Isjb v WJG
[2005] QDC 430
•21 December 2005
DISTRICT COURT OF QUEENSLAND
CITATION:
ISJB v WJG [2005] QDC 430
PARTIES:
ISB
Applicant
v
WJG
Respondent
FILE NO/S:
BD2452/05
DIVISION:
PROCEEDING:
Hearing
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
21 December 2005
DELIVERED AT:
Brisbane
HEARING DATE:
2 December 2005
JUDGE:
McGill DCJ
ORDER:
Order that the respondent pay the applicant the sum of $40,000 compensation in respect of the injury suffered by her as a result of the offences of which the respondent was convicted in the District Court in Ipswich on 6 September 2004.
CATCHWORDS:
CRIMINAL LAW – Compensation – mental or nervous shock – course of conduct – offences straddle 1 July 1984 – amended provisions apply – assessment
Criminal Code ss.663A, 663B
Acts Interpretation Act 1954 s.20(2)(c)
Chong v Chong [2001] 2 Qd R 301 – followed.
Director of Public Works v Ho Po Sang [1961] AC 901 – followed.
Esber v the Commonwealth (1992) 174 CLR 430 – distinguished.
HW v LO [2001] 2 Qd R 415 – distinguished.
Holt v Boughton (Helman CJDC, 13 August 1993, unreported) – not followed.
Kentlee Pty Ltd v PrinceConsort Pty Ltd [1998] 1 Qd R 162 – considered.
MAJ v. KM [2000] QCA 410 – applied.
M v K (D110\00, McGill DCJ, 17 April 2000, unreported) – cited.
McClintock v Jones [1996] 1 Qd R 524 – applied.
P v B [2004] QDC 149 – not followed.
Robertson v Smith [1974] Tas R 50 – considered.
Sofi v Wollondilly Shire Council [1975] 2 NSWLR 614 – cited.
SAM v SAM [2000] QDC 312; [2001] QCA 12 – applied.COUNSEL:
M. Horvath on behalf of the applicant
A.P. Hodgson (solicitor) on behalf of the respondent
SOLICITORS:
Chris Wlodarczyk and Co for the applicant
A.P. Hodgson and Associates for the respondent
This is an application for compensation under chapter 65A of the Criminal Code. On 6 September 2004 the respondent was convicted by a jury of five counts of indecently dealing with the applicant, a girl under 14 years. He was sentenced to a term of imprisonment. The applicant alleges that as a result of the commission of these offences she suffered mental or nervous shock.
Background
All the offences were committed in the mid 1980’s. The indictment alleged that the first was committed on a date unknown between 22 January and 2 November 1984, that the second and third were committed on a date unknown between 1 November 1984 and 13 July 1985, the fourth between 1 November 1984 and 1 July 1986, and the fifth between 1 November 1984 and 14 July 1986. In my sentencing remarks[1], I said that the first occurred in 1984 while playing hide and seek on an upper bunk, the second and third occurred in a bedroom on the same day at a time when the applicant was six, the fourth occurred “not all that long after that” in a toilet, and the fifth “on a later occasion”, which was not otherwise identified in the sentencing remarks, when he took her into some bush on his motorcycle.
[1]Affidavit of Lundbergs filed 1 August 2005, Exhibit PLK1.
The applicant was born on 13 July 1978[2] and turned six on 13 July 1984. She would have been still six between then and 12 July 1985. The applicant in her affidavit said that the offences occurred when she was five or six years old. Under cross-examination, she said she was around six when the incidents occurred, and she was in grade one: page 20. She started grade one when she was five, and later turned six. Her evidence as to when she turned six, and how old she was on 1 July 1984, was I think mistaken, and the subsequent proposition, that one of the offences occurred before 1 July 1984 and the others after that date, although consistent with what I said in my sentencing remarks, is not necessarily reliable, but is some evidence on this point. She was interviewed by a psychologist in November 2004, in the course of which she said that the offences went on for 12 months[3].
[2]Affidavit of the applicant filed 1 August 2005, paragraph 1.
[3]Affidavit of Hazell filed 1 August 2005, Exhibit BH2, page 2; Dr Hazell, page 9. See also Exhibit BH3, which records that in June 2005 she told him, about Count 1, “I was about six … I was six …”.
