the Criminal Offence Victims Regulation 1995 - where applicant’s behaviour did not contribute to impact. 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 -- 1 of 12 -- 2 R v van Gilman ex parte Owens [2001] QSC 391 RMC v NAC [2009] QSC 149 Zaicov and McKenna v Jones [2001] QCA 442 COUNSEL: Ms S Scott-Mackenzie for the applicant SOLICITORS: Slater and Gordon Solicitors for the applicant Respondent appeared in person Introduction: [1] ALLC (“the applicant”) by her litigation guardian claims compensation under Pt 3 of the Criminal Offence Victims Act 1995 (“the Act”) for injury she sustained arising out of the criminal conduct of JVR (“the respondent”) who was convicted by the District Court at Southport on 24 March 2004 of four offences of unlawfully and indecently dealing with a child under 16 years, then under 12 years, who was his lineal descendent. [2] The application is made on the basis of a “mental or nervous shock” disorder 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 her. [3] The application for compensation is made pursuant to s 24 of the Act and is supported by the following material: (a) the affidavit with exhibits of the litigation guardian NDO sworn 27 August 2009 and filed in court on 4 September 2009; (b) the affidavit with exhibit of Jana Lee Pennington Solicitor sworn 1 September 2009 and filed in this court on 4 September 2009; -- 2 of 12 -- 3 (c) the affidavit with exhibit of Dr Barbara McGuire Psychiatrist sworn 14 July 2009 and filed in this court on 4 September 2009; (d) the affidavit of service of Robert Augustine Grogan Licensed Commercial Sub-Agent sworn 24 September 2009 and filed in this court on 30 September 2009. Facts: [4] The respondent’s criminal conduct relates to offences committed between 1999 and 2001 when the applicant was between five and seven years of age. The circumstances of the respondent’s criminal conduct are summarised in a transcript of proceedings dated 22 March 2004 being exhibit “NDO-4” to the affidavit of NDO. The further transcript of the sentence hearing being part of that exhibit confirms that the respondent pleaded guilty to the four offences referred to in paragraph [1] above. Injury: [5] The applicant’s injury is set out in the report dated 13 October 2008 from Dr Barbara McGuire, Psychiatrist, being exhibit “B1” to Dr McGuire’s affidavit. The evidence is that the respondent’s offending occurred over a two year period when the applicant was between five and seven years of age. There is no medical evidence that the applicant suffered any physical injuries arising out of the respondent’s criminal conduct and the claim for compensation is based wholly upon the applicant’s psychological sequelae arising from the respondent’s criminal conduct. -- 3 of 12 -- 4 [6] Dr McGuire’s report “is based on interview with AL on the 8.10.08 lasting approximately 45 minutes” together with an interview of the applicant’s mother and younger sister. Dr McGuire’s interview therefore took place more than seven years after the respondent’s last offending and at a time when the applicant was approximately 14 ½ years of age. [7] Dr McGuire sets out the applicant’s personal history and asked her “about the effects of the incident” upon her. [8] It is clear from Dr McGuire’s report and other information contained in the material 1 that the applicant has had a grossly dysfunctional family environment virtually from birth and Dr McGuire reports “A L told me she had been in care since the age of 12”. [9] Dr McGuire further reports in the following terms: • The applicant “has dreams of abuse and has experienced flash backs, the last one being one year ago.” • “She has attended five schools and is not attending school at present.” • “She was failing in all her grades, can’t concentrate.” • “She had ten siblings.” • “She described feelings of anger, loneliness and grief. She said she often wakes up crying in her sleep. She had nightmares and flashbacks until she was about 12.” • “She feels hyper-vigilant when she is around other people”. [10] Dr McGuire makes the following diagnosis of the applicant:2 “Her diagnosis is posttraumatic stress disorder which she experiences to a moderate degree. I base this diagnosis on her experiencing nightmares, flashbacks, hypervigilance, avoidant behaviour and 1 Affidavit of NDO filed 4 September 2009 2 Exhibit “BM-1” to the Affidavit of Dr B McGuire filed 4 September 2009 -- 4 of 12 -- 5 paradoxically promiscuous acting out. Although it may seem that this does not represent avoidant behaviour it is common in sexually abused children for the period of adolescence and is usually followed by a prolonged period of sexual avoidance.” [11] Dr McGuire then addresses all of the “adverse impacts” set out in s 1A(2) of the Regulation in the following terms: (a) A sense of violation. At the time of the abuse she felt violated. (b) Reduced self worth. She experiences low self-esteem. (c) Posttraumatic stress disorder. She does experience posttraumatic stress disorder. (d) Disease. She hasn’t experienced disease. (e) Lost or reduced physical immunity. She has not experience lost immunity. (f) Lost or reduced physical capacity (including the capacity to have children, whether temporary or permanent. Not applicable. (g) Increased fear or increased feelings of insecurity. She has experienced increased fear. (h) Adverse effect of the reaction of others. The children at school have treated her as if she is not as good as them. (i) Adverse impact on lawful sexual relations. I don’t believe her history of not having had sexual experience is valid in view of her mother’s comments. (j) Adverse impact on feelings. Not applicable. (k) Anything the Court considers is an adverse impact of a sexual offence. Not applicable. In relation to ‘adverse impacts’ a) A sense of violation is a pre-requisite to a diagnosis of posttraumatic stress disorder. -- 5 of 12 -- 6 b) & c) These obviously are part of a diagnosis of posttraumatic stress disorder. d), e) & f) These are not included in the diagnosis of posttraumatic stress disorder. g) Increased fear and hypervigilance is a feature of posttraumatic stress disorder. h) The adverse effect of