BJE v Spoor [2007] QDC 345

DISTRICT COURT OF QUEENSLAND CITATION: BJE v Spoor [2007] QDC 345 PARTIES: BJE Applicant AND JOHN HENRY SPOOR Respondent FILE NO/S: BD1719/07 DIVISION: PROCEEDING: Originating application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 21 December 2007 DELIVERED AT: Brisbane HEARING DATE: 13 August 2007 JUDGE: McGill DCJ ORDER: The respondent pay to the applicant $30,000 compensation in respect of the injuries suffered by the applicant as a result of the offences of which the respondent was convicted on 11 December 1991. The respondent pay the applicant’s costs of and incidental to the application to be assessed. CATCHWORDS: CRIMINAL LAW – Compensation – application under Code – mental or nervous shock – assessment – statutory maximum not reached. Criminal Code s 663B. SAM v SAM [2001] QCA 12 – applied. HW v LO [2000] QCA 377 – applied. COUNSEL: J Stevenson (solicitor) for the applicant The respondent did not appear SOLICITORS: Legal Aid Queensland for the applicant The respondent was not represented -- 1 of 6 -- 2 [1] This is an application for compensation pursuant to s 663B of the Criminal Code. On 11 December 1991 the respondent was convicted on his own admission in the District Court at Warwick of two charges of attempted sodomy both alleged to have been committed on the applicant, one between 31 January 1986 and 1 January 1988, and one between 31 January 1990 and 14 August 1991. The applicant was born on 14 July 1984, and during the period alleged for Count 1 he was between one and three years of age, although during the sentencing hearing he was said by the Crown prosecutor to have been between four and five at the time of this offence; the sentencing judge said that he was then less than four years of age. During the period given for Count 2 the applicant was between five and seven years of age. [2] As so often happens in matters of this nature, the applicant alleges that the respondent’s conduct was in fact much more serious than the conduct of which he was ultimately convicted. According to the report of the psychiatrist, the applicant told her that on the two occasions in question sodomy actually occurred, and that there were overall about 10 instances of sexual abuse of him by the respondent. The psychiatrist also noted that the applicant expressed the view that sexual abuse was an “all or none” situation, which is realistic, and that makes it particularly difficult to identify an appropriate basis on which to proceed in an application of this nature, where the applicant says in effect that the two offences of which the respondent was convicted did not actually happen, but other more serious things did happen. However, this application is brought under the Code, where the test for causation remains whether the offences materially contributed to the psychological injury: SAM v. SAM [2001] QCA 12. The practical effect of that approach in a situation such as the present is that difficulties of this kind are to be ignored. [3] The applicant in his affidavit said that he feels really bad about himself as a result of what had happened, and that he has lost his manhood. He said he used to fight a lot at school, which got him into difficulties, and he used to be very angry, though he is not as angry as when he was a child. He also had problems concentrating at school, and had little patience. He claimed that he used marijuana and alcohol in an attempt to wipe the memories of the abuse, and said that he had subsequently been convicted of committing offences associated with the consumption of alcohol. However, he said that at the time of swearing the affidavit he does not have so much of a problem with alcohol. He claimed that in the past he lost a job over alcohol as a result of which he was unemployed for some six weeks.1 He said that because of the offences he did not trust anyone, and is still very resentful against the respondent. [4] The applicant was seen for the purposes of a report by a psychiatrist, Dr McGuire, on 27 October 2006.2 Dr McGuire concluded that the applicant suffered post-traumatic stress disorder, which she said was exhibited to a moderate degree; he also exhibited anti-social personality traits and substance abuse, and expressed the opinion that the sexual abuse was a contributor in the development of these traits. Dr McGuire noted that he reported being depressed but not having suicidal thoughts. He had nightmares “occasionally”. He left home when he was 16, although elsewhere in the report she said that he was put into a foster home when he was about eight because he ran away, and that he lived with his grandmother for a 1 But he apparently told Dr McGuire that he had been employed all his life, though he was suspended from one job as a result of being locked up because of alcohol problems. 