Commonwealth of Australia v Sarah Cartwright Sca [1990] ACTSC 25 (26 July 1990)

SUPREME COURT OF THE ACT

COMMONWEALTH OF AUSTRALIA v. SARAH CARTWRIGHT
S.C.A. No. 12 of 1989
Criminal Injuries Compensation

COURT

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

CATCHWORDS

Criminal Injuries Compensation Appeal from decision of Registrar - Criminal Injuries Compensation Act 1983 s.14 - whether alternative claim should have been made against employer - considerations

Suppression of publication of names.

Criminal Injuries Compensation Act 1983 ss.7, 11(3), 14, 17(1), 17(2), 28, 29(1)

Commonwealth of Australia v Pillifeant (No. ACT G57 of 1989 Federal Court of Australia, 4 June 1990)

Rusnik v Commonwealth of Australia (1989) 92 ACTR 1

Holgate v Lancashire Hospital (1937) 4 All ER 19

HEARING

CANBERRA
26:7:1990

Counsel for the applicant: Mr G. Lunney

Instructing solicitors: Australian Government Solicitor

Counsel for the respondent: Mr R. Crowe

Instructing solicitors: Legal Aid Office of the A.C.T.

ORDER

There be an award for compensation for the respondent in the sum of $20,000.00 plus allowable expenses in the sum of $1,149.60, a total of $21,149.60.

DECISION

The respondent was, on 12 April 1986, subjected to a violent sexual attack. The attacker was a resident of a community house operated by a handicapped persons association. He was intellectually disabled. No doubt, for this reason no criminal proceedings were instituted against the resident.

2. On 16 April 1987, an application was made by the respondent for compensation pursuant to the provisions of the Criminal Injuries Compensation Act 1983 (ACT), (the CIC Act). That application was heard by the Registrar on 7 December 1988, 13 December 1988 (briefly) and 24 January 1989. On 22 February 1989, the Registrar ordered that the respondent be awarded compensation in the sum of $18,649.60.

3. The Registrar also continued an order suppressing publication of any names or details likely to identify the respondent or the resident. I have made a similar order in respect of this appeal pursuant to s.17 of the CIC Act. Such an order can be made only if the Court is satisfied that it is necessary in the public interest to do so (s.17(1)) or in the interests of the administration of justice to do so (s.17(2)). I am of the opinion that the order sought is necessary to ensure that applicants are not deterred by reason of personal embarrassment from pursuing legitimate claims. There is also the interests of the handicapped resident. He was not charged with any crime. Publication identifying him could be unfairly prejudicial to him. The order I made should not, however, prevent publication of so much of the proceedings as will deal with the matters of principle raised during the hearing of this appeal.
The Appeal:

4. In Commonwealth of Australia v Pillifeant (No. ACT G57 of 1989 Federal Court of Australia; Kelly, Neaves and Lee JJ, 4 June 1990, Canberra) the nature of an appeal from the Registrar to this Court pursuant to s.28 of the CIC Act was considered.

5. Their Honours, in that case, concluded that whilst it may not always be necessary to proceed to determine such an appeal by way of a re-hearing de novo such a course may be required in an appropriate case. In this case, the parties were content to rely on the material before the Registrar and did not seek to have the matter reheard de novo or to call any further evidence.

6. It further follows that I am, in determining this appeal, obliged to decide whether on the primary facts established on the evidence before the Court, the respondent is entitled to any, and what compensation. In so doing, I am not limited by the Registrar's conclusions from those facts nor do I need to identify any definable error on the part of the Registrar before arriving at a conclusion. As the Federal Court has noted, s.28 gives a wide power to review decisions of the Registrar made under sub-section 11(3) of the CIC Act.

7. Mr Lunney, for the appellant, has in this case, raised only one issue, namely, whether the Registrar could and should have refused relief by virtue of s.14 of the CIC Act. Apart from an issue raised by Mr Crowe, for the respondent, as to the current adequacy of the award by reason of the lapse of time since it was made, this is the only issue which it is necessary to consider.
Section 14, CIC Act

8. That section provides:-
"The Court may refuse to determine an application if it

is satisfied that the applicant has not taken such
steps to enforce rights or to pursue remedies in
respect of the relevant prescribed injury or prescribed
property damage as the Court considers it reasonable
for him to have taken."

