In the matter of an application under the Criminal Injuries Compensation Act 1983 [2004] ACTSC 60 (9 July 2004)

Last Updated: 17 September 2004

IN THE MATTER OF AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT 1983

[2004] ACTSC 60 (9 July 2004)

CRIMINAL LAW - criminal injuries compensation - expense reasonably incurred - future expense - conditions imposed on award - compensation for pain and suffering - no issue of principle

Criminal Injuries Compensation Act 1983

Victims of Crime (Financial Assistance) Act 1983

Victims of Crime (Financial Assistance) (Amendment) Act 1999

Supreme Court Act 1933, s 53A

Re Criminal Injuries Compensation Ordinance 1983 (1984) 58 ACTR 17

No. CIC 445 of 1999

Judge: Master Harper

Supreme Court of the ACT

Date: 9 July 2004

IN THE SUPREME COURT OF THE )

) No. CIC 445 of 1999

AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER OF AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT 1983

ORDER

Judge: Master Harper

Date: 9 July 2004

Place: Canberra

THE COURT ORDERS THAT:

1. compensation of $35,000.00 be awarded to the applicant to compensate him for pain and suffering resulting from the injury sustained on 19 July 1999;

2. compensation of $10,000.00 be awarded for the benefit of the applicant in respect of the expense to be incurred by him as a consequence of the injury, subject to the condition that the sum of $10,000.00 be held in trust by the Australian Capital Territory Government Solicitor for the applicant, for payment of treatment expenses to a registered psychologist carrying on practice as a clinical psychologist;

3. the sum of $2,577.00 be awarded to the applicant in respect of expense incurred in making the application;

4. publication of the name or address of the applicant be prohibited;

5. the applicant and the Territory have liberty to apply on 3 days notice.

1. This is an application under the former Criminal Injuries Compensation Act 1983. That Act has since been substantially amended, including its short title: it is now the Victims of Crime (Financial Assistance) Act 1983. The application relates to events which occurred on 19 July 1999, and the application was filed in October 1999. It is common ground that the extensive amendments effected by the Victims of Crime (Financial Assistance) (Amendment) Act 1999, which was notified on 23 December 1999, do not apply to the present application and that the applicant's entitlements are to be calculated by reference to the more generous statutory provisions in force prior to that date.

2. The applicant was born on 27 June 1981. He was 18 at the time of the events giving rise to the claim, and is now 22. He was at that time living in a ground floor unit at Cardwell Court, a public housing complex at Bonython, with his girlfriend Katrina Lovelock. He was at home with some friends in the early evening when the unit was invaded by two men, who terrorised the occupants for several hours, threatening to kill them. At one point, one of the invaders cut the throat of one of the male occupants with a knife, though not deeply enough to cause life-threatening injury. During the siege, the invaders drank some half a bottle of vodka which they found in the unit. It appears that one of the invaders had recently been released from prison and mistakenly believed that the applicant had reported him to police and was responsible for his arrest and imprisonment. The applicant feared for his life and at one point vomited from fear.

3. Eventually, after about four hours, both invaders commenced a physical attack on the applicant. At this point, his girlfriend picked up a car engine component and hit the invaders, one after the other, on the head. Police and ambulance were called, and the invaders arrested. The invaders, aged 25 and 20, were later convicted in this Court of unlawful confinement and sentenced to lengthy terms of imprisonment.

4. The applicant suffered relatively minor physical injuries to the right arm and wrist. He has been left with some scarring, which is visible and tender but which does not represent a disfigurement of any significance.

5. The applicant was seen by a doctor employed by the Australian Federal Police the day after the assault, but was not given any treatment. The four occupants of the unit sought legal advice within a month of the accident, and were referred by their solicitors to Professional Psychology Services, where they were seen as a group on 18 August 1999. Their major concern was about having to give evidence against the invaders in court a week or two afterwards.

6. The applicant raised with Ms Strazdins, a psychologist with PPS, a concern as to Katrina and himself remaining in their unit. Ms Strazdins recommended that the applicant see his general practitioner, Dr Tanya Robertson, which he did on 8 September 1999. He gave Dr Robertson a history of the incident. She diagnosed him as suffering from considerable anxiety, with symptoms including sleeplessness, reduced appetite and emotional outbursts. He did not return to Dr Robertson again. He saw Ms Strazdins for one session in October 1999 but failed to keep appointments for a number of subsequent assessment interviews.

