An Application Under the Criminal Injuries Compensation Act 1983 [1994] ACTSC 37 (14 April 1994)

SUPREME COURT OF THE ACT

AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT 1983
No. CIC33 of 1993
Number of pages - 6
Criminal Law - Prescribed injury - Criminal Injuries

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ

CATCHWORDS

Criminal Law - criminal injuries compensation - applicant claims on behalf of her 11 year old daughter - jurisdictional difficulties in claims for compensation involving repeated sexual abuse.

Prescribed injury - meaning - not necessary to establish a recognizable psychological illness - a question of fact and degree in each case.

Criminal injuries compensation - assessment of compensation - effect of prescribed injury - causation - foreseeability not relevant.

Criminal Injuries Compensation Act 1983

Application CIC 69/89 [1991] ACTSC 14; (1991) 103 FLR 297 at 300

T v. The State of South Australia and Another (1992) 59 SASR 278

Faulkner v. Keffalinos (1971) 45 ALJR 80

HEARING

CANBERRA, 21 October 1993
14:4:1994

Counsel for the applicant: Mr. C. Ryan

Solicitors for the applicant: Lander and Co.

Counsel for the respondent: Mr. K. Holmes

Solicitors for the respondent: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. There be a total interim award of compensation to the applicant

in the sum of $10,714.
2. That sum be paid into court for payment out to the applicant's
next friend of $714 and the balance be paid to the Public
Trustee to be dealt with on behalf of the applicant.

DECISION

MILES CJ This is an application for compensation under the Criminal Injuries Compensation Act 1983 (the Act) by an 11 year old child acting through her mother as her next friend. The claim arises out of sexual assaults and other sexual abuse committed upon the applicant by her stepfather. For that reason I made an order on 21 October 1993 pursuant to s.17 of the Act prohibiting publication of the name of the applicant or of the name of her next friend or of the name of the offender or of any particulars likely to lead to the identification of any of those persons. That order continues.

2. The compensation to be awarded is for the consequence or result of any injury which is a "prescribed injury" under s.5 of the Act. A prescribed injury must be shown to have been sustained as a result of the criminal conduct of another person. The criminal conduct from which the prescribed injury or injuries in this case are alleged to have resulted occurred on five occasions, an act of sexual intercourse in 1991 when the child was eight years old, another act of sexual intercourse in the same year, two acts of indecency in that year and another act of sexual intercourse the following year. The last act occurred on 5 April 1992.

3. These instances of sexual abuse on the part of the offender led to his subsequent conviction for an offence committed on each of the five occasions and provide the basis for the Court to exercise jurisdiction to award compensation under the Act insofar as the applicant suffered prescribed injury as a result of that criminal conduct. Instances of other sexual abuse on the part of the offender do not provide a basis for this Court to exercise jurisdiction under the Act.

4. The child did not give evidence. The child informed her mother as well as professional persons from whom reports have been obtained and put into evidence that the offender had intercourse with her as frequently as several times a week over the period of twelve months or so prior to 5 April 1992.

5. The report of Dr Sue Packer, a paediatrician, attached to Woden Valley Hospital following an examination on 15 April 1992, stated that the examination was consistent with the child's story and showed that sexual interference occurred repeatedly.

6. A victim impact report dated 5 February 1993 prepared by Ms. Yvonne Poels, a social worker attached to the Child at Risk Assessment Unit at Woden Valley Hospital, has been very thoroughly prepared but suffers from lack of evidence of the qualification of the author to express views contained in the report. However, the report is of value in recording the complaints of the child and other statements made by the child on which the Court can draw its own conclusions. The child complained to the social worker of vaginal soreness and bleeding after acts of penetration, and of threats by the offender to smack her or send her away to an institution if she told her mother about what was happening. The child also told the social worker of lying in bed at night in fear, not knowing whether the stepfather would come to her room to continue the abuse. The child also spoke of recurrent nightmares in which she dreamt of her stepfather getting out of gaol and beating up her mother and her brother. She spoke of similar nightmares about devil figures and about being stabbed. In the absence of any evidence of such irrational fears prior to the commencement of abuse, I find the conclusion irresistible (for reasons more fully expounded below) that they are causally related to the abuse.

7. The principal of the child's school stated in a report dated 30 August 1993 that the child was about two years behind her contemporaries in literacy skills and about one year behind in numeracy skills. She was given special teaching in 1989, and in 1991 she and her mother attended a special program to help with her reading. She improved marginally. Her teachers noted that she required constant help and attention and reassurance and that she was a disruptive influence in class. She repeated Year 3 in 1992.