The first offence involved touching the applicant inside her clothing on the outside of her vaginal area. The other offences involved digital penetration of the applicant’s vagina[4]. The applicant said that she was scared on the first occasion, and that there were threats made to discourage her from telling anyone. She did not tell anyone at that time, and felt very alone. She became frightened of the respondent, and frightened of other men so she could not sleep over with school friends. She was quiet and shy, did not like school and avoided sports and swimming. Nevertheless, she developed a relationship with the man who is now her husband, and became pregnant by him while she was in year 12: page 19. She went on to have four children by him: page 22. After eight years the relationship broke up, but they got back together and were married in March 2004. She said that she always found the relationship difficult, particularly the physical side, and she still finds it difficult.
[4]This comes from my sentencing remarks. The rest of the information about the effects on the applicant comes from her affidavit.
As her children, all girls, became older, she became very protective of them. She still has trouble sleeping. She dislikes her body, and said that she dislikes having people look at her. She has been receiving antidepressant medication for some time[5], although apparently initially, at least, without fully disclosing the background. She often feels sad, and various things trigger unpleasant memories of the assault.
[5]It has been successful: Dr Apel, page 5
Expert evidence
She was seen for the purposes of a report[6] by a psychologist Dr Hazell in November 2004. He applied a battery of tests, some of which showed that in terms of personality, which was inherent and not related to the respondent’s behaviour (page 10), she had a personality structure of the neurotic introvert with higher than average psychotic and antisocial tendencies, which made her particularly vulnerable to psychological trauma. Testing showed her to be severely anxious and moderately to severely depressed. Dr Hazell diagnosed an adjustment disorder with mixed features of anxiety and depression. Dr Hazell thought that, in terms of the schedule to the Criminal Offence Victims Act, the applicant had suffered moderate mental or nervous shock, of the order of 16 per cent.
[6]Affidavit of Hazell, filed 1 August 2005, Exhibit BH2.
He saw her again on 17 June 2005[7]. On this occasion the applicant seemed more relaxed than in the first interview, apparently because she was pregnant. He did not modify his earlier diagnosis, but gave some attention to the significance of each separate event. He said the incident when she went with the respondent on a motor cycle a short distance into the bush was the most traumatic, followed by the incident when the respondent called her into the toilet with him. He said that she had overall a permanent partial impairment of 30 per cent; this was by reference to the AMA scale rather than the schedule in the Act, and does not represent a difference in assessment of the level of impairment: page 14. He recommended 12 sessions of cognitive behaviour therapy as something that may improve her condition, perhaps significantly.
[7]Affidavit of Hazell, Exhibit BH3.
The applicant was also seen by a psychiatrist, Dr Apel, in early November 2005 for the purposes of a report to the respondent’s solicitors: Exhibit 1. Dr Apel agreed with the diagnosis of an adjustment disorder with mixed anxiety and depression, of moderate intensity. He thought that the sexual interference was the prime cause of her psychiatric illness. He expressed the view that the fact that there were a number of these incidents, and that they involved an individual trusted by the family, made the effect on the applicant’s personality more profound and long‑lasting. In his opinion she required treatment for which a reasonable estimate was three years of monthly sessions. She would require medication for at least four to five years: page 5. He did not give a prognosis.
Causation
There was some cross-examination about the existence of other factors in the course of the applicant’s life which would have been stressful and unpleasant, and as to whether these would have contributed towards her psychiatric problems. However, the question of causation does not depend on whether the offending behaviour was the sole cause of the psychiatric injury which constitutes mental or nervous shock, nor are damages apportioned on the basis of causation, unless it is a situation where it is more likely than not that there would have been some psychiatric problems present anyway, so that the true effect of the offending has been to make her psychiatric problems worse than they otherwise would have been. So long as the respondent’s behaviour has materially contributed to the total damage, the respondent is liable to pay compensation in respect of the total damage, unless the compensable and non‑compensable causes can be separated with some reasonable degree of precision: SAM v SAM [2000] QDC 312; [2001] QCA 12. The evidence before me does not permit me to separate out the effect of non-compensable events with any sufficient measure of precision. The medical evidence is to the effect that the respondent’s conduct is the dominant cause of the applicant’s problems.
Because the application is under the Criminal Code, damages are assessed in the ordinary way as for an action in tort, but subject to the limitations imposed by section 663A and section 663AA: McClintock v Jones [1996] 1 Qd R 524. There is nothing to suggest that the award should be reduced in any way because of the applicant’s conduct.
