KMA v DFS
[2010] WADC 6
•25 JANUARY 2010
| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA IN CHAMBERS |
| LOCATION | : PERTH | ||
| CITATION |
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| CORAM | : SWEENEY DCJ | ||
| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| MATTER |
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and
IN THE MATTER of an Appeal by
| BETWEEN | : KMA |
Appellant
AND
DFS
Respondent
ON APPEAL FROM:
| Jurisdiction | : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA | ||
| Coram |
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| Citation |
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| File No |
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| Catchwords: |
Criminal injuries compensation - Additional evidence - Whether error made by
Assessor
Legislation:
Criminal Injuries Compensation Act 2003
Result:
Appeal allowed. Award increased to $100,000. Section 48 to apply to $6,000 of that sum
Representation:
Counsel:
| Appellant | : | Mr K S Pratt |
| Respondent | : | Mr R C M Hofmann |
| Amicus Curiae | : | Ms L Young appeared on behalf of the Chief |
Executive Officer of the Department of the
Attorney General
Solicitors:
| Appellant | : | Stephen Browne Lawyers |
| Respondent | : | R C Hofmann |
| Amicus Curiae | : | State Solicitor of Western Australia |
[2010] WADC 6
Case(s) referred to in judgment(s):
A v D (1994) 11 WAR 481
Crumby v Kuru (1995) 13 SR (WA) 331
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
Garton v McCormack (2002) 30 SR (WA) 307
Hatfield v Under Secretary for Law, unreported; SCt of WA; Library No 4012;
15 December 1980
LMC v RJO [2002] WADC 147
M v J and J v J, unreported; SCt of WA; Library No 920598; 19 November 1992
MJN v MAJS (2003) 35 SR (WA) 219
Re; Karra (1984) 2 SR (WA) 97
S v Neumann (1995) 14 WAR 452
[2010] WADC 6
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SWEENEY DCJ:
Introduction
1 In May 2003 the respondent was tried on a four count indictment for
offences of sexually interfering with his two stepdaughters, being the appellant and her older sister, both of whom were under 13 years of age at the time of the offences. He was convicted of an offence in relation to each child.
2 The girls' mother had been in a relationship with the respondent for
some years, with one child, a daughter, born of that relationship. Once the relationship ended, the respondent had access visits with his daughter and also, on occasion, his two step-daughters. Count 1 on the indictment, of which the respondent was convicted, involved an incident where the appellant's older sister had stayed overnight with the respondent and had slept in his bed, wearing only her underwear. He kissed her on the head, face and neck and then put his hands down her knickers and digitally penetrated her vagina.
3 The incident in count 2, of which the respondent was convicted,
occurred when the appellant was about 12 and stayed overnight at the respondent's house. She had been planning to spend the night on a fold- out couch, but the respondent told her he could not be bothered setting it up and so she slept in his bed. Once in bed, he rubbed her stomach under her clothes, squeezed her breasts under her training bra and then put his hand down her knickers and touched her on the vagina.
4 They were the two incidents the subject of convictions. The
appellant alleged that another incident, the subject of count 3, occurred when she was 12 years of age and she and her two sisters accompanied the respondent to York where he went skydiving. The girls were left to themselves during the daytime but at night, the appellant alleges, they all slept in a caravan owned by a friend. She alleges that the respondent asked her to come and sleep with him on the floor, which she did, and he then rubbed her on the stomach, squeezed her breasts and put his hands down her knickers and touched her on the vagina, before being interrupted by someone coming into the caravan. The jury was unable to reach a verdict in relation to that incident.
5 Finally, the appellant alleged that a sexual touching, the subject of
count 4, occurred in the context of horseplay. She alleged that she jumped on the respondent with her legs around his waist and that, while in that position, he touched her on the vagina on the outside of her jeans. In
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respect of that incident, the trial Judge left the defence of accident to the jury. The defence position was that the horse play had occurred but that the sexual touching had not but that, if it had, it was accidental and innocent in intent. The respondent was acquitted of count 4. Ultimately, the State discontinued count 3, so the respondent was neither acquitted nor convicted of that charge.
6 The appellant applied for compensation pursuant to the Criminal Injuries Compensation Act 2003. In respect of count 2, the proved offence, the Assessor awarded $6,500 compensation. In respect of count 3 the Assessor was satisfied on the balance of probabilities that the offence occurred and awarded compensation of $6,500, making a total award of $13,000.
7 The appellant appeals against that award on the sole ground that it
was below the range of a sound award of compensation. A considerable amount of evidence has been put before me that was not before the learned Assessor. I granted leave for that evidence to be put before the Court subject to issues of relevance. Now having read all of the additional material and found it to be relevant, I accept its tender.
8 The appeal has been lodged one day out of time raising the
preliminary issue of whether I should give leave to appeal out of time. The appeal was lodged a day late due to the appellant's lawyers' outside clerk failing to follow an instruction to file the notice of appeal on the day it was due. It was through no fault of the appellant herself that the delay occurred. No prejudice is occasioned to the respondent. There being merit in the appeal, I grant leave to appeal out of time.
9 The next issue arises in relation to whether I need be satisfied, on the
balance of probabilities, that the act the subject of count 3 did occur before compensation can be awarded in respect of it. The hearing is an appeal de novo: see s 56(1) of the Act. No detailed researched submissions were made on the issue and I consider the matter can be argued either way. Rather than dwell on that issue I prefer, for the purposes of this decision, to take the conservative view that I should turn my mind to that issue as though it were before me afresh and consider whether I am so satisfied. For the reasons which appear below, I am.
10 The issue which remains for determination is whether the award did
fall below the range of a sound award of compensation. For the reasons which I give below, and on the basis of the further material which is
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before me, I am satisfied it did and should be increased to $100,000,
$6,000 of which will only be paid on satisfaction of s 48 of the Act.
Did the offence alleged in count 3 occur?
11 Pursuant to s 16 of the Act, a person who suffers injury as a
consequence of the commission of an alleged offence may apply for compensation for that injury and any loss also suffered. That applies where a charge is withdrawn or a nolle prosequi or notice of discontinuance is tendered in respect of a charge, which was the situation here.
12 Pursuant to s 12(3) of the Act, the Court must not make a
compensation award unless the appellant proves on the balance of probabilities that injury and loss has occurred as a consequence of the proved offence. I must first be satisfied that the alleged offence was committed, before I can turn to the question of whether the injury and loss were caused by its commission. The standard of proof is the balance of probabilities.
