Re An Application Under the Criminal Injuries Compensation Act 1983 and Alfred Ernest Fripp and Anne Dewarren Fripp [1996] ACTSC 2 (2 February 1996)

SUPREME COURT OF THE ACT

IN THE MATTER OF AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT
1983 and ALFRED ERNEST FRIPP and ANNE DeWARREN FRIPP
Nos. CIC111-112 of 1995
Number of pages - 4
Criminal Injuries Compensation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ

CATCHWORDS

Criminal Injuries Compensation - mental injury - psychological consequences of injury - claim by parents of daughter killed by criminal act -content of "nervous shock" - no distinction between "nervous shock" and "mental shock" - application of common law principles relating to nervous shock to criminal injury compensation claims - reactive depression to news of death caused "injury" within meaning of Criminal Injuries Compensation Act.

Criminal Injuries Compensation Act 1983, para.6(1)(a); para. 6(1)(c); para.5(2)(b), sub-s.5(2) and sub-s.5(4)

Law Reform Miscellaneous Provisions Act 1955

HEARING

CANBERRA, 16 November 1995
2:2:1996

Counsel for the Applicants: Mr. R. Patrick

Solicitors for the Applicants: Colquhoun Murphy

Counsel for the Respondent: Mr. K. Holmes

Solicitors for the Respondent: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. There be an award to Alfred Ernest Fripp in the sum of $18,867.28.

2. There be an award to Anne DeWarren Fripp in the sum of $13,737.93.

DECISION

MILES CJ These are two applications heard together by consent for compensation under the Criminal Injuries Compensation Act 1983 (the Act). The applicants are the father and mother of a 23 year old woman who died after being stabbed several times by another woman outside a nightclub at Phillip following some sort of argument inside the club. The assailant was convicted of unlawful homicide (manslaughter) after pleading guilty to that offence during her trial for murder.

2. The applicants were not dependent upon the deceased for financial support and so no claim of a financial nature is made apart from the cost of paying the airfares of another daughter and a son, who flew to Canberra for the funeral.

3. The Act provides in sub-s.5(1) for compensation for injury sustained as a result of criminal conduct of another. "Injury" is defined by sub-s.2(1) to mean physical or mental injury and includes, inter alia, mental shock or nervous shock or aggravation, acceleration or recurrence of any physical or mental injury. The applicants did not suffer physical injury and so they must prove that they suffered mental injury. The definition contemplates that mental injury may be other than mental or nervous shock, but what exactly was in contemplation in this regard is difficult to say.

4. It should also be observed that in addition to providing for compensation to the person sustaining injury, the Act in sub-s.5(2) provides for compensation to certain persons who are affected by the death of a person who dies as a result of having sustained injury by the criminal conduct of another. The categories of persons who may make a claim of this nature are restricted by sub-s.5(2) as follows:

"(2) Where a person dies as a result of having sustained a prescribed
injury, the court may, by order, award compensation to -
(a) any person who was, immediately before the death of the
first-mentioned person, responsible for the maintenance of that person
and who has suffered pecuniary loss or incurred expense as a
consequence of the injury or death; and
(b) any dependent of the first-mentioned person or, if there is no
such dependent, any person who has incurred expense as a consequence
of the death."

5. Both applicants claim to have suffered mental injury as a result of the unlawful killing of their daughter. Counsel for the Territory submitted that the evidence is insufficient to show that either of them sustained the mental injury as that term should be understood. Much of the argument was concerned essentially with whether the condition of either applicant following the death went beyond the bounds of "ordinary human grief" and passed into the area of nervous shock. Nervous shock is a term which has received much judicial discussion, usually in actions in pursuance of legislation providing for compensation for loss of economic support on the part of dependents of a deceased family member, but occasionally also in relation to actions at common law. Judicial pronouncements on the term "nervous shock" seem not to differ whether the term be used in relation to a claim at common law or under one of the various statutes in Australia and like jurisdictions.

6. The term "mental or nervous shock" is used in sub-s.24(1) of the Law Reform Miscellaneous Provisions Act 1955. As far as I am aware, no distinction has ever been drawn either by a court or by medical evidence between mental shock on the one hand and nervous shock on the other. "Nervous shock" appears to be a term distasteful to the medical profession, and lawyers have been accused of an unsophisticated and outdated approach to matters of psychiatry and psychology: see De Franchesi v. Storrier (1988) 90 FLR 95. In Mount Isa Mines Limited v. Pusey [1970] HCA 60; (1970) 125 CLR 383 at 395, Windeyer J said:

"Law, marching with medicine but in the rear and limping a little, has
today come a long way since the decision in Victorian Railways
Commissioners v. Coultas (1888) 13 App Cas 222, which in recent
times has been regularly by-passed by courts. An illness of the mind
set off by shock is not the less an injury because it is functional,
not organic, and its progress is psychogenic."

