DAM v RWY [2006] QDC 408

DISTRICT COURT OF QUEENSLAND CITATION: DAM v RWY [2006] QDC 408 PARTIES: DAM (Applicant) v RWY (Respondent) FILE NO/S: D116 of 2006 DIVISION: Civil Jurisdiction PROCEEDING: Originating Application ORIGINATING COURT: District Court, Beenleigh DELIVERED ON: 8 December 2006 DELIVERED AT: Beenleigh HEARING DATE: 8 November 2006 JUDGE: Tutt DCJ ORDER: The respondent, RWY, pay to the applicant, DAM, the sum of $18,750.00 by way of compensation for injury suffered by him including adverse impacts caused by the respondent to the applicant for which the respondent was convicted by the District Court at Beenleigh on 2 September 2005. CATCHWORDS: Criminal compensation application – sexual offences against the complainant child – mental or nervous shock assessment – “adverse impacts” under the Regulations to the Act – relevant test for consideration of assessment. Criminal Offence Victims Act 1995 ss. 20, 24, 25 (7). Criminal Offence Victims Regulations 1995 Reg. 1A Ferguson v Kazakoff (2000) QSC 156. LMW v Nicholls [2004] QDC 118. MR v Webb [2001] QCA 113. R v Tiltman; ex parte Dawe (SC 324/95, 22 June 1995, unreported). Re JI v AV [2001] QCA 510. -- 1 of 13 -- 2 SAY v AZ; ex parte A-G Qld (2006) QCA 462 Speechley v Baynes [2004] QDC 408 (unreported judgment of 17 September 2004). SAM v SAM [2001] QCA 12. SOLICITORS: Ms C Ybarlucea of Legal Aid Queensland No appearance for the respondent. Introduction [1] In this application DAM (“the applicant”) claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for injuries sustained by him arising out of the criminal conduct of the respondent RWY who was convicted by this court on 2 September 2005 of the offence of maintaining a relationship of a sexual nature with a child under 16 and in the course of the relationship did unlawfully and indecently deal with a child who was under his care between 1 May 1997 and 1 January 2000 (a period of two years and eight months) at Woodridge in the state of Queensland. The respondent is currently serving a period of imprisonment and although he was served with the relevant material he elected to not take part in the proceeding.1 [2] The application for compensation is made pursuant to s 24 of the Act and is supported by the following material:- (a) the affidavit of AM on behalf of the applicant, sworn 7 September 2006 and filed in this court on 11 October 2006; 1 Affidavit of Wayne Colin Heydt filed 1 November 2006 -- 2 of 13 -- 3 (b) the affidavit with exhibits of Fiona Muirhead, solicitor, sworn 20 September 2006 and filed in this court on 11 October 2006; (c) the affidavit with exhibit of Barbara Anne McGuire, psychiatrist, sworn 20 September 2006 and filed in this court on 11 October 2006; (d) the affidavit with exhibits of Loraine Penshorn, litigation support officer, sworn 27 October 2006 and filed in this court on 1 November 2006; and (e) the affidavit of Wayne Colin Heydt, commercial agent, sworn 13 October 2006 and filed in this court on 1 November 2006. Facts [3] The circumstances of the respondents criminal conduct are summarised in the submissions of counsel and sentencing remarks together with the agreed schedule of facts being exhibits B and C respectively to the affidavit of the said Fiona Muirhead and confirm that the respondent pleaded guilty to the offence of maintaining a sexual relationship in respect of the applicant who was aged between 12 and 15 years during the period of the offending. Injury [4] The applicants condition which constitutes his diagnosed injury is summarised in the medical reports dated 2 March and 15 March 2006 respectively from Dr Barbara McGuire, psychiatrist, and being exhibits A and B to her affidavit filed 11 October 2006. -- 3 of 13 -- 4 [5] In her report of 2 March 2006 Dr McGuire assessed the applicant in the following terms: “I believe that D exhibits posttraumatic stress disorder to a moderate degree. This is characterised by avoidant behaviour and intrusive recollections of the abuse. I believe that D may well be understanding the effects of the abuse”.2 [6] In her supplementary report of 15 March 2006, Dr McGuire states “The offences committed by the respondent RY in my view materially and significantly contributed to DM’s condition. It is my view that the sexual assaults perpetrated against him by the respondent would have the probability of causing the level of posttraumatic stress disorder that I have diagnosed. The symptoms which DM exhibits which I attribute to the actions of the respondent are the intrusive thoughts, the avoiding behaviour, the feeling of dirtiness, nightmares and lowering of self esteem”. 3 [7] The applicant also claims compensation under regulation 1A of the regulations to the Act namely that he has suffered adverse impacts as a result of the offence committed on him which is not otherwise an injury for which he can be adequately compensated under section 20 of the Act. Category of Injuries [8] It is submitted on behalf of the applicant that his injuries fall under the following categories of injuries contained in Schedule 1 of the Act and Regulation 1A of the regulations to the Act respectively namely: - 2 Page 3 of Report. 