13 I have had access to the same materials which were before the
Assessor, including the entire trial transcript, the appellant's victim impact statement and materials in the Assessor's file. That file included a letter from the respondent maintaining his innocence and a report dated 4 July 2004 from Dr Vivienne Cass, clinical psychologist and psychotherapist, which was prepared for the purpose of consideration of the respondent's release on parole.
14 The respondent's stance, both in his letter and when interviewed by
Dr Cass, was that the appellant's mother used her children as pawns in a bitter marital breakup, that the allegations of both girls were false and that the appellant's application for compensation was her means of punishing the respondent for leaving her mother.
15 Dr Cass's report details the respondent's progress while incarcerated,
reports his stance of denying the offences, comments on the challenges for the legal system presented by a convicted person maintaining a stance of denial and comments that, while denial of sexual offences usually arises out of the need for self-protection, "denial can also arise as a result of false accusation". Dr Cass expresses the view that, based upon her experience, her conclusion in regard to the respondent "is that there is a very strong possibility that he did not commit the offences of which he has been found guilty in the courts".
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16 In reaching a view on whether or not the offence alleged in count 3
was committed, I have paid no regard to this opinion. I do not consider it to be admissible. Expert evidence is admissible where the trier of fact is likely to need assistance from an expert in an area which exceeds their general understanding and life experience. The issue of whether or not a suspect is telling the truth when he says he is innocent is not an area for expert opinion. In addition, the expert is purporting to state an opinion on the final conclusion on which the trier of fact is obliged to reach a decision. On both counts the evidence is inadmissible.
17 I am entitled to have regard to the verdicts of guilty reached by the
jury in this case. I am entitled to have regard to the fact that the respondent was convicted of an indecent dealing upon this same appellant during the same broad time frame during which the alleged offence is said to have occurred. I am also entitled to have regard to the fact that he has been convicted of a digital penetration on a second complainant occurring within the same family situation and within the same broad time frame. Both of these convictions amount to propensity evidence.
18 The acquittal of the respondent on count 4 of the indictment does not
reflect adversely upon the credibility of the appellant, in that the alleged touching was said to have occurred during horseplay within the family home when the mother was home and the jury's verdict of not guilty is readily explicable within that context.
19 While the allegation in count 3 is a separate allegation and I must not
use propensity evidence by way of substitution for the evidence in respect of that count, I am entitled to take into account that the respondent had a proven propensity to sexually interfere with little girls, his two stepdaughters, in situations where he had the opportunity to do so. The propensity evidence tends to show that he had a sexual attraction to those young girls and tends to show that he would be more likely to act upon that attraction by sexually interfering with them. The direct evidence of the appellant led at trial in relation to count 3 was compelling and I consider the propensity evidence makes it more likely that the event did occur as she described. I am satisfied on the balance of probabilities that the alleged offence in count 3 on the indictment did occur.
Did the award fall below the range of a sound award of compensation?
20 Pursuant to s 31 of the Act, the maximum amount of compensation
that may be awarded for each of the two offences is $50,000, or a total of $100,000. Compensation must be assessed by applying ordinary tortious principles for assessment of damages, rather than seeing the applicable
[2010] WADC 6
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maximum as a guide to the worst case. Compensation is assessed first,
and then awarded subject to the jurisdictional limits imposed.21 The Criminal Injuries Assessor is a specialist tribunal and it is
therefore proper to give weight and consideration to the Assessor's reasons in awarding the sum awarded (Crumby v Kuru (1995) 13 SR (WA) 331 at 333). It is fair to say, however, that the material presented to this Court which was not before the Assessor adds significantly to the relevant material informing the proper award of damages.
22 Pursuant to s 12 and s 16 of the Act the appellant may claim, in
respect of each offence, compensation for the injury and any loss suffered. The appellant must prove both that the injury and loss occurred and that they were a consequence of the commission of the offences.
23 It is not necessary for the offences to be the sole cause of the injury:
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 at 673 per Mason and Wilson JJ; S v Neumann (1995) 14 WAR 452 at 463 – 464 per Murray J. However, it does not follow that where non-compensable events contributed to the injury, or had a propensity to do so, the appellant is entitled to compensation for the full injury: LMC v RJO [2002] WADC 147 at [20] – [23] per Yeats DCJ; MJN v MAJS (2003) 35 SR (WA) 219 at [47] – [52] per Martino J.
24 "Injury" includes bodily harm and mental and nervous shock: s 3 of
the Act. "Mental or nervous shock" contemplates the impact of the offence on the mind or nervous system (see Hatfield v Under Secretary for Law, unreported; SCt of WA (Burt J); Library No 4012; 15 December 1980 at p 5) of an enduring character which amounts to an injury, as opposed to a mere emotional reaction: S v Neumann (supra) at 461 per Murray J. Mere fright, humiliation or anguish are seen as emotional reactions, whereas ongoing distress and disgust are seen as compensable: M v J and J v J, unreported; SCt of WA (Scott J); Library No 920598; 19 November 1992.
25 The Court must attempt to distinguish between damage that flows
from the offences themselves and indirect damage that flows from such things as the reaction of the victim's friends and family, court proceedings or public attention: Re; Karra (1984) 2 SR (WA) 97; Garton v McCormack (2002) 30 SR (WA) 307 at 311 per Yeats DCJ. That is of obvious relevance in this case.
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"Loss" includes:
(a) expenses actually and reasonably incurred that arose directly from the injury suffered or arose in obtaining any report from a health professional or counsellor in relation to the injury suffered; (b) expenses that are likely to be reasonably incurred by the appellant for treatment that she is likely to need as a direct consequence of the injuries suffered by her; and (c) loss of earnings as a direct consequence of the injury suffered by the appellant: s 6 of the Act.
27 Turning to general principles in relation to economic loss, the
appellant must prove that she has suffered a loss of earnings by reason of the offence, loss of earnings including loss of earning capacity: A v D (1994) 11 WAR 481 at 489 per Pidgeon J. Pursuant to s 6(2)(c) of the Act, loss of earnings must be proven to have flowed "as a direct consequence of the injury suffered".
