LAW - JUDGMENT AND PUNISHMENT - ORDERS FOR COMPENSATION, REPARATION,
RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO
THE DISPOSAL OF PROPERTY
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Original judgment source is linked above.
Catchwords
CRIMINALLAW - JUDGMENT AND PUNISHMENT - ORDERS FOR COMPENSATION, REPARATION,RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TOTHE DISPOSAL OF PROPERTY- COMPENSATION - QUEENSLAND - "mental or nervous shock" - meaning in s 20 ofCriminal Offence Victims Act 1995 - whether diagnosable mental disordernecessary - whether capable of being satisfied by natural human emotions - needfor injuryto health, illness, or some abnormal condition of mind or body overand above normal human reaction or emotion - whether separateassessmentappropriate for mental shock and physical injury - whether separate assessmentsjustified for "stab wounds" and "scarring"in Schedule 1Criminal Offence Victims Act 1995 (Qld) s 20, s 22(3), s 24, s 25, s26(1)Chong v Chong CA No 11658 of 1998, 13 August 1999, consideredDulieu v White & Sons [1901] EWHC KB 1[1901] 2 KB 669, consideredHambrook v Stokes Brothers [1925] 1 KB 141, considered
McLoughlin v O'Brian [1982] UKHL 3
[1983] 1 AC 410, considered
R v Bromley ex parte Keran DC No 1966 of 1999, 5 July 1999,
considered
R v Chan- Fook [1993] EWCA Crim 1
(1994) 1 WLR 689
R v Daw ex parte Nitz DC No 2578 of 1998, 13 July 1998, considered
R v Fatteretto ex parte Gosse and Gosse DC No 3901 & 3902 of 1999, 4
November 1999, considered
R v Horne ex parte Hill SC No 8829 of 1999, 29 October 1999,
considered
R v Morrsion ex parte West [1998] 2 Qd R 79, considered
R v Robinson ex parte Leonard DC No 4353 of 1998, 16 October 1998,
considered
R v Taylor ex parte Centiaego DC No 3882 of 1998, 26 October 1998,
considered
R v Van der Starre ex parte Everingham DC No 9 of 1997, 5 June 1997,
considered
Whyte v Robinson [2000] QCA 99, 28 March 2000, considered
Judgment (41 paragraphs)
[1]
[1] THOMAS JA: This is an application for compensation under the Criminal Offence Victims Act 1995.
[2]
[2] The respondent, although served, has not appeared. The offence of which he was convicted (unlawful wounding) was committed on 23 March 1996. He was sentenced to three years probation when he appeared before me on a plea of guilty on 27 March 1998. The present application was made on 30 September 1999. The matter therefore falls to be assessed under the Criminal Offence Victims Act 1995 which came into operation on 18 December 1995, as amended[1].
[3]
[3] Both the applicant and the respondent were 17 years old when the incident occurred. They attended a house party and after midnight the complainant went to sleep on a mattress in the lounge room.
[4]
[4] The respondent wished to listen to a stereo that was playing. The applicant told him to turn it down a number of times and the respondent refused. After the volume had been turned up and down a few times the respondent, when attempting to turn the volume back up again, was grabbed on the ankle by the applicant who had been lying down. The respondent reacted with extreme aggression, and took hold of a pair of scissors which had apparently been lying nearby and struck the applicant a number of blows to the back and to the back of the head with the scissors, accompanying his assault with threats.
[5]
[5] The applicant was taken to hospital, was admitted overnight and discharged the following day. Eight lacerations were noted mainly to the back, shoulder and neck area and one behind his right ear. Long term effects were thought unlikely and none of the injuries appears to have been particularly serious. The applicant deposes that he still scars from his wounds, but there is no evidence to suggest that they are serious.
[6]
[6] A few days after the incident his GP prescribed Normison tablets because the applicant was having trouble sleeping. The principal complaints which he attributes to the incident are a loss of sleep, nightmares and daytime flashbacks. These and other feelings of anxiety are detailed in a report from Dr Whiteford a psychiatrist. The psychiatric examination on which the report is based did not take place until 15 January 1999. By that time the applicant was a 20 year old married man living with his wife and eight month old daughter, and was working casually at a retail clothes outlet. The applicant told Dr Whiteford that he had recovered from the physical injuries sustained and that he had suffered headaches for one month primarily related to one of the stab wounds being at the back of the head. The symptoms relevant to psychiatric assessment were of anxiety described as "persistent hyper-vigilance" exemplified by concern about people standing behind him. He said that he had attempted to get counselling for his symptoms in about late 1996 but that he had only attended on one occasion as he did not believe the counsellor could assist him. He also saw a psychiatrist or psychologist in late 1997 but did not feel he gained much assistance from that counselling session.
