Re An Application Under the Criminal Injuries Compensation Act 1983 and Rhonda Maree Obad [1996] ACTSC 67 (21 June 1996)

SUPREME COURT OF THE ACT

IN THE MATTER OF AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION
ACT 1983
AND RHONDA MAREE OBAD
No. CIC267 of 1995
Number of pages - 5
Criminal Injuries Compensation

COURT

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

CATCHWORDS

Criminal Injuries Compensation - Secondary Victim - Applicant's Son Victim of Vicious Assault - Nervous Shock and Mental Shock - Claim for Expenses for Son's Maintenance - Not Related to the Injury of the Applicant - Not a Prescribed Injury.

Criminal Injuries Compensation Act 1983, s.6(2)
Re Criminal Injuries Compensation Act (1987) 71 ACTR 44

Victims of Crime, Report No.6 of the ACT Community Law Reform Committee, 1993, p92
CIC 59 of 1993 (unreported, Supreme Court of the ACT, Master Hogan, 19 May 1994)
CIC 111 of 1995 (unreported, Supreme Court of the ACT, Miles CJ, 2 February 1995)
CIC 112 of 1995 (unreported, Supreme Court of the ACT, Miles CJ, 2 February 1995)

Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549
CIC 98 of 1991 (unreported, Supreme Court of the ACT, Master Hogan, 7

December 1994)
CIC 99 of 1991 (unreported, Supreme Court of the ACT, Master Hogan, 7 December 1994)

HEARING

CANBERRA, 13 June 1996
21:6:1996

The Applicant appeared in person.

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 $20,000.00.

DECISION

MASTER T. CONNOLLY This is a claim for compensation under the Criminal Injuries Compensation Act 1983. The applicant, Rhonda Obad, is the mother of Tony Obad, a young man who was viciously assaulted in Civic on 14 October 1994. As a result of this attack for which three offenders have been sentenced by the Supreme Court to terms of imprisonment, Mr Obad suffered very severe injuries, and indeed is lucky to be alive. Tony Obad was awarded the maximum compensation permitted under the Act, that is $50,000, in my decision of 28 March 1996. In that decision I noted that "...it is apparent from reading the papers on this matter that Mr Obad's mother has stood by and assisted her son in a remarkable manner, and the fact that he has made a recovery from this appalling assault is a tribute to her, as well as his own powers of resilience and will."

2. Mrs Obad learned of this assault in the early hours of the morning of October 14, 1994. She immediately flew to Canberra. She was at the time living in Queensland with her other children. She was told by doctors that her son could die, and arranged immediately to bring to Canberra her daughter and other son.

3. She was in constant attendance while her son was in the Intensive Care Unit at Woden Valley Hospital. The social worker from the Intensive Care Unit has confirmed that "Rhonda remained with him during each day so that she could support him and slept in the waiting room at night in case his condition deteriorated."

4. She has supported her son constantly throughout his recovery, providing him with food, board and clothing and more importantly, with strong emotional support. She has incurred expenses in taking him to Queensland, and then back to Canberra. None of this is denied by Counsel for the Australian Capital Territory.

5. The issue for decision in this case, apart from assessing the appropriate quantum for the applicant's own loss, is whether a relative of a victim of crime can recover, in their own right, for expenses incurred on behalf of the primary victim.

6. I must conclude, with some regret in the instant case, that this is not possible, except in the case where the primary victim has died. The legislation provides for compensation for the victim of a crime. This compensation is by s.6(2) of the Act, to be "...equal to the sum of the pecuniary loss suffered by her or him, and the expense reasonably incurred by her or him, as a consequence of the injury or death."

7. This relates to the injury to the applicant. In addition, where a person has died as a result of having sustained a prescribed injury, a person who was responsible for the maintenance of the victim may claim for "...the expense reasonably incurred by her or him as a consequence of the death." That is, the relative or carer may claim the expenses consequent upon the death of the other person.

8. The Criminal Injuries Compensation Act is, undoubtedly, remedial legislation, and I bear in mind that, in interpreting it, I should look at any provision so that the section "... used as it is in benevolent, remedial legislation, ought to be given as wide an interpretation as its words can reasonably bear" (per Kelly J, Re Criminal Injuries Compensation Act (1987) 71 ACTR 44 at 45.