28 In a case such as this, where the appellant is not physically injured as
a result of the commission of the offences but her earning capacity has arguably been adversely affected by long-term mental distress, there are obviously many unknown factors that can never be precisely identified by this Court. The assessment of damages for loss of earnings in such a case obviously cannot be a matter of calculation based on precise figures. It is essentially a matter of judgment, taking into account the vagaries of life and attempting to assess the loss of the chance the appellant had to work, had the offences not played a part in her young life.
Evidence of injury and loss
29 The appellant prepared a victim impact statement at the time of
sentencing. She must have been about 17 at the time of writing that document. In that statement she says that, before the offences, she was a well behaved obedient child who was successful at school, loved her family, felt safe and enjoyed going to church. She trusted the respondent. He was of course a father-figure in her life.
30 She says that, after the offences, she felt hurt, used, dirty, scared,
confused and guilty. She feared that no-one would believe her. She reports sleeping with either her mother or sister for three years after the commission of the offences because she was too scared to be on her own.
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31 She states that she was unable to concentrate at school and used to
try to take days off "to make sure that mum was all right because (the respondent) used to abuse her". She states she developed a bad attitude towards her mother and used to rebel and punch the walls and started smoking.
She said that, at the time of writing the victim impact statement:
"Some days I am so angry that I don't know how to control it
and take it out on other people. I get moody."
33 She said she finds it difficult to do schoolwork and has trouble with
authority figures. She did not, at that age, get along with teachers or her grandfather or other people who espoused Christian values. She reports at that time dressing up in baggy clothes to cover herself up completely.
34 She also says that her relationship with her youngest sister, the
respondent's child, was affected and that her little sister used to report to
her that the respondent told her that they are not sisters.
Not surprisingly she reports having trouble in trusting men. Finally,
she states:
"I wanted to kill myself because he hurt me and it brought up the bad memories of when I was 4 years of age and molested by an 18-year-old neighbour."
36 I have been furnished with an affidavit sworn by the appellant on
1 May 2009. She is now 22 years of age, currently unemployed and living with friends, though she is in a relationship with a boyfriend which has been on and off for about two years. She has a daughter aged 2½ and is currently in receipt of a single parent's pension and family allowance. She has been studying for a Certificate III in Childcare and intends to continue with that course to obtain her diploma.
37 She says she is in excellent physical health.
38 She refers to the same incident that is mentioned briefly in her victim
impact statement of being abused when she was 4 years of age. Her memory now is that she was about 3 and she says she has a very vague recollection of the incident. It involved an 18-year-old neighbour taking her into his bedroom, exposing himself to her and also looking at her genitals. It appears she made almost immediate complaint to her grandfather. She states:
[2010] WADC 6
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"I did not feel traumatised by that incident. I knew that what had happened was wrong. That incident did not affect me. It is not something I have thought about or had nightmares about."
39 That of course is somewhat inconsistent with the victim impact
statement. She refers to her mother's statement to police dated 6 December 2001 and verifies the contents of that statement insofar as it relates to the respondent's relationship with her mother and family. In that statement, the appellant's mother states that she met the respondent in 1993, married him in 1994, then separating from him in 1995 due to long-term physical abuse received at his hands. That, then, explains the reference in her victim impact statement to the respondent abusing her mother. It would also appear that there was ongoing contact between the mother and the respondent after their separation.
40 In relation to the impact of the offences upon her shortly after their
commission, the appellant says that she became extremely frightened of the respondent, who used to come over to her house to pick up his daughter. She was frightened not just for herself, but also for her mother and her sisters, as well as her grandfather. She says on some occasions when she saw the respondent she became physically ill. She also began a habit of obsessively cleaning to keep her mind off the offences.
41 She was attending a Christian school at the time the offending took
place and prior to the offences had been a successful student. This then makes sense of her comments in her victim impact statement that she developed an attitude towards people whom she associated with Christian values and became rebellious towards them, including her grandfather.
42 She says that, following the commission of the offences, her school
performance and grades began to decline. By the time she left the Christian school in 1999 she felt her schooling standards had dropped significantly.
43 In 2000 she transferred to another Christian college, but had fallen so
far behind in her studies that she was held back a year when she commenced at the second college. Her school performance continued to be poor. That school also espoused Christian values and she did not get along there.
44 Eventually, she and her mother decided it was best that she left that
school and she then enrolled in a State senior high school. The appellant says that by then, however, her performance had deteriorated further and she constantly failed to attend school. She started smoking and binge
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drinking to the point of intoxication. She says that she also developed anorexia, one form of self harm and, following that theme, began cutting her arms when she was angry and still bears scarring from that behaviour. Her self-esteem and self-confidence diminished to the point of being almost non-existent and she suffered panic attacks. She says at that time in her life her behaviour generally began deteriorating and she rebelled against her mother and people in a position of authority. She says during this time she continued to be frightened that she would encounter the respondent.
The appellant reported the offences to police at the end of Year 9, when she was 15 years old. In her affidavit she states that she did not feel that either she, or her sister, had their mother's support in taking action against the respondent. She says that her mother told a lot of people about the offences, including the appellant's boyfriend. She felt extremely betrayed by her mother's indiscretion. She felt that people regarded her as a liar and were talking about her behind her back. Consequently she found it very difficult to get along at the State school as well and ultimately left. She attributes the overall deterioration in her school performance to stress and pressure as a result of the offences.
Eventually, in 2003, she returned to school and completed Year 10 through college coupled with a youth skills training programme which specifically catered to children with behavioural difficulties. She did not take her schooling any further after that.
47 I have been provided with a series of certificates from throughout her
schooling, amounting to awards for student of the week and sewing awards and the like. There are no school reports before me and nothing which indicates that the appellant was successful academically prior to the offences, but suffered a decline in academic performance after the offences. There is some very limited correspondence suggesting that homework was not being completed in 2000 and 2001.
48 The certificates do suggest that she was happy and getting along at
school prior to the offences. However, one of the certificates relates the period after the offences and close in time to them, indicating a good work attitude in English studies at that time. That was well prior to her reporting the matters to police.
49 The appellant deposes that, prior to reporting the incidents, she had a
relatively good relationship with her mother but, following her complaint to the police and her mother's response to that, her relationship with her
[2010] WADC 6
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mother deteriorated significantly. The appellant left home, following a bad argument about those issues, when she was 16 or 17 and lived away from home for about two years, only moving back when she fell pregnant. She says that her mother has said quite hurtful things to her and has blamed her and her sister for everything that has happened. The appellant also says that the offences and the following prosecution impacted negatively upon her mother who had a breakdown and developed a drinking problem.
