"B" v "B" [2004] WASC 6

2 Counsel appeared for the applicant. There was no appearance by the respondent who informed the court by letter dated 1 May 2003 that he did not wish to attend any further court appearances in relation to this application. Counsel also appeared, as amicus curiae, on behalf of the Chief Executive Officer of the Ministry of Justice who has an interest in the proceedings because, in accordance with s 5 of the Act and the amending Act, any award, should an award be made, which is not met by the respondent may be pursued against the Ministry of Justice.

3 The applicant was born on 12 September 1967 and the offences were all committed when he was between eight and 11 years old. On 7 November 2001, before McKechnie J in this Court at Perth, the respondent was convicted of 18 offences of a sexual nature. Of those convictions, six related to offences committed against persons other than the applicant. In respect of the commission of the offences against the applicant, the respondent pleaded guilty to six counts of unlawful and indecent dealing with a child under the age of 14 and one count of carnal knowledge against the order of nature on dates between 31 August 1975 and 1 September 1976, and five counts of unlawful and indecent dealing with a child under the age of 14 between 31 December 1976 and 1 September 1978.

4 The applicant, by originating motion dated 11 December 2002, now seeks compensation in respect of the 12 offences for which the respondent was convicted for injury which he suffered by reason of the commission of the offences. The application is before this Court because the Act requires the matter to be heard by the court which dealt with the offences in the first instance.

5 The nature of the respondent's offences, committed against the applicant, is perhaps suitably described by repeating the remarks of the trial Judge when passing sentence on the respondent. The trial Judge referred to the fact that the applicant had moved with his family into the same street where the respondent lived and often accompanied his nanna on her visits to the respondent's neighbour where he met the respondent. The trial Judge said to the respondent:

"For a good part of your adult life you have been a marauding paedophile who has damaged irretrievably the lives of ... children who have since grown to adulthood ... You formed a relationship with [the applicant]. I won't dignify it by calling it a friendship because it was exploitative in nature. You showed him, a young boy, how to make your guns and how to make ammunition and you let [him] drive your car up and down the drive. In short, you enticed him into your circle.

One day, probably in May 1976, while [the applicant] was in your bedroom you fondled his penis, took off his pants and your own, rubbed yourself against his buttocks and in between his legs until you ejaculated. On the next occasion you further and more seriously violated the 8 or 9-year-old child. You first showed him pornographic movies involving children and animals before masturbating him and forcing him into an act of oral sex. That done, you rubbed yourself against his legs before sodomising him to such a degree that he bled and was very sore. When [the applicant] was about 10 and again when he was about 11 you further violated him in ways that I have already described."

6 Section 4(1) of the Act, which is relevant to the seven offences committed between 31 August 1975 and 1 September 1976, provides:

"Where a person is convicted of an offence, the court by which, or the judge before whom, the person was tried may, at any time after his conviction on the application of a person who has suffered injury in consequence of the commission of the offence, order that a sum, not exceeding two thousand dollars if the offence is an indictable offence, or not exceeding three hundred dollars if the offence is a simple offence, be paid by the person convicted out of his property to such other person, by way of compensation for injury suffered by that other person by reason of the commission of the offence."

7 Thus the maximum amount of compensation payable in relation to each of the seven indictable offences committed between 31 August 1975 and 1 September 1976 is $2000, giving a maximum for the seven offences of $14,000.

8 In 1976, s 4(1) of the Act was repealed and re-enacted. The amending Act, which is relevant to the five offences committed between 31 December 1976 and 1 September 1978, came into operation on 18 October 1976. Relevant to this matter, an important change made upon the re-enactment of s 4(1) was to increase the maximum award of compensation from $2000 to $7500 in respect of each relevant offence. As to that, s 4(2a) was also added to provide, so far as is presently relevant, that:

"Where a person has suffered injury or loss ... in consequence of the commission ... of more than one offence, whether the offences were committed by the same person ... but the offences were committed at approximately the same time ... or the offences are otherwise related to each other, the court or judge shall not order that more than seven thousand five hundred dollars be paid in the aggregate in respect of ... all of the offences, ... "

9 In this case, of the five offences occurring after 18 October 1976, two of the offences (counts 14 and 15) occurred on a date unknown between 31 December 1976 and 1 January 1978, and three of the offences (counts 16 - 18) occurred on a date unknown between 31 August 1977 and 1 September 1978.