the reaction of others is not a feature of posttraumatic stress disorder. i) Where sexual abuse is a precipitant of posttraumatic stress disorder adverse impact on lawful sexual relations is a feature of posttraumatic stress disorder. j) Not applicable. k) Not applicable.” Categories of injuries: [12] It is submitted on behalf of the applicant that her injuries fall under the following categories of injury contained in Schedule 1 of the Act and s 1A of the Regulation respectively namely:3 (a) Item 32 – “mental or nervous shock (moderate)…10% -20%” and in respect of this item the applicant claims that the appropriate assessment should be 20% of the scheme maximum i.e. $15,000.00; (b) An assessment under s 1A of the Regulation on the basis of the totality of the adverse impacts she has suffered as a result of the sexual offences committed upon her in an amount of “not less than 30% of the prescribed maximum” i.e. the sum of $22,500.00. [13] In support of the submission for the appropriate assessment under s 1A of the Regulation it is submitted4 on behalf of the applicant that there are other “adverse 3 Applicant’s written submissions page 10. -- 6 of 12 -- 7 impacts” which might relevantly be considered by the court in arriving at an appropriate assessment and which would come within s 1A(2)(k) of the Regulation.5 [14] These additional impacts are the applicant’s: • “Behaviour disturbance; • Lack of concentration; • Aggression; • Inability to trust older men; • Inability to speak to counsellors.” “What is mental or nervous shock”? [15] The recent decision of RMC v NAC [2009] QSC 149 revisited this question and what was said by Thomas JA in Ferguson v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320. His Honour Byrne SJA analysed 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” Adverse Impacts: [16] An applicant’s claim for further compensation under s 1A of the Regulation is comprehensively discussed in the matter of R v Atwell ex parte Jullie [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: 4 Applicant’s written submissions paragraph [42]. 5 “anything a court considers is an adverse impact of a sexual offence”. -- 7 of 12 -- 8 “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 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] 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 -- 8 of 12 -- 9 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 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 . 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. 8 Regulation 1A(2)(k). -- 9 of 12 -- 10 Findings: [21] On the basis of the evidence before the court and submissions made I make the following findings in this application: (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 which is the subject of this application and is entitled to an award of compensation therefor under s 24 of the Act. I make this finding on the evidence contained in Dr McGuire’s report of 13 October 2008 wherein she concludes that the applicant has a “posttraumatic stress disorder which she experiences to a moderate degree”. I note further that it is Dr McGuire’s opinion that although “There are significant contributory factors to her (the applicant’s) clinical presentation……if the only difficulties she had experienced were the incidents of sexual abuse by her grandfather they would have made a substantial and material contribution to her symptoms”; 9 (b) I find further that the category of injury under which the applicant is entitled to an assessment of compensation for her “mental or nervous shock” injury is item 32 of the compensation table under Schedule 1 of the Act i.e. “mental or nervous shock (moderate)…10%-20%” and I assess the applicant’s compensation under this item at 20% of the scheme maximum i.e. the sum of $15,000.00 based upon the applicant’s own evidence and the evidence contained in Dr McGuire’s report referred to above. (c) I am further satisfied that the applicant has suffered some “adverse impacts” over and above the diagnosed “posttraumatic stress disorder” on the basis of Dr McGuire’s report at pages 4 and 5 thereof and I find that those “adverse impacts” which “…are not otherwise an injury under s 20” fall within sub-paragraph (h) of s 1A(2) of the Regulation and further that 9 Dr McGuire’s Report page 5 at .7 of page. -- 10 of 12 -- 11 the applicant suffers from other “adverse impacts” which include the following: • behavioural disturbance; • refusal to talk to counsellors; • aggression; • distrustful of “old men”; and • lack of concentration. (d) I find further on the evidence before the court that the applicant has had to endure a grossly dysfunctional, unstable, disruptive and generally un-loved childhood encapsulated by Dr McGuire in her conclusion “There are significant contributory factors to her clinical presentation, in particular her history of fostering with subsequent attachment difficulties with her parents. She has been subjected to significant instabilities in her placements.” For these reasons it is inescapable that notwithstanding “the incidents of sexual abuse by her grandfather” the applicant would have been and still is, a very troubled person susceptible to much of the adverse indicia set out in Dr McGuire’s report, in any event. (e) In all circumstances I assess the applicant’s compensation under s 1A(1) of the Regulation at a further 20% of the scheme maximum i.e. the sum of $15,000.00. Applicant’s contribution to the injury: [22] 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 (see s 25(7) of the Act). -- 11 of 12 -- 12 [23] I am satisfied the applicant in no way either directly or indirectly contributed to the injury or adverse impact she has suffered arising from the respondent’s criminal conduct and is entitled the full award of compensation as assessed herein. Order: [24] I order that the respondent JBR pay to the applicant ALLC the sum of $30,000.00 for injuries suffered by her including adverse impacts caused by the respondent to the applicant for which the respondent was convicted by the District Court at Southport on 24 March 2004. [25] In accordance with s 31of the Act I make no order as to costs. -- 12 of 12 --