SUPREME COURT OF QUEENSLAND CITATION: JS v Graveur [2012] QCA 196 PARTIES: JT as litigation guardian for JS (applicant) v EDWARD FRANCIS GRAVEUR (respondent) ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (amicus curiae) FILE NO/S: Appeal No 275 of 2012 DC No 324 of 2010 DIVISION: Court of Appeal PROCEEDING: Miscellaneous Application – Civil ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 24 July 2012 DELIVERED AT: Brisbane HEARING DATE: 19 June 2012 JUDGES: Muir, Fraser and Gotterson JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDERS: 1. Leave to appeal be granted. 2. The appeal be allowed. 3. The order made herein on 13 December 2011 be varied by substituting $75,000 for $25,500 in paragraph 1. CATCHWORDS: CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – QUEENSLAND – AMOUNT AND CONDUCT AFFECTING – where respondent convicted of maintaining a sexual relationship with applicant – where applicant applied for criminal compensation – where offending conduct was in excess of two and a half years and commenced when applicant was five – where primary judge found ―one could not imagine a case involving worse abuse‖ – where primary judge found psychiatric report to be lacking in its differentiation between diagnosed psychiatric condition and alleged adverse impacts – where primary judge requested further psychiatric report – where such report was produced – where primary judge ordered respondent to pay $25,500 compensation – where 2 this amount was the maximum allowable for mental or nervous shock – whether the primary judge erred in failing to award compensation for adverse impacts – whether primary judge erred in finding psychiatric report should have addressed whether adverse impacts were outside the term ―mental or nervous shock‖ – whether compensation manifestly inadequate Criminal Offence Victims Act 1995 (Qld), s 20, s 22, s 24, Sch 1 Criminal Offence Victims Regulation 1995 (Qld), s 1A AT v FG [2004] QCA 295, cited MAV v ABA [2008] 1 Qd R 171; [2007] QCA 124, cited PAJ v AAK [2010] QCA 78, cited R v Kazakoff, ex parte Ferguson [2001] 2 Qd R 320; [2000] QSC 156, considered R v Tiltman; ex parte Dawe [1995] QSC 345, cited RMC v NAC [2010] 1 Qd R 395; [2009] QSC 149, considered VH v CBE [2007] 2 Qd R 393; [2006] QCA 561, considered COUNSEL: Y Chekirova (pro bono) for the applicant No appearance for the respondent M D Hinson SC for the Attorney General as amicus curiae SOLICITORS: Given Law from the applicant No appearance for the respondent Crown Solicitor for the Attorney-General as amicus curiae [1] MUIR JA: Introduction The applicant applied for criminal compensation under s 24 of the Criminal Offence Victims Act 1995 (―the Act‖) in respect of injury suffered by him in consequence of the offence of maintaining a sexual relationship with the applicant committed by the respondent. The offending period of in excess of two and a half years commenced when the appellant was five. The applicant, who was born in April 1997, brought the application for compensation and appeals through his litigation guardian. [2] On 13 December 2011 the primary judge ordered that the respondent pay $25,500 compensation to the Public Trustee of Queensland to be held on the applicant‘s behalf. [3] The applicant seeks leave to appeal against the primary judge‘s orders on grounds that: 1. The primary judge erred in failing to award compensation in respect of ―adverse impacts‖ pursuant to s 1A of the Criminal Offence Victims Regulation 1995 (Qld) (―the Regulation‖) due to his failure to: (a) adequately consider the contents of the psychiatric reports of Dr Evans; and (b) give due weight to a supplementary psychiatric report of Dr Evans which specifically identified ―adverse impacts‖ separate from the applicant‘s diagnosable condition for which the primary judge awarded compensation. 3 [4] 2. The primary judge erred in finding that Dr Evans should have addressed the issue of whether adverse impacts were outside the term ―mental and nervous shock‖ within the meaning of s 20 of the Act. 3. The assessment of compensation was manifestly inadequate. The primary judge awarded the maximum compensation allowable for ―mental or nervous shock‖ in the compensation table in schedule 1 to the Act. The central issue on this application is whether the primary judge erred in not awarding further compensation for various ―adverse impacts‖ of the sexual offence identified by Dr Evans in her supplementary report. It was accepted by Mr Hinson SC, who appeared on behalf of the Attorney-General as amicus curiae, that the primary judge erred in determining the level of compensation, if contrary to the primary judge‘s finding and on his submissions, the expression ―mental or nervous shock‖ in s 20 of the Act means a recognisable psychiatric illness or disorder. Relevant statutory provisions [5] Section 20 of the Act provides: “20 Meaning of injury Injury is bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table or prescribed under a regulation.