50 By contrast, however, the appellant and her sister, the other
complainant, enjoy a close relationship, after some initial tension because
her sister had not wanted the matters disclosed.51 The appellant says that she does not think she has a very good
relationship with her youngest sister, the respondent's daughter, but does not know whether she has any knowledge of the offences and whether or not that has impacted on her relationship with the appellant. The appellant feels that her mother spoils her youngest sister and also notes that her youngest sister tends to get upset if her mother buys gifts for the appellant's daughter, so there would appear perhaps to be insecurity or jealousy issues there.
52 The appellant says that she has had long-term relationships with
men, however she acknowledges herself that she does not make good choices and has entered into several relationships with men who have been abusive towards her or who have had substance abuse issues. She suspects that she chooses partners who she believes are likely to be able to physically protect her from the respondent and, by implication, I gather she means that there is a price to be paid for choosing men of that type of personality. She says she has had difficulties with intimacy and does not gain any great sense of pleasure from sexual activity, which has impacted upon her relationships. She is currently in a relationship which she considers to be quite good, although she describes it as "off and on".
53 In relation to employment prospects, the appellant states that she
worked casually as a kitchen hand while still at school and, for a little while after leaving school, she worked occasionally peeling potatoes at a market garden. Prior to recommencing school to complete Year 10 she worked at a bakery for about 12 months. After finishing school altogether (at the end of 2003) she worked as a shop assistant for short periods of time and also as a cleaner. She was employed as a weed picker at a turf farm for a short period of time in late 2005. In 2006 she worked as a mushroom picker for a short time and then also as a barmaid for a few
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months at a couple of premises. She was working at a tavern in about 2006 for a period of six to seven months when a friend of the respondent attended the hotel and that person's presence, at a time when she was close to delivering her daughter, made her feel intimidated and anxious and she left that employment.
54 Since giving birth she worked for a couple of weeks as a car detailer
but did not enjoy it and left. Then in June 2008, about a year after her child was born, she started working as a child carer. She worked for one particular business for a period of nine months, certainly one of her longest periods of employment, but unfortunately was made redundant. That occurred, of course, during the recent global financial crisis and the difficulties experienced in the child-minding industry have received quite some publicity. While still working in that business, the appellant began studying Children's Services Certificate III which, at the time of swearing the affidavit, she had all but completed. She intends to continue her studies and obtain her diploma in Children's Services. She is also hopeful that, once she has that diploma, she will gain entry into a university to study paediatric nursing.
55 The appellant says that, generally, she has found it difficult to
maintain full-time employment on a consistent basis. She says she has difficulty concentrating, which has affected her performance, and she also has a fear that the respondent will find her place of employment.
56 I have also been furnished with her taxation returns for the financial
years ending 30 June 2003 to 30 June 2007. Certainly the appellant's
earnings have been modest.57 In the financial year ending 30 June 2003 her gross taxable income
was $5,370. In the financial year ending 30 June 2004 it was $5,354. The following year her income was $9,924 and, in the financial year ending 30 June 2006, she earned $10,783. A Centrelink PAYG summary for the financial year ending 30 June 2007 indicates $2,938 in benefits and a PAYG summary from the hotel the appellant worked at indicates a gross income for that same financial year of only $6,620.
58 I have also been furnished with three PAYG payment summaries for
the financial year ending 30 June 2008 indicating gross earnings of $3,949.91 with one business, and $523 with a second business where she worked as a car detailer. A Tax Detailed Explanation, provided by Centrelink, for the period 1 July 2007 to 24 June 2008 described the appellant's taxable income as $13,949.
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59 I also have documentation from the business which employed her as
a child carer, confirming that she commenced employment on 16 July 2008 and was retrenched on 20 March 2009. Her hourly rate whilst she was on a three-month probationary period between 16 July and 15 October 2008 was $14.77 and one of the staff timesheets implies that that hourly rate went up to $17 after the end of the probation period. Her last payslip from that entity indicates that her year-to-date gross income was $17,373.12. This was clearly her best year in terms of both earnings and job satisfaction. She was retrenched shortly after that last payslip.
While unemployed she has received Centrelink benefits.
By way of summary, the appellant states:
"I have suffered from the following symptoms subsequent to the
offence:
(a) Anorexia and an inability to eat. (b) Short concentration span. (c) Panic attacks. (d) Self-harm. (e) Low energy levels. (f) Low self-esteem and self-confidence. (g) Feeling of being frightened. (h) Agoraphobia. (i) Binge drinking. (j) Difficulties completing tasks and following things through to the end. (k) Nightmares. (l) Increased stress levels. (m) Depression.
(n) Difficulties with intimacy. (o) Anxiety."
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62 She also relies upon psychiatric reports, which I will discuss shortly.
There is no medical evidence dating from the time frame following the offences or following the reporting of the offences. The medical evidence is confined to the psychiatric reports, which are of course based in part upon the self-reporting of the appellant but also upon testing, clinical observation and impressions gained during interview. There is no independent evidence that the appellant ever displayed symptoms of, or was treated for, anorexia nervosa or agoraphobia, and no expert evidence confirming either diagnosis. I am prepared to accept that the appellant was highly anxious and that her anxiety manifested itself at times in loss of appetite and anxiety associated with leaving the house, but in the absence of medical evidence I am not prepared to accept that she suffered either condition of anorexia nervosa or agoraphobia. Most of the matters mentioned in her list, however, can be recognised adequately by a layperson and are the sorts of symptoms one might expect a young person to suffer having been sexually abused by a father-figure and then having suffered through the processes of disclosure to the police, the reaction from her mother and others in her social circle and the court proceedings.
63 After reporting the offences, the appellant underwent some
20 counselling sessions with Relationships Australia in 2003 - 2004. That body was unwilling to provide any detailed report, but has confirmed that the sessions took place. The appellant did not find that counselling particularly beneficial and, it seems, did not establish a good rapport with the counsellor at that time. She has not undergone any psychological counselling or psychiatric therapy.
