Pickett v Edwards - [2000] WASC 222

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: PICKETT -v- EDWARDS [2000] WASC 222

CORAM: MILLER J

HEARD: 30 AUGUST 2000

DELIVERED : 30 AUGUST 2000

FILE NO/S: MCS 68 of 1999

MATTER :An Application pursuant to the Criminal Injuries (Compensation) Act 1970

BETWEEN: HELEN RUTH PICKETT
Applicant
AND
EDGAR EDWARDS
Respondent

Catchwords:

Criminal injuries compensation sexual offences - Principles for assessment - Turns on own facts

Legislation:

Criminal Injuries (Compensation) Act 1970, s 4

Result:

Applicant awarded the sum of $14,000, to be paid from the property of the respondent

Representation:

Counsel:

Applicant: Ms J A Wager
Respondent: Ms B Murray

Solicitors:

Applicant: Julie Wager
Respondent: State Crown Solicitor

Case(s) referred to in judgment(s):

Poland v Poland [1999] WASC 226

Case(s) also cited:

B v S, unreported; SCt of WA; Library No 950223; 10 May 1995
B v W (1988) 6 SR (WA) 79
BMW v RLW, unreported; SCt of WA; Library No 4614; 23 August 1995
Broome v Broome, unreported; SCt of WA; Library No 980710; 14 December 1998
Cain v Reiners, unreported; DCt of WA; Library No 970265; 5 September 1997
Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666
Glover v Van Den Ancker, unreported; DCt of WA; Library No 4962; 20 June 1996
KLH v Dennison, unreported; SCt of WA; Library No 5172; 6 December 1983
M v J, unreported; SCt of WA; Library No 920598; 19 November 1992
Law & Ors v Austin (1999) 105 A Crim R 407
RJE v Bandy, unreported; SCt of WA; Library No 5489; 31 May 1974
Sideris v Censori [1983] WAR 17
The Applicant v Larkin, Withnell and Wilkinson [1976] WAR 199
Tracey-Jayne Braybrooke (Formerly Freeman) (nee Robinson) v Lavars, unreported; SCt of WA; Library No 980703; 18 December 1998