[7]
[7] Dr Whiteford noted some "mild generalised anxiety". He considered that the applicant had developed "post traumatic stress disorder type symptoms". It was unclear to Dr Whiteford whether at any stage these symptoms had reached the threshold of the American Psychiatric Associations' Diagnostic and Statistical Manual of Mental Disorders criteria for post traumatic stress disorder (PTSD), but Dr Whiteford considered that at the time of his examination the symptoms were not of a degree that would meet the necessary diagnostic criteria. Dr Whiteford observed what he described as "mild generalised anxiety", and he thought that the applicant would benefit from five one hour sessions of cognitive therapy.
[8]
[8] The applicant's own description of his current symptoms are "I still feel stressed, edgy and hypersensitive". He worries that he may be attacked again and jumps if touched on the shoulder. He still suffers sleep disturbance.
[9]
[9] The applicant is entitled, under sections 24 and 25 of the Act to "compensation ... for the injuries suffered by the applicant because of the offence"[2].
[10]
[10] "Injury" is defined in section 20 as follows:
[11]
"'Injury' is bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table or prescribed under a regulation".
[12]
[11] There is a preliminary question whether the evidence is sufficient to justify a finding that the applicant has suffered "mental or nervous shock" because of the offence. There appear to be two schools of thought on this question. One view is that unless an injury amounts to a diagnosable mental disorder or psychiatric illness, it does not constitute mental or nervous shock. The other is that a broad meaning should be given to these words so that conditions and symptoms beyond diagnosable disorders are covered.
[13]
[12] The former view finds some support in the reasoning of Byrne J in R v Horne ex parte Hill[3]. That decision deals with the question of "injury" under s 663A of the Code, which was the forerunner of the present scheme under the Criminal Offence Victims Act. Section 663A defined injury as meaning "bodily harm and includes pregnancy, mental shock and nervous shock". It is to be noted that s 20 of the current Act is not fettered to the same extent by the phrase "bodily harm".
[14]
[13] The applicant in that case developed a number of psychological symptoms including mood instability, social withdrawal and a decreased ability to trust in interpersonal relationships. These symptoms, however, did not meet the threshold of the diagnosis of any mental disorder. His Honour considered that the factual foundation that was essential to the award of compensation was not established notwithstanding that the applicant had suffered emotionally and that there had been some impact upon his education and vocation. It was held that the applicant failed to demonstrate that he sustained either mental or nervous shock. His Honour appears to have placed some reliance upon statements made by Macrossan CJ in R v Morrison ex parte West[4]. However, I am unable to find anything in the reasoning in Morrison that required such a conclusion. Morrison was concerned with a converse argument, namely, whether a clearly proven severe psychiatric illness should be regarded as having produced mental shock or nervous shock and accordingly as limiting the claimant to the compensation allowable for mental or nervous shock. Not surprisingly the court held that diagnosable psychiatric illnesses are included within those words and stated that a broad meaning should be attributed to them. It has been noted in a number of cases including R v Chan-Fook[5] that "psychiatric injury" should not be taken to be established by proof of mere emotions such as fear or distress. That seems plainly right both as a proposition of law and fact. However, it does not provide an answer to the present question. In my view, "mental or nervous shock" is a wider term than psychiatric injury or disorder. The difficulty lies in determining how much wider it is.
[15]
[14] A number of decisions were referred to by Ms Shephard in her helpful submissions on behalf of the applicant, including a number of District Court decisions. Some of these reveal an extremely wide approach tantamount to the assessment of compensation for any non-physical sequels which are held to have been caused by the commission of the crime. These include R v Robinson ex parte Leonard[6], R v Van der Starre ex parte Everingham[7], R v Taylor ex parte Centiaego[8], R v Daw ex parte Nitz[9], R v Fatteretto ex parte Gosse and Gosse[10] and R v Bromley ex parte Keran[11]. In Robinson, Botting DCJ held that fear fell within the ambit of nervous shock, and although it was described as minor, awarded $2,250 for "mental or nervous shock". In Van der Starre, Robertson DCJ awarded 5% compensation ($3,750) for mental or nervous shock for a continuing sense of unease and nervousness in the conduct of the applicant's business, notwithstanding that there was no psychological or psychiatric report. In Daw, the victim of a stalking offence who suffered anxiety over his safety but who, according to the psychiatric evidence, suffered no psychiatric illness, was awarded $5,000 for that component.
[16]
[15] It is not necessary to canvass the remaining cases. It is enough to note that it seems not uncommon in the District Court for awards of this kind to be made, and that many of the decisions fail to impose any limits at all by reference to the term "mental or nervous shock". Compensation has been awarded seemingly for any type of negative or unpleasant mental reaction to an offence. In my view, however, the term "mental or nervous shock" connotes something more than ordinary or normal reactions. The term "nervous shock" has a fairly long legal history[12]. In the nervous shock cases the courts were perhaps primarily concerned with other issues such as the existence of duty and whether the circumstances were such as to cause a reasonable fear of immediate personal injury either to the observer or to the observer's children. But the term was always used to describe a condition beyond ordinary reaction to trauma. The term "shock" has been used in relation to war neuroses including conditions such as "shell shock". Both in ordinary usage and in the context of civil nervous shock cases an abnormal condition or illness seems to have been contemplated. Thus, injury to health due to nervous shock was regarded as a pre-requisite in Hambrook v StokesBrothers[13], and bodily illness produced by the nervous shock was similarly thought necessary in Dulieu v White[14]. I do not suggest that these cases are in point, and refer to them merely in an attempt to present historically the way in which the term has been used particularly in legal contexts.
