Re the Criminal Injuries Compensation Ordinance 1983 and Re An Application By Milica Raspovic Cic [1986] ACTSC 44 (5 June 1986)

SUPREME COURT OF THE ACT

IN THE MATTER of the CRIMINAL INJURIES COMPENSATION ORDINANCE 1983
AND IN THE MATTER of an APPLICATION by MILICA RASPOVIC
C.I.C. No. 14 of 1984
Criminal Injuries Compensation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Criminal Injuries Compensation - whether injury a "prescribed injury" - whether injury sustained as a result of criminal conduct - causation.

Criminal Injuries Compensation Ordinance 1983, ss.5(1), 7, 34.

Battista v. Cooper (1976) 14 SASR 225

Hinz v. Berry (1972) QB 40

Dunham v. Clare (1902) 71 LJKB 683

R. v. Ondrovick (1976) ACL DT 765

Re: Criminal Injuries Compensation Ordinance (1984) 58 ACTR 16

HEARING

CANBERRA
5:6:1986

ORDER

The application is dismissed.

DECISION

This is the continued hearing of an application for compensation under the Criminal Injuries Compensation Ordinance 1983. On 18 July 1984 I made an award of compensation in the sum of $40,000.00 in respect of injuries which the applicant sustained as a result of being shot in both legs by her husband. She has also claimed that she is entitled to compensation for another prescribed injury, namely, psychosomatic conditions consequent upon the injuries to her legs.

2. Section 5(1) of the Ordinance provides that where a person sustains a prescribed injury the Court may by order award compensation to or for the benefit of that person. "Prescribed injury" is defined to mean an injury sustained by the person in the Territory after the commencement of the Ordinance as a result of the criminal conduct of another person. "Injury" is defined to mean any physical or mental injury and includes mental shock and nervous shock. It is clear, in my view, from the definitions that if the applicant sustained a psychosomatic condition which is injurious to her mental or physical health as a result of the criminal conduct of her husband she has sustained a prescribed injury and the Court may award compensation to her in respect of that injury.

3. On 24 May 1984 the applicant's husband was convicted of an offence of malicious wounding with intent to do grievous bodily harm to the applicant and was sentenced to a term of imprisonment in respect of that offence. As a result of his criminal conduct the applicant suffered amputation of both legs. She was hospitalised in the Woden Valley Hospital for some four months after the shooting incident giving rise to the conviction. The evidence is that on or about 22 August 1984 she was referred by a social worker at the rehabilitation unit at the Woden Valley Hospital to Dr Peter D. Grivell, Senior Specialist in Psychiatry at the Capital Territory Health Commission, for an opinion regarding her psychological state. The applicant said in evidence that Dr Grivell prescribed valium to assist her with sleep and other medication. She also saw Dr Maclaren for stomach upset. She was given physiotherapy and a tape to listen to to help her relax. The medication did not help.

4. After the applicant's husband had been imprisoned he spoke to the applicant by telephone. He told her that she was the guilty one and that she had put him in gaol. She said that this conversation took place "six to seven months ago". I understand that evidence to mean that the conversation took place towards the end of 1985. She said that he had also been making threats to her and to their son. She referred to one such threat having been made on 1 March 1986 when he told the son that he would drink her blood when he came out of prison and that he was going to cut her hands off. She then referred in evidence to threats that were made in July 1984 via the son. She said that he had told the son that if she went ahead and got a divorce the son should hang himself. Further, he said that when he came out of gaol if the children did not go to him he would "kill all the children, kill all the family". He further said that if he were deported he would kill the applicant's sister in Yugoslavia. The applicant said that when she heard those things she was very scared for herself and for her children. Those threats made her very frightened and so sick that she did not know what she could do.

5. In cross-examination she said that she was frightened very often and that her husband had made a lot of threats. She said that she was very worried about what would happen when her husband came out of gaol. She said that when he was in Goulburn he had told the son that if he (meaning himself) did not kill the applicant when he came out of gaol then the son should do it. According to her he rings the children very often. It was when the son visited the husband in a Sydney gaol that the husband told the son that he should hang himself. The children are now scared of him. She conceded in cross-examination that it is not the loss of her legs and not being able to get around that worries her, it is the threats and her apprehension about what will happen when her husband gets out of gaol.

6. The medical evidence tendered on behalf of the applicant consisted of a medical report from Dr Grivell dated 24 July 1985 and two reports from Dr John B. Truman, Consultant Psychiatrist, dated 19 April 1985 and 4 November 1985. In his report Dr Grivell said that he had seen the applicant on one occasion only, namely 2 August 1984, at the Phillip Health Centre at the request of the social worker involved with her case. His findings were that she was suffering from an anxiety state with no evidence of a clinical depressive state. He said her symptoms were a direct consequence of the traumatic life events she had experienced. He did not identify what those life events were to which he was referring.