8. Dr Tym, a consultant psychiatrist, reported that the sexual abuse, which was described to him as having occurred in 1991 and early 1992, led to psychological stress which in turn interfered with the child benefiting from the special teaching and contributed to her need to repeat Year 3. Dr Tym also considered that cessation of the sexual abuse contributed to her subsequent improved performance at school. However, Dr Tym concluded that there was no evidence of any significant psychiatric illness or disorder either now or in the past, but that there had been serious physical trauma from repeated adult penetration. This latter comment does no more than repeat what Dr Tym had been told by others. Dr Tym went on to express the following view:

"There is a statistically significant increase in the risk of her
developing, at later stages of her life, continuing up to middle
age, of behavioural, personality, psychological (including
inter-personal and intra-family relationships) and psychiatric
(including suicidal) disorders.
She is at statistically significantly increased risk of developing
problems in sexual adjustment, including aversion to sexual
activity, unsatisfactory sexual relationships, sexual
dysfunctions, conception of illegitimate children, promiscuity,
homosexuality, prostitution, involvement in other incestuous
relationships, lack of protection of her own children from sexual
abuse, sexual molestation of a child, and, impulsive, brutal
sexual assault of a child.
The probability is (i.e. it is, statistically, just more probable
than not) that she will have no specific, definable abnormality in
any aspect of her life as a medium-term or long-term sequela of
the sexual abuse.
Similarly, there is a probability of between 0.4 and 0.5 that she
will, at some stage of her life, experience one or more disorders
or problems (as above) as short, medium or long-term sequelae of
the sexual abuse."

9. A report by Ms. Lynne Geary, a psychologist with the Child and Adolescent Mental Health Service, Phillip Health Centre, stated that counselling sessions were held with the child on nine occasions and discontinued when the child joined a group being run at the Woden Valley Hospital for children who have been sexually abused. Again the qualifications of the author to state the opinions expressed by her are not clear, but the report really takes the matter no further than that of Dr Tym.

10. Mr. Holmes, who appeared for the Australian Capital Territory at the hearing of the application, submitted that the evidence was not such that the Court should conclude that the applicant had suffered a prescribed injury resulting from any of the criminal conduct which this Court is entitled to take into account, except to the extent that there had been discomfort and bleeding on the three occasions when penetration occurred. It was submitted that the Court could not take into account for the purpose of awarding compensation the continuing abuse which the child had described as occurring practically daily in 1991 and early 1992. Lastly, it was submitted that the applicant was not entitled to be compensated for psychological sequelae which fell short of establishing identifiable psychological disorder.

11. The Supreme Court does not have general jurisdiction to award criminal injuries compensation. Under sub-s.11(1) of the Act the Supreme Court is restricted to awarding compensation for any prescribed injury which results from offences for which an indictment was presented in the Court or for offences for which a person was committed for trial or sentence in this Court. Where the Supreme Court does not have jurisdiction and an information is laid in the Magistrates Court, that Court has jurisdiction for the offence or offences charged in that information. Where there is no indictment or information, the Registrar of the Supreme Court has jurisdiction.

12. "Injury" is defined in s.2 of the Act to mean "any physical or mental injury" and includes "mental shock and nervous shock". The application for compensation filed with the Court does not specify the injury relied upon except to state that the injury was sustained between 1 January 1991 and 6 April 1992, with particulars "to be provided". No particulars were put before the Court.

13. It is obvious that the child's condition over the period since the abuse started, continuing to the time of the application, could not be said to be due only to the conduct constituting the five offences if there was, in addition to that conduct, repeated abuse throughout the period, especially if the abuse was as frequent as several times a week.

14. This is a common problem in awarding compensation to victims of sexual abuse, particularly in cases of child abuse where the abuse often occurs over lengthy periods where a few specimen charges are selected by the prosecution for the purpose of criminal prosecution. Master Hogan has referred to the jurisdictional difficulties that arise from this situation (see for instance Application CIC 22/89, judgment delivered 13 December 1991) and has urged reform of the Act in this regard. I add my support for reform of the Act. In my view, it should be such that at least in applications for criminal injury brought in the Supreme Court, regard might be had to the whole of the criminal conduct which contributes to the victim's condition, regardless of whether charges are laid, or the court in which charges are laid, or whether convictions are recorded.

15. Furthermore, as the Master pointed out in Application CIC 69/89 [1991] ACTSC 14; (1991) 103 FLR 297 at 300, where "it is the totality of the conduct over a number of years that has led to her present state ... 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".