‖ [6] Section 1A of the Criminal Offence Victims Regulation 1995 provides: ―1A Prescribed injury (1) For section 20 of the Act, the totality of the adverse impacts of a sexual offence suffered by a person, to the extent to which the impacts are not otherwise an injury under section 20, is prescribed as an injury. (2) An adverse impact of a sexual offence includes the following — (a) a sense of violation; (b) reduced self worth or perception; (c) post-traumatic stress disorder; (d) disease; (e) lost or reduced physical immunity; (f) lost or reduced physical capacity (including the capacity to have children), whether temporary or permanent; (g) increased fear or increased feelings of insecurity; (h) adverse effect of the reaction of others; 4 (i) adverse impact on lawful sexual relations; (j) adverse impact on feelings; (k) anything the court considers is an adverse impact of a sexual offence.‖ The psychiatric evidence [7] In a report of 25 August 2010 Dr Evans concluded that: ―[The applicant] probably meets criteria for a diagnosis of Oppositional Defiant Disorder, which is severe in nature.‖ The applicant was at risk of the disorder worsening and becoming a Conduct Disorder of greater severity than the Oppositional Defiant Disorder. There were grave concerns about the applicant‘s ability to be involved in intimate relationships. There were concerns that the applicant would have significant learning problems which would impact severely on his future employment prospects. There were concerns about the applicant‘s sexualised behaviour and the possibility of disturbed sexual behaviour in the future. [8] A further report of 2 November 2011 was obtained after the primary judge expressed disquiet about the adequacy of the evidence and, in particular, about the lack of differentiation between the diagnosed psychiatric condition and alleged adverse impacts. In this report Dr Evans confirmed her diagnosis of Oppositional Defiant Disorder. She explained: ―In essence, this disorder is associated with a recurrent pattern of negativistic, defiant, disobedient and hostile behaviour towards authority figures. Additionally, this disorder is characterized by the loss of temper, arguing with adults, refusing to follow the rules, deliberate attempts to annoy others, being spiteful and vindictive, blaming others for his or her own mistakes.‖ [9] [10] Dr Evans then proceeded to consider each of the adverse impacts listed in s 1A of the Regulation. She was of the opinion that the applicant suffered adverse impacts (a), (b), (e), (g), (h), (i) (j) and (k). In respect of (j) she was of the opinion that ―[a]s a result of sexual abuse [the applicant] is likely to have suffered adverse impacts on feelings… His worsening of oppositional defiance is likely a defence mechanism to deal with severe uncomfortable feelings‖. In relation to adverse impact (k), Dr Evans said that: the applicant‘s education had been significantly disrupted; the applicant‘s occupational and social functioning may be severely impaired which may result in complete social isolation; the applicant has inclinations to engage in cross-dressing and improper sexualised behaviour; there was a strong possibility that the applicant may be driven to exploit and abuse other children more vulnerable than himself and psychiatric treatment was important in this regard. The supplementary report concluded with this summary: 5 ―In summary, items a), b), e) and g)-k) of Regulation 1A, discussed above, are separate and distinct from a diagnosis of Oppositional Defiant Disorder. The adverse impacts discussed above indicate that [the applicant‘s] ability to adequately function as an individual in all aspects of his adult life has been severely affected due to his exposure to a prolonged sexual abuse. In (sic) is my opinion that [the applicant‘s] symptomatology associated with Oppositional Defiant Disorder will require consistent psychiatric treatment over a considerable period of time in an attempt to ameliorate the severity of his condition. However, the adverse impacts discussed above are likely to be of permanent nature and are associated with [the applicant‘s] extremely impaired capacity to position himself as an individual in the social, occupational and personal context.‖ The primary judge’s findings [11] The primary judge held correctly that the award of compensation for adverse impacts could only be for ―the adverse impacts not otherwise covered by the psychiatric condition compensated for under item 33 of the schedule‖.1 He concluded that Dr Evans had not identified ―adverse impacts‖ outside the scope of the applicant‘s psychiatric illness, observing in that regard: ―In my view, the real question is whether such adverse impacts could be said to be outside the scope of the term ‗mental or nervous shock‘ within s. 20 of the Act. Such question is not answered by confining ‗mental or nervous shock‘ to the diagnosis of Oppositional Defiant Syndrome but must, in my view, indicate the direct adverse effects of his psychiatric injury – including the effects of an emerging PTSD, personality disorder, conduct disorder, or other psychiatric illness. Despite Dr Evans report, I conclude that the applicant is unable to identify compensable adverse impacts not part of his mental or nervous shock. In the circumstances, I find that there are no identifiable adverse impacts over and above the effects of his psychiatric conditions. In my view the decisions of the Court of Appeal to which I‘ve referred, preclude me from awarding a further sum for adverse impacts.