2 Affidavit of McGuire filed 20 June 2007 Exhibit A. -- 2 of 6 -- 3 period. He was expelled from school in year 10 but he continued education by correspondence and obtained a year 12 certificate. He obtained his first job at 10 mowing gardens, and had also worked in various occupations, currently as a rigger. [5] He had a reasonable relationship with his work mates, and is currently in a supportive relationship with a girlfriend with whom he has been for two years; they do not live together. He has previously been in a relationship in which he fathered a child, and is concerned about the welfare of the child though he cannot see him because of a domestic violence order. He said his relationship with the son’s mother was violent. [6] He said he needed a couple of nightcaps before he went to sleep and he usually woke at about 4 am. He was security conscious. He had not had any counselling, although he was offered it in the past and did not think at this stage it would be helpful to him. [7] The two offences of which the respondent was convicted were committed at least two years apart, and apart from the fact that both involved similar offending conduct there is nothing in particular to link them together. Accordingly, I accept that they do not arise out of one course of conduct or closely related courses of conduct for the purposes of the relevant provisions of the Code: HW v. LO [2000] QCA 377. Accordingly, a maximum of $20,000 can be awarded in respect of each offence. [8] Compensation under the Code is assessed on common law principles, subject to the operation of the maximum prescribed under the statute: R v Jones, ex parte McClintock [1996] 1 Qd R 524. The offences of which the respondent was convicted were quite serious, and one would expect them to have some significant psychological impact on a victim, although the evidence suggests that most of the practical impact on the applicant in the present case has been not through the post-traumatic stress disorder as such, but through the anti-social personality traits and substance abuse. There seems to be little reference in either his affidavit or the report of Dr McGuire to matters which can be identified, or are identified by her, as characteristics of PTSD. In this respect, although the sexual abuse was said to be a factor contributing to the development of personality traits and substance abuse, it was plainly not the only factor and the real issue is the extent to which his condition is worse than it otherwise would have been because of the abuse. [9] There are some other features which are difficult. The report of Dr McGuire records a complaint by the applicant that his mother had remained in love with the respondent and had taken him to jail to visit the respondent; but in another part of the report he was recorded as having said that the family moved 12 times in one year, he believed because the perpetrator (presumably the respondent) was trying to find them. Of course, the explanation may be that the report is inaccurate; doctors’ reports often are. Nevertheless, it makes it difficult to get a clear picture of what has been going on here. [10] Overall, it appears that as a result of the offending the applicant suffered post traumatic stress disorder to a moderate degree, which has not greatly interfered with his life. He also suffered a worsening of antisocial personality traits and substance abuse; the former has had a more significant effect on the applicant’s life, disrupting his education and getting him into various difficulties including criminal offences. Nevertheless, he has been and is coping with employment and able to maintain a -- 3 of 6 -- 4 reasonable relationship with another person, and seems in general to be coping better as he gets older, possibly just as a result of his becoming more mature. Compared with some cases of psychiatric injury I have come upon, the consequences for this applicant are moderate. [11] Submissions on behalf of the applicant sought general damages of $35,000 for pain and suffering and loss of amenities, but no decisions were referred to in support of that figure. Awards of damages for psychiatric injury at common law are quite variable, no doubt to some extent reflecting the nature of the conditions which can arise. In Freeman v Grahame [2000] QCA 387 the Chief Justice at [24] summarised a number of fairly recent decisions where damages had been awarded for psychiatric injury, ranging from $20,000 to $50,000, though in the $50,000 case there was also some significant physical injury. [12] In Carrier v Bonham (Plaint D788/98, 14 August 2000) I assessed general damages of $18,000 in a matter where a 29-year-old plaintiff had suffered various psychiatric problems as a result of a person attempting to commit suicide by throwing himself in front of a bus which the plaintiff was driving. The plaintiff had suffered an adjustment disorder with anxiety features, a continuing inability to work as a bus driver, and the prospect of aggravation from time to time of pre-existing personality features so that the plaintiff was less able to cope with stresses than would otherwise have been the case. [13] In Bailey v Nominal Defendant [2004] QCA 344, the court did not interfere with an award of $45,000 general damages for a plaintiff who had suffered post traumatic stress disorder with features of anxiety and depression, which had among other things led to illicit drug use which had produced a drug induced psychosis. Although that condition had moderated, he was unemployable and there was at best a prospect that with the passage of time he might be able to return to part-time employment with a very understanding employer. The plaintiff was 18 at the time of the accident. In that case there were also significant physical injuries, producing a significant disability of the left arm from a shoulder injury as a result of which he was not physically capable of heavy work or work at or above shoulder height. The plaintiff had also developed neck and back pain, which did not appear to have any obvious physical cause.3 [14] In W v Bounghi [2004] QSC 101 the applicant was gang raped by the respondents when she was 14, during which she endured continual