16. I do not accept the argument put on behalf of the Territory that because the psychiatric evidence does not establish an identified psychological or psychiatric disorder, compensation must be limited to the physical trauma of penetration which took place on three of the occasions on which the offences were committed. Reliance was placed by Mr. Holmes upon a decision of Magistrate Somes in a claim for compensation under the Act decided on 30 September 1993. In that case there was, as in many cases, a long history of sexual abuse of a child by a male relative, but a selection of a restricted number of criminal acts with which the offender was charged in the Magistrates Court. That Court had no power to have regard in the claim for compensation under the Act to any conduct except that constituting the offences charged. Furthermore, there was no evidence of any physical injury. Dr Tym expressed a view very similar to the views expressed by him in the present case. Magistrate Somes, referring to T v. The State of South Australia and Another (1992) 59 SASR 278, and correctly recognizing that it was not necessary for the applicant to show that she had a recognizable psychiatric illness, decided nevertheless that the evidence indicated that there was no psychological illness or disorder or behavioural disorder at all. Accordingly, Magistrate Somes concluded that the applicant had not proved that she had sustained a prescribed injury under the Act.

17. Every case will of course depend upon its own circumstances. In my view, the evidence in the present case goes beyond that in the case decided by Magistrate Somes. First, there is the evidence already referred to of actual physical injury for which compensation must be awarded, despite the difficulty of quantifying the actual sum. Then there is the evidence contained in the report of Ms. Poels of the complaints and statements of the victim herself. The Court is entitled to take these complaints and statements into account whilst disregarding the opinion expressed thereon by the author of the report. The proper approach, in my view, was well summarised in the judgment of Olsson J in T v. State of South Australia at 288-289:

"Like the learned trial judge, I am of the opinion that the
definition contained in the statute does not require the court to
conclude that the evidence unequivocally establishes that
symptomatology exhibited by a claimant is such as to warrant
medical classification as some recognisable, psychiatric
condition, as a prerequisite to coming to a conclusion that a
claimant has proved the existence of a relevant injury. Indeed,
such a conclusion would run counter to its express terms.
The statutory definition itself stipulates that the existence of
mental shock or nervous shock alone is sufficient to constitute an
injury in the relevant sense. In my opinion it is quite
impracticable and undesirable to attempt to do that which the
statute itself does not attempt to do, and develop precise
definitions or identify ranges of practical situations which do or
do not fall within the concept of injury as defined.
What is essentially involved is a question of fact and degree
which needs to be considered on a case by case basis.
Whilst I accept that the statute obviously has in contemplation
something more than a condition of mere sorrow and grief,
nevertheless, what the court is required to do is to consider the
situation of a claimant following a relevant criminal act and
contrast it with that which pre-existed the act in question.
Leaving aside proven conditions of mental or nervous shock, if the
practical effect of the relevant conduct has been to bring about a
morbid situation in which there has been some more than transient
deleterious effect upon a claimant's mental health and well-being,
so as adversely to affect that person's normal enjoyment of life
beyond a situation of mere transient sorrow and grief, then, in
the relevant sense, the person has sustained mental injury."

18. Multiple causes of injury or multiple injuries contributing to an impaired physical or mental state are a common problem in personal injury and worker's compensation legislation. Overall a "common sense" approach is applied (Fitzgerald v. Penn [1954] HCA 74; (1954) 91 CLR 268 at 276) and if the condition complained of is in a real sense a consequence of the occurrence for which the defendant or employer is liable, it is not to the point to argue that other causes have contributed. Where the injured person is already suffering from an impaired condition which is aggravated by the injury, then the principle applies that the defendant takes the plaintiff as found, including any predisposition which the plaintiff may have to physical harm or even psychological trauma (Parker v. The Commonwealth of Australia (1975) 49 ALJR 221). In certain circumstances the defendant will be entitled to a discount on damages for the future to allow for the possibility that any predisposition of the plaintiff might have resulted in impairment in any event without being injured by the defendant (Malec v. J.C. Hutton Pty. Ltd. [1990] HCA 20; (1990) 169 CLR 638).

19. Where, following the injury for which the defendant is responsible, the injured person's condition is aggravated by circumstances for which the defendant is not responsible, the position is less clear. But in cases where the impairment caused by the earlier injury (for which the defendant is responsible) contributes either to the occurrence or to the severity of a subsequent injury, the defendant may be liable for the whole of the damage, so long as there is no "new and independent cause" of damage for which the defendant is not responsible: see Neall v. Watson (1960-61) 34 ALJR 364 at 367. In Faulkner v. Keffalinos (1971) 45 ALJR 80, Windeyer J said at 85 that there is:

"... a critical distinction between a supervening happening that
prevents a particular damage occurring as a result of the tort and
a supervening happening that causes the harm caused by the tort to
have added gravity. In the first class of case the supervening
event diminishes the damages which flow from the tort ..."

