In the matter of the Victims of Crime (Financial Assistance) Act 1983 And in the matter of an application by LN by her litigation guardian EN

[2014] ACTMC 6

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

In the matter of the Victims of Crime (Financial Assistance) Act 1983

And in the matter of an application by LN by her litigation guardian EN

Citation:

[2014] ACTMC 6

Hearing Date(s):

28 October 2014

DecisionDate:

3 November 2014

Before:

Magistrate Morrison

Decision:

1. The proposed settlement or compromise is not approved under rule 282.

2.    The application is adjourned.

Category:

Principal Judgment

Catchwords:

CRIMINAL INJURIES COMPENSATION – application by victim of sexual offences – where applicant has a legal disability – approval of settlement or compromise by the Court – application for special assistance – where victim suffered and will suffer serious ongoing mental harm – where power of the Court to vary final award exists – whether award should be limited to compensation for pain and suffering to the date of the award.

STATUTE – INTERPRETATION – where legislation imposes a statutory cap on award – whether assessment of award should be made on the basis of a scaling approach – absence of legislative intention that scaling approach be taken – proper interpretation does not require scaling approach to be taken.

Legislation Cited:

Court Procedures Rules 2006

Victims of Crime (Financial Assistance) Act 1983

Cases Cited:

Du v Victims of Crime Assistance Tribunal (General) [2011] VCAT 23

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Re Criminal Injuries Compensation Ordinance 1983 (1984) 58 ACTR 17

Parties:

LN by her litigation guardian EN (Applicant)

Australian Capital Territory (Respondent)

Representation:

Counsel

Ms J Cumming (Applicant)

Mr J Henry (Respondent)

Solicitors

Clayton Utz (Applicant)

ACT Government Solicitor (Respondent)

File Number(s):

CIC 114 of 2013

Publication Restriction:

Publication of any of the following information  is prohibited:

(a)    the name of the applicant and the litigation guardian;

(b)    protected identity information about the applicant and the litigation guardian;

(c)    any reference or allusion that discloses the identity of the applicant or the litigation guardian;

(d)    any reference or allusion from which the identity of the applicant or the litigation guardian might reasonably be worked out.

Reference to "protected identity information” means information about, or allowing someone to find out, the private, business or official address, email address or telephone number of a person. 

MAGISTRATE MORRISON:

1.An application has been made by the litigation guardian of a young victim of crime for the approval by the court pursuant to rule 282 of the Court Procedures Rules 2006 of an award of financial assistance under section 10(1)(f) of the Victims of Crime (Financial Assistance) Act 1983 in an agreed amount of $40,000.00. The litigation guardian is the victim’s mother.

2.The relevant provision of the Victims of Crime (Financial Assistance) Act 1983  is expressed in terms of providing for certain persons to be entitled to make a relevant application under that Act and goes on to say that this Court “may, by order, award financial assistance ..... by way of reasonable compensation for pain and suffering in an amount of no more than $50 000”.

3.The submissions made to me when the matter was first before me included reference to the proposed award of $40,000 being reasonable having regard to the $50,000 cap just referred to.  Those submissions led me to invite further submissions on the approach to be taken to the assessment of financial assistance and the significance of the cap – in particular whether the applicant and/or respondent approached the assessment on the basis of some scaling exercise having regard to that cap.

4.The submissions on behalf of the Territory (both orally and in writing) fell short of a concession that the proper interpretation of the Act is that it does not require a scaling approach to compensation having regard to the cap of $50,000. That position was somewhat surprising having regard to the decision on the precursor to the current Act by Kelly J in Re Criminal Injuries Compensation Ordinance 1983 (1984) 58 ACTR 17; and of the Victorian Civil and Administrative Tribunal on an equivalent legislative scheme in that State in Du v Victims of Crime Assistance Tribunal (General) [2011] VCAT 23; and the obvious absence in the Act of anything indicating that such an approach is mandated.

5.Determining the application before me requires that I form a view on the interpretation of the Victims of Crime (Financial Assistance) Act 1983 about the assessment of compensation for the purposes of section 10. The conclusion I reach is that, using the language of Kelly J, “...the proper measure of compensation to be afforded to the applicant is that which subject to the limits imposed [in the Act] would be considered appropriate were the applicant to bring an action for damages for the several torts committed against her”.  The reference in that statement to the limitations of the Act is not to be read as requiring that any form of scaling exercise be undertaken. Having said that it is important to recognise that the terms of the Act expressly refer to compensation for pain and suffering, although I don’t understand his Honour Kelly J to have been suggesting anything to the contrary.

6.The submissions on behalf of the Territory did press that even if no scaling approach is undertaken I should approach the assessment of compensation having regard to other awards under the Victims of Crime (Financial Assistance) Act 1983 which had been made in this Court/jurisdiction. The Territory’s written submissions referred to a range of such awards.

7.Accepting (but without deciding) the principle behind that submission for present purposes, the submission suffers from a number of flaws:

a. One is that the information put before me does not differentiate between “awards” made by agreement and those which have been the outcome of an assessment of compensation by the Court. To the extent that the information is about agreed awards it does not differentiate between agreed awards where the applicant is an adult not under any legal disability and awards agreed with a litigation guardian which have required the approval of the Court under rule 282. The process for the making of an agreed award where the applicant is an adult not under a legal disability is cursory and the outcomes cannot be a proper basis for comparative assessment.

b.    The second flaw in the submission is that, as the submissions initially made in the present application demonstrate, where there has been consent by the parties to the making of an award in an agreed amount, it may be that the applicant has proceeded on a mistaken basis as to the interpretation of the Act.  That is they may have mistakenly believed that the process which I have described as scaling would be used to determine reasonable compensation.