physical assault including punching and kicking to her chest as well as being struck with a piece of wood. There were minor physical injuries but she had been left with severe symptoms associated with a major depressive disorder and moderate post traumatic stress disorder. Compensation was assessed at $44,000 subject to apportionment and the application of the statutory limits. [15] In Hurst v Nominal Defendant [2004] QSC 272 the plaintiff had suffered post traumatic stress disorder as a result of a motor vehicle accident while he was a serving police officer, as a result of which he had required psychiatric treatment, he had been on medication continuously, was unable to work as a police officer and was effectively unemployable. The accident was in a sense the culmination of a number of other matters which had produced stress reactions in the past, but which 3 See also Bailey v Nominal Defendant [2003] QSC 433. -- 4 of 6 -- 5 had not rendered him unable to continue to work; this one did. Damages for pain and suffering and loss of amenities were assessed at $40,000; this included an allowance for a whiplash injury to the neck, the physical effects of which had passed within a few months of the accident. [16] In Bamford v Haggett [2004] QSC 453, the plaintiff, who was 34 when he was injured, suffered some physical injuries but damages appear to have been assessed essentially on the basis that he was suffering from a psychiatric disorder which was generating false symptoms, though this was not something which the plaintiff recognised. The plaintiff had constant pain from headaches and in his limbs, and intermittent passing out and paralysis so that he was confined to home, his quality of life was said to be very poor, and he was unemployable. Damages were assessed at $35,000. He was obviously much worse off than the present applicant. [17] In Hegarty v Queensland Ambulance Service [2007] QSC 904 the trial judge assessed general damages at $70,000 for a plaintiff who was said to have become a psychological cripple incapable of working: [85]. He was for a time verbally abusive and remained short tempered, and had significant problems at night, with night sweats, restless sleep and grinding of teeth. There were various aspects of obsessive behaviour, and he required supervision for medication and the care and support of his wife; for example, without having food prepared for him he would not eat. He avoided almost all social activities, and required reminding for household activities. There was some prospect of improvement but it was likely that he would continue to require psychiatric treatment for the rest of his life. He was obviously much worse off than the applicant. [18] There are plenty of decisions where courts have simply awarded the statutory maximum allowable for psychiatric injury under the Code; these are of no assistance for present purposes. Decisions where an assessment has been made which did not reach the statutory limit are difficult to find and I have not come upon any others. In all the circumstances, and bearing in mind the amounts awarded in the various decisions to which I have referred, I assess general damages on common law principles at $20,000. [19] A claim was also made for future medical expenses, but there is really no evidence to support such a claim. He reported to Dr McGuire that he did not believe counselling would be helpful to him; he has been involved in other courses to assist with anger management, which have been of assistance to him. In these circumstances, it seems to me that there is no reason to think that the applicant will incur future medical expenses as a result of this. In those circumstances, no allowance should be made. [20] The other claim was in respect of future economic loss. It does appear that the applicant’s education was disrupted to some extent, though he did ultimately finish year 12, and seems to have been generally in employment since leaving school; Dr McGuire’s report indicates that he was already working at the time when he was expelled in year 10, and that he had said he had always worked. It may be that if the applicant had not had such serious problems of anger management while at school he would have gone on to complete his education, and may have obtained better employment or might not have been required to change his job as frequently, but 4 An appeal on liability was allowed: [2007] QCA 366. Quantum was not discussed. -- 5 of 6 -- 6 there is no evidentiary basis upon which I could find any specific economic loss as a result of the respondent’s behaviour. Nevertheless, in view of the disrupted education it is likely that there has been some adverse effect, and on the whole I think it would be appropriate to make a modest global award to cover economic loss, for which I will allow $10,000. [21] I therefore assess damages on common law principles at $30,000. No claim was made for interest in respect of past loss, and because of the nature of the proceedings, where there is no liability to pay a particular amount until such time as an assessment is made by the court, I do not think that interest is payable pursuant to the Supreme Court Act 1995. I therefore order that the respondent pay the applicant compensation of $30,000 in respect of injuries suffered by the applicant as a result of the offences of which the respondent was convicted on 11 December 1991. I order the respondent to pay the applicant’s costs of and incidental to this application to be assessed. -- 6 of 6 --