Prescribed amount - timing
The matter is complicated by the fact that the prescribed amount in the case of mental or nervous shock prior to 1 July 1984 was $5,000. On 1 July 1984 the prescribed amount was increased to $20,000, and the concept of a course of conduct or closely related courses of conduct was introduced, so that where a person was convicted of more than one indictable offence “arising out of the one course of conduct or closely related courses of conduct of that person so convicted”, the court might award compensation not exceeding the prescribed amount. Section 663B(1A) provided that for the purpose of determining whether courses of conduct are closely related regard should be had, in addition to any other relevant matter, to the acts or omissions constituting the courses of conduct and the times of the doing of the acts or the making of the omissions, one in relation to another.
It was submitted on behalf of the applicant that the first incident occurred prior to 1 July 1984, and so should be dealt with under the previous regime, so that a further $5,000 should be allowed in respect of that count[8]. It was conceded on behalf of the applicant that the second and third offences, which both happened on the one day and were really a part of the one incident, involved one course of conduct, but it was submitted that the fourth and the fifth involved separate courses of conduct, and that they were not closely related courses of conduct, so that the limitation of the prescribed amount applied separately three times in respect of the post 1 July 1984 offending. The practical effect of this submission was that the limit of damages under all headings came to $65,000.
[8]Relying on P v B [2004] QDC 149; MD v VRD [2004] QDC 422.
There is very little evidence to indicate whether Count 1 occurred before or after 1 July 1984. The evidence at the trial certainly did not indicate this clearly, and the only evidence from the applicant which threw any light on the matter was her statement under cross-examination at page 20 that she thought one offence occurred before 1 July 1984 and the others after. I am wary about the reliability of this evidence, but it is the only evidence on the point. Furthermore, the solicitor for the respondent did not particularly challenge the proposition that the first offence probably occurred before 1 July 1984. In these circumstances I am prepared to find that Count 1 did occur before 1 July 1984, but all of the other offences occurred after that date.
‑ Course of conduct
With regard to the regime after that date, there are two important decisions of the Court of Appeal which consider the application of these provisions, HW v LO [2001] 2 Qd R 415 and MAJ v. KM [2000] QCA 410. In the former case the respondent was convicted on indictment in 1999 of five counts of rape and one count of indecent dealing with a girl of under 17, which occurred between 1975 and 1981: page 422. The first offence in time was the indecent dealing, committed on an unknown date in 1975. The first rape was in 1977, the second and third in 1978, and fourth and fifth in 1981. De Jersey CJ at page 417 said of the concept “course of conduct”:
“The words connote in this context a succession or series of acts (or omissions) which, because of the sufficiently close interrelation, whether by nature, time, place or otherwise, display, in aggregation, an identifiable overall pattern … It goes without saying that one cannot be prescriptive of the requisite extent of the relationship … Given a high level of regularity and consistency in the time, place and nature of the act, a course of conduct might persist over days, weeks, months. But even with similar acts, substantial separation in time will ordinarily exclude their being regarded as arising out of the same course of conduct or closely related courses of conduct ... The events involved in these offences were too far distant and separated in time and place to warrant the conclusion that they arose out of the same course of conduct.”
In that case, all of the offences occurred before 1 July 1984. Because the court took the view that there had to be a separate assessment anyway in respect of each offence, it was unnecessary for the court to decide whether the provisions relating to a course of conduct or closely related courses of conduct applied to offences committed prior to 1 July 1984, although it seems to me that the reasoning clearly assumed that they did.
The decision in MAJ v. KM [2000] QCA 410 was delivered three weeks after the decision in HW v LO, but referred to it. In that case the respondent had pleaded guilty in 1998 to six acts of indecent dealing, which occurred some time between October 1977 and late February 1978. The dealing involved gradually worsening conduct, which did not involve penetration, but there was some variation in the conduct, so that it was not all the same. In that case, I awarded $5,000 compensation[9], on the basis that section 663A(a) of the Code applied, so that the prescribed amount was $5,000, and that all the offences arose out of one course of conduct or closely related courses of conduct, so that the prescribed amount overall was $5,000. The Court of Appeal held that the “course of conduct” restriction in section 663B was applicable[10].
[9]I was the judge at first instance: D110/00, 17 April 2000, unreported.
[10]See Davies JA [12].