3 Page 1 of Report. -- 4 of 13 -- 5 (a) Item 33 – mental or nervous shock (severe) – (20% to 30%) of the scheme maximum; (b) An assessment under Regulation 1A of the regulations under the Act on the basis of the totality of the adverse impacts he has suffered as a result of the sexual offence committed upon him and taking into account additional factors pursuant to Regulation 1A(k) of the regulations viz., a) employment difficulties; b) criminal behaviour; c) loss of social life; d) medical examination discomfort. [9] It is further submitted on the applicant’s behalf that he should receive a total award of compensation in the sum of $26,250.00 calculated on the following basis:- (a) In respect of Item 33, the sum of $18,750.00 representing 25% of the scheme maximum; and $18,750.00 (b) Regulation 1A assessment for adverse impacts – 10% of the scheme maximum. $7,500.00 TOTAL $26,250.00 -- 5 of 13 -- 6 [10] The applicant relies upon the opinion of Dr McGuire to support the claim under Schedule 1 of the Act as well as the claim for “adverse impacts” under Regulation 1A of the Act. [11] As stated in paragraph [5] above Dr McGuire has described the applicant as exhibiting “…posttraumatic stress disorder to a moderate degree” and with respect to the issue of “adverse impacts” Dr McGuire has commented upon those indicia set out in Regulation 1A(2) which may be assessed as constituting “adverse impacts” relevant to the applicant as distinct from symptoms or indicia which may form part of the diagnosis of posttraumatic stress disorder. On this point Dr McGuire states, “IN RELATION TO ADVERSE IMPACTS: (a) A sense of violation is a pre-requisite to a diagnosis of posttraumatic stress disorder. (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.”4 [12] Dr McGuire has therefore identified indicia (d), (e), (f) and (h) as not included in the diagnosis of posttraumatic stress disorder. 4 Page 4 of exhibit “A” to the affidavit of Dr Barbara McGuire filed on 11 October 2006. -- 6 of 13 -- 7 [13] It is further submitted on behalf of the applicant that the court should also take into account those indicia relevant to the applicant which fall under Regulation 1A(2)(k) referred to in paragraph [8] above. Mental and Nervous Shock [14] It is now well accepted that to establish a “ mental or nervous shock” injury the applicant must prove more than a negative or unpleasant reaction to the offence; what must be proved is “[an] injury to health, illness or some abnormal condition of mind or body over and above that of a normal human reaction or emotion following a stressful event” as distinct from “…fear, fright, unpleasant memories or anger towards an offender…” – Thomas JA in Ferguson v Kazakoff (2000) QSC 156 at paras 15, 17 and 21 respectively. [15] Further, as Atkinson J stated in Re JI v AV [2001] QCA 510 (“Re JI v AV”) at [59]: “The courts have interpreted mental or nervous shock in the compensation table broadly. It does not require a diagnosed psychiatric illness.” This statement echoes that of Wilson J in MR v Webb [2001] QCA 113, who said in discussing the question of whether compensation should have been awarded under the heading “mental or nervous shock” rather than the heading “totality of adverse impacts of sexual offence”5 : “The principal submission on appeal was that the judge erred in awarding compensation under the heading “mental or nervous shock” rather than the heading “totality of adverse impacts of sexual offence.” I have set out the ranges within which he could have made an award under either head. I am not persuaded that the appellant was denied compensation for elements of her emotional condition because the primary judge adopted the mental or nervous shock rubric. It is often the case that an applicant’s injury could be categorised 5 MR v Webb [2001] QCA 113 at [16]. -- 7 of 13 -- 8 under more than one head in the compensation table. Of course an applicant is prima facie entitled to compensation for all the component parts of his or her overall condition resulting from the offence, but the court must be careful to avoid compensating for the same component under more than one head and so over compensating the victim. Professor Nurcombe identified an emotional disturbance, which was not mental or nervous shock in the sense of a diagnosed psychiatric illness. However, the courts have not interpreted mental or nervous shock in the compensation table as requiring such a diagnosed psychiatric illness; indeed in the days before the introduction of the Criminal Offence Victims Amendment Regulation (No 1) 1997 (Qld), awards were regularly made under that head for emotional disturbance falling short of such a diagnosis.” Causation [16] The topic of causation in this context has been the subject of judicial consideration and is comprehensibly discussed by his Honour Judge McGill SC in the matter of LMW v Nicholls [2004] QDC 118 (“LMW v Nicholls”). [17] In paragraph [15] of the judgment, his Honour referred to the “test of causation in applications under the Code” [see R v Tiltman; ex parte Dawe (SC 324/95, 22 June 1995, unreported)] which was: “…that if the conduct constituting the offences of which the respondent had been convicted could be said to have materially contributed to the total damage, the respondent was liable to pay compensation in respect of the total damage unless the respondent could separate the effects of the compensable and non-compensable conduct on the applicant with some reasonable measure of precision” 6 . [18] This test appears to have been approved by the Court of Appeal in SAM v SAM [2001] QCA 12. [19] His Honour said further at paragraph [24]: 6 At para [29]. -- 8 of 13 -- 9 “There is an important difference between causation – whether a particular injury qualifies for compensation – and quantification: how much compensation is to be