Application 69 of 1989 Under the Criminal Injuries Compensation Act 1983 Cic [1991] ACTSC 14; (1991) 103 FLR 297 (4 March 1991)

SUPREME COURT OF THE ACT

APPLICATION 69 of 1989 UNDER THE CRIMINAL INJURIES COMPENSATION ACT 1983
C.I.C. No. 69 of 1989
Criminal Injuries Compensation
[1991] ACTSC 14; (1991) 103 FLR 297

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master Hogan(1)

CATCHWORDS

Criminal Injuries Compensation - Applicant Victim of Incest - Series of Incidents - Father and Brother - All Contributing to Injury - Separate Injuries - Convictions of Father - Some Incidents Only - Conviction of Brother in Childrens Court - Lack of Jurisdiction - Need for Reform - Form of Application - Separate Application not required for each Prescribed Injury - Mental Shock - Several Prescribed Injuries - "Otherwise arising out of the same circumstances" - Applicant living with Offender - Member of Household

Criminal Injuries Compensation Act 1983 ss. 2,7,10,11,15,17 Schedule

Criminal Injuries Compensation Ordinance 1983 (1984/5) 58 ACTR 17

Chester v Waverley Council [1939] HCA 25; (1934) 62 CLR 1

Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549

HEARING

CANBERRA
4:3:1991

ORDER

Compensation be awarded to the applicant in the sum of $50,000.00.

DECISION

This is, in form, one application for compensation under the Criminal Injuries Compensation Act 1983.

2. On 7 February 1991 I made an order pursuant to section 17(2) of the Act prohibiting the publication of any particulars likely to lead to the identification of the applicant.

3. The applicant is a young woman born on 3 August 1975.

4. On 28 September 1989 her father pleaded guilty in the Supreme Court to nine counts relating to sexual intercourse with and acts of indecency upon the applicant when she was aged between 11 and 13.

5. I therefore have jurisdiction pursuant to s. 11(1) of the Act and O.61A r. 1.01(k) of the Rules.

6. There are a number of procedural issues that have arisen both from the form of the application and the structure of the Act.

7. In broad terms the applicant, over an important formative part of her life, was subjected to a series of acts by her father and by her brother which had a devastating effect upon her.

8. She was able to identify nine of the specific occasions involving her father, with which he was charged in this Court. It is clear, however, that there was a continuous course of conduct which involved many other incidents, which she could not identify with sufficient particularity to warrant a separate criminal charge in respect of each one.

9. There were also, late in the relevant period, some indecent assaults committed upon her by her brother. He was also charged with some offences, the precise details of which are not in evidence, but which were dealt with in the Children's Court.

10. It follows from the structure of section 11 of the Act that if she suffered a prescribed injury, or prescribed injuries, as the result of the criminal offences of her brother, I do not have any jurisdiction to award compensation in respect of them.

11. This is an aspect of the legislation which requires amendment. It is obviously a matter of administrative convenience to have a system in which, in the ordinary run of cases, applications for compensation where the offender is dealt with in the Magistrates' Court are determined in that Court, those where the offender is dealt with in the Supreme Court are determined in that Court, and those where no charges have been laid are determined by the Registrar.

12. But it was not necessary in order to achieve that result to divide up the jurisdiction in the exclusive manner effected by s. 11 of the Act. It seems to me that the Supreme Court should have jurisdiction, at least concurrently with the Magistrates' Court, to hear and determine any application for compensation under the Act, no matter how it arises. The Rules of Court are capable of effecting such administrative distribution of the case load as may be efficient and proper in the general run of cases, without removing the jurisdiction to deal with cases, such as this one, where the total picture needs to be considered by one tribunal.

13. Then there is the fact that only one application has been lodged and its form. In the particulars contained in that application the date on which the relevant injury was sustained is given as "From about April 1986 to about August 1988". Particulars of the relevant injury are, "Mental Shock".

14. Counsel for the applicant in opening made it clear that he was seeking nine separate awards, one in respect of each assault particularised in the certificate of conviction of the applicant's father.