64 She feels now, however, that she would "most definitely seek
counselling" with either a psychologist or psychiatrist, if she had the funds to do so. She is older and more mature now and I consider she is far more likely now to benefit from specialist assistance. Before me are two psychiatric reports, one from Dr Sam Febbo, consultant psychiatrist, and the other from Dr Frederick Ng, certified accredited child psychiatrist. Apart from the respondent's general stance that he is innocent of these offences, no challenge was taken to this evidence or either doctor's expertise and neither was required for cross-examination.
65 Dr Febbo's report of 6 July 2007 is based on an interview with the
appellant on 19 January 2007 and also documentation which he was provided with. Not surprisingly, the history provided to Dr Febbo by the appellant included the incident of which the respondent was acquitted and also generally implies that there were other unspecified incidents over a three to four-year period. I disregard those references. It also contains
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reference to the violent abuse perpetrated by the respondent towards the
appellant's mother.66 In relation to her past mental state, the appellant reported having
experienced significant anxiety, including panic symptoms such as nausea, sweating, palpitations and shortness of breath and said these symptoms had, in the past, occurred every few days with no specific triggers. She reported feeling frequently down and angry and irritable with poor energy levels and also reported self-harm behaviour on two occasions.
67 As to her current mental state, the appellant reported to Dr Febbo the
continuing presence of panic attacks once every couple of months, triggered by seeing someone similar in appearance to the respondent. The frequency of panic attacks has therefore significantly decreased, but she reported they remain as intense when they do occur.
68 The appellant reported an inability to deal with any stress levels and
poor sleeping patterns, including regular waking and nightmares, linked to continuing fear of the respondent. She reported a tendency to feel overwhelmed and an inability to concentrate and focus on any task. She reported feeling constantly irritable with a tendency to get angry quickly, both physically and verbally. She said at times she becomes so angry and frustrated that she self-harms and has cut the back of her hands. She has on one occasion experienced anxiety over attending a shopping centre alone. Overall, however, she reports a slight improvement in her sense of self-esteem and a slight improvement in her overall mood.
69 She also reported the presence of flashbacks where she has visual
images of an incident of abuse and associates the image with nausea and anxiety. She said these occur about every couple of weeks and are less frequent, but still as intense, as they were when she was a child.
70 She reports difficulties in intimacy and is unable to experience a
sense of pleasure during intimate relations and feels that sex is "all about
the guy".71 The appellant also told Dr Febbo that it had been suggested to her
that she should take antidepressants about 12 months prior to the interview, but she had not taken them. She reported that at one point she drank alcohol excessively, becoming intoxicated daily, but said she now drinks only occasionally. Not surprisingly, she reported her childhood in negative terms and also informed Dr Febbo of the other incident which had occurred when she was approximately 3 years of age.
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Based upon his interview and the documentation supplied, Dr Febbo states that the appellant has reported:
"Significant instability as she was growing up and she reported a number of psychiatric symptoms, maladaptive behaviour including behaviours falling within the category of Conduct Disorder and poor academic achievement. There were also a number of anxiety and depressive symptoms as a child. In my view, the sexual abuse was significant in this childhood instability and pathology.
[The appellant] continues to report significant psychiatric symptoms and from the history I obtained, she would fulfil the diagnostic criteria for Post Traumatic Stress Disorder, Major Depression (although the course of this condition appears to be fluctuating) and there are also a number of anxiety symptoms including Panic Attacks. There is also evidence to suggest at least the presence of significant borderline personality traits. There was also significant difficulty in relation to intimacy."
73 Dr Febbo formed the conclusion that the sexual abuse was
"significant in the development of [the appellant's] current psychiatric and personality pathology" and saw each of the offences as having been significant. He described the appellant's psychiatric condition as:
"Moderate to severe in severity and there would be significant social and occupational dysfunction. Whilst there can be some improvement with relatively intensive psychiatric and psychology input, it is my view that there will continue to be significant psychiatric symptoms and difficulties in behaviour into the medium and long-term. The prognosis is thus very much guarded".
74 Dr Febbo recommended both psychiatric and psychological
treatment. He appears to place emphasis on psychological treatment suggesting a quite lengthy input in the region of 50 sessions over two years and then a review. He also suggested the input of a psychiatrist and suggested consideration be given to the use of antidepressant medication. He expressed the view that the cost of treatment would be in the region of $10,000 to $15,000 but felt that was likely to be an underestimation, as it was likely the appellant would need to have treatment over a longer period than the two years suggested. He also considered it likely the
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appellant would need additional treatment at times of deterioration of her
mental state in the future.75 Dr Ng saw the appellant more recently, on 22 January 2009, and
prepared a report of the same day. He had a document that appears to have been perhaps a police statement of material facts and was also armed with Dr Febbo's report. At the time Dr Febbo interviewed the appellant, she was pregnant, whereas by the time Dr Ng interviewed her, her daughter was 20 months old. She was by then in employment in the childcare centre and also studying. She described herself to Dr Ng as being happy with her living circumstances. That was prior to her being retrenched.
76 Things appeared to have improved somewhat for the appellant by the
time she was interviewed by Dr Ng. The appellant reported to Dr Ng that:
"In recent times, she had been able to resurrect her working career and since June 2008 she had been able to work in childcare. She said she now had an aim and a goal and had to be there for her daughter. She said having a child had turned her life around and she had become much more responsible, more focussed on goals and more even in her moods."
77 The appellant disclosed, however, that her relationship with her
mother remained strained. At the time of the interview the appellant was not talking to her mother because of resentment and anger that her mother had allowed the appellant's little sister, the respondent's child, to see him without consulting her.
78 She provided a history in terms of her schooling and employment
consistent with her affidavit. She also disclosed to Dr Ng the incident of
abuse which occurred when she was approximately 3 years of age.79 The appellant reported to Dr Ng that, following the offences
perpetrated by the respondent, but prior to disclosing the abuse, she had felt rather numb, had lived with different moods and could not settle down to things and focus on tasks. She said that at that time she felt numb, sick and nauseated and hated herself and everyone else and felt responsible for the offences. She also suffered from anxiety that the respondent would hurt her if she told anyone about what was happening. She reported that her behaviour during the period of the abuse changed from being happy to being aggressive and angry.
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80 In the years that followed, the appellant said she suffered flashbacks
of the incidents triggered by smells or situations. She also reported incidents of self-harm, inflicting superficial lacerations on herself. The last such incident she said occurred approximately two years ago, which would mean 2007.