Davies JA at [14] noted:
“The similar but escalating nature of the respondent’s conduct, and the fact that the offences occurred in similar circumstances, that they formed part of a pattern of similar offences of at least weekly occurrences, and that, although the indictment alleges a much longer period, they occurred over a period of a little under five months. Giving section 663B its ordinary meaning it seems to me plain enough that the offences arose out of one course of conduct or at least closely related courses of conduct of the respondent.”
Ambrose J at [22] said:
“There is nothing on the face of the legislation in my view which would prevent a significant number of offences committed over a long period of time – years perhaps – coming within a category of offences ‘arising out of the one course of conduct’.”
Chesterman J said at [38]:
“Giving the words ‘course of conduct’ the meaning elucidated by the Chief Justice (with whom Muir J agreed) in (HW v LO … there must be a succession or a series of acts which because of a sufficiently close interrelation by reason of their nature, time, place or other circumstance display an identifiable overall pattern. There should ordinarily be elements of continuity and regularity if there is to be found a ‘course of conduct’. According to that understanding, the offences committed by the respondent on the applicant did constitute a course of conduct.”
In the present case it was conceded on behalf of the respondent that the last offence, that involving the motorcycle, was not part of a course of conduct, I suppose because of the different circumstances under which it was committed and the different place. There is evidence to suggest that all of the offences occurred within a period of 12 months, so the offences, apart from the last, occurred within a somewhat shorter period. If all but the first incident occurred on or after 1 July 1984, and they all occurred while she was in grade one, all of those incidents occurred within a period of six months. Significantly, the fourth occurred not all that long after the second and third. All the offences except the first involved digital penetration of the applicant’s vagina, and so it can be said that the relevant behaviour involved similar but escalating conduct of the respondent. It was conceded on behalf of the applicant that the two offences that occurred on the one day were part of a course of conduct. In my opinion, the facts in this case are much closer to those in Marsten than in HW v LO, and in my opinion all of the offences constituted the one course of conduct, except the fifth which it was conceded was a separate offence.
‑ Was there an “accrued right”?
The next question which arises is whether the restriction in section 663B in relation to “one course of conduct” extends to include Count 1. It was submitted that this provision does not operate retrospectively, and that Count 1, because that occurred prior to 1 July 1984, should be treated as if the amendment to section 663B had not occurred. The practical effect of this was that a separate amount of up to $5,000 can be awarded in respect of that offence. It was submitted that the restriction by reference to a course of conduct necessarily only applied to conduct on or after 1 July 1984. On that basis, the maximum award I could make (in the light of the findings I have already made) is $45,000.
This approach was supported by the decision of another judge of this court in P v B [2004] QDC 149, based in turn on a decision of the then chief judge of this court in Holt v Boughton (Helman CJDC, 13 August 1993, unreported). In that case, the offences were committed, and any injuries suffered by the applicant were suffered, prior to the commencement of the 1984 amendment, but the respondent was not convicted until after. However, his Honour held that prior to the commencement of the amendment the applicant, because she had suffered the injuries, had acquired a right to compensation in accordance with the Act as it then was, which right was preserved as an accrued right by section 20(2)(c) of the Acts Interpretation Act 1954[11], notwithstanding the subsequent amendment of the Act. He adopted the expression used by counsel before him, that the right to compensation “remained in limbo until crystallised by the conviction” of the respondent.
[11]This is the current numbering; prior to 28 November 1995 the provision was s.20(1)(c).
With respect, in my opinion that approach is clearly contrary to the reasoning of the Court of Appeal in Chong v Chong [2001] 2 Qd R 301. That case was concerned with the question of when the Limitation of Actions Act ran, but in that context the Chief Justice said at page 303 that:
“One would prima facie have thought that establishing her late husband’s conviction for having wounded her and her having suffered substantial injury in consequence, the appellant would thereby[12] attain an ‘entitlement’ to monetary compensation warranting the conclusion that she had a ‘cause of action’ falling within that concept … The appellant should therefore have been seen as having a ‘right’ to compensation, and her claim should not have been characterised as falling into the category of ‘mere hopes or contingencies’.”
[12]Emphasis added.
Demack J, with whose reasons each of the other members of the court expressed agreement, said at page 308:
“Section 663B has created a statutory right which can be described as a cause of action. The facts that have to be proved are:
(a) conviction of offender on indictment;
(b) of an offence relating to a person;
(c) whereby injury was caused to a victim.”