MILLER J: This is an application for an award of criminal injuries compensation in respect of one count of rape and six of unlawful and indecent dealing with a girl under the age of 13 years. For these offences the respondent was convicted in the Supreme Court at Perth on 11 July 1995 and that day sentenced by Franklyn J to a term of imprisonment of 10 years. The application comes before the Court under the provisions of s 4 of the Criminal Injuries (Compensation) Act 1970 ("the Act").
The offences were committed by the respondent between September 1972 and September 1976 in various country areas of the State. The applicant was 6 years of age when the offences first occurred and at the date of the rape was between 7 and 8 years of age. By the time of the last offence she was almost 10 years of age. The respondent was born in either 1947 or 1945 (the year was unknown) and was 25 or 27 years of age when the first of the offences was committed. He was married to a sister of the applicant and lived next door to the house where the applicant resided. Over the course of the four year period the respondent sexually interfered with the applicant in various ways which were summarised by the learned trial Judge as "in general terms, in addition to the rape, they involved licking of the vagina, rubbing your penis against her vagina, digital penetration of the vagina and touching and or rubbing of the vagina with your finger or fingers".
The applicant told nobody about the offences which had been committed against her until 1990 when she told a sister. It was another five years before she made a complaint to the police. By that time she was in great distress, having lived with the difficulties caused by the respondent's behaviour for a period of almost 20 years. In an affidavit sworn by the applicant and filed in the proceedings she has recounted that as a child she had no knowledge as to how to cope with being a victim of sexual assault and simply blanked out what had occurred. She was very withdrawn as a child and teenager, lacked self confidence and performed badly at school. She had no trust in adults and thought she was worthless. She was unable to speak about the sexual abuse that had occurred and felt scared and unloved by adult people. She married when 16 years of age and had her first child at the age of 17. She has deposed to the fact that she felt "robbed of having a happy first sexual experience because I had been raped when I was a child. I felt trapped in the marriage and I felt very depressed. From the time of my marriage I had suffered some uncontrollable mood swings".
The applicant's affidavit is testimony to a long period of distress and depression which she suffered over nearly 20 years. By 1994 she was at a stage where she was extremely depressed, could not stop crying, could not speak to her family and did not even want her husband or children near her. When she did come to make a complaint in 1995 it was very difficult for her to speak to her husband about what had occurred and to reveal the details to her children. This was particularly so because her husband was a police officer and she felt embarrassed and uncomfortable about making a statement to police. Once she had made the statement she was terrified that the respondent would plead not guilty and she might then have to testify at the trial. Fortunately this did not happen.
The applicant has suffered a number of problems during her adult life. She finds great difficulty in sleeping and requires medication to sleep. When she does sleep she has terrifying dreams involving the respondent. Her sex life has been gravely affected so that if her husband touches her in the wrong place it triggers a flashback of what happened with the respondent. She becomes distressed, scared and angry. The extent of her distress is such that her appetite is badly affected and she deposes to the fact that nearly every day she experiences some form of distress. She has, however, tried to get her life back on track and for that reason has commenced study as an external student through TAFE. She is hopeful that she can be trained to do something worthwhile and assist others in the community, but says that presently she finds it impossible to deal with other people or be confident enough to work in a public place.
Doctor S D Febbo, a consultant psychiatrist, has provided a helpful report dated 14 June 1999. The history of the matter is fully detailed in the report and the summary and opinion of Dr Febbo is as follows:
"On the basis of my two interviews I form the following opinion.
Ms Pickett described a long history of disturbance in her mental state. She described experiencing a number of depressive symptoms, including sleep disturbance, impaired self‑esteem and self‑confidence, pervasive low mood and a general avoidance of going out. She also described a number of anxiety symptoms, including somatic manifestations of anxiety and distressing dreams and flashback phenomena. Some of these symptoms fall within the category of Post‑traumatic Stress Disorder.
In terms of diagnosis it is my view that at the time of my interviews the history and presentation were in keeping with a relatively chronic Major Depression and, in addition, there were a number of symptoms falling within the category of Post‑traumatic Stress Disorder. It is important to note that there is considerable overlap between these two diagnoses.
Ms Pickett described a disturbed background. During her childhood she experienced a number of episodes of sexual abuse, aspects of which have been discussed in the body of the report. These episodes were extreme in relation to the fear they generated and it appears that frequently Ms Pickett dissociated during the assaults. It is my opinion that these issues have a causal relationship to her current impaired mental state, following a motor vehicle accident. However, in my view she was already significantly depressed."
Dr Febbo is optimistic that with aggressive treatment and anti‑depressant medication the applicant's mental state may be improved. However, because of the length of time for which he has experienced depression he is somewhat guarded in relation to the prognosis.
The principles upon which compensation is to be assessed in a case such as this are clear. I set them out in Poland v Poland [1999] WASC 226 (at [8] ‑ [9]):
"The principles of assessment are clear. Compensation under the 1970 Act is for "injury" within the meaning of the definition contained in s 3. The word "injury" is defined to mean bodily harm and includes pregnancy, mental shock and nervous shock. There is no difficulty with the concept of compensation for bodily harm. Some difficulties have arisen in relation to the meaning of the words "mental shock and nervous shock", but as to that, I respectfully adopt the following passage of Murray J in "B" v "S", unreported; SCt of WA; Library No 950223; 10 May 1995:
'That has long held to be a phrase of a composite character borrowed from the law of tort to refer to mental or emotional harm as opposed to physical injury or bodily harm. It has therefore been held that a distinction needs to be drawn between a mere emotional reaction and something of a more enduring character which may, in both the legal sense and in common parlance, be described as an injury: The Applicant v Larkin &Ors [1976] WAR 199 per Wickham J at 201. That view of the Act and the concept of 'injury' has often been applied since and, with respect, I adopt it for present purposes.'
I accept a number of propositions advanced by counsel for the Chief Executive Officer of the Ministry of Justice which were conveniently set out in counsel's helpful outline of submissions. They are:
(1)The maximum compensation prescribed by the Act is merely a jurisdictional limit and is not reserved for the worst case: KLH v Dennison, unreported; SCt of WA; Library No 5172; 6 December 1983.
(2)The correct approach to adopt in fixing the amount of compensation which is payable is to apply the ordinary tortious principles for assessment of damages, subject to the jurisdictional limit imposed by the Act: "M" v "J", unreported; SCt of WA; Library No 920598; 19 November 1992.
(3)In assessing the amount of compensation which should be awarded the Court must have regard solely to the injury suffered by the Applicant in consequence of the commission of the offence. The amount is not to be fixed as punishment of the offender or as an expression of sympathy for the victim: R v Forsythe (1972) 2 NSWLR 951; "O" v "J", unreported; SCt of WA; Library No 920027; 13 February 1992."
I have no difficulty in this case in concluding that the applicant has suffered bodily harm within the meaning of the Act, together with mental shock and nervous shock as that phrase has been interpreted in the decided cases. Post‑traumatic stress disorder is a well‑established diagnosis of mental shock/nervous shock, as is chronic major depression. The symptoms exhibited by the applicant clearly fall within the definition of mental and/or nervous shock.
The applicant in this case is entitled to a maximum of $2000 in respect of each of the offences committed by the respondent. The maximum to which she is entitled is $14,000. I am prepared to award that sum and were it not for the jurisdictional limit which applies, the applicant would, in my view, be entitled to an award well in excess of $14,000. Indeed, she would be entitled to something close to $50,000.
I therefore order that the respondent pay out of his property to the applicant by way of compensation for injury suffered by the applicant the sum of $14,000.