Husted v Meizer

[2001] QSC 323

SUPREME COURT OF QUEENSLAND

CITATION:

Husted v Meizer [2001] QSC 323

PARTIES:

JACQUELINE GAYLE HUSTED
(applicant)
v
LYELL GRANT MEIZER
(respondent)

FILE NO/S:

S3462 of 2001

DIVISION:

Trial Division

DELIVERED ON:

30 August 2001

DELIVERED AT:

Brisbane

HEARING DATE:

14 August 2001

JUDGE:

Philippides J

ORDER:

1) That the respondent pay the applicant the sum of $25,000 by way of compensation for the injury suffered by the applicant by reason of the offences of which the respondent was convicted on 10 November 1988;
2) That the respondent pay the applicant’s costs of the application to be assessed.

CATCHWORDS:

CRIMINAL LAW – COMPENSATION – Compensation for nervous shock – respondent convicted of rape and sodomy – claim under s 663B(1) Criminal Code (Qld)

Criminal Code (Qld), s 663AA(1), s 663AA(2), s 663AA (3); s 663B(1) and (2)

R v Bridge and Madams; Ex parte Larkin [1989] 1 Qd R 554
R v Farrell; Ex parte Farrell (Motion Nos 2985 and 2196 of 1992), unreported, 13 July 1992
Re MJ Hudson (No 358 of 1992), unreported, 26 August 1992
McClintock v Jones (1995) 79 A Crim R 238

COUNSEL:

A J Kimmins for the applicant
No appearance for the respondent

SOLICITORS:

T Bailey for the applicant

1. PHILIPPIDES J: On 24 April 2001 Jacqueline Gayle Husted (“the applicant”) filed an application seeking compensation pursuant to s 663B(1) of the Criminal Code (Qld) (“the Code”) for injuries she sustained as a result of the offences of rape and sodomy committed on 5 June 1987 for which the respondent was convicted on 10 November 1988.

1. The offences were committed prior to the commencement of Part III of the Criminal Offence Victims Act 1995. Chapter 65A of the Criminal Code therefore applied, as if not repealed: see s46(2) Criminal Offence Victims Act. Chapter 65A included s663B of the Code. Section 663B(1) of the Code provides that the Court may, on the application of a person aggrieved by an offence committed on him or her, order the offender to pay to that person a sum not exceeding the prescribed amount by way of injury suffered by that person by reason of the offence or offences of which the offender is convicted.

1. Although served with the application, the respondent did not appear on the hearing of the application.

1. The applicant was born on 23 July 1969 and was aged 17 at the time of the offences.  At the time of the offences the applicant was working as a prostitute in the Valley.  At about 9.30 p.m. on 5 June 1987 she was standing on Brunswick Street, when the respondent drove up to her and said “I’m a cop from Forensic, now get in”.  The applicant did as instructed and entered the passenger side of the vehicle.  The applicant was induced to do this because she thought she was being charged with something and was being taken to the Valley police station.  The applicant was thus abducted.  The respondent physically attacked the applicant, forced the applicant to perform oral sex, then raped and sodomised her.

1. Evidence was given at trial by Dr Buchanan as to certain physical injuries suffered by the applicant to the peri-anal area and the vulva as a result of sexual assaults to which she was subjected.

1. In addition, the applicant suffered nervous shock.  The applicant was examined by Dr Ian Curtis, consultant psychiatrist on 19 February 2000, who in his report dated 16 March 2001, makes the following statements:

“…

13.1Ms Husted suffered from a pre-existing dilapidation of personality quantity and quality and of lifestyle at the time of the index crime, ie, she was already beginning to develop her personality pattern problems.

13.2Her pre-existing suffering placed her there on the streets at the index time.  She was perceiving herself as involved, as a very young woman, in a struggle to survive as a person and to escape personal traumas.

…

13.6The index crime destabilised Ms Husted’s life severely by demolishing her residual sense of trust and depriving her of her persistent experience of order and authority in the midst of her life at risk for marginalisation/disaffiliation and consequent suffering.

…

14.3Taking Ms Husted as she was found by the subject criminal, the effect of his predation would have had to have been a severe nervous shock, with major and ongoing mental health harms for this individual victim.  Granted that Ms Husted had already suffered mental health detriments and that her maladjustment was frail and faulty, she nonetheless had a residual level of trust in the system and, particularly, a helpful relationship with Police Service Officers.