From page 309 his Honour considered the question of when the right to claim under section 663B arose, and rejected the notion expressed earlier by a single Supreme Court judge that a right to compensation arises at the time the injuries were inflicted, and continued:
“With due respect, that ignores the need for a conviction ‘on indictment of any indictable offence relating to the person of any person’. The injury itself gives rise to no claim. Only after conviction for a particular class of indictable offences can an injured victim make a claim … It follows that the cause of action arose when Chong was convicted on 14 February 1991.”
Furthermore, from page 311 his Honour considered the question of the date on which the “prescribed amount” of compensation is ascertained. His Honour concluded that it was the prescribed amount as varied from time to time when the court’s power was exercised, that is when the order was made, but this was subject to the restriction in section 663A(a) in respect of injuries suffered before the amendment. Of this his Honour said at page 313:
“That provision does no more than indicate when the ameliorating provisions of the 1984 amendments are to come into effect. Every change to the law must have a point of transition.”
Compensation under chapter 65A is entirely a creation of the statute. Its incidence and operation depend entirely on the terms of the statute. Whether a person has, and when a person acquires, a right to compensation under the statute depends on the terms of the statute. Although the statute was amended in 1984, and the decision in Chong was concerned with the statute after those amendments, it was pointed out by Demack J on page 305 that the core of section 663B had remained constant. His Honour went on to quote what he referred to as the core provisions, which reflect the terms of that section both before and after the 1984 amendments[13]. It follows that his Honour’s subsequent reasoning as to when a right arises under those core provisions is as applicable to the section prior to the 1984 amendment as after the 1984 amendment. The reasoning in Chong in my opinion therefore applied to the Act prior to the 1984 amendment. It clearly establishes that at that time there was no accrued right under the section unless and until “a person is convicted on an indictment”.
[13]They are in terms of the original 1969 version of s.663B(1), with the original limitation of $2,000 omitted and an immaterial change of “any” to “an”: see Criminal Code Amendments Act 1967 s. 4
I think it is also significant that the Court of Appeal, in considering HW v LO (supra) and Marsten (supra), made no reference to this point, even though, if it is correct, the crucial issue on which those decisions turn did not arise for decision, since in each of those matters all of the relevant offences were committed prior to the 1984 amendment. If the applicant in each of those matters had an accrued right which survived that amendment to compensation to a limit of $5,000 in respect of each of those offences, it seems extraordinary that none of the six experienced judges who constituted those two courts realised that, even if the point was not expressly raised in argument.
It was said in P v B (supra) that Marsten (supra) is not authority in relation to the existence of an accrued right because this point was not expressly referred to in the reasons of any member of the Court of Appeal in that case. That may be right, but it was not a point of which they would have been unaware. That is because it was a point I dealt with expressly in my reasons in Marsten[14] where I said at page 6:
“It may be that when the Act was amended in 1984 there was not an appreciation that cases could arise where the limitation of the prescribed amount for the injury would remain at $5,000, but the amendment would otherwise apply because the cause of action did not arise until conviction. If the right to compensation was treated as having arisen in 1977 or 1978 then the position might be different. However, it is now established, in a way which is binding on me, by the Court of Appeal in Chong v Chong (a judgment on 13 August [2004]) that there was no right to compensation until the date of conviction, and I think it must follow that the amendment act of 1984 applies to the entitlement to compensation, except for the time when the increase in the prescribed amount comes into force and that operates by reference to the date on which the injury was suffered, because that is made express in the terms of the amendment.”
[14]Application 110 of 2000, McGill DCJ, 17 April 2000, unreported.
Apart from that, the reasoning in Holt v Boughton (supra) is not consistent with the authorities on the operation of section 20(2)(c). An uncrystallised right “in limbo” is the sort of thing which is not preserved by a statutory preservation of an “accrued” right. His Honour cited Fox J in a 1986 decision, which expressly referred to “something in the nature of a cause of action which has arisen”, and Chong is clear authority for the proposition that no cause of action had arisen in respect of Count 1 prior to the 1984 amendment.