10 In written submissions, counsel for the applicant and counsel for the amicus curiae submit that the maximum amount of compensation payable in relation to the five offences committed between 31 December 1976 and 1 September 1978 is $15,000 because they are to be regarded as two groups of offences, each of which is subject to a maximum award of $7500. I accept that this is so. Consequently, the maximum amount of compensation payable in relation to all 12 offences is $29,000. Annexed to these reasons is a table that sets out the maximum amounts of compensation that the Court may award under the Act in respect of the offences for which the respondent was convicted.

11 The applicant claims for injury pursuant to s 4 of the Act. The term "injury" is defined, in s 3, as "bodily harm: and "includes mental shock and nervous shock". Although, in this instance, the applicant may have suffered some, although not serious, bodily harm his claim is based mainly on mental and nervous shock.

12 The phrase "mental and nervous shock" in this context has been considered on a number of occasions in this and other courts and "should be given a wide and generous definition": Couper v Under Secretary for Law (1994) 12 SR(WA) 116 at 122 - 123 per Kennedy DCJ. Mental and nervous shock comprehends any malfunction of the person which can be said to be a consequence of the impact of the events constituting or associated with the commission of the offence on the mind or the nervous system: Hatfield v Under Secretary for Law, unreported; SCt of WA (Burt J); Library No 4012; 15 December 1980 at 5. In S v Neumann (1995) 14 WAR 452, at 461, Murray J stated

"The phrase 'mental and nervous shock' was one of a composite character borrowed from the law of tort to refer to mental or emotional harm as opposed to physical injury or bodily harm. It was therefore necessary ... to draw a distinction between a mere emotional reaction and something of a more enduring character which may in both the legal sense and common parlance be described as an injury."

13 In assessing compensation for the injury suffered, the Court applies the ordinary principles for assessment of damages for personal injury, subject to the jurisdictional limit (McD v Edwards, unreported; SCt of WA (Heenan J); Library No 970529; 10 October 1997, at 3) although, the limit does not provide a standard for the most serious offence against which other awards must be measured: S v Neumann (supra) at 463.

14 The applicant must also establish a causal relationship between the commission of the offences and the injury and loss for which compensation is sought: S v Neumann (supra) at 463. Section 4(1) of the amending Act refers to the applicant as a person "who has suffered injury or loss in consequence of the commission of the offence". The words "or loss" were added by the 1976 amending Act. Mason and Wilson JJ, considering words of similar effect in Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, at 673, said:

"There is no basis in the context of the Act itself for regarding the words as having a narrow operation. 'The words are ordinary English words carrying no special or technical meaning. All that is required is a causal relationship ... Whether that relationship exists or not is primarily a question of fact. The fact that other unconnected events may also have had some relationship to the occurrence is not material if the criminal act was a cause, even if not the sole cause'."

15 Therefore, the compensation to be awarded to the applicant is for the injury and loss suffered by him by reason of the commission of the offences, bearing in mind, as I do, that in relation to the first seven offences, there is no capacity to make an award for "loss" suffered, and the jurisdictional limit is much lower. On that basis I turn to consider the evidence before the Court.

Evidence of injury and causal relationship

16 The application is supported by an affidavit of the applicant sworn 4 December 2004, curriculum vitae and oral evidence of Dr Salvatore Febbo (a psychiatrist), as well as a psychiatric report prepared by Dr Salvatore Febbo. The applicant exhibits to his affidavit the statement of his evidence at the trial, a copy of the trial transcript of proceedings, a copy of the indictment, a copy of a Victim Impact Statement of the applicant dated 4 September 2001, as well as a copy of the aforementioned psychiatric report prepared by Dr Salvatore Febbo.

17 The applicant was not called as a witness because his counsel indicated that he did not intend to lead any additional evidence to that contained in the affidavit and counsel for the amicus curiae informed the Court that she did not intend to cross-examine the applicant.

18 In his affidavit, the applicant says that not all the instances of the respondent behaving in a sexual manner with him are identified in his statement because he cannot remember every incident. He says there were "many many occasions" and that the respondent "did sexual things to me nearly every time I went to his house. It [sic] was always in his house. I cannot specify the times and dates of all the instances".