81 As to her current mental state, the appellant reported to Dr Ng that
she had disrupted sleep patterns and reported nightmares, approximately once a month, which could involve the respondent and related to him locating her and threatening her or taking her daughter from her and occasionally focused on the offences.
82 She reported her appetite as normal, unless particularly stressed,
denied any current suicidal thoughts and said that, while she still felt occasionally depressed, she felt that she was much better than she had been prior to the birth of her child. She said currently she was able to be sociable and felt that "she now had a daughter to look after and she was determined to pull herself together and try and get on with her life". She reported still having difficulties with concentration and still on occasion having panic attacks when in crowds, or in unfamiliar surrounds.
83 She reported to Dr Ng that "given the passage of time, she had given
up hurting herself but was now more liable to use words to hurt others such as her current partner". She said that her relationship with her boyfriend was stable, but that they had broken up on approximately three occasions. She attributed this to her tendency to be verbally abusive towards him when she was frustrated and angry.
Dr Ng formed the opinion that the appellant was traumatised by the offences committed upon her. He states:
"I am of the opinion that the abuse did create and caused the development of pathological anxiety and depressive symptoms in this woman.
At the interview with me, some years after the abuse had occurred, I could not illicit (sic) any current evidence of major depression or post-traumatic stress disorder, but I do acknowledge that given the passage of time these disorders do improve and hence on cross-section they may not actually exist at the time that somebody is seen even though they may have existed in the past.
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This woman wants to get on with her life and not to dwell on what had happened to her in the past and hence was not questioned explicitly about the happenings at the time of the abuse.
From what she had told me, although I do not have current sufficient evidence to diagnose post-traumatic stress disorder and major depression, I accept the medico-legal psychiatric report of Dr Sam Febbo dated 6 July 2007 where he opined that she did have post-traumatic stress disorder and major depression.
She does currently have residual symptoms of pathological anxiety which do support the evidence that post-traumatic stress disorder did exist in the past."
85 Dr Ng listed some of these residual anxiety symptoms as including
her fear of seeing the respondent, suffering nightmares and flashbacks, significant mood swings with depressive symptoms, difficulties in schooling and difficulties with intimacy. Dr Ng also concluded that there was some evidence for borderline personality traits as evidenced by wanting to cut herself, suffering mood swings and having difficulties modulating her moods and having difficulties in interpersonal relationships with instability and conflict and abusive behaviour on her part.
Dr Ng was of the opinion:
"That the sexual abuse was instrumental in precipitating the onset of pathological anxiety and pathological depressive symptoms which Dr Febbo had diagnosed as post-traumatic stress disorder and major depression as well as panic attacks, and which I agree with.
I also acknowledge that there are personality difficulties in the form of borderline personality traits, which would have arisen in the context of a young female, who is in the process of developing a sense of self and identity, a process which was then significantly and adversely affected by episodes of sexual abuse, which would have derailed the development of a healthy sense of self and identity. Additionally, the reported rather chaotic and conflictual home environment created by the relationship between the man (the respondent) and her mother, would also have contributed to the personality difficulties.
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She may well have been predisposed to the onset of pathological anxiety and pathological depressive symptoms and the psychiatric disorders as stated above given that she reported an unhappy childhood with witnessing physical abuse by [the respondent] towards her mother and feeling very unhappy and unsafe in that situation.
In recent times, her estrangement from her mother over the fact that mother had allowed [the respondent] to see her half sister without reference to [the appellant] or seeking [the appellant's] opinion on that matter, may also be perpetuating some increased levels of stress currently. She does have ongoing worries about [the respondent] finding her and hurting her or her child which given the abuse he had been convicted of, is in her mind, a very real fear she has."
87 In relation to the extent to which the sexual abuse contributed to the
appellant's poor schooling record, Dr Ng considered that the sexual abuse did contribute to adversely affecting her performance at school, leading to emotional turmoil and truancy and inability to focus and also her difficult and disruptive behaviour, however he also attributed some of this behaviour to an extent to the abusive relationship between her mother and the respondent. Given the timing of the appellant's self-reported decline in schooling, Dr Ng attributed 85 per cent of the difficulties at school to the commission of the sexual offences against the appellant and 15 per cent to the pre-disposing influence of the chaotic environment at home. He does not distinguish between the commission of the offences themselves and the impact caused by the mother's reaction to the offences being reported, the process of reporting the offences and the trauma of the trial process.
Dr Ng considered that, if the appellant had not been sexually abused
then:
"… if she had the intellectual capability of doing so (and I do not have any school reports or any other reports to indicate one way or the other) if she was also appropriately motivated to go to tertiary or university studies, she may well have been able to successfully complete high school and go on to tertiary studies if that was her choice … ."
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He considered that:
"More likely than not, her inability to secure and maintain employment in the past was contributed to by her borderline personality traits coupled with pathological anxiety and depressive symptoms, which led to her inability to persist at employment by diminishing her ability to persist at work tasks, diminishing the pace at which she could carry out her work tasks and also diminishing her ability to enjoy her work tasks."
90 As to the appellant's future ability to secure and maintain
employment, Dr Ng expressed the view that given that, at the time he interviewed her, she had been working in childcare since June 2008 and was very proud of that, it is possible that she is able to persist in her work tasks, although he commented that, prior to her employment in the childcare industry, she had had difficulties at work and it remained to be seen if she could continue to persist at work over a further 12 - 18 months. Of course, as events transpired, the appellant did not have that opportunity.
91 Dr Ng considered that the appellant's psychiatric conditions have
improved and more so since the birth of her daughter and in the few months prior to his interviewing her. He also commented that the appellant presented as entirely sincere and consistent in presenting her situation to him.
92 In relation to recommendations for future treatment, Dr Ng
considered that the appellant would benefit from at least 12 - 16 sessions of psychotherapy, with appointments every three to five weeks. He said if that psychotherapy was provided by a consultant psychiatrist, each session would cost approximately $285. He does not consider that the appellant requires medication such as antidepressants.
93 As to her prognosis, Dr Ng concludes that the appellant does have
some residual anxiety symptoms as part of the post-traumatic stress disorder, but considers the post-traumatic stress disorder has largely improved. He also considers that she has some residual depressive symptoms, but that the major depressive disorder has also largely improved. He acknowledges that the appellant may well have ongoing borderline personality traits perpetuating a rather volatile and unstable interpersonal relationship with her boyfriend, but also points to the appellant's current attitude that, following the birth of her daughter, she is
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determined to improve her life and set and achieve goals to maintain
employment in order to support herself and her child into the future.