9. It was not contended that there was any other relevant right or remedy other than against the respondent's employer. Mr Lunney, for the appellant, contended that, on the evidence before the Registrar, it should be concluded that there was a strong case of negligence against the employer. He also contended, though less forcibly, that there was also a case for a workman's compensation claim against the employer.

10. The latter point is quickly disposed of. Accepting that there was a right to claim compensation under the Workman's Compensation Act, it would, in the circumstances of this case, have provided compensation only for loss of earnings as a result of the sexual attack. The respondent, before the Registrar, made no claim for loss of earnings. She makes none now. She could have pursued that claim before making this one, seeking compensation under the CIC Act only for pain and suffering. By virtue of the provisions of s.29(1) of the CIC Act it is unlikely that any such claim will be pursued in the future. Accordingly, any right to claim compensation under the Workman's Compensation Act which was or is vested in the respondent is not relevant for the purposes of this appeal.

11. Section 14 of the CIC Act requires, in my opinion, a consideration as to whether, on the material before me, I am satisfied that -

(i) The respondent has a right to an alternate remedy
against a person otherwise than under the CIC Act;
(ii) There are or were steps which the respondent could
or should have taken to enforce that alternate
remedy; and
(iii) It was reasonable for the respondent to have taken
those steps.

12. If I am so satisfied, it does not follow, of course, that the respondent fails. Section 14 is couched in discretionary terms. It was conceded that there is no direct authority as to the principles upon which that discretion should be exercised. In Rusnik v Commonwealth of Australia (1989) 92 ACTR 1 Miles CJ noted that for the court to refuse to determine the application, the applicant's conduct in all the circumstances, as at the date of the rehearing, in not having pursued an alternate remedy must be characterised as unreasonable.
Alternative Remedy Against Employer:

13. Mr Lunney contended that a consideration of the evidence demonstrated:-

(i) There had been previous "unacceptable sexual
behaviour" by the resident;
(ii) The respondent had not been properly warned or
instructed as to the unacceptable sexual behaviour
of the resident;
(iii) It was foreseeable, in the circumstances, that the
resident would sexually harass the respondent and
cause harm to her;
(iv) No precautions to prevent such sexual harassment
were taken.

14. It may be noted that there had been previous acts of sexual harassment towards the respondent, one involving the resident throwing the respondent down onto a bed. The respondent, however, did not, until the attack upon her, the subject of these proceedings, regard these previous incidents as creating a risk of the kind of attack which occurred.

15. Clearly, if it was reasonable to foresee that the resident might cause harm to the respondent by a display of aggression whether sexually motivated or not, the respondent would have had a cause of action against her employer. (See, eg, Holgate v Lancashire Hospital (1937) 4 All ER 19.)

16. It is equally clear that, if such harm was foreseeable, the employer took no steps to avert such harm. Steps would, doubtless, have been practicable. Removal of the resident to another place was but one precaution which could have been taken.

17. Accordingly, it is possible that the respondent has rights enforceable against the employer. In my opinion, however, this Court, in order to be entitled to refuse to determine the respondent's application pursuant to s.14, CIC Act, must first be satisfied that a relevant right and/or remedy exists. A claim to a cause of action which will be defeated or a remedy which will be denied could not qualify.

18. The "relevant prescribed injury" was a sexual assault. There is no evidence that the resident had ever exhibited any potentially harmful characteristics otherwise than what may be concluded from his previous behaviour towards the respondent and certain entries on his personal file. There is evidence that the previous behaviour of the resident towards the respondent was not reported to the employer. The respondent did not regard the behaviour she observed as physically threatening. It could not be said that she should have. There is no evidence that the employer would or should have concluded from that conduct that there was a risk that the resident would sexually assault or otherwise seriously injure the respondent.

19. There was, before the Registrar, an Exhibit "A". It is not before me. It appears to have been lost. It is common ground that it did not contain any history of prior sexual assault or criminal conduct by the respondent. The appellant says that it would be wrong to require such a history before the respondent can be said to have a good cause of action. Merely a risk of it occurring would give the respondent a real remedy against her employer, if the employer had knowledge or should have had knowledge of facts from which a reasonable employer would conclude there was such a risk.

20. In this case, the only evidence of what the employer knew or should have known, was a number of entries within Exhibit "A". The only material as to those entries that I have before me is what counsel for the appellant put to the respondent before the Registrar. There are seven entries.

