BH v RY [2006] QDC 193

DISTRICT COURT OF QUEENSLAND CITATION: BH v RY [2006] QDC 193 PARTIES: BH (Applicant) V RY (Respondent) FILE NO/S: D57/06 DIVISION: Civil PROCEEDING: Originating Application ORIGINATING COURT: District Court, Beenleigh DELIVERED ON: 7 July 2006 DELIVERED AT: Brisbane HEARING DATE: 16 June 2006 JUDGE: Tutt DCJ ORDER: The respondent, RY, pay the sum of $18,750 to the applicant, BH, 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 rr 20, 24, 25 and 31. 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. Speechley v Baynes [2004] QDC 408 (unreported judgment of 17 September 2004). Steinback v Steinback [2001] QCA 12. -- 1 of 11 -- 2 SOLICITORS: Mrs J Fadden of Legal Aid Queensland for the applicant. No appearance for the respondent. Introduction [1] The applicant, BH, claims compensation under part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for injury the applicant sustained arising out of the criminal conduct of the respondent, RY, 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 September 1997 and 1 June 2000 (a period of two years and nine months). The respondent is currently serving a period of imprisonment and although he was served with the relevant material elected not to 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 with exhibits of the applicant sworn 21 April 2006 and filed in this court on 31 May 2006; (b) the affidavit with exhibits of Lorraine Penshorn, litigation support officer, sworn 10 May 2006 and filed in this court on 31 May 2006; (c) the affidavit with exhibit of Dr Barbara Anne McGuire, psychiatrist, sworn 15 May 2006 and filed in this court on 31 May 2006; (d) the affidavit of service of Wayne Colin Weydt sworn 8 June 2006 and filed in this court by leave on 16 June 2006; and 1 See Exhibit “A” to the affidavit of Timothy Feely filed by leave. -- 2 of 11 -- 3 (e) the affidavit with exhibit of Timothy Feely sworn 9 June 2006 and filed in this court by leave on 16 June 2006. Facts [3] The circumstances of the respondent’s criminal conduct are summarised in the sentencing remarks and the agreed schedule of facts being Exhibits “B” and “C” respectively to the affidavit of the said Lorraine Penshorn and confirm that the respondent pleaded guilty to the offence of maintaining a sexual relationship in respect of the applicant who was aged between 11 and 14 years during the period of offending. Injury [4] The applicant’s condition which constitutes his diagnosed injury is summarised in the medical reports dated 24 February 2006 and 7 March 2006 respectively from Dr Barbara McGuire, psychiatrist and being Exhibits “A” and “B” to her affidavit filed 31 May 2006. [5] In her report of 24 February 2006 Dr McGuire assessed the applicant in the following terms: “Brian does not present with posttraumatic stress disorder. He has the pre-existing condition of attention deficit hyperactivity disorder and intellectual disability which has clouded the diagnosis. His history was inconsistent. … In relation to the incident he has exhibited irritability, impulsivity, self destructiveness, security fears, lack of trust especially of men, auditory hallucinations in relation to the incident and emotional volatility. … His pre-existing attention deficit hyperactivity disorder and cognitive limitations rendered him more vulnerable to the sexual abuse.” -- 3 of 11 -- 4 [6] In her supplementary report of 7 March 2006 Dr McGuire stated: “a) The irritability and impulsivity preceded the abuse but were exacerbated by it. I consider that he suffered these conditions to a severe degree. The self destructiveness, security fears, lack of trust especially of men, and auditory hallucinations and emotional volatility he experienced to a moderate degree. b) As noted the irritability and impulsivity were present prior to the abuse. The other symptoms have been experienced since the incident. It is likely that the security fears and lack of trust will gradually reduce over time but may be present for some years. The auditory hallucinations should also decrease over time but it is not possible to say definitely how long they will persist. It is likely that emotional volatility will be characteristic (sic) he experiences throughout his life.” [7] The applicant also claims compensation under reg 1A of the Regulations to the Act that the applicant has suffered “adverse impacts” as a result of the offences committed on him which is not otherwise an injury for which he can be adequately compensated under s 20 of the Act. Categories of Injuries [8] It is submitted on behalf of the applicant that his injuries fall under the following categories of injury contained in Schedule 1 of the Act and reg 1A of the Regulations to the Act respectively, namely: (a) Item 33 – mental or nervous shock (severe), 20-34 per cent of the scheme maximum; and (b) An assessment under reg 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 offences committed upon him. -- 4 of 11 -- 5 [9] It is submitted on the applicant’s behalf that he should receive an award of compensation based upon the following assessment: (a) Item 33 