[17]
[16] Those responsible for the present legislation would have known that the term has been used in this way for at least a century. More recently, Lord Wilberforce in McLoughlin v O'Brian[15] referred to "nervous shock" as a "hallowed expression" and noted the gradual and increasing acceptance of the courts of claims based upon it. His Lordship observed,
[18]
"It is now accepted by medical science that recognisable and severe physical damage to the human body and system may be caused by the impact, through the senses, of external events on the mind. There may thus be produced what is as identifiable an illness as any that may be caused by direct physical impact. It is safe to say that this, in general terms, is understood by the ordinary man or woman who is hypothesised by the courts in situations where claims for negligence are made"[16].
[19]
[17] Clearly, the ordinary usage of the term has been to describe 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.
[20]
[18] The Criminal Offence Victims Act expressly declares that compensation "is not intended to reflect the compensation to which the applicant may be entitled under common law or otherwise".[17] The scheme that the Act provides is for payment of compensation to a claimant, "for the injury suffered by the applicant because of the offence"[18] (my emphasis). This supports the view that mental or nervous shock is not proved unless something equivalent to the meaning stated in paragraph 17 above is shown.
[21]
[19] By the same token it would in my view unduly limit the term if it were confined to conditions that are recognised as psychiatric disorders. Conversely it over-stretches the term to use it as a source of additional compensation for natural human emotions felt by people who cope adequately with the aftermath of an offence and are able to get on with their lives.
[22]
[20] I consider that if the legislature had intended that compensation be awarded for every mental consequence including consequential feelings of the complainant there would have been no specification in s 20 requiring proof of mental or nervous shock. The legislature would have either adopted the civil system of damages for all effects of the offence, or have defined injury to include all results both physical and mental.
[23]
[21] It is extremely difficult to define the point at which mental consequences to a claimant from a crime become compensable as "mental or nervous shock". I consider however, 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. Unless the court is affirmatively satisfied that mental or nervous shock has been suffered compensation should not be awarded for such reactions. Some of the District Court decisions to which reference has been made go too far in awarding compensation in this respect. I am equally of the view that the decision in R v Horne ex parte Hill is not appropriate to apply to the definition of "injury" in section 20 of the present Act. To limit compensation to cases where a diagnosable mental disorder or psychiatric illness results would give the term "mental or nervous shock" too limited a meaning.
[24]
[22] I have not attempted a comprehensive definition of the term, but for the purposes of the present application the observations in paragraphs [17] and [21] sufficiently indicate the necessary requirements for a finding that mental or nervous shock has been suffered.
[25]
[23] In the present case the consequences of the offence to the applicant demonstrate real problems which have continued for more than three years after the attack. They are at the periphery of a diagnosable psychiatric condition. They affect his life and conduct, and include symptoms such as sleep disturbance and some behavioural abnormality. They are in my view serious enough to comply with the description "mental or nervous shock".
[26]
[24] It was submitted by Ms Shephard, and I accept it, that the appropriate reference in the compensation table is schedule 1 to the Act is "31. Mental or nervous shock (minor) ... 2%-10%". I also accept her further submission that an award of 5% ($3,750) is appropriate for that item in the circumstances and that it is appropriate to make a separate allowance for that item over and above the physical injuries.
[27]
[25] So far as physical injuries are concerned, the applicant suffered six wounds to his back and two to the neck area. The wounds did not require suturing. The appropriate schedule item seems to be "24 ... stab wounds (minor) ... 6%-10%". However, there are also items that deal with bodily scarring, and in particular "27 ... bodily scarring (minor/moderate) ... 2%-10%". However, s 26 of the Act is designed to ensure that "harm that substantially should be treated as a single state of injury is treated as a single injury even though it may consist of more than one injury"[19]. Now whilst the nervous shock should in this case be treated as a separate state of injury, I do not think that the same conclusion should be reached in relation to the stab wounds and such scarring as has resulted from them. In my view the appropriate assessment should be under item 24 taking into account the fact that the wounds produced some scarring. In the circumstances, I would assess that item as 9% ($6,750).
[28]
[26] There is no sufficient reason for any reduction such as contribution by the applicant to his injuries under s 25(7).
[29]
[27] In the result it is ordered that the respondent pay to the applicant the sum of $10,500 by way of compensation for injuries sustained by the applicant because of the commission of the offence which led to the conviction of the respondent on 27 March 1998 for unlawful wounding.
[30]
[1]Chong v Chong CA No 11658 of 1998, 13 August 1999; Whyte v Robinson[2000] QCA 99, 28 March 2000.
[31]
[3] Supreme Court No 8829 of 1999, 29 October 1999.