7. He sought no further treatment until February 2003, when he returned to PPS, apparently pursuant to arrangements made by his solicitors who were seeking a report for use in the present application. The applicant was seen on three occasions by Mr John Mitchell, clinical psychologist, whose report of 26 April 2003 was in evidence. Mr Mitchell described the applicant as a brash and perhaps overconfident young man accustomed to conflicts around issues of power and control. He gave a history of violent conflict with his stepfather. He had dropped out of secondary college after a few weeks, and had not worked for about two years thereafter. He had then taken up a number of manual labouring jobs in the building industry. Violence had typically featured in his leaving jobs. He detailed a number of violent events over previous years although the timing and order of events were confused.

8. He told Mr Mitchell that about a month after the invasion, he saw one of the assailants at the Tuggeranong Hyperdome, and threatened him and chased him until restrained by police. Mr Mitchell assessed the applicant as a person in emotional crisis. He described him as highly defensive, strongly avoidant, terrified, and aggressive if cornered. His formal diagnosis was chronic post-traumatic stress disorder. He thought that the applicant warranted a diagnosis of personality disorder predating the incident of 19 July 1999. However, the severity of the disorder prior to the invasion was reflected in the fact that he had been able to maintain employment, a relationship with his girlfriend and a wide and active group of friends. With this background, Mr Mitchell's view was that the trauma had triggered the emergence of observable features typically associated with personality disorder, leaving the applicant isolated, terrified and lacking in the psychological skills required to manage day-to-day conflict. He was, in Mr Mitchell's opinion, in desperate need of psychological treatment, and had had none by that time. He thought that the applicant's employment was at risk because of the likelihood of some violent incident in the near future. The applicant had acknowledged frequent violence and extreme responses to both threatening and non-threatening situations. His relationship with his girlfriend included violence. He had few friends left, and had become increasingly isolated from his family. There had been violent incidents with family members. He was likely to maintain and perhaps increase his level of interpersonal violence and become more socially isolated. There was an increasing risk of criminal behaviour, perhaps leading to imprisonment. His only sources of management for his fear and anxiety were marijuana, work and violence. He needed a psychiatric assessment to decide whether he should be taking medication, and intensive supportive psychotherapy: at least three sessions a week for at least two years. Mr Mitchell noted the present cost of a psychotherapy session at $166, so that the cost of the recommended programme would be a minimum of $50,000.

9. The applicant was seen by Dr J Saboisky, psychiatrist, in December 2003, for the purpose of a report to his solicitors for use in these proceedings. Dr Saboisky conducted an extended medico-legal assessment. He noted that the applicant was by then 22 and was living with his partner of eight years, Ms Lovelock, in rental accommodation in Canberra. He was working as a painter and decorator. Ms Lovelock was at that time three months pregnant. The applicant had been working full-time with a firm of painters and decorators for about two years. He was off work for a couple of months when the principal went overseas, and the applicant had a conflict with his boss's son. He was reinstated some time after the principal returned.

10. Dr Saboisky enquired as to how the applicant was then functioning. His reply was "life's good now." He had flashbacks of the invasion, lasting for about a minute three times a week, and these led to feelings of anger and tension for about ten minutes. They might be triggered by a knock at the door or a violent scene on television. The applicant said that he feared retaliation from the assailants once they were discharged from custody. He avoided going into Civic, and generally avoided crowded situations for fear that he might meet up with similar individuals. On a number of recent occasions he had pulled knives on people when he had felt intimidated. These incidents involved a neighbour, a stranger at a swimming hole and a supermarket employee. The swimming incident led to the applicant being charged by police and given a good behaviour bond. In other incidents he had punched the driver of a car following a collision; and had thrown a pitchfork at his brother, causing a deep laceration.

11. He told Dr Saboisky that he smokes an ounce of hydroponically grown marijuana each week, at a cost of about $300 per week.

12. He went into some detail with Dr Saboisky about the invasion, and among other things told him that after his partner Katrina had hit both of the assailants on the head with the car part, he had grabbed a knife and stabbed both assailants seven or eight times. He said that they were lucky not to be killed (one might reasonably make the point that the applicant was also fortunate that they both survived). The assailants were taken to an ambulance; the applicant walked over and "smashed one in the head". He said that all he had in his mind was revenge.