19 The applicant goes onto say that he "sort of knew it was wrong what [the respondent] was doing. However the other things I did there were fun ... As I got older I became more distressed by my experiences with [the respondent]". The applicant says that he was too scared to tell his parents about what had been happening and did not know what to do. His father was very strict and the applicant says he was frightened of him. The applicant says that he was also afraid of ridicule and public humiliation. He thought no-one would believe him and he did not want to "admit to it because it was embarrassing and humiliating to have been sodomised".

20 The applicant further says that he locked the memories away and from a very young age felt like "a screw up", so then started to act like one and commenced his criminal activities. He says that no-one asked him what was wrong and that his criminal behaviour commenced after his "dealings" with the respondent when he "started shoplifting" as a way of rebelling.

21 The applicant's criminal behaviour continued as an adult and he says he has "an extensive criminal record". His offences are mostly "driving offences, burglary, disorderly conduct and possession of cannabis for personal use". He has also been an intravenous drug user, although, he says, he has been free of drugs for some months now.

22 In 2000, after having no contact for a number of years, the applicant met up with his brother and father. On one occasion the applicant went to pick up his three daughters from his brother's house, after his brother had picked them up from school. He became "angered and fearful for the safety and wellbeing" of his daughters when he saw the respondent's car parked on his brother's driveway. The applicant and his brother argued over his brother's continuing relationship with the respondent and consequently the applicant's relationship with his brother is now completely severed.

23 The breakdown of this relationship "saddens" the applicant who, after keeping it a secret for 25 years, told his girlfriend what the respondent had done to him. Approximately two weeks later, with the support and encouragement of his girlfriend, the applicant made a complaint to the police.

24 In relation to reporting the respondent to the police, the applicant says he is pleased that he did it but comments that "I struggle every day to deal with it. I started drinking more and taking drugs to try and blot it all out of my mind. I just cannot get it out of my mind."

25 In his Victim Impact Statement, the applicant states that he has suffered long-term feelings of low self worth, leading to rebellion and legal problems. He says he also possesses feelings of guilt and shame about the instances of abuse, describing the offences as "a very embarrassing, humiliating and degrading experience". He further says that the circumstances leading to the conviction of the respondent had a dramatic effect which resulted in a breakdown of his relationship with his girlfriend. He says he also remains "fearful" that his own children will be molested.

26 In his affidavit, the applicant states that as a result of the abuse he has also experienced suicidal thoughts, has difficulties in controlling his behaviour and anger, has a problem with drinking and drug abuse, has difficulties in forming relationships, is estranged from his family and is intolerant of old men.

27 Dr Febbo, the consultant psychiatrist, assessed the applicant on 2 April 2002 and 9 April 2002. Dr Febbo produced a psychiatric report dated 13 June 2002 in which he states that:

1. the applicant reported a long history of instability commencing in childhood and extending into adulthood, which in his (Dr Febbo) view was "significantly contributed to" by the sexual abuse committed by the respondent;

2. the applicant's reported childhood behaviours fall within the category of Conduct Disorder;

3. in adulthood, the applicant displays traits that fall within the diagnostic categories of Borderline and Anti-social Personality Disorders;

4. in addition to the chronic level of instability, the applicant reported a number of depressive and anxiety symptoms in keeping with a diagnosis of Major Depression and falling within the category of Post Traumatic Stress Disorder related to the abuse committed by the respondent and therefore having a causal relationship;

5. issues stemming from the abuse have been associated with turmoil within the applicant's family, having further negative impact on his mental state;

6. the applicant's prognosis is "very much guarded", with the likelihood that significant residual symptoms will remain despite aggressive treatment; and

7. the long-term instability, in terms of anti-social and borderline personality traits and substance abuse is also likely to continue.

28 At page 10 of the transcript, Dr Febbo stated that "in my view there was a causal relationship between [the applicant's] psychiatric condition and the abuse" and in response to the question, "The conditions that you have described - you would agree that they go beyond a mere emotional reaction?" he replied "Yes", and to the question, "They actually constitute mental harm?" he also replied "Yes".