7. The applicant was apparently referred to Dr Truman by her solicitors. He saw her for the first time on 19 April 1985. He said in his report of 19 April 1985 that she presented with symptoms of a severe sense of pressure and pain in the head, occasional dizziness, a heavy sensation in the abdomen and insomnia and expressed fear she was going "crazy" and also expressed fears about her general health. He said these emotional symptoms developed following her being shot in both lower legs by her husband on 24 December 1983 with a shotgun (my emphasis). She told Dr Truman that she was very afraid of what would happen when her husband was released from gaol as he had communicated through their sixteen year old son that he expected to live with her again on his release and that if she did not allow him to cohabit he would kill her. Also, as part of the history, Dr Truman recorded that her husband had also told the sixteen year old son that if he (the husband) cannot kill her the son is to do so. If Mrs Raspovic divorces and changes her name her son has been told to hang himself because of the shame of the change in name. Dr Truman summarised his findings after that initial consultation in the following terms:-

"This woman, following being shot by her husband on

Christmas Eve 1983, has developed a severe anxiety
tension state with some depressive features.
The situation is being aggravated by the threats she is
receiving from her husband and she is fearful of her
life."

8. The applicant continued treatment by Dr Truman. In his report of 4 November 1985 he said that he had seen her on approximately eight occasions and initially she appeared to be much more relaxed and cheerful and stated that she was sleeping better. He went on to state that over the last three months she had become more agitated and generally distressed with a flare of her initial symptoms. Dr Truman expressed the opinion that this worsening of her condition was due to the fact that she or the children were often in contact with her husband in Long Bay Gaol and he was still making threats such as those described in his original report. He said that she was very fearful for her life and had been in contact with police at the Woden Valley Police Station. He noted that the applicant was living under a sense of constant threat and expressed the opinion that she was still suffering from severe anxiety tension state with depression.

9. In the course of giving evidence the applicant was crying and appeared to be distressed. I have no difficulty in accepting Dr Truman's diagnosis that she is suffering from severe anxiety tension state with depression. I also conclude that that condition is an injury within the meaning of the Ordinance.

10. As Bray CJ observed in Battista v. Cooper (1976) 14 SASR 225 at 227 there is a familiar distinction between some sorrow and grief which cause emotional tension and no more and something which causes in addition some sort of mental or psychological trauma with consequential effect on physical or mental or psychological health. The injury which the applicant must establish is any physical or mental injury, including mental shock and nervous shock. It is to be, in my view, some recognisable injury to physical or mental health.

11. As Lord Denning observed in the compensation to relatives area in Hinz v. Berry (1972) QB 40 at 41, no damages are to be given for the worry about children or for the physical strain or stress or the difficulties of adjusting to a new life. This concept should be applied to claims under the Ordinance. The question that is in issue in respect of the application is whether the injury which I have found to exist is a "prescribed injury" within the meaning of the Ordinance as being an injury sustained by the applicant as a result of the criminal conduct of her husband.

12. The Commonwealth appeared on the hearing of the application and was represented by counsel. The Commonwealth has a right of appearance in any proceedings for compensation under the Ordinance pursuant to s.34 of the Ordinance. It was submitted on behalf of the Commonwealth that whatever the applicant is suffering from she has not proved that her condition was sustained as a result of her husband's criminal conduct. The onus of proving that she has sustained a prescribed injury lies upon the applicant and the standard of proof is on the balance of probabilities (see s.8 of the Ordinance).

13. The question whether the injury which I have found that the applicant has sustained was "as a result of" the criminal conduct of her husband involves an examination of the chain of causation. There must be no break in the chain. If there is a break then the condition is not the result of the criminal conduct. But the break must be an actual effective break, a novus actus interveniens, from which a new chain of causation commences. To constitute an actual effective break in the chain the predominant and really efficient cause of the injury must be the new act intervening. Otherwise there is no such break in the chain as to prevent the injury from being the "result" of the husband's criminal conduct (see Dunham v. Clare (1902) 71 LJKB 683 per Collins MR). The law books are replete with authorities about causation in the field of negligence, workers' compensation and criminal law.

14. All forms of criminal conduct may attract a claim for compensation under the Ordinance. Many forms of criminal conduct will, by their very nature, cause the victim mental shock, nervous shock or the aggravation, acceleration or recurrence of some mental injury. In sexual cases compensation has very frequently been awarded for mental shock sustained as a result of that form of criminal conduct. (See, for instance, R. v. Ondrovick (1976) ACL D.T. 765 where the applicant was awarded the maximum amount of compensation for the physical injury sustained in a sexual assault and a further maximum sum for mental and nervous shock arising from the rape; see also decisions of Kelly J. in Re: Criminal Injuries Compensation Ordinance (1984) 58 ACTR 16 and a similar case under the same title delivered on 15 May 1986.)

15. Having considered all the evidence, including the medical reports, I am not satisfied on the balance of probabilities that the applicant has sustained in respect of her anxiety state with depression a prescribed injury, i.e. an injury sustained as a result of the criminal conduct of her husband. I am not satisfied on the applicant's own evidence, nor do I consider that the medical reports support such a conclusion. In the circumstances I must dismiss the application.

16. It was further submitted on behalf of the Commonwealth that the scope of the Ordinance is to provide a maximum of $20,000.00 pursuant to s.7 in respect of any number of injuries arising from any particular act of criminal conduct. Counsel referred to the cases where more than one award had been made for compensation in respect of a number of prescribed injuries and sought to distinguish those cases on the basis that the criminal conduct had involved the commission of more than one offence. It is unnecessary for me to rule upon this submission for the purposes of disposing of this application. As I understand that there is a proposal to amend the Ordinance it would be inappropriate to make any further comments about its operation in its present form.

17. The order is that the application is dismissed.