There can be an inchoate or contingent right and still be an accrued right, as said by the Privy Council in Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541 at 552. See also Esber v the Commonwealth (1992) 174 CLR 430 at 440. In that case, it was said that a person who had applied for redemption as a lump sum of an entitlement to a periodical payment, and had had the application refused, and had applied to the Administrative Appeals Tribunal to have that decision overturned:
“Had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim … Once the applicant lodged the application to the tribunal to review the delegate’s decision, he had a right to have the decision of the delegate reconsidered and determined by the tribunal.”
Their Honours referred to Ranasinghe, and also to Director of Public Works v Ho Po Sang [1961] AC 901. In that case, which concerned the question of whether a right to obtain a rebuilding certificate under landlord and tenant legislation had accrued at a particular time, the Privy Council, in dealing with an earlier authority[15] at page 925 drew a distinction between conditions on the acquisition of a right and conditions on the enforcement of a right. A right can be accrued notwithstanding that there are conditions in its enforcement, but there is no accrued right if there is a condition on the acquisition of the right.
[15]Hamilton Gell v White [1922] 2 KB 422.
Both that decision and the decision in Esber, and other authorities, were considered by the Court of Appeal in Queensland in Kentlee Pty Ltd v PrinceConsort Pty Ltd [1998] 1 Qd R 162. That case concerned the question of whether there was an accrued right which survived an amendment to the Liquor Act 1992, the details of which need not be set out. Fitzgerald P after a detailed examination of the authorities, said at page 181:
“The material provisions of the Acts Interpretation Act (ss 20(2)(c), (e) and (3)) are founded on the premise that, at the time of the repeal, there is an ‘accrued’ or ‘acquired’ right, albeit one which may yet have to be established by demonstrating matters on which the right depends, even matters which involve opinion and value judgments, and perhaps even criteria controlled discretions. But the position is otherwise where, as in the present matter, the discretion is effectively at large.”
The present case of course is not one where there was no accrued right because the discretion is effectively at large: that was essentially the proposition which was rejected in Chong. Once the offender has been convicted, there is a right to compensation, subject to the possibility of its being defeated on legitimate discretionary grounds, and subject of course to its quantification and assessment. The other member of the majority in Kentlee, Dowsett J, at page 187 said that the existence of a mere hope or expectation that a public official would exercise a discretion in one’s favour was not an accrued right, and continued:
“In a different category are persons who have identifiable rights which can only be implemented by reliance upon a non-discretionary decision of an official or a court. In such a case, provided the machinery for obtaining the appropriate decision has been invoked before the repeal or amendment, a provision such as section 20 will operate to preserve that right after repeal.”
The third member of the court, Pincus JA, dissented.
In my opinion, the distinction drawn in Ho Po Sang between a condition on the acquisition of a right and the condition on the establishment of the right is an important one, and crucial for the determination of the present matter. Prior to the conviction of the respondent, any right to compensation was conditional in the former sense; it was not that the applicant had to establish something or had to go through the motions of getting something which she was at least prima facie entitled to obtain. It depended upon a separate outcome in other proceedings brought by someone else against the respondent which in 1984 were not even contemplated. That is a right which is conditional, and not conditional in the sense spoken of in Esber. The relevant condition is a condition of the acquisition of the right, not a condition of its establishment. If a right which was subject to a condition on its acquisition was preserved, the decision in Kentlee would have been different. In that case, the right the applicant was seeking to have preserved was conditional upon the favourable exercise of a broad discretion by an administrative decision-maker. If a right could be acquired or accrued, even though it was subject to a condition upon its acquisition, that would have been sufficient to satisfy the statute in Kentlee, and the decision would have been different.
There are two more decisions I would mention, the first a decision of the Full Court of Tasmania: Robertson v Smith [1974] Tas R 50. The respondent committed a driving offence at a time when, if he were convicted of that offence and disqualified from obtaining a driver’s licence, he was entitled under a statute to make application to the court for a “special licence” to drive for limited purposes while disqualified. Before the matter came to court, when he was convicted of the offence and disqualified for a period from holding or obtaining a driver’s licence, the statute was repealed. He submitted nevertheless that having committed the offence he had an accrued right under the statute to apply for a special licence which was preserved by the Tasmanian equivalent of section 20(2)(e). However, the Full Court held that no such right arose until he was convicted and disqualified, by which time the statute had been repealed. It was said that whether the court had the power to grant that licence depended upon the existence of the provision at the relevant time, that was at the earliest the time of when the disqualification was ordered. The application was a distinct and severable proceeding, and there was no accrued right to apply and have it determined under the statute as it was at the date of the offence.