awarded for that injury. The fact that the amount of compensation is to be assessed in a specified way, which is different from common law damages, does not necessarily mean that the common law test for causation is also not to be followed, particularly when the legislature has not specified what other approach to causation is to be used instead”. [20] His Honour finally concluded that the proper approach on causation under the Code should be that where the offence or offences “materially contributed” to the injury or condition there should be no apportionment on the basis of causation. The only exception is: “…if it were possible to identify aspects of a psychiatric condition (or in principle any other injury) which were able to be specifically associated with something other than the conduct constituting the offences. In such circumstances, these aspects of the injury would have to be disregarded.” [21] I agree with his Honour’s analysis and the principle therein set out (see Speechley v Baynes [2004] QDC 408; Forsyth v McGrady [2005] QDC 130; Oxenford v Coolwell [2006] QDC 030; and MMA (as litigation guardian for JTM) v DWN [2006] QDC 107) whether the claim for compensation is one under the Criminal Code or the Act. [22] There has also been a recent discussion on “The Analysis in LWM v Nicholls” in the matter of SAY v AZ; ex parte A-G Qld (2006) QCA 462 by Holmes JA 7 and while that application is not strictly relevant to the instant case the observations by her Honour at paragraphs [19] and [20] in particular are very helpful in the consideration of the compensation to be awarded in applications arising out of sexual offending. 7 Unreported delivered on 10 November 2006 -- 9 of 13 -- 10 Finding on Mental or Nervous Shock Claim [23] I am satisfied on the material submitted to me and on the authorities available that the complainant has suffered a mental or nervous shock arising out the respondent’s criminal conduct and is entitled to an award of compensation under section 24 of the Act. However I am not satisfied that the applicant’s injury should be categorised as severe rather than moderate taking into account the applicant’s symptoms; Dr McGuire’s diagnosis and the applicant’s general manner and responses described by Dr McGuire at interview. Adverse Impacts Claim [24] An applicant’s claim for further compensation under reg 1A of the Regulations to the Act is also comprehensibly discussed in Re JI v AV above and in particular in the reasons of Atkinson J at paragraph [57] when she 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: (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). It follows that post traumatic stress disorder, for example, is said to be compensable under s 20 and under s 1A: (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). 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, ie 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 -- 10 of 13 -- 11 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. [25] 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. The court therefore needs to adopt a two-stage approach which was the approach adopted by McGill SC DCJ in LMW v Nicholls and later approved by the Court of Appeal in Re JI v AV. [26] The evidence to support the applicant’s claim under the Regulation is contained at pages 4 and 5 of Dr McGuire’s report of 2 March 2006 and in the supplementary report of 15 March 2006 where she says “The symptoms which D exhibits which I attribute to the actions of the respondent are intrusive thoughts, the avoidant behaviour, the feeling of dirtiness, nightmares and the lowering of self esteem”. [27] The additional matters relied upon under the Regulation are those that fall under sub-paragraph (k) of Regulation 1A(2) which are set out in paragraph [8 (b)] above. [28] I am therefore satisfied the applicant has suffered a number of “adverse impacts” as a result of the sexual abuse he suffered arising out of the respondent’s criminal conduct and I find that he is therefore entitled to an award of compensation under section 1A of the Regulations. -- 11 of 13 -- 12 Complainant’s Contribution to the Injury (if any) [29] 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). [30] I am of the opinion that the applicant’s behaviour at the relevant time did not either directly or indirectly contribute to the injury complained of by him and I find further that there are no other contributing factors which may be peculiar to the applicant’s personal circumstances which are relevant for the purposes of section 25(7) of the Act. Assessment of Compensation [31] Taking all relevant matters into account I assess the quantum of the applicant’s mental and nervous shock under section 20 of the Act and for the “adverse impacts” he suffered under Regulation 1A of the regulations respectively in the following terms: (a) Item 32, Mental or nervous shock (moderate) – 15% of the scheme maximum; $11,250.00 (b) Regulation 1A assessment for adverse impacts – 10% of the scheme maximum. $7,500.00 -- 12 of 13 -- 13 TOTAL $18,750.00 Orders [32] I therefore make the following orders in this claim: (a) That the respondent, RWY, pay the sum of $18,750 to the applicant, DAM, for injury suffered by him including adverse impacts, caused by the respondent to the applicant, for which the respondent was convicted by the District Court at Beenleigh on 2 November 2006; and (b) In accordance with section 31 of the Act, I make no order as to the costs of the application. -- 13 of 13 --