9. The Act, modelled as it is on similar provisions elsewhere, was an important first step in providing statutory and community recognition of the impact a crime has on the victim. As was pointed out by the ACT Community Law Reform Committee, the principle of compensating victims of crime has a long history. Early Anglo-Saxon criminal law routinely provided for payments to victims, but with the emergence of a centralised criminal justice system it fell into disuse. State sanctioned criminal injuries compensation was advocated in the 1950's by a prominent British magistrate, and was pioneered in New Zealand in 1963, with other jurisdictions following, (Victims of Crime, Report No.6 of the ACT Community Law Reform Committee, 1993, p92).

10. The ACT legislation defines injury broadly and expressly includes "...mental shock and nervous shock". This is an express recognition of the fact that a crime may have more than one, obvious, victim. When a person is assaulted or killed, it is not only the person the subject of the direct attack who is the victim. Their loved ones, too, are victims and the ACT Act acknowledges this. The well accepted practice of the courts in this Territory is to consider and grant applications to such "secondary victims" on the basis of their real injury, which is normally taken to be of the type provided for under the broad terms of "mental shock and nervous shock".

11. But the compensation to the secondary victim is limited to the pecuniary loss or expenses which occur as a consequence of their injury.

12. The Act does provide that compensation may be awarded "...to any person who is responsible for the maintenance of..." a primary victim, but this is part of the primary victim's claim, and is subject to the upper limit of $50,000 set down in s.7 of the Act.

13. I must reluctantly conclude that any expenses incurred by Mrs Obad in providing care and support for her son could only have been compensated as part of his claim, which has already been awarded at the statutory maximum.

14. Mrs Obad has, in effect, both suffered an injury herself - the mental and nervous shock of learning of her son's injury and supporting him through it - and provided maintenance to her son in respect of his injury. The Act only permits me, in respect of her application for compensation to assess her damages for mental and nervous shock.

15. In assessing this injury Counsel for the Territory referred me to a decision of Master Hogan in CIC 59 of 1993 (decision of 19 May 1994) where $5,000 was awarded to the wife of a diplomatic official who had been subject to an assault. I do not consider that that case is at all comparable with the present. In that case the husband returned home on the evening of the assault. Master Hogan found that "(h)e was not injured, but there was blood on his shirt." He suffered emotional distress in the period following and the applicant "...felt sick with worry and fear." The applicant there, "...did not seek or receive any counselling or medical treatment."

16. I am satisfied that CIC 59 of 1993 establishes a benchmark only for a comparatively minor case of mental or nervous shock for a secondary victim. In the present case the primary victim, unlike that of CIC 59 of 1993 who returned home uninjured but with blood on his shirt, was near death in a coma for a prolonged period. The applicant was with him throughout.

17. The applicant in the present case, unlike CIC 59 of 1993, has sought and obtained professional support both from her General Practitioner and Calvary Hospital for stress. I am satisfied from the report of Ms Collett, Clinical Psychologist and Director of Clinical Psychology Services at Calvary Hospital, that the applicant has experienced great stress and trauma over a prolonged period.

18. I accept that this is a diagnosis short of formal "post traumatic stress disorder" which has been a regular feature of claims by a secondary victim consequent to the death of, or serious assault on, a close relative.

19. I note, however, that Miles CJ in CIC 111 and 112 of 1995 (unreported, 2 February 1995) has noted that "nervous shock" can cover a range of conditions, and he cited with approval Brennan J (as he then was) in Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549 at 560: "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."

20. I am satisfied that the applicant has suffered a compensable injury, for which she has received professional assistance. This injury has been severe and of long duration. In looking for appropriate guidance on the question of quantum, I find that CIC 59 of 1993 establishes $5,000 as appropriate for a far less severe and ongoing injury. While bearing in mind that, fortunately, Mrs Obad has not lost her son, I find that in the circumstances of this case it is more appropriate to look to the range of damages that have been awarded to close relatives of victims of murder. Mrs Obad's close and constant attendance upon her son while he was in the Intensive Care Unit including presence when last rites were administered, evaluate this claim to this high level. I also have taken account of damages awarded in CIC 98 and 99 of 1991 (unreported, 7 December 1994) where Master Hogan made awards of $35,000 and $30,000 to the parents of a victim of a severe sexual assault. Again, I find that the nature of the present case is more closely comparable to those cases, although no formal finding of clinical psychiatric condition has been made, which will reduce this claim by way of comparison.

21. I award compensation in the sum of $20,000 to the applicant in respect of her injuries which followed from the assault on her son.