In my opinion that is analogous to the situation which applies under chapter 65A of the Code. I think this approach is further supported by the comments of Waddell J in Sofi v Wollondilly Shire Council [1975] 2 NSWLR 614 at 618 that authorities identified by him “indicate that a right may be regarded as accrued only if it is a specific right which is vested in an individual by reason of the happening of an event, or events, specified by the repeal enactment, or by virtue of some act done by the individual before the repeal.” In my opinion, the applicant did not prior to the 1984 amendment fall into either of those categories.
There was in my opinion no accrued right until all of the statutory elements had been satisfied[16], including the conviction of the respondent. That was a condition on the acquisition of the right to compensation, and until that condition was satisfied she did not have an accrued right. The right was then still inchoate and conditional, in the Esber sense, because it had to be established by demonstrating matters on which the right depended, was subject to criteria controlled discretions, and required quantification. In my respectful opinion, the contrary decisions in Holt v Boughton (supra) and P v B (supra) on this point were wrong, and I decline to follow them. I note that in the latter case his Honour mentioned that the same approach as mine had been adopted by Judges McLauchlan[17], Robin[18], Hoath[19] and Brabazon[20], whose views I consider worthy of respect.
[16]As identified in Chong by Demack J at page 308.
[17]Baxter v Bowman (D6024/01, 6-6-02, unreported)
[18]Johns v Brown (D5533/01, unreported; M v D [2003] QDC 153.
[19]Osborne v Bennett (D4606/99, 11-2-00, unreported)
[20]G (D3509/96, unreported); P (D3510/96, unreported)
‑ Application of prescribed amount
It follows that only one award can be made in respect of the first four counts. That leaves for determination the question of how the “prescribed amount” is to be determined in the case of mental or nervous shock caused by a course of conduct which straddled 1 July 1984. That is not a point on which I have found any authority, or indeed any guidance in earlier decisions, but it seems to me that an examination of the relevant provisions of the Code provides the answer without any great difficulty. Section 663B(1) relevantly provides for the court to order a payment of compensation for injury suffered by reason of the offences arising out of the course of conduct. An injury arising out of the one course of conduct is necessarily something which is going to be suffered at the earliest at the point when the course of conduct comes to an end; it is not something which will be suffered part of the way through the course of conduct. Accordingly, it was not an injury suffered before 1 July 1984, so paragraph (a) of the definition of “prescribed amount” in section 663A does not apply. It follows that section 663AA(1) applies, and the prescribed amount is $20,000. Accordingly, the maximum award of damages which can be made is $40,000.
Assessment
The applicant has suffered an adjustment disorder with mixed anxiety and depression, of moderate intensity and suffered it for a long time. She has required antidepressant medication for the last seven years, and she will, accordingly to Dr Apel, require it for at last the next four or five. It will be reasonable for her to undertake the course of psychiatric treatment recommended by Dr Apel, which will cost $7,200: Exhibit 1. Medication costs are $1,800 for the next five years. There are prospects of the condition improving with treatment, although there is some uncertainty as to the extent to which it will improve, and some uncertainty about the extent of residual symptoms[21]. As well, I suspect that as the applicant’s daughters grow up and pass the point where they serve as a reminder of what happened to her when she was young, the continuing effect of the offending on the applicant will abate anyway, although that will not be for some time since her youngest daughter is still quite young[22].
[21]Dr Apel, page 5.
[22]Dr Hazell, page 11.
There is no evidence directed to showing any economic loss, and no specific argument for economic loss was advanced on behalf of the applicant, although the applicant’s position was essentially that she should be awarded the maximum allowable on the basis that the damages at common law would have been in excess of that. Not infrequently these days where awards are made under the Code in respect of mental or nervous shock the court simply awards the maximum allowable, on the basis that damages at common law would have exceeded that figure. If the applicable maximum were $5,000 there is I think no difficulty in that approach, but in the present case I think it preferable to make an assessment of damages for pain and suffering and loss of amenity[23], and then see how the statutory restriction affects that.
[23]Fortunately for the applicant, this is not made under the Civil Liability Act 2003 and Regulation: see section 4(3).