8.Against that background the information provided by the Territory on other awards is not meaningful.

9.Mr Henry for the Territory made another submission as to the basis for approving the proposed award in this case.  As I understood the submission it was that I should approve the proposed award on the basis that it represents an award for pain and suffering to the date of the award – recognising that an applicant is able to apply to vary a final award under section 46 of the Act.

10.There is evidence before me by way of the report of clinical psychologist Anna Crichton about the effects on the victim of what was the violent crime for the purposes of the Act.  The relevant part of the report is in these terms:

“The historical, behavioural, observational and psychometric data are consistent in identifying this client’s condition after the acts perpetrated against her as Adjustment Disorder with Depressed Mood (Diagnostic and Statistical Manual of Mental Disorders, 5^th ed., Code# 309.0 (F43.21).

[LN] has a very serious impairment of functioning, not solely related to the diagnosable condition above which is still present although less intense than in the months immediately following the discovery of the sexual assault.

In my opinion, [LN] is at significant risk of developing a Personality Disorder as a result of her victimisation by [omitted] who she trusted implicitly, at a tender age. There is statistical evidence that links early childhood sexual victimisation with disabling personality disorders persisting into adulthood. These statistics are further supported by longitudinal developmental studies as well as clinical data obtained in the process of counselling. Personality Disorders are the most challenging of the whole range of mental disorders to treat successfully and are incapacitating in all areas of the sufferer’s life, mostly interpersonal and vocational.

Although a formal diagnosis of a personality disorder cannot be made in persons under the age of 18 years, according to the Diagnostic and Statistical Manual of Mental Disorders [LN] is demonstrating behaviours that signal a “child at risk”. Although apparently co-operative with the requirements of this assessment, and not obviously rebellious, she repeatedly engaged in behaviours designed to test the limits, to flout adult authority, and to be seen as special. These are warning signs that need to be consistently monitored by the treating profession and by her carers. A Personality Disorder, a truly pervasive and incapacitating life-long condition almost always stemming from a childhood history of sexual, physical and emotional abuse, is a distinct possibility in [LN’s] case.”

11.The following appears under the heading of Recommendations on page 11:

“There are significant concerns for [LN’s] future development as well as some aspects of her current functioning.

·     Periodic assessment is needed for depression, guilt responses, and the risk of reckless behaviours. As [LN] grows into adolescence, she is at significant risk, unless monitored, of acting out behaviours, possible including substance abuse, thrill seeking or overly sexual behaviour.

·     Intervention should include phased interventions (therapy that is provided at critical junctures on a needs basis).”

12.I accept the submissions of Mr Henry to the effect that it is likely that a clearer picture of the longer term effects on the victim will emerge at a later time.  Nevertheless, courts are often asked to make assessments of compensatory damages based on future or hypothetical effects which are not commonly susceptible of scientific demonstration or proof. (As to which see the comments of Deane, Gaudron and McHugh JJ in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638).

13.There is nothing in the Act requiring that the reference in section 10(1)(f) to compensation for pain and suffering should be read as meaning only pain and suffering to the date of the award and I see no basis in principle for so construing the Act.

14.The Act does contemplate the making of interim awards in certain circumstances as set out in section 43, but I note that Mr Henry’s submission was not that the proposed award should be made as an interim award. 

15.It is the case that the Act permits variation of final awards. Section 46(2) provides for a list of matters to which a Court must have regard in considering an application for variation.  It is in these terms:

(2) In considering an application for the variation of a final award, the Magistrates Court must have regard to the following considerations:

(a)  any further evidence that has become available since the date when the award was made in relation to the circumstances in which a criminal injury or eligible property damage was sustained, or criminal conduct occurred;

(b)  any change in the economic circumstances of the successful applicant that has occurred since the date when the award was made;

(c)  any other matter the court considers relevant.

16.Subparagraph (c) referring as it does to any other matter considered relevant is certainly very broad.  The other considerations – that is further evidence about the circumstances in which the criminal conduct occurred or criminal injury sustained -   and a change in economic circumstances - are however relatively narrow and the result may be that persuading a court to entertain a variation application is no mere formality.

17.The variation provision in section 46 needs to be read in the context of section 43(1)(b) about the making of interim awards. On a plain reading of section 43, it is a permissive provision – empowering a court to make an interim award in the circumstances where the Court does not have sufficient information to enable it to decide the amount of a final award – but not directory in the sense of limiting when a final award can be made. In other words the existence of the interim award provision in section 43 should not be seen as restricting the power of the Court to make a final award even where it might be required to make an assessment of compensation for based on uncertain future or hypothetical effects.

18.Other relevant matters in considering Mr Henry’s suggestion are the provisions of the Act which preclude the recovery of legal expenses, the fact that the victim is a minor and to some extent the very nature of the mental health condition which the evidence indicates she is at risk of developing. If Mr Henry’s suggestion is adopted there are not insignificant practical hurdles for the victim in a later variation application.

19.The combined effect of those things persuades me that this Court should make a final award and that the final award should not be limited to an assessment only of compensation for pain and suffering the date of the award.

20.Having made that decision, the conclusion I reach is that the proposed settlement or compromise before me should not be approved under rule 282 because the amount of the proposed payment for the benefit of the victim is not, on the basis of the evidence before me, reasonable compensation for pain and suffering for the purposes of section 10(1)(f) of the Victims of Crime (Financial Assistance) Act 1983.

[His Honour proceeded to invite submissions on whether the parties sought to have the application dismissed or adjourned to permit some amended application to be considered.]

I certify that the preceding twenty-five [20] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Morrison.

Associate:

Date: 27 March 2015