‖ The applicant’s arguments [12] The applicant‘s counsel contended in her written outline of argument that the primary judge erred because: (a) ―Mental or nervous shock‖ was a statutorily defined term and it was impermissible to require a psychiatrist to identify impacts separate and distinct from ―mental or nervous shock‖ as that would involve requiring an expert to act outside of his or her area of expertise; and (b) The only diagnosis made by Dr Evans was that of Oppositional Defiant Disorder. She did not diagnose any other psychiatric condition. Consequently 1 At [20] referring to AT v FG [2004] QCA 295 and PAJ v AAK [2010] QCA 78. 6 the approach of the primary judge erroneously required Dr Evans to establish that the adverse impacts she identified were not part of or within an undiagnosed psychiatric condition, not as was appropriate, to identify the adverse impacts not within the scope of the Oppositional Defiant Disorder she had diagnosed. The Attorney-General’s arguments [13] Counsel for the Attorney-General contended: (a) Where there is an overlap between impacts listed in s 1A(2) of the Regulation and stress or anxiety disorders diagnosed as psychological injuries, the court is required to make an appropriate adjustment to avoid double compensation.2 (b) Any adverse impacts under s 1A, in order to be recoverable, must be additional to the mental or nervous shock injury under s 20 of the Act.3 (c) The expression ―mental or nervous shock‖ extends to some abnormal condition of mind or body over and above that of normal human reaction or emotion following a stressful event.4 (d) The question which Dr Evans was required to address in her second report was not whether the impacts she specified were separate and distinct from the diagnosis of Oppositional Defiant Disorder but whether those impacts were or were not mental or nervous shock. If they were mental or nervous shock they were compensable as such and not as additional impacts. (e) Dr Evans did not address mental or nervous shock within the meaning given to the expression in Kazakoff but addressed only one aspect of it: Oppositional Defiant Disorder. Consideration [14] [15] Section 1A prescribes, for the purposes of s 20 of the Act, adverse impacts (a) to (k) as bodily injuries but only, for present purposes, to the extent to which the impacts are not otherwise ―mental or nervous shock‖. The term ―mental or nervous shock‖ is undefined by the Act. In R v Kazakoff, ex parte Ferguson,5 Thomas JA, sitting as a judge of the trial division, concluded that mental or nervous shock was not confined to diagnosable mental disorders or psychiatric illnesses but included ―…situations of injury to health, illness, or some abnormal condition of mind or body over and above that of normal human reaction or emotion following a stressful event‖.6 On the other hand, his Honour concluded: ―…that if nothing more is shown than fear, fright, unpleasant memories or anger towards an offender, or a combination of such reactions, the claimant has not shown that he or she suffered nervous shock.‖ [16] There was no appearance for the respondent on the hearing before Thomas JA. 2 MAV v ABA [2008] 1 Qd R 171 at 179 [35]. PAJ v AAK [2010] QCA 78 at [28]. R v Kazakoff, ex parte Ferguson [2001] 2 Qd R 320 at 324 – 325. [2001] 2 Qd R 320. [2001] 2 Qd R 320 at [17]. 3 4 5 6 7 [17] [18] In RMC v NAC,7 in which the respondent was also unrepresented, Byrne SJA, after a detailed review of authorities, concluded that for the purposes of the Act, ―mental or nervous shock‖ was confined to ―a recognisable psychiatric illness or disorder‖. In RMC, the applicant for criminal compensation had been diagnosed with ―Acute Stress Reaction‖ and ―Adjustment Disorder‖. His Honour concluded that, as these were recognisable psychiatric illnesses, they constituted ―mental or nervous shock‖. Byrne SJA said that in Kazakoff, Thomas JA had reasoned that the expression ―nervous shock‖ in the Act was intended to have its longstanding meaning in civil claims. His Honour accepted the correctness of this premise, which he concluded was supported by the decision of Lee J in R v Tiltman; ex parte Dawe8 and was consistent with decisions in South Australia, Western Australia and New South Wales. Where Byrne SJA parted company with Thomas JA was in the meaning of ―nervous shock‖ in civil cases. His Honour said:9 ―‗Nervous shock‘ is a familiar expression in discourse concerning the extent to which the common law compensates for unlawfully, typically tortiously, inflicted psychiatric injury. In that context, the expression has been used for decades as a ‗term of art‘ to describe a recognisable psychiatric illness or disorder.