15. Counsel for the Territory contended that if that were so then nine separate applications should have been brought. This question was not finally debated because in the course of the argument I made it clear that if it were necessary, I was prepared to give such directions and grant such extensions of time as would enable the bringing of nine separate applications, each in proper form, so as to enable the substance of the whole matter to be dealt with on the merits rather than upon any technical procedural basis.

16. Counsel for the Territory, properly in my view, then conceded that it would not be necessary for the formal paperwork to be carried out, and that the whole matter might be dealt with as if separate applications had been formally made.

17. However, upon reflection, I do not think that the submission of Counsel for the Territory is correct.

18. By s. 2 of the Act "Application" means an application for compensation under the Act. Section 10 requires the Application to be in writing and in accordance with the form in the schedule.

19. There is no requirement in the Act that each application must be in respect of only one prescribed injury. The form in the schedule is obviously capable of being moulded to suit cases where compensation is properly being sought in respect of more than one injury.

20. There have been a number of cases where compensation in respect of more than one injury has been awarded in the one application. The decision of Kelly J. in The Criminal Injuries Compensation Ordinance 1983 (1984) 58 ACTR 17 is an example. So long as the particulars are apt to make clear what precisely is being sought there is no reason in principle or in convenience why separate proceedings should be required.

21. Next, so far as the form of the application is concerned, it does not seem accurate to me to describe the injury as "Mental Shock".

22. Each of the matters charged in the indictment constituted an assault. I respectfully adopt and apply what Kelly J. said in The Criminal Injuries Ordinance (1984) 58 ACTR 17 at 20, that is, "that the proper measure of compensation to be afforded to the applicant is that which, subject to the limits imposed by s. 7 of the Ordinance, would be considered appropriate were the applicant to bring an action for damages for the several torts committed against her."

23. Section 7 has its own problems, which will be dealt with later. But it seems to me that if the applicant were to have brought an action for damages against her father for the nine assaults committed by him upon her, the tribunal of fact would be able, and would be obliged, as best it could, to award damages in respect of each incident, on the basis that each consisted of a separate tort, each causing its own part of her total damage, and the later torts exacerbating the harmful effects upon her of the previous ones.

24. Section 2 provides that "injury means any physical or mental injury and includes mental shock and nervous shock". (Emphasis mine).

25. Historically, the concept of mental shock arose in the context of damage suffered by plaintiffs who had not been physically harmed by a defendant's negligence. Chester v Waverley Council [1939] HCA 25; (1934) 62 CLR 1 and Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549 and cases in between. Where there has been an assault, as here, the tortfeasor is liable for all the harm which flows directly from the tort, both physical, if any, and psychological, if any. The court is not constrained by any restrictions thought to apply to the concept of mental or nervous shock. Here, as a result of a series of torts, she has suffered, in the words of Dr Lucire, consultant psychiatrist, "prolonged emotional and physical trauma and she has been severely emotionally damaged by it".

26. The next problem arises from the impossibility of separating out the extent to which her present psychological condition is the result of each separate incident. It is the totality of the conduct over a number of years that has led to her present state.

27. The task of apportioning her damage to the separate incidents is indeed a difficult one, and impossible to carry out with any pretence of precision.

28. But it is not unlike another situation with which common law courts must grapple quite often, where as a result of a series of work or motor car accidents a plaintiff finishes up with a complex of injuries and disabilities. All that can be done is to adopt a broad and common sense approach, often starting with a total sum which represents full compensation, and dividing it roughly according to the responsibility of each tortious act in contributing to the total loss.

29. Three difficulties arise in adopting this approach in this case.

30. The first is the extent, if any, to which the offences by her brother contributed to the total damage done to her.

31. The second is the extent, if any, to which her damage was contributed to by acts of her father in respect of which he was not charged.