Conclusions and assessment
94 I accept that, having been sexually abused at a young and vulnerable
age, by a person who was in a position of trust and a father-figure, it is highly likely that the appellant would be both traumatised and affected in her overall development. I accept that in fact she was. I have no reason to doubt that her life was affected as she described, during the period of the abuse and in the years following. I accept her account.
95 I accept that the history she gave to both psychiatrists and the
symptoms she described to them are genuine. The overall picture presented by both psychiatrists is that, during the period of the abuse itself (constituted by the two proved offences) the appellant was highly anxious, highly fearful and suffered nausea, anxiety and fear concerning the incidents themselves. During that same period of time she was also fearful for her mother and the wellbeing of her youngest sister.
96 Her fears and anxiety were no doubt exacerbated by the fact that she
had witnessed domestic violence in that relationship between her mother
and the respondent.97 Had she not been sexually abused, I consider it is likely she would
have been an anxious and fearful child due to witnessing physical conflict between her mother and the respondent, however the commission of the sexual offences upon her when she was at a young and vulnerable age had a significant impact upon her emerging personality.
98 Her anxiety levels did not decrease after the offending itself stopped.
During the period prior to her reporting the matter to the police she suffered low self-esteem, built up anger and aggression and frustration and she vented this anger and frustration by becoming a troubled teen, difficult to deal with at school, resenting authority figures including her mother and feeling unhappy about life generally and everybody in her world. I accept that she was affected in this way and that this was predominantly caused by having been the victim of sexual abuse.
99 Of course it is not unusual for teenage girls to experience some of
these feelings as a natural part of the process of growing up, however the feelings of anger and frustration she experienced were such that she went from being a reportedly happy child at school to being a girl who left school in Year 9. She then re-enrolled and completed Year 10, but went
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no further. I accept the diagnosis of Dr Febbo, supported by Dr Ng, that the appellant did develop post-traumatic stress disorder and did also develop a major depressive disorder.
100 As mentioned earlier, I am not armed with sufficient reports from
school to form the view that there was a significant decline in her academic achievement. The certificates I have been provided with do not really cast any light on her academic aptitude, but do indicate a child who was engaging with her teachers and her schoolwork. Early academic achievement in primary school, if she was academically successful in those early years, is not a reliable indicator of academic ability in higher years of learning, including tertiary study. Though a poor achiever at primary school is unlikely to go on to be successful in higher studies, it does not follow that a child who is successful and achieving in primary school is going to be a successful student at high school and go on to complete tertiary studies. There are any number of factors which might influence whether a child does well in high school and tertiary study.
101 I also need to factor in that, quite apart from the sexual abuse, the
appellant had a difficult childhood, in that she experienced domestic violence and separation. Such a childhood is likely to have had a disruptive affect upon her schooling.
102 Nevertheless, I am satisfied that it is at least more likely than not
that, but for the sexual abuse, the appellant would have been able to complete high school with an average level of success and able thereafter to work in a career which did not require a high level of tertiary training, but which was nevertheless a satisfying career involving a steady wage.
103 By comparison, her late teens and early 20s have seen the appellant
unable to settle to a task, unable to focus and accept authority, unable to stay at any job for more than a few months and consequently, until the birth of her daughter, she really has done nothing more than drift through intermittent employment with correspondingly low wages. I am satisfied that, predominantly due to the sexual abuse, her emerging personality was adversely affected and that she did develop borderline personality traits which have compromised her ability to perform at school and in the workplace.
104 The birth of her daughter and her subsequent maturing has seen a
notable improvement in both her outlook on life and also her mood and her levels of anxiety and I conclude that her level of depression and level of anxiety have meaningfully decreased since she became a mother and
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also since she has tried her hand in childcare and found that a positive
working environment.105 It is most unfortunate that the appellant was retrenched but, in the
current financial situation, and with her having only lately joined the business, that is not surprising. There is no reason to think that she was not a capable employee. There is, however a reasonable prospect that she will again gain meaningful employment in that career and find that her ability to enjoy and stay focused on her job improves. I find that she no longer suffers from a major depressive disorder and that the symptoms of the post-traumatic stress disorder have abated.
106 Nonetheless, I am satisfied on the balance of probabilities that she
has, as a result of the sexual abuse suffered in her childhood, been left with residual personality traits which will continue to give her difficulty in focusing at work and accepting authority and maintaining her concentration and also in maintaining secure relationships. Her difficulties in her interpersonal relationships are likely to impact upon her work life as well, in that they will affect her overall mood. She will I find remain vulnerable, in the absence of treatment, to depression and anxiety.
107 With treatment, there is certainly hope for improvement in the
appellant's overall standard of life and wellbeing, but I am satisfied that she has been significantly affected by this sexual offending when she was young and that the effects have been enduring.
108 The extent of the injury and loss attributable to the offending itself
must be distinguished from the injury and loss occasioned by her mother's reaction to the reporting of the offences in terms of telling others and being unsupportive, her mother's reaction in not herself coping with the situation at a time when her daughters needed her support, the hurt and distress the appellant felt over her sense that others in the community were talking about her unkindly, the stress of reporting the matter to police, the stress which inevitably attaches to going through the trial process and cross-examination, and the ongoing stress of the strain in her relationship with her mother. While all of these were indirectly caused by the commission of the offences by the respondent, the Act and previous authority in this area obliges me to draw that distinction for the purposes of assessing compensation.
109 In all of the circumstances and on the material which is now before
the Court, which is considerably more than the material which was before the Assessor, I am satisfied that the award of compensation made in this
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case does fall below the range of a sound discretionary judgment and is
manifestly inadequate.110 I am satisfied that the appellant's earning capacity has been adversely
affected by the commission of the sexual offences upon her. I am satisfied that she has lost past earnings due to the impact the offences had upon her personality and also the high levels of anxiety and depression she was dealing with. I am factoring in the probability that, had she not been sexually abused, her entry into the workforce is likely to have occurred later in her life than it, but that she is also likely to have been more educated as a result.
111 I am also satisfied that her earning capacity in the future has been
reduced, although it is very difficult to determine to what precise extent it has been reduced. There is scope for optimism in relation to her future earning capacity, but against that must be balanced the ongoing residual tendency to depression and anxiety and her borderline personality traits, which may mean that she does not have the ongoing ability to pursue her goal of being a full-time childcare worker.
