LMB v PWB - [2007] QDC 339

DISTRICT COURT OF QUEENSLAND

CITATION:

LMB v PWB [2007] QDC 339

PARTIES:

LMB (Applicant)

v

PWB (Respondent)

FILE NO/S:

BD2862/07

DIVISION:

Civil

PROCEEDING:

Criminal Compensation Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

19 December 2007

DELIVERED AT:

Brisbane

HEARING DATE:

26 October 2007

JUDGE:

Tutt DCJ

ORDER:

The respondent pay the applicant the sum of $20,000.00 by way of compensation for the injury suffered by her as a result of the offences of which the respondent was convicted and sentenced by this court on 26 April 2005;(1)

The respondent pay the applicant’s costs of and incidental to this application to be agreed or assessed on the standard basis under the District Court scale where the amount recovered is less than $50,000.00.(2)

CATCHWORDS:

CRIMINAL COMPENSATION CLAIM PURSUANT TO s 663B of the Criminal Code – where applicant sexually abused as a child when aged between 2 and 5 years – where applicant suffering from mental or nervous shock disorder.

Criminal Code Act 1899 (Qld) ss 663AA, 663B(2).

Criminal Offence Victims Act 1995 s 46(2).

MAJ v KM [2000] QCA 410.

McClintock v Jones (1995) 79 ACrimR 238

SOLICITORS:

Ms F. Muirhead of Legal Aid Queensland for the applicant

No appearance for the respondent

Introduction:

The applicant LMB claims compensation for injury sustained by her as a result of 12 criminal offences of a sexual nature committed against her by the respondent to the application PWB.

The respondent was convicted by this court at Beenleigh on 26 April 2005 of 12 counts of unlawfully and indecently dealing with the applicant, who was a child under 14 years of age, “between 10/03/1980 and 02/07/1983 at Marsden in the State of Queensland”, when the applicant was aged between two and five years.

This application is made on the basis of a “mental or nervous shock” disorder assessed by Dr Allan White, psychiatrist, in his report of 28 March 2007 which is Exhibit “A” to his affidavit filed 8 October 2007. There are no physical injuries to the applicant which form the basis of any claim for compensation before the court.

In addition to the affidavit of the said Allan White, this application is supported by the following material:

(a) the affidavit with exhibit of the applicant LMB sworn 29 August 2007 and filed in this court on 8 October 2007;

(b) the affidavit with exhibits of Lorraine Penshorn, litigation support officer, sworn 1 August 2007 and filed in this court on 8 October 2007;

(c) the affidavit of service of Ian Sidney De Landre sworn 10 October 2007 and filed in this court on 17 October 2007.

The respondent, although served with the application and supporting documents, made no appearance at the hearing and the hearing proceeded in his absence.

Relevant legislation - when did the injury occur?:

Legislation enabling persons to claim compensation for injury suffered by them as a result of the criminal conduct of others was introduced by the insertion in our Criminal Code of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading LMB v PWB

Details

AGLC: LMB v PWB [2007] QDC 339
Case: [2007] QDC 339
Decision Date: 19 December 2007

CaseChat Overview and Summary

In the case of LMB v PWB, the applicant sought compensation under section 663B of the Criminal Code for injuries sustained from being sexually abused as a child. The abuse occurred when the applicant was aged between 2 and 5 years and resulted in the applicant suffering from a mental or nervous shock disorder. The respondent, PWB, was convicted and sentenced for the offences on 26 April 2005. The court was required to determine whether the applicant was entitled to compensation and, if so, the appropriate amount.

The legal issues centred around whether the applicant's disorder could be linked to the offences committed by the respondent and whether the applicant was entitled to compensation under section 663B of the Criminal Code. The applicant argued that the sexual abuse caused the mental and nervous disorders she suffered from, while the respondent contested the claim. The court needed to consider the causal link between the offences and the applicant's disorder and assess the appropriate compensation amount if the causal link was established.

The court found that the applicant's disorder was indeed caused by the sexual abuse and that the applicant was entitled to compensation under section 663B. The court considered the nature and extent of the abuse, the resulting disorder, and the impact on the applicant's life. It concluded that the applicant was entitled to $20,000.00 in compensation. The court also ordered the respondent to pay the applicant's costs of and incidental to this application. The final orders required the respondent to pay the compensation amount and the applicant's costs of and incidental to this application, to be agreed or assessed on the standard basis under the District Court scale where the amount recovered is less than $50,000.00.

Orders

Orders of the court

The respondent pay the applicant the sum of $20,000.00 by way of compensation for the injury suffered by her as a result of the offences of which the respondent was convicted and sentenced by this court on 26 April 2005;(1)

The respondent pay the applicant’s costs of and incidental to this application to be agreed or assessed on the standard basis under the District Court scale where the amount recovered is less than $50,000.00.(2)

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	LMB v PWB [2007] QDC 339
PARTIES:	LMB (Applicant) v PWB (Respondent)
FILE NO/S:	BD2862/07
DIVISION:	Civil
PROCEEDING:	Criminal Compensation Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	19 December 2007
DELIVERED AT:	Brisbane
HEARING DATE:	26 October 2007
JUDGE:	Tutt DCJ
ORDER:	The respondent pay the applicant the sum of $20,000.00 by way of compensation for the injury suffered by her as a result of the offences of which the respondent was convicted and sentenced by this court on 26 April 2005;(1) The respondent pay the applicant’s costs of and incidental to this application to be agreed or assessed on the standard basis under the District Court scale where the amount recovered is less than $50,000.00.(2)
CATCHWORDS:	CRIMINAL COMPENSATION CLAIM PURSUANT TO s 663B of the Criminal Code – where applicant sexually abused as a child when aged between 2 and 5 years – where applicant suffering from mental or nervous shock disorder. Criminal Code Act 1899 (Qld) ss 663AA, 663B(2). Criminal Offence Victims Act 1995 s 46(2). MAJ v KM [2000] QCA 410. McClintock v Jones (1995) 79 ACrimR 238
SOLICITORS:	Ms F. Muirhead of Legal Aid Queensland for the applicant No appearance for the respondent