13. He had nightmares, which were worst in the year immediately after the invasion. His flashbacks had receded.

14. Dr Saboisky diagnosed the applicant as having suffered from post-traumatic stress disorder in the period immediately after the incident. By the time of his examination, he said that the applicant had some residual symptoms but was sub-syndromal. He continued to reflect some of the criteria for post-traumatic stress disorder, including interference with sleep, irritability and hypervigilance. The symptoms were not at such a level as to cause significant distress or major impairment of occupational or social functioning. It was difficult to know whether his hypersensitivity to criticism or perceived slights was attributable entirely to the post-traumatic stress disorder symptoms, or whether this might be partly due to his chronic marijuana use. Dr Saboisky formed the view that the applicant was unlikely to avail himself of psychological services if offered, although he would benefit from such treatment, particularly with desensitisation in relation to crowd situations. Dr Saboisky thought that he would continue to suffer from avoidance symptoms and inappropriate anger, and that there was clear evidence that his disabilities were a direct result of the invasion incident.

15. The applicant gave oral evidence, supplementing an affidavit sworn in September 2003. He said that for up to two years after the accident, he wore a knife strapped to his leg everywhere he went, for protection. He keeps a Samurai sword, a baseball bat and a smaller bat at his flat for protection. He cannot cope with being confined in a small space. About three months ago, he saw one of the offenders at a police station. There was a verbal and perhaps a physical altercation. The applicant said that he fears that the assailants will come back for revenge.

16. He conceded that he had had no psychological treatment, and said that the reason was that he had not been able to afford it, but would have it if money were set aside for the purpose. Perhaps inconsistently with this, he concedes that he spends some $15,000 a year on marijuana. By the time of the hearing, he was no longer working, having left his job about two weeks earlier because his son, then about two months old, had been in hospital with a collapsed lung. He explained that he had previously left the same employer because he was unable to work with the employer's son. He could not accept the son telling him what to do and described the son as arrogant and lazy. In preference to continuing to work with the son, he left the job and went onto unemployment benefits for about two months.

17. The applicable provisions of the Criminal Injuries Compensation Act 1983, having been long since amended, are no longer readily accessible, and I shall set them out.

Persons to whom Court may award compensation

5(1) Where a person sustains a prescribed injury, the Court may, by order, award compensation-

(a) to, or for the benefit of, that person;

. . .

4 Where a person has incurred expense (other than by way of fees paid to a solicitor or barrister) in making his or her application, the Court may, in addition to any compensation awarded, by order, award to him or her an amount not exceeding the amount of that expense.

Amount of Compensation

6(1) The compensation that may be awarded to a person who has sustained a prescribed injury is an amount that is equal to the sum of-

(a) the expense reasonably incurred by him or her as a consequence of the injury;

(b) the pecuniary loss suffered by him or her as a consequence of total or partial incapacity for work due to the injury; and

(c) an amount that will reasonably compensate him or her for pain or suffering resulting from the injury

. . .

Maximum amount of compensation

7(1) The compensation that may be awarded in respect of-

(a) a prescribed injury sustained by a person;

. . .

is an amount that does not, or amounts that in the aggregate do not, exceed $50,000.

. . .

Determination of applications

11(1) The Supreme Court has jurisdiction to determine an application in respect of a prescribed injury. . . where in respect of the relevant offence-

. . .

(b) a person was committed for trial or sentence in that Court.

. . .

Conditions of award

13(1) An award of compensation may be made subject to such conditions as the Court determines.

(2) Without limiting the generality of subsection (1), an award may be made subject to conditions relating to-

(a) the disposal or apportionment of any amount to be paid in pursuance of the award; and

(b) the holding of any amount to be so paid on trust for a person entitled to the benefit of that amount.

18. Section 16 of the Act provided for interim awards. It is not necessary for me to set the section out in detail. It is common ground that the applicant has previously had the benefit of an interim award in respect of expenses incurred pursuant to s 6(1)(a), in the sum of $967, and that there are no other such expenses claimed.

19. A claim is made for pecuniary loss in respect of the period in mid-2002 when the applicant was out of work, having left his employment because he found himself unable to work with the son of the owner of the business. No expert evidence has been led in support of a causal link between the invasion and the period the applicant was out of work. There is no evidence that his employment was terminated by the employer and it appears to me from the evidence that it was the applicant's own decision to leave the job, based on personality factors. I am not satisfied that the applicant has established any pecuniary loss consequent upon incapacity for work due to injury resulting from the invasion.