‖ (citations omitted) [19] After referring to the meaning given to ―nervous shock‖ in Torts law in England, Scotland, Canada, Ireland and New Zealand, Byrne SJA identified the Australian position: ―In Australia, the same usage has long been established. In 1965, Burbury CJ called nervous shock ‗medically recognisable neurosis or damage to the mind.‘10 Almost 40 years ago, Windeyer J equated the term with ‗recognizable psychiatric illness‘.11 In Queensland, in 1971, Wanstall ACJ accepted that nervous shock meant ‗recognisable psychiatric illness.‘12 In 1984, Brennan J spoke of it as ‗some recognizable psychiatric illness‘.13 A decade later, Gleeson CJ described nervous shock as ‗a recognizable psychiatric illness or injury‘,14 and Kirby P approved the idea that it signifies ‗psychiatric illness or psychiatric or psychological disorder.‘15 More recently, McHugh J has said: ‗―Nervous shock‖ is an outdated term that nowadays is taken to mean a recognisable psychiatric injury‘.‖16 7 8 9 10 11 12 13 14 15 16 [2010] 1 Qd R 395. [1995] QSC 345. RMC v NAC [2010] 1 Qd R 395 at [31]. Storm v Geeves [1965] Tas SR 252 at 267. Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 402. Richters v Motor Tyre Service Pty Ltd [1972] Qd R 9 at 17. Jaensch v Coffey (1984) 155 CLR 549 at 566. Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1 at 3. Coates at 12, referring to the dissenting judgment of Samuels JA in Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172 at 184. See also Jane Swanton, ―Issues in Tort Liability for Nervous Shock‖, (1992) 66 Australian Law Journal 495 at 496 – 497 (―the plaintiff must have suffered a ‗recognisable psychiatric disorder‘‖). Gifford v Strang Patrick Stevedoring Pty Limited (2003) 214 CLR 269 at 280 [26]; see also Tame v New South Wales (2002) 211 CLR 317 at 378 [183], at 382 [193] – [194]; at 402 [251]; at 427 [328]; Hancock v Nominal Defendant [2002] 1 Qd R 578 where, at 587 [25], Davies JA spoke of ―psychiatric injury formerly called nervous shock‖; and Wilson v Horne (1999) 8 Tas R 363 at 370 – 371, 379, 384 – 386. 8 [20] I accept, with respect, the accuracy of Byrne SJA's analysis and his conclusion that ―nervous shock‖ in the Act means a recognisable psychiatric illness or disorder.17 I accept also that ―mental shock‖ and ―nervous shock‖ are interchangeable expressions.18 [21] Although s 22(3) of the Act establishes that the compensation for which the Act provides ―is intended to help the applicant and is not intended to reflect the compensation to which the applicant may be entitled under common law or otherwise‖, it is nevertheless compensation for mental or physical injury to the person of a victim of crime. Having regard to the long established meaning of ―nervous shock‖ or ―mental or nervous shock‖ in the law of negligence, it would, I think, be surprising if the parliament had intended that the term have a different meaning in the Act without defining the term. It has no other obvious meaning in everyday speech and plays a significant role in the Act‘s compensatory scheme. Giving the subject words their long established meaning has the added advantage that this meaning is relatively precise but readily capable of application. [22] [23] I am thus unable to accept the Attorney-General‘s arguments that ―mental or nervous shock‖ included ―some abnormal condition of mind or body over and above that of normal reaction or emotion following a stressful event‖. I am also unable to accept that it was not a correct approach of Dr Evans to identify the adverse impacts which were separate and distinct from her diagnosis of Oppositional Defiant Disorders. This proposition fails to recognise that the mental or nervous shock diagnosis by Dr Evans was ―Oppositional Defiant Disorder‖. In her comprehensive, and obviously carefully prepared, report of 25 August 2010 Dr Evans identified Oppositional Defiant Disorder as the applicant‘s psychiatric condition. Her report was prepared in response to instructions, to ―complete a psychiatric assessment… in order to assess the consequence of sexual abuse…‖ If Dr Evans had been of the opinion that the applicant had suffered from a recognisable psychiatric illness or disorder other than Oppositional Defiant Disorder it is highly unlikely that she would have refrained from mentioning it. The condition diagnosed by Dr Evans constituted ―mental or nervous shock‖ for the purposes of the Act. As mentioned earlier, Dr Evans concluded in her 2 November report that the applicant had suffered adverse impacts (a), (b), (e), (g), (h), (i), (j) and (k) and that such impacts were ―separate― and ―distinct‖ from the Oppositional Defiant Disorder. The Attorney-General took issue with Dr Evans‘ conclusions in respect of (e) and (h). Dr Evans‘ report states in respect of those impacts: ―Lost or reduced physical immunity – Currently, there is no material to conclude with certainty that [the applicant] has suffered lost or reduced physical immunity. There is a strong likelihood that, consequences of such an extensive sexual abuse, in terms of his reduced physical immunity, may exhibit themselves at a later stage, given the commencements of [the applicant]‘s pubescent development. … 17 18 See also the authorities cited in Luntz, Assessment of Damages for Personal Injuries and Death, 4th ed (2002) LexisNexis Butterworths, Chatswood, Australia, 178, fn 193. See also Hicks v The Minister for Justice and Attorney-General [2005] QSC 44; Re Fripp and Fripp (1996) 125 FLR 456 at 457 – 458 and Dulieu v White & Sons [1901] 2 KB 669 at 672 – 673. 