20. In claims for damages at common law, questions of foreseeability may limit the scope of liability for resultant damage (Chapman v. Hearse and Another [1961] HCA 46; (1961) 106 CLR 112). However the High Court has expressed doubt whether the common law principles of causation are applicable to determine whether incapacity results from an injury for the purposes of worker's compensation legislation (National and General Insurance Company Limited v. South British Insurance Company Limited and Others [1982] HCA 62; (1982) 149 CLR 327 at 336). Similarly, in my view, foreseeability has no place in determining causation for the purposes of determining whether an applicant has suffered a prescribed injury within the meaning of the Act, nor for determining the consequences of such prescribed injury.

21. Before dealing with the application of such of the above principles as may apply to the present case, I would also observe that legislation which enables victims of crime to obtain compensation for prescribed injuries does not concern itself with nice principles of causation. In my view, the broad brush approach is particularly appropriate in this area. In any event, I do not see any violation of principle in awarding compensation to a victim without reduction by reason of contribution to the victim's condition by such of the offender's conduct which falls outside the criminal conduct relied upon and in respect of which compensation is sought.

22. In the present case compensation is sought for the consequences of a series of five acts of sexual abuse, including three acts of penetration. If, by the time of the earliest of those acts committed upon the applicant she had already suffered injury from acts of a similar nature, she was the more vulnerable to the consequences of that earliest act and, accordingly, compensation is to be awarded for the total severity of those consequences. That same principle applies to each of the subsequent acts relied upon. Each contributed to her continuously deteriorating condition. Furthermore, if after the last act of those acts relied upon, the applicant's condition further deteriorated, the applicant is entitled to compensation taking into account that deterioration, unless it is shown that the deterioration flows from some new and independent cause. On the facts of the present case there is simply no such new and independent cause. The last act under consideration occurred on 5 April 1992 and that constitutes the third offence on the indictment. There is no conduct on the part of the offender thereafter, criminal or otherwise, which contributes to any prescribed injury or consequences of prescribed injury. Even if the prior criminal acts are to be disregarded, the applicant's subsequent and continuing condition since 5 April 1992 has been shown, in my view, to be the consequence, for all relevant purposes, of the criminal act committed on that date and being the last criminal act in time for which the offender was convicted.

23. I find that the criminal conduct of the offender resulted in physical injury of a limited and temporary nature on the three occasions on which penetration occurred. In addition, that conduct, either taken as a whole over the five occasions or as culminating in the offence committed on 5 April 1992, has resulted in a condition which involves nightmares, fear, loss of self esteem and interference with schooling, a condition which probably continues but which has diminished and may continue to diminish. I also find that the child is exposed to the risk that in the future she will have problems of personal adjustment and personal relationships. On the probabilities, these sorts of problems are likely to occur from time to time but I am not able to conclude that they will be permanent. Approaching the case in that way, I do not think that the facts require apportionment of damage as between the various incidents.

24. In the circumstances, a choice is to be made between, on the one hand, trying to guess her future and making a once and for all award of compensation, or, on the other hand, making an interim award and allowing for the opportunity that the applicant may approach the Court at a later stage for a further award should her condition so warrant. Experience in personal injury claims suggests that pending litigation tends to aggravate rather than resolve psychological conditions of anxiety and the like. But as the future of this applicant depends so much on so many imponderables, the making of a once and for all award at this stage will almost inevitably be too great or too little.

25. Dr Tym recommends continuing but not frequent psychological surveillance which he feels will be an effective prophylactic measure against development of psychological behavioural or mental health abnormalities. I think that it is preferable for that approach to be adopted in the case of this young applicant. At this stage she is, fortunately, free of any functional overlay, litigation neurosis or similar condition. In some adult persons those sorts of conditions appear to be unaffected by any sort of treatment and amenable only to the ultimate therapy of a substantial award of damages (if then). I do not think that the making of an interim award is likely to contribute to any troubles which the applicant may have now or which she may develop.

26. I make an interim award of $10,000 for pain and suffering to date, together with $50 for loss being the cost of remedial tutoring in literacy skills and a further $664 for loss being the costs of the reports from Dr Tym and the Board of Health. The total interim award of compensation to the applicant is $10,714. That sum is to be paid into court for payment out to the applicant's next friend of $714 and the balance to be paid to the Public Trustee to be dealt with on behalf of the applicant.