20. Compensation is payable under s 6(1)(c) for pain or suffering resulting from a prescribed injury. `Prescribed injury" is relevantly defined in s 2 as an injury sustained by a person as a result of the criminal conduct of another person. The conviction, by virtue of s 3, is conclusive evidence of the criminal conduct of the offender. I am satisfied that as a result of the events surrounding the invasion, the applicant suffered a prescribed injury, having relatively minor physical consequences but a significant psychological impact. I thought that the applicant in his oral evidence understandably, and I think probably unconsciously, overstated his present symptoms, and I prefer the account recorded by Dr Saboisky in his report in December 2003. I am not convinced that prior to the incident the applicant was a pillar of the community or a model citizen. I suspect that his tendency to violence and his poor coping skills were present prior to the incident as part of the pre-existing personality disorder detected by Mr Mitchell. Nevertheless I accept that the incident has had a profound and probably lasting effect upon him. I accept that he would have gained benefit from psychotherapy and would still do so. I do not regard his failure to seek treatment as inconsistent with this need, or as damaging to his credit. Rather, it seems to me probable that it reflects a reluctance in his underlying personality to seek assistance, coupled with an aversion to talking through the events of the invasion.

21. Mr Bradfield of counsel for the applicant submitted that if I was minded to award some amount for future psychological treatment, it might be appropriate to make that part of the award subject to conditions under s 13, perhaps providing for the ACT Government Solicitor to hold an amount in trust to meet treatment expenses from time to time. Notwithstanding the opinion of Mr Mitchell, it would be entirely inappropriate to set aside $50,000 for such treatment, $50,000 being the upper limit of compensation available. At the same time, I have considerable misgivings as to whether, in the absence of conditions, the applicant would be likely to spend any part of an award of compensation on psychological treatment. Mr Bradfield suggested that it would be appropriate to set aside an amount of the order of $17,000 to cover one session a week for two years.

22. It is necessary for me to strike a balance between the desirability of affording the applicant the opportunity for a course of psychotherapy treatment, and on the other hand, the applicant's dignity and entitlement as an adult to decide how to manage his own funds. I would also prefer to avoid tying up a large part of the award for a long period, and imposing a burden on the Government Solicitor as to the stewardship of those funds. It is also important to minimise the potential for the money not being wholly expended on treatment, leaving some balance in the Government Solicitor's trust account indefinitely.

23. Despite the wording of s 6(1)(a), it was accepted by both parties that there is a power to award a sum for expense to be incurred in the future as well as for expenses already incurred, consistently with the decision of Kelly J in Re Criminal Injuries Compensation Ordinance 1983 (1984) 58 ACTR 17. The applicant gave oral evidence that if an amount were set aside for psychotherapy, he would avail himself of the opportunity to undergo such treatment. I have formed the view that an amount which is reasonably proportionate to the present value of the expense likely to be incurred by him for that treatment as a consequence of the injury is $10,000, provided that that sum is set aside for the purpose. It seems to me appropriate that the sum of $10,000 should be held in trust by the Government Solicitor for payment of the applicant's expenses of psychotherapy by a registered psychologist in practice in clinical psychology. It would be desirable for the applicant to continue with Professional Psychology Services, and specifically with Mr Mitchell of that practice, but I shall frame the condition more widely to permit some flexibility about this.

24. Mr Mitchell in his report recommended that the applicant undergo a psychiatric assessment to determine whether he might need medication. Since then, the applicant has been assessed by Dr Saboisky who did not suggest that he needed any medication to deal with his psychological condition, and it does not seem to me necessary to pursue this aspect further. I make no allowance for future psychiatric treatment or medication.

25. It was conceded by Mr Jorgensen of the Government Solicitor's Office, who represented the Territory, that compensation under s 6(1)(c) should not be interpreted as limited to pain and suffering, but as covering the same scope as the conventional award of general damages in a personal injury action at common law. That is to say, compensation could extend under the section to loss of enjoyment of life and to disfigurement. This component of the award is to be assessed in the same way as an assessment of general damages at common law, although it does not attract interest under s 53A of the Supreme Court Act 1933: Re Criminal Injuries Compensation Ordinance 1983, cited above. This requires the assessment to be made in the dollar values obtaining at the date of the order rather than the date of the injury or any other date.

26. It seems to me that an appropriate amount to compensate the applicant for pain and suffering and the various other matters encompassed by an award of general damages is $35,000.

27. Expenses are claimed under subsection 5(4) in the sum of $2,577, and this amount is not contested by the Territory.

28. Compensation should thus be awarded to the applicant and for his benefit as follows:

* Compensation for pain and suffering $35,000.00

* Expense to be incurred for treatment $10,000.00

* Expense incurred in making the application $2,577.00.

29. Because of the applicant's justifiable fear of reprisals from the assailants, I propose to order that his name and address not be published.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 9 July 2004

Counsel for the applicant: Mr I D Bradfield

Solicitor for the applicant: Porters Lawyers

Counsel for the respondent: Mr H Jorgensen

Solicitor for the respondent: ACT Government Solicitor

Date of hearing: 1 July 2004

Date of judgment: 9 July 2004