(i) In 1978 the resident was said to have "sexual
problems".
(ii) On 6 November 1979, a note expressed doubt as to
how the resident would handle his "emerging
sexuality". A vasectomy was considered.
(iii) 1985 (probably March) - concern was expressed as
to how the resident would cope sexually with
male/female relationships in a mixed sex residence
(iv) 20 March 1985 - It was noted that the resident had
exhibited "undesirable sexual behaviour" both at
work and at the residence. What that behaviour
was is not specified.
(v) 15 April 1985 - A meeting was held of some of the
employer's care workers to plan action in respect
of the resident's "unacceptable sexual behaviour.
Neither the behaviour nor the plan is specified in
the evidence.
(vi) 23 August 1985 - There was further "case
discussion" concerning the resident. His "sexual
behaviour" was said to be a "major concern".
Residential workers were recorded as being "at a
loss". What the workers were concerned about or
what the "behaviour" was is not specified.
(vii) 23 January 1986 - It is recorded that the resident
made "sexual advances" to a female resident.
There is no evidence as to what behaviour was thus
referred to. Presumably if violence had been used
or threatened, concern would have been expressed
about that violence.

21. It is, of course, possible that this material, whether in combination with the behaviour the respondent deposed to or alone, could lead an expert in the behaviour of persons afflicted as was the resident to conclude that there was a risk of sexual or other violent attack on one or other of the female residents or a female care worker. On the material before me, however, I am unable to say that a reasonable employer, even one informed by appropriate expertise and experience, would probably so conclude.

22. I am fortified in this conclusion by the Registrar's finding that she could not conclude that it was reasonable for the respondent to sue her employer.

23. At p 5 of her decision the Registrar said -

"Section 14 of the Ordinance empowers me to refuse to
determine an application when other remedies are
available to the applicant. The Commonwealth has
argued that an alternative remedy is available to the
applicant to bring civil proceedings against her
employer for negligence. Although there is evidence
that the employer did not adequately bring to the
applicant's notice inappropriate previous sexual
behaviour by the resident or given her instructions as
to how to handle inappropriate behaviour there is no
evidence of any previous sexual assault or criminal
conduct by the resident which would in my view make it
reasonable for the applicant to bring any civil
proceedings against her employer."

24. Mr Lunney says, quite rightly, that this statement is not accurate if it implies that a previous history of sexual assault of the kind complained of by the respondent would be necessary before she could sue her employer with reasonable prospects for success. However, I believe the Registrar intended merely to convey that there was nothing in the material before her which should have put the employer on notice that a sexual assault or similar criminal conduct was likely. In any event, she does not refer to any material in Exhibit "A" which would be likely to warn the employer of a risk of harm to a person in the position of the respondent at the time.

25. I bear in mind that I am not bound by or required to give any particular weight to the Registrar's conclusions in relation to s.14 of the CIC Act. Nevertheless, I am of the same opinion as was she.

26. Nothing in the material before me persuades me that the respondent has or had a cause of action against the employer which it is or was reasonable to pursue.

27. I would also note, though it is strictly unnecessary so to find, that it would not, in my opinion, be appropriate at this late stage to refuse to determine the respondent's application, even if she fell within s.14. She has by now suffered in addition to the trauma of the prescribed injury, delay and expense by reason of this appeal. She would be unlikely to recover the further expense if the appeal was to be allowed. Conversely, the applicant's position is protected by s.29 of the CIC Act.
Quantum -

28. Mr Crowe contended that in view of the delay, occasioned by this Appeal, the Registrar's award has become inadequate. Mr Lunney did not contend that this appeal must be confined to the point he wished to raise. As the issue has been raised, it is, in my opinion, necessary for me to be satisfied that the quantum of compensation is, as at this date, adequate.

29. In my opinion it is not. I accept Mr Crowe's submission and make an award to the respondent in the sum of $20,000.00 plus allowable expenses in the sum of $1,149.60, a total of $21,149.60. I am, of course, limited to that sum by the terms of s.7 of the CIC Act 1983. That limit has remained the same since 1983. The value of money has depreciated considerably since that time. There is a strong case, in my view, for removing or raising that limit.

30. I make an order accordingly. I will hear the parties as to costs of the appeal.