9 Adverse effect of the reaction of others – There has been significant adverse effect of the reaction of others. According to [the applicant]‘s parents, he seemed to have shut down and did not want to talk. This reaction is not unusual, it may be explained by a combination of factors, including gross violation of trust, the re-building of which may require persistent psychotherapeutic intervention. From a long term perspective, [the applicant] is likely to experience social isolation and/or develop a tendency to form relationships with people based on his low sense of trust and low self-esteem. This may lead to relationships with unequal power in which [the applicant] may be either the victim or the perpetrator.‖ [24] [25] [26] Dr Evans‘ opinion in relation to (e) is that although any loss of or reduction in the applicant‘s physical immunity had not manifested itself at the date of her report, it was probable that he would have reduced physical immunity at some specified time in the future. Mr Hinson submitted that s 1A(2)(e) of the Regulation is not apt to encompass a risk that physical immunity might be lost or reduced in the future: the reference is to an existing condition. Even if that construction is correct it has no practical significance for present purposes. Mr Hinson properly conceded that such a risk, in an appropriate case, would come within paragraph (k). The determination of compensation for this adverse impact presents some theoretical difficulties as, apart from uncertainty as to when, on the balance of probabilities, physical immunity might be reduced, there is no indication on the evidence of the likely extent, or adverse effects, of any reduction should there be one. I accept that there are difficulties with the application of s 1A(2)(h), ―adverse effect of the reaction of others‖. Dr Evans has described the applicant‘s interaction, or lack thereof with others. Paragraph (h) is concerned with a detriment to an applicant arising from the reaction of persons other than the applicant. However, it is apparent that the applicant‘s behavioural difficulties are likely to provoke others to react in such a way as to affect the applicant adversely. If the applicant is not compensable under (h), paragraph (k) would apply to the applicant‘s general condition as described by Dr Evans. In VH v CBE19 it was held that s 1A(2)(h) must be construed ejusdem generis with the other sub-paragraphs which specify impacts ―of the nature of symptoms likely, to a greater or lesser extent, to impair the individual‘s psychological, emotional or physical functioning‖. That being so, the applicant‘s inability to cope with school routines resulting in disruption to his education could constitute an adverse impact. The applicant‘s ―inclinations… to engage in cross-dressing and improper sexualized behaviour‖ would also qualify as would the probability that he ―may be driven to exploit and abuse other children more vulnerable than himself‖. It is relevant that ―psychiatric treatment seems to be an important preventative method to assist his mental health issues‖ in these regards. The extent to which such treatment might alleviate the applicant‘s condition was unexplored, but that is of little moment in the scheme of things. [27] It follows from the foregoing that the primary judge erred in not assessing compensation in respect of adverse impacts (a), (b), (g), (i), (j) and (h). Having regard to the cost of a further hearing relative to the amount of further compensation 19 [2007] 2 Qd R 393 at 397. 10 which may be ordered it is desirable that this Court determine the applicant‘s claim rather than remit it to the primary judge for determination. [28] [29] The primary judge‘s finding that, ―...one can not imagine a case involving worse abuse than this, nor a more significant serious deleterious effect upon a young man‘s future life...‖ was not contested. The evidence amply supported the finding. It was conceded, quite properly, that if the applicant succeeded in his appeal it was appropriate that the prescribed maximum payment under the Act of $75,000 be ordered. Accordingly, I would order that: (a) leave to appeal be granted; (b) the appeal be allowed; (c) the order made herein on 13 December 2011 be varied by substituting $75,000 for $25,500 in paragraph 1. [30] FRASER JA: I agree with the reasons for judgment of Muir JA and the orders proposed by his Honour. [31] GOTTERSON JA: I agree with the orders proposed by Muir JA and with the reasons given by his Honour.