I am aware of some other matters where damages have been awarded either solely or substantially for psychiatric injury. In Walland v Spider[24] the first plaintiff was severely injured in a motor vehicle accident, and his wife suffered psychiatric injury as a result of seeing her husband trapped in the vehicle with serious injuries. She had a chronic adjustment disorder involving disturbed sleep, diminished energy, loss of motivation and impaired concentration, she was moody and irritable, found herself becoming angry with acquaintances without cause, and needed psychological counselling. She was a good deal older than the present applicant, having been married to the first plaintiff for 26 years prior to the date of the accident. General damages were assessed at $38,000.
[24]Cairns Writ 49/95, Jones J, 13 December 1999, unreported.
In Carrier v Bonham[25] the plaintiff bus driver suffered psychiatric injury when the first defendant attempted to kill himself by walking in front of the bus. The plaintiff suffered an adjustment disorder with anxiety features over a period when he was trying to persist with bus driving, and for some months thereafter, there was a continuing inability to drive a bus, and the prospects of aggravation. Damages for pain and suffering and loss of amenities were assessed at $18,000.
[25][2000] QDC 2006; an appeal [2002] 1 Qd R 474 did not deal with the question of general damages.
In Kelly v Northern Meat Holdings [2001] QSC 14 the plaintiff developed serious depression as a result of events in the course of his employment, which was sufficient to render him unemployable although the condition might improve as a result of psychotherapy. He was said to be likely to continue to have significant psychiatric problems which had not only greatly altered his life and restricted his activities but affected his relationships with his family and people generally. Damages for pain and suffering and loss of amenities were assessed at $55,000.
In McMillen v Bramble Security Services Ltd [2001] QSC 271 the plaintiff who was employed on an armoured car crew suffered chronic post traumatic stress disorder and chronic major depression as a result of being taken hostage during an armed robbery. He became irritable, withdrawn and abusive, attempted suicide, broke off a relationship with his de facto, and suffered other family problems. His condition steadily deteriorated despite counselling, work conduct became erratic, and he was involved in two bizarre criminal incidents. He had been on regular medication for some five years by the time of the trial, and varied from hyperarousal to deep depression. Notwithstanding several years of treatment including from a psychiatrist and a psychologist, he was suffering chronic and severe post traumatic stress disorder and a major depressive illness. Damages for pain and suffering and loss of amenities were assessed at $80,000.
In Attard v Hore[26] the plaintiff suffered a significant back injury which caused a chronic adjustment disorder with depressed mood, having had a history of depressive disorder which pre-accident had responded well to treatment. General damages, which would have included damages for the physical injury, were assessed at $50,000.
[26][2003] QSC 89; an appeal against the assessment was dismissed: [2003] QCA 536.
Taking into account these and the matters referred to earlier, I assess damages for pain and suffering and loss of amenities at $45,000, of which I attribute $35,000 to the past. Allowing interest on this at 2 per cent for 21 years comes to $14,700. Future costs of psychiatric treatment and medication come to $9,000, so the total damages come to $68,700.
That in my opinion needs to be apportioned between the course of conduct constituted by the first four counts, and the separate incident constituted by the fifth count. Dr Apel did not think that any meaningful apportionment of the plaintiff’s psychiatric state could be undertaken[27], and although I have considerable sympathy with that view, it appears necessary that some sort of apportionment be undertaken in the present case. Fortunately, Dr Hazell was more forthcoming, and was prepared to offer the opinion that the fifth count, the motor bike incident, was responsible for 35 per cent of the total injury suffered by the applicant, on the basis that it was the most traumatic[28]. He gave figures for the other episodes, but it is unnecessary to deal with them separately; as a course of conduct they are responsible for 65 per cent of the applicant’s condition. 35 per cent of $68,780 comes to $24,045; 65 per cent comes to $44,655. In each case, the amount assessed is in excess of the “prescribed amount” of $20,000. I therefore award $20,000 in each case, a total of $40,000.
[27]Dr Apel, page 7.
[28]Affidavit of Hazell filed 8 September 2005, Exhibit BH1.
There will therefore be an order that the respondent pay the applicant the sum of $40,000 compensation in respect of the injury suffered by her as a result of the offences of which the respondent was convicted in the District Court in Ipswich on 6 September 2004. I will deal with the question of costs when judgment is delivered, in case there are other relevant considerations of which I am presently aware, but subject to that I will order the respondent to pay the applicant’s costs of and incidental to the application to be assessed[29].
[29]Jenner v Holder [1988] 2 Qd R 580.
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