14.4It may be appreciated that, given the severe personality damage and the associated long-term problems in her mental health status, the residual adjustments and partial trusting relationships which she retained were a vital part of Ms Husted’s coping at the time of the subject crime.  The index crime decreased her future chances for rehabilitation and restitution.  This offender deprived her of the chance for complete or a semblance of complete and effective rehabilitation earlier in life and subjected her to a much more lengthy course of suffering in her life (from what she told me).

14.5I found that Ms Husted’s history, as provided to me, was credible.  It was relevant to note that she was a person of basic positive strengths who had made some progress in her rehabilitation over a period of around ten years since the subject crime.  It was a measure, I believed, of her suffering and harm at the hands of the subject criminal that she broke down and regressed at the time of her recent same fact evidential assistance to the Court, which was the initial reason prompting Police to bring her to see me.

14.6I consider, on the material that was made available to me, that this was a severe nervous shock for this individual at the time of the subject crime.  She not only suffered an Acute Stress Disorder which would have lasted in severe form for a month, but she was further propelled on her way into damaging and deforming experiences, causing a Borderline Personality.  Derivative difficulties have stayed with her to this day, despite her own best efforts to achieve healing in her life.”

1. It is clear from the sentencing remarks that there was no behaviour on the part of the applicant which directly or indirectly contributed to the injuries suffered by her as a result of the offence and I so find for the purposes of s 663B(2) of the Code.

1. The offence occurred some 13 years ago. The question of application of the statute of limitations is not a matter for the Court to raise and I proceed to assess the applicant’s entitlement under the Code.

1. The applicant seeks compensation for nervous shock and for physical injuries. Compensation is assessed in accordance with the ordinary principles of assessment of damages for personal injury in civil actions.  However, there is an upper limit applicable in all circumstances, which amount should be awarded if it is less than the compensation assessed: McClintock v Jones (1995) 79 A Crim R 238 at 242 per Fitzgerald P.

1. The prescribed amount or upper limit is relevantly specified by ss663A and 663AA of the Code to be:

(a)        where an injury suffered by reason of the offence is the same or substantially the same as an injury specified in the table set forth in s14(1)(C) of the Workers’ Compensation Act 1916, the amount specified for that injury in the table: see s 663AA(2) of the Code;

(b)        where it is not the same or substantially the same, the amount specified in s 14(1)(C)(a) of the Workers’ Compensation Act 1916, as varied: see s 663A(b) of the Code;

(c)        where there are more injuries than one, the amount specified in s14(1)(C)(a) of the Workers’ Compensation Act 1916 as varied: s 663AA(3) of the Code; and

(d) in the case of mental or nervous shock it is $20,000: see s 663AA(1) of the Code.[1]

[1]The references to s14(1)(C) of the Workers’ Compensation Act 1916 are to be read as s167 of the WorkCover Queensland Act 1996 and Schedule 2 of the WorkCover Queensland Regulation 1997: see Hendry v Llorente [2000] QCA 277; Whyte v Robinson [2000] QCA 99.

1. It was submitted by Counsel for the applicant that the effect of s 663AA(1) of the Code is merely to limit compensation for the “mental or nervous shock” component to $20,000 and not to impose a $20,000 cap on the total amount of compensation, if a claim for “mental or nervous shock” is made in conjunction with other physical injuries. In the latter case it was submitted the total award, including the component for “mental and nervous shock” can not exceed the prescribed amount[2]:

   [2]Counsel relied on R v Farrell; Ex parte Farrell (Motion Nos 2985 and 2196 of 1992), unreported, 13 July 1992 per Mackenzie J; and Re MJ Hudson (No 358 of 1992), unreported, 26 August 1992 per Shepherdson J.  R v Bridge and Madams; Ex parte Larkin [1989] 1 Qd R 554 was said to be distinguishable, because in the circumstances of that case, compensation for suffering, loss of amenities, loss of earnings, past or future, arose only out of the nervous or mental shock, which was the form of injury suffered.

1. On the basis of the medical evidence, it appears that the plaintiff suffered severe nervous shock as a result of the offences in question. 

1. I consider that an award for psychiatric problems suffered by the applicant as a result of the offences would exceed $20,000. Accordingly, I award the maximum amount of $20,000 by way of compensation for this injury.

1. In addition, an award of $5000 should be made to reflect the other physical injuries suffered.

1. I therefore order:

1.          That the respondent pay the applicant the sum of $25,000 by way of compensation for the injuries suffered by the applicant by reason of the offence for which he was convicted on 11 November 1988; and

2.          That the respondent pay the applicant’s costs of the application to be assessed.