29 At page 11 of the transcript, Dr Febbo replied "Yes" to the question, "The conditions you have listed in your report - you would consider that the sexual abuse was a cause of those conditions?" It is clear from the evidence before the Court that Dr Febbo is of the view that the applicant's injury occurred as a consequence of the commission of the offences committed by the respondent. I accept the evidence of Dr Febbo in this regard.

30 The applicant's parents divorced when he was 11 years old and he is now isolated from his family. This and his current separation from his three daughters may well have contributed to his current condition. However, as mentioned earlier, for an injury to be compensable it is not necessary for the offences which are the subject of the application to be the sole cause of injury. It is sufficient that the commission of the offences was a cause of his injury; or perhaps, put another way, that some injury occurred as a consequence of the commission of the offences: K v P (1992) 8 SR (WA) 256 at 261 per Healy DCJ.

31 In this case, I am satisfied that those other matters, whatever contributing effect they have had, do not constitute a break in the chain of causation. In light of the evidence before me, primarily that of Dr Febbo and the applicant, I am satisfied on the balance of probabilities that the commission of the 12 offences of which the respondent was convicted was a cause of the injury complained of. Thus, I may award compensation to the applicant.

32 In oral submissions, counsel for the amicus curiae raised the issue of whether apportionment of any overall amount of compensation that is to be awarded should be made for any part of the injury that is caused by offences or other matters that are not compensable. I indicated at the hearing that I was not immediately attracted to the concept at least not on the facts of this application.

33 In support of this submission, counsel for the amicus curiae referred to LMC v RJO [2002] WADC 147. However, that case is explained on its own facts. In that case, in addition to the offence for which compensation was sought, the applicant was also the victim of two subsequent sexual assaults, each by a different offender. That is not the case here. The question in each case is whether the injury complained of was caused by the relevant offence.

34 As explained above, when assessing compensation for injury under s 4 of the Act, the Court applies the ordinary tortious principles of assessment of damages, except that punitive damages cannot be awarded: M v J and J v J, unreported; SCt of WA (Scott J); Library No 920598; 19 November 1992. Thus, once a causal relationship is established, as it has been here, the applicant is entitled to recover. There is no separate principle of apportionment under the Act. That said, I now turn to the issue of determining compensation.

35 The assessment of the quantum of compensation requires me to consider the nature of the injuries suffered by the applicant as a consequence of the commission of the offences committed against him. The applicant, between the age of eight and 11 years, suffered 11 counts of unlawful and indecent dealing and one count of carnal knowledge against the order of nature, as outlined above. A cumulative effect of these offences is that the applicant has a significant personality disorder, and a major depressive illness falling within the category of post-traumatic stress disorder, which as previously explained has, and is, creating major difficulties for the applicant in many aspects of his life.

36 The evidence establishes a causal relationship between the conduct of the respondent and the significant psychiatric or psychological problems which the applicant now experiences. I am satisfied also that, despite aggressive treatment, these problems are likely to continue for some indefinite time. In my view, on the facts before me, the nature of the applicant's injury entitles him to an award well in excess of the maximum jurisdictional limit of $29,000. As a result, I consider he is entitled to an award of the maximum sum permitted by the Act.

37 In summary, there will be an award of $29,000 in total, in favour of the applicant, calculated as follows:

• $14,000 for the seven offences committed between 31 August 1975 and 1 September 1976, of which the respondent was convicted;

• $15,000 for the five offences committed between 31 December 1976 and 1 September 1978, of which the respondent was convicted, which are to be regarded as two groups of offences.

The table annexed to these reasons sets out the full calculation of the award.

38 In line with previous decisions of this Court: Massie v Czepulkowski, unreported; SCt of WA (Wallace J); Library No 1917; 6 December 1976; McD v Edwards (supra), counsel for the applicant seeks an order for costs against the respondent pursuant to s 37 of the Supreme Court Act 1935 (WA). Counsel for the applicant accepts, as is appropriate, that an order for costs should not be awarded against the Chief Executive Officer: Blezard v Chief Executive Officer of the Ministry of Justice (2000) 23 SR(WA) 278 at 284 per Jackson DCJ.

39 Even though there is some real doubt that any order for costs will prove recoverable, I am prepared to make an order for costs fixed in a modest sum. I will hear counsel further as to the appropriate costs order.