112 I must also factor in the extent to which a generally unhappy
childhood marred by witnessing domestic violence would have
contributed to these difficulties with her employment.113 I have considered the initial instance of sexual abuse which occurred
when she was approximately 3 years of age. I do not place a great deal of significance on that particular incident, in that it appears to have been immediately reported and appropriately dealt with and, given her tender age, I consider it less likely that the incident would have had an enduring impact upon her, however it may well have contributed to her overall feelings of resentment and frustration towards her mother. The appellant has recalled it, though it occurred so long ago, and referred to it in her victim impact statement and I conclude that it has had some enduring effect upon her, but I consider the impact of that offence by a neighbour pales in comparison to the enduring damage caused by the abuse perpetrated by the respondent.
114 For the injury caused by the commission of the offences, including
the appellant's trauma suffered at the time of the incidents, her ongoing significant anxiety and depression following those offences, the overall impact upon her life and mood and ability to socialise with friends and the long-term impact on her attitudes towards men and sexual intimacy, I consider an appropriate award to be that of $50,000 for the two offences
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together. In reaching that award I have attempted as best one can to distinguish between the effects of the offences themselves upon the appellant and the impact of the other factors I have mentioned.
115 As to loss of earnings, including loss of earning capacity, there is no
realistic possibility of achieving a precise calculation. The Court can only make a global award acknowledging all of the unknown factors as to how the appellant may have lived her life had she not suffered sexual abuse and the unknown factor of how she might have performed academically and what decisions she might have made in terms of career and family. Considering also the cautious optimism for the appellant's future expressed by Dr Ng, which I accept, I assess the appellant's past and future loss of earnings at $120,000. That figure takes into account a reduction on the basis that I consider the offences themselves represented part only of the trauma suffered by the appellant and distinction must be made between the offences and the aftermath involving her mother's reaction and the involvement of the police and the subsequent trial. Her actual likely loss of earnings I consider to be rather greater.
116 For past expenses, the appellant is entitled to expenses actually
incurred in obtaining any report from a health professional (see s 6(2)(a)(i) of the Act) and in this regard I award $1,188 for the cost of Dr Febbo's report and $1,353 for the cost of Dr Ng's report.
117 The counselling from Relationships Australia in 2003 - 2004 was
free of charge. The appellant was driven to the appointments by her mother or boyfriend and claims $5 per session in travelling expenses incurred on her behalf. I award $100 for travelling expenses.
118 I accept the recommendations of both Dr Ng and Dr Febbo that the
appellant would benefit from ongoing psychotherapy. Such treatment will, I consider, maximise her future ability to gain and maintain steady employment in the workforce and her employment situation is likely, in turn, to impact positively upon her self-esteem and her general mood and sense of self-worth. She has expressed a desire to put this behind her and get on with her life and I consider that ongoing treatment is most likely to assist her to achieve that goal. The sum I have assessed by way of loss of earnings including future earnings has been reduced in part due to my view that future therapy is likely to enhance her ability to gain and keep employment. I am satisfied that the appellant both needs such future therapy and that she is willing and likely to seek such treatment if the financial means are afforded her. Consequently, I am satisfied that the appellant has suffered such a loss as contemplated by s 6(2)(b) of the Act.
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119 There is some difference between the regime recommended by
Dr Febbo and that suggested by Dr Ng. Dr Febbo considered future treatment, namely therapy over two years, was likely to cost in the vicinity of $10,000 to $15,000, but considered this to be an underestimation because he thought it likely that more than two years' treatment would be needed and was allowing also for periods of deterioration in the future. Dr Ng's recommendation is rather more optimistic. He had interviewed the appellant at a more positive time in her life. Based on his suggestion of 12 to 16 sessions with a psychiatrist at $285 each, his estimated cost ranges from $3,420 to $4,560.
120 Since Dr Ng saw the appellant, however, she has lost her job and
there is no material before me as to how she coped with that setback. The overall picture presented is that of a person who struggles through stressful times, but is generally determined to move towards a brighter future. I consider it likely the appellant will maintain her commitment to continuing with her studies and that the resolution of this case will also encourage her to move forward in a positive way. I consider the likely treatment required to be more than that mentioned by Dr Ng, but still with room for optimism.
121 I am mindful of s 48 of the Act and intend to nominate part of the
award I make as having been awarded pursuant to s 6(2)(b), the implications of which are that the appellant will not receive that sum of money unless and until the Chief Assessor is given a request for payment for such treatment, is furnished with evidence that the expenses have been reasonably incurred by or on behalf of the appellant for treatment and an assessor is satisfied that the expenses have been reasonably incurred by or on behalf of the appellant for treatment that the appellant required as a direct consequence of the injury suffered in consequence of the commission of the offences. I would construe that to mean that, given that this Court has made the finding that treatment by way of psychiatric or psychological counselling or both is required as a direct consequence of the injury suffered in consequence of the commission of the offences, in practical terms all that will be required is that the appellant should furnish evidence that such appropriate treatment has occurred (and that the fees charged are also within reason) for the costs of that treatment to be paid to the treating psychiatrist or psychologist, or to reimburse the appellant if she has paid the bill herself.
122 In awarding the sum, I have balanced the real need to ensure that the
appellant maximises her future prospects against the fact that my award will exceed the jurisdictional maximum and the appellant is an adult who
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can make her own informed choices. Although I consider future treatment costs may be more in the order of $10,000, I am limiting the amount I award for future expenses to $6,000, which sum is subject to s 48. That approach may be seen as pragmatic. Of course the appellant may spend more on future treatment should she wish from her own funds. The award I have made fixes the amount which will only be released upon proof that it has been so spent.
123 My assessment in total then is $178,641. The maximum I may
award pursuant to s 31 of the Act is $100,000 and so I award that sum. $94,000 of that sum is payable to the appellant directly. $6,000 of that sum will only be paid upon satisfaction of the requirements of s 48 of the Act.
124 I am not asked to, and do not intend to, interfere with the order made
by the Assessor, for whatever reason, barring proceedings under Part 6 of
the Act against the respondent in respect of the compensation award.125 I direct that publication is prohibited of any part of this judgment
which is likely to cause members of the public to identify the appellant or
the respondent.
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