Re An Application Under the Criminal Injuries Compensation Act 1983 and Amy Louise Beasley Bhnf Brian Anthony Beasley [1996] ACTSC 52 (31 May 1996)

SUPREME COURT OF THE ACT

IN THE MATTER OF AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION
ACT 1983
AND AMY LOUISE BEASLEY BHNF BRIAN ANTHONY BEASLEY
No. CIC280 of 1995
Number of pages - 3
Criminal Injuries Compensation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER T. CONNOLLY

CATCHWORDS

Criminal Injuries Compensation - Nervous Shock - Applicant's Mother Victim of Murder - Major Depression - Post Traumatic Stress Disorder - No Issue of Principle.

CIC 111 of 1995 (Unreported, Supreme Court of the ACT, Miles CJ, 2 February 1996)
CIC 112 of 1995 (Unreported, Supreme Court of the ACT, Miles CJ, 2 February 1996)
Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549
CIC 135 of 1994 (Unreported, Supreme Court of the ACT, Master Hogan, 15 December 1994)

HEARING

CANBERRA, 23 May 1996
31:5:1996

Counsel for the Applicant: Mr R. MacDonald

Instructing Solicitors: Vandenberg Reid

Counsel for the Territory: Mr K. Holmes

Instructing Solicitors: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. Compensation be awarded to the applicant in the sum of $21,175.00.
2. The amount of compensation be paid into Court.
3. The sum of $1,175 be paid out to the Solicitor for the applicant, for the disbursements incurred in bringing the application.
4. The balance, namely $20,000, be paid out to the Public Trustee to be dealt with in accordance with the Public Trustee Act for the benefit of the applicant.
THE COURT DIRECTS THAT:
1. The Public Trustee pay, out of the monies held on trust for the applicant, the taxed professional costs of the Solicitor for the applicant, upon receipt of the Certificate of the Registrar of this Court as to the proper amount of these costs.

DECISION

MASTER T. CONNOLLY This is an application for compensation pursuant to the Criminal Injuries Compensation Act 1983. The applicant, Amy Louise Beasley, is now 17, and brings this action by her next friend, her father Brian Anthony Beasley.

2. The injury in respect of which compensation is claimed is the mental shock and nervous shock following the murder of her mother, Patricia Maria Usher by her defacto, Barry Ian Parsons on Melbourne Cup Day 1994.

3. The applicant has been living with her father since her parents' marriage broke down in 1983. She maintained very close links with her mother, however, spending every third weekend with her and telephoning her virtually every day. Dr Knox, a consultant psychiatrist who examined the applicant, said that "Amy and her mother confided in each other a good deal, and clearly Amy was very attached to and dependent on her mother."

4. Police attended her home at around 3.15 am on the night of the murder to tell her father of the tragic events. She woke and learned of her mother's murder. She was later required to give evidence at the trial. Dr Knox says that the applicant's "...depression and post traumatic stress disorder are clearly the direct outcome of her mother's death, and the particular circumstances of the mother's death."

5. Reactive depression and post traumatic stress resulting from the news of the murder of a loved one are clearly "injuries" for the purposes of the Act. The Act defines "injury" to include "mental shock or nervous shock". Miles CJ in CIC 111 and 112 of 1995 (unreported, 2 February 1996) noted that there was no distinction to be drawn between "mental shock" or "nervous shock", and that the term "nervous shock", distasteful as it may be to the medical profession, may cover a range of psychiatric conditions. The Chief Justice referred, with approval, to Brennan J (as he was then) in Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549 at 560 where His Honour 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."

6. Having regard to the medical reports of consultant psychiatrists Drs Tym and Knox, I am satisfied that the applicant has suffered a compensable injury.

7. Dr Tym says that: "Amy has suffered, and still suffers, the extreme levels of mental anguish and grief and these have disturbed every aspect of Amy's social and academic life. Whilst at the present time Amy is socially and psychologically robust, despite her to be expected grief, she has, in my clinical judgment, a very significantly increased probability, or risk, that in later life she will develop an affective mental disorder." Dr Knox concluded that: "Amy has suffered an intense grief reaction amounting to Major Depression (she meets the DSM IV diagnostic criteria for Major Depression) and also Post Traumatic Stress Disorder (also meeting the DSM IV diagnostic criteria for this condition). Amy's symptoms for both the above conditions were particularly intense through until mid 1995, that is for a period of approximately eight months. Since that time Amy has continued to be episodically depressed and troubled by her Post Traumatic Stress Disorder, although there is a pattern of gradual recovery."

8. The applicant was not called to give evidence, following agreement with Counsel for the Territory. I believe this was quite proper, as the medical evidence not only establishes the presence of her condition, but makes it clear that to re live this experience would only compound her difficulties.

9. Counsel for the Territory referred me to CIC 111 and 112 of 1995 where the Chief Justice awarded both parents of a 23 year old woman murder victim between $10,000 and $15,000 for nervous shock. I have also had regard to the decision of Master Hogan in CIC 135 of 1994 where the mother of a 25 year old woman murder victim was awarded $25,000. In that matter there was evidence of further distress caused by the criminal trial, which is also present in this case. In both cases the applicants learned of the murder after the event and were not present at the time of death, as in this case.

10. Having carefully considered the medical evidence, and guided by the matters I have referred to above, I am of the view that this matter falls within the range of damages established by these cases. I take account of the fact that for a young woman of the applicant's age, the loss of a mother is of particular significance. I award $20,000 for pain and suffering in this case, which takes into account the possibility of future difficulties which are unable to be quantified. Counsel advised me that expenses under Sections 5(4) and 6(1) of the Act had been agreed at $920 and $255, respectively. This amounts to a total award of $21,175.

11. As this is an infant claim, it is appropriate to make orders to protect this award. Accordingly, I order that: 1. Compensation be awarded to the applicant in the sum of $21,175.00. 2. The amount of compensation be paid into Court. 3. The sum of $1,175 be paid out to the Solicitor for the applicant, for the disbursements incurred in bringing the application. 4. The balance, namely $20,000, be paid out to the Public Trustee to be dealt with in accordance with the Public Trustee Act for the benefit of the applicant.

12. I further direct that the Public Trustee pay, out of the monies held on trust for the applicant, the taxed professional costs of the Solicitor for the applicant, upon receipt of the Certificate of the Registrar of this Court as to the proper amount of these costs.