7. In Jaensch v. Coffey [1984] HCA 52; (1984) 155 CLR 549 at 560, Brennan J (as he then was) said:

"Compensation is awarded for the disability from which the plaintiff
suffers, not for its conformity with a label of dubious medical
acceptability. The term "nervous shock" is useful nevertheless as a
term of art to indicate the aetiology of a psychiatric illness for
which damages are recoverable in an action on the case when the other
elements of the cause of action are present."

8. There is every reason for applying the approach set out in these passages to criminal injury compensation claims under the Act.

9. The father of the deceased was aged 52 and his wife presumably about the same age at the time of the daughter's death. The daughter had not lived with her parents for several years but they were close and saw each other two or three times a week. They were awakened in the middle of the night to be told of the daughter's death. The father had to identify the body of the deceased at the hospital. It was a traumatic experience. The father ran a small vehicle repair workshop from his house and said that after the death he was unable to concentrate on it and lost many customers for a year or more. Both father and mother became restricted in their social activities with the father being particularly affected, although the mother has long suffered from various medical problems. They had lost another child by drowning several years before.

10. Both parents had been patients of Dr Saboisky, psychiatrist, for depression long before the daughter's death, but Dr Saboisky thought that the father had virtually recovered by the end of 1989 and, although the mother continued to consult him from time to time, he thought that she was coping reasonably well having regard to the circumstances. This is not a case in which there has to be a decision about the extent to which a person already suffering serious psychiatric illness may also be said to be suffering ordinary grief after the death of a loved one. There is no question in my mind that the death of the daughter had an immediate and serious effect on both applicants. The frequency of consultation with their general practitioner, Dr Shihoff, increased and he stated in his report of 7 August 1995 that "profound and morbid depression" still persisted.

11. Dr Saboisky's report of 21 June 1995 clearly establishes that when the father came to see him soon after the death he was already suffering and receiving medication. Dr Saboisky's description of the symptoms need not be repeated, but there is no question that in February/March 1994 the father was clinically depressed and continued to suffer major depressive illness as well as some symptoms of post traumatic stress disorder. Dr Saboisky thought that the condition was such as to require the continuation of medication for another year.

12. However, after stating that both parents had suffered psychologically, Dr Saboisky was precise in contrasting the father's condition with that of the mother. Whilst the father's condition was initially a major depressive disorder, Dr Saboisky thought that the mother had an understandable bereavement reaction which led to dysphoria. This opinion accords with that of Dr Shihoff that the "grieving will last for some time yet" which is "likely to push them into further reactive depression".

13. I think that in the light of the medical reports the case of the father involved a major mental impact which went well beyond the ordinary reaction to the loss of a child. For that condition the father was treated and continued to receive medication. Although the grief will continue, I expect that the depressive reaction should resolve in the reasonably near future. Allowing, with respect, for some looseness of language on the part of the doctors, I think that in respect of the mother, it seems, ironically enough, that her own previous misfortunes equipped her to withstand the effect of the daughter's death. I think that on the probabilities there was also a reactive depression on her part which may be described as resulting from mental injury or shock, but, grief notwithstanding, the mental injury or shock was largely resolved some year or two after the death.

14. Neither parent makes a claim as a dependent of the daughter or as a person responsible for the maintenance of the daughter. But the daughter having died without any dependents, compensation is to be paid under para.5(2)(b) for any expense incurred as a consequence of the death. The father paid the funeral expenses of $3,232.80 and there was no issue that he should be compensated for that. The mother paid return airfares totalling $3,270 for another daughter to fly from Mackay and a son from Margaret River to be with them at the funeral. Those children did not have the money to pay for themselves. I think that the incurring of those expenses by their mother in the circumstances of the case was reasonable and those expenses should be included in the compensation awarded to her.

15. Expenses under sub-s.5(4) are not challenged by the Territory in either claim in the sum of $313.50. Expenses under para.6(1)(a) are not challenged in the father's claim at $320.98 and in the mother's claim at $154.43.

16. I award compensation to the father under para.6(1)(c) of the Act in the sum of $15,000 and to the mother in the sum of $10,000.

17. The total award for the father is therefore $18,867.28 and in the case of the mother $13,737.93. I make orders accordingly.