32. The third arises from the limitation imposed by s. 7 of the Act.

33. The first recorded indication that the applicant was experiencing emotional trauma is in November 1987, when members of the Juvenile Aid Bureau of the Australian Federal Police discussed with the acting principal of the applicant's school, problems with her behaviour which took the form of a series of thefts. In August 1988 there was a further indication in that she was not attending school regularly. She had missed 12 days in the previous term, and had attended on only six days in that term. Later, on 16 August 1988, she ran away from home. She ran away again on 30 August. Proceedings were then commenced on the basis that she was a child in need of care.

34. In the course of preparing for those proceedings she disclosed to her solicitor the sexual assaults to which she had been subjected. She was placed in care at Marymead, and proceedings were commenced against her father and brother.

35. I accept that the stealing episodes, the truancy and the running away from home were involuntary reactions to the stresses to which she was subject. The episodes involving her brother happened within the last year before she was taken into care, after the symptoms of her stress had become overt, and comparatively few incidents were involved. The episodes involving her father were far more numerous, and the relationship between a pubescent daughter and her father is vastly more influential than that between siblings. I think that in the total picture the incidents involving the brother played some part, but not so significant a part as to make any measurable difference to the results that flowed from her father's conduct towards her. However, as I have pointed out above, it would obviously be preferable in this sort of case for the court not to be deprived of jurisdiction to deal effectively with the whole case.

36. So far as the incidents involving her father in respect of which he was not charged are concerned, I take into account the following facts.

37. The course of conduct extended over a period of about two years. It is obvious from the detail in her statement of 8 December 1988 that the first incident had made a deep and lasting impression on her. The second happened within a week, and is also recounted in detail, together with her emotional reactions at the time.

38. Then she described a series of incidents at vague intervals of time. But a number of the incidents obviously were still imprinted on her memory at the time she made her statement, to the extent that she was able to give sufficient detail of time, place and circumstance to enable specific charges to be laid in respect of them. I would therefore attribute by far the greater part of her damage to those particular incidents.

39. Next, there is the effect of s. 7 of the Act.

40. As originally enacted in 1983, so far as is relevant to this matter, it read:
"The compensation that may be awarded in respect of -

(a) a prescribed injury sustained by a person; .... is
an amount that does not ... exceed $20,000.00."

41. In 1986, ss. (2) was added, which provides:

"(2) Where a person sustains two or more prescribed injuries:
(a) at approximately the same time;
(b) as a result of the criminal conduct of each of two or
more persons acting together; or
(c) otherwise arising out of the same circumstances,
those injuries shall, for the purposes of this section, be taken
to be the one prescribed injury."

42. Obviously, if the applicant did suffer a prescribed injury as a result of each of the assaults committed upon her by her father, she did not sustain them at approximately the same time, or as the result of the criminal conduct of each of two or more persons acting together.

43. Counsel for the Territory however submitted that she did sustain them arising out of the same circumstances.

44. He defined the circumstances as being that the applicant lived in the family situation, and that the traumas, if they were separate traumas, occurred as the result of her family situation, and her relationship with her father. She was living at home at the time. She was a victim because she was at home. The father had access to her.

45. There is an obvious temptation here to attempt to define what is meant by "otherwise arising out of the same circumstances."

46. This is a temptation that I find relatively easy to resist because it is neither easy nor necessary to construct an inclusive and exclusive definition of the meaning of the plain words used in the statute.

47. I prefer to pose a different question, namely whether the fact that the applicant was living at home with her father as part of the family, and was thereby exposed to the risk that he might from time to time assault her, had the result that each of the prescribed injuries that she sustained as the results of the assaults that he did commit upon her arose "out of the same circumstances."

48. I do not think that these prescribed injuries that she so suffered did arise "out of the same circumstances", for two reasons.

49. The first is that the circumstances of the offences to which the father pleaded guilty are so separated in time and place that it can not be said that each arose out of the same circumstances as the other. The evidence in this application does not enable me to relate each of the incidents described in her statement of 7 December 1988 to the particular charges detailed in the certificate of conviction. But it is clear that the incidents extended over a period of about two years, they happened in different parts of the house, some were acts of indecency, others were acts of intercourse.