mental or nervous shock (severe) – 22 per cent of the scheme maximum $16,500 (b) Regulation 1A assessment for “adverse impacts” – 12 per cent of the scheme maximum $9,000 Total compensation $25,500 [10] The applicant relies upon the opinion of Dr McGuire referred to in paragraphs [5] and [6] above to support the claim under Item 32 of the Schedule, and in respect of the claim under reg 1A it is submitted that the following behaviour can be categorised as “adverse impacts”, namely: (a) a sense of violation; (b) reduced self worth or perception; (c) increased fear and feelings of insecurity; (d) an adverse effect of the reactions of others; (e) an adverse impact on lawful sexual relations; (f) an adverse impact on feelings; (g) diminution of employment prospects and opportunities; and (h) side effects of medication. [11] Dr McGuire’s report of 24 February 2006 and opinions therein are also relied upon for compensation under the Regulations wherein she has commented upon some of the indicia referred to above and in addition the applicant has sworn to the difficulties he has had in respect of maintaining employment and being in male company. -- 5 of 11 -- 6 “Mental or Nervous Shock” [12] 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. [13] 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”2 : “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 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 overcompensating 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 2 MR v Webb [2001] QCA 113 at [16]. -- 6 of 11 -- 7 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 [14] 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”). [15] 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”. [16] This test appears to have been approved by the Court of Appeal in Steinback v Steinback [2001] QCA 12. [17] His Honour said further at paragraph [24]: “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”. -- 7 of 11 -- 8 [18] 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.” 3 [19] 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. [20] 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 of the respondent’s criminal conduct and is entitled to an award of compensation under s 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 current symptoms; their duration and extent and the likelihood of improvement in respect of some of them over the passage of time. [21] 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 3 At para [29]. -- 8 of 11 -- 9 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 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. [22] 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. [23] The evidence to support the applicant’s claim under the Regulation is contained at pages 3 and 4 of Dr McGuire’s report of 24 February 2006 and in particular where she says: • “A sense of violation. He did experience a sense of violation initially. The behaviour of his companions decreased this over time but his retrospective view of the abuse has reconfirmed his sense of violation.” -- 9 of 11 -- 10 • “Reduced self worth. He has experienced reduced self worth. As noted he feels everybody blamed him and he wasn’t as good as everybody else.” • “Increased fear or increased feelings of insecurity. He has experienced increased fear and feelings of insecurity.” • “Adverse effect of the reaction of others. He states that at the time the abuse was disclosed many people said that he was lying and this distressed him.” • “Adverse impact on lawful sexual relations. When asked about the possibility of this he commented that he would cut his hands off before he would do it to children. He denied any interest in homosexuality. He was very defensive in his reaction. I believe the probability is that his capacity for enjoyment of lawful sexual relations is diminished.” • “He thinks that something will go wrong with his life.” [24] I am therefore satisfied that 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 s 1A of the Regulations. Complainant’s Contribution to the Injury (if any) [25] 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). -- 10 of 11 -- 11 [26] I have referred to the circumstance of the incident in paragraph [3] above and 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. Assessment of Compensation [27] Taking all relevant matters into account I assess the quantum of the applicant’s compensation for his mental or nervous shock under s 20 of the Act and for the adverse impacts he suffered under reg 1A of the Regulations respectively, in the following terms: (a) Item 32 mental or nervous shock (moderate) – 15 per cent of the scheme maximum; and $11,250 (b) Regulation 1A assessment for adverse impacts – 10 per cent of the scheme maximum. $7,500 Total compensation $18,750 Orders [28] I therefore make the following orders in this claim: (a) That the respondent, RY, pay the sum of $18,750 to the applicant, BH, 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; and (b) In accordance with s 31 of the Act I make no order as to costs of the application against the respondent. -- 11 of 11 --