50. The most that could be said is that some of the circumstances that gave rise to some of the prescribed injuries were similar to the circumstances that gave rise to some of the others. It would not be correct to say that they all arose out of the same circumstances.

51. The next reason is that, by s. 15(2), the fact that the applicant was, when the injury was sustained, living with the person whose criminal conduct resulted in the injury as a member of the household of that person is a fact to which the court must have regard in determining the amount of compensation to be awarded. It is unlikely that such a fact would be intended by the legislation to have the effect that all injuries received in that context could be compensated only to the limit set by s. 7. For example, if a wife, still living with her husband, sustained a broken jaw in an assault by him in January, and a broken arm in another assault in February, the fact that they were still living together at the time of the second incident must be considered by the Court in determining the amount of compensation for it. But I do not think that the two injuries could be said to arise out of the same circumstances, so as to be deemed to be the one prescribed injury by force of s. 7(2).

52. I therefore hold that such damage, or exacerbation of existing damage, that the applicant suffered as the result of each of the crimes of which her father was convicted constituted a separate prescribed injury for which compensation may be ordered, and that the limitation effected by s. 7 must be applied separately to each one.

53. The evidence from the Marymead social workers demonstrate that she was admitted there in September 1988, after the episodes of truancy and leaving home referred to earlier. It was noted that she had problems with personal hygiene.

54. In December 1988 she disclosed to her solicitor the reasons why she did not want to go home. She was frightened, confused and powerless. She felt guilt and self blame. She was complaining of stomach pains for which no physical cause could be determined. On occasions the regularity of her periods had been disturbed. She needed the reassurance of a medical examination to show that she had not suffered physical damage to her reproductive organs.

55. It was evident to Dr Lucire that she had a deterioration in her personality and her level of functioning from the time when the attacks began. At school she functioned well below her expected intellectual capacity.

56. On a number of occasions she cut herself on the wrist, in what she described as trying to kill herself. She inflicted cigarette burns on her arms.

57. At Marymead she had difficulty in dealing with conflict, either withdrawing physically or emotionally or, later, becoming aggressive to an extent where she felt she had lost control.

58. It must be remembered that all this happened to her in early adolescence. I agree with her counsellor's comments that she has been denied the opportunity to grow and develop in a secure environment, that nothing can replace this very basic and natural developmental need, and that it is impossible to determine the longer term consequences of the abuse.

59. By December 1989 her counsellor thought that she had begun to make some adjustments aimed at minimising the effects of the abuse.

60. In August 1990 Mr Moore reported that she continued to experience difficulties in establishing stability in her family life, schooling, peer and general social relationships. He commented that, " A deep sense of alienation from her family persists as well as a sense of hopelessness and loss of direction in her life." I sensed much the same thing from her demeanour as she gave oral evidence. I also thought that she appeared truthful, articulate and courageous. The interruption to her schooling must also affect to some extent her future career prospects.

61. It is trite to say that an award of money can not properly compensate her for what she has suffered. I bear in mind the remarks and citations set out by Kelly J in the case to which I have referred, at p 22.

62. In this case also, a full compensation overall can not be awarded because of the problems that arise from the fact that her total injuries are contributed to and exacerbated by the conduct of her brother and the incidents involving her father in respect of which no charges were laid against him. As I have pointed out, the structure of s. 11 prevents me from awarding compensation in respect of the extent to which those incidents exacerbated her injuries.

63. As required by s. 15(2)(h) I take into account that when the injuries were sustained the applicant was living with her father as a member of the household. In view of her age at the time I do not consider that the award should be reduced at all on account of that fact.

64. Doing the best that I can on the material before me, I think that a proper award for the totality of the injuries that she sustained as the result of the nine assaults for which her father was convicted is $50,000.00.

65. I do not think that it is necessary to attempt to define how much of that total is attributable to each separate incident. I think that the purposes of the legislation are properly met if I award $6,000.00 in respect of the first prescribed injury and $5,500.00 in respect of each of the other eight.