"W P R" v "K E A" - [2000] WADC 282

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: "W P R" -v- "K E A" [2000] WADC 282

CORAM: FENBURY DCJ

HEARD: 11 SEPTEMBER 2000

DELIVERED : 7 NOVEMBER 2000

FILE NO/S: CIVO 33 of 1999

BETWEEN: "W P R"
Applicant
AND
"K E A"
Respondent

Catchwords:

Compensation - Criminal injuries - Nervous shock - Indecent dealing of child between ages of 8 and 12 - $25,000

Legislation:

Criminal Injuries Compensation Acts 1970 and 1982

Result:

Application allowed

Representation:

Counsel:

Applicant:     Ms S J Crisp
Respondent:     Ms H E Prince
Amicus Curiae              :     Ms E P Roche

Solicitors:

Applicant:     Fordhams
Respondent:     H J Watson Associates
Amicus Curiae              :     State Crown Solicitor

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

B v S, unreported; SCt of WA; Library No 950223; 10 May 1995
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Glover v Van Den Ancker, unreported; DCt of WA; Library No 4962; 20 June 1996

Case(s) also cited:

K B v Turnbill, unreported; DCt of WA; Library No D980103; 23 April 1998
M v J and J v J, unreported; SCt of WA; Library No 920598; 19 November 1992
F v M, unreported; DCt of WA; Library No D970101; 9 April 1997
Crumby v Kuru (1995) SR (WA) 331

FENBURY DCJ: This is an application for compensation for injuries suffered as a result of nine criminal offences committed by the respondent between 1 January 1981 and 31 December 1983.
The legislation upon which the application is based changed during the relevant period. Consequently in respect of the first seven offences which were committed before 31 December 1982 the Criminal Injuries (Compensation) Act 1970 applies and the jurisdictional limit is $7,500 for each offence.
In respect of those offences committed after 31 December 1983 the Criminal Injuries Compensation Act 1982 applies and the jurisdictional limit is $15,000 for each offence.
Thus for each of the first seven counts the maximum award is $7,500 and for each of counts 8 and 9 the maximum award is $15,000 making a total maximum award possible of $82,500. That figure is not reserved for the worst possible type of case but is simply the jurisdictional limit. The ordinary tortious principles for the assessment of damages for personal injuries, subject to that limit, should be followed.
Although the offences were committed by the respondent between 1 January 1981 and 31 December 1983, the complainant did not bring these matters to the attention of authorities until much later. The respondent was indicted in the District Court Perth on 1 March 1994. On 9 May of that year he pleaded guilty to an indictment containing nine counts of unlawful and indecent dealing and on 4 October he was sentenced to 2 years probation with a special condition that he attend the Sexual Offender Treatment Programme.
The fact that the respondent's criminal behaviour straddled legislative change initially caused some confusion and difficulty. In respect of those offences committed under the 1970 Act only a judge of the District Court could assess compensation. However in respect of those two offences committed when the 1982 Act was in force compensation could be assessed by the Criminal Injuries Assessor.
It appears that the 1970 Act did not contain any time limit within which proceedings should be brought. However by s 9 of the 1982 Act an application is to be made to the Assessor not later than three years after the commission of the offence to which it relates. The Assessor is able, if he feels it is just to do so, to grant leave to a person to make an application after the time limit.
The applicant appears to have written to the Assessor in December 1994 raising a query about the time limit and explaining why she had not filed her application earlier. By letter dated 22 June 1995 the Assessor stated that as the respondent was not convicted until May 1994 and as the application had been brought within six months, she was prepared to grant an extension of time on condition that an application be lodged within three months which was by 22 September 1995. An application was duly lodged on or about 18 September 1995.
The applicant deposes that it was not until February 1998 that she was made aware that the Assessor was unable to determine all of her application because some of the offences had occurred prior to 1982. Until that time she says that she was not aware that an application for compensation in respect of the earlier offences had to be made to this Court.
It appears that there was further delay largely attributed to difficulties the applicant experienced as a result of the offences committed by the respondent and supporting expert material is contained amongst the papers. I refer especially to the affidavit of Susan Jean Crisp sworn 4 September 2000.
In all of the circumstances it can be seen that there is a reasonable explanation for the delay, that the length of the delay is not excessive and that the application has obvious merit. Furthermore, there is no issue of prejudice raised on behalf of the respondent. In the circumstances I have no difficulty whatsoever in granting whatever extension of time is required. (Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196).

The facts

The applicant was born on 9 February 1973 by which time her mother and father had separated. Her mother married the respondent in 1976 when the applicant was about 3 years of age. The respondent commenced to touch the applicant sexually when she was about 8 years of age. The respondent's behaviour occurred on occasions when the applicant's mother was out of the house, often of an evening.
Count 1 on the indictment referred to an allegation of the respondent pulling down at the top of the applicant's clothing and putting a hand on her breast. This occurred in the garden.
Count 2 involved an occasion after the applicant had had her evening shower. Whilst she was showering the respondent took her pyjamas into the lounge room which required her to go there to get changed. He commenced drying her, dressed her in her pyjamas and then sat her on his lap. He then rubbed her breasts and vagina with his hands.
Count 3 on the indictment comprises an allegation with the same broad facts. He engaged in this sort of conduct on a number of occasions.
Count 4 occurred on an occasion when the respondent put on a pornographic film. The applicant was about 8 years of age. The respondent was drying her in the lounge room after she had had a shower. Again he rubbed her on her breasts and vagina in the course of watching the film.
Count 5, which is factually the most serious count, again involved the respondent going into the bathroom whilst the applicant was showering and removing her pyjamas into the lounge room. This required her to attend in the lounge room. He dressed her in her pyjamas and on this occasion he went to the kitchen and brought back a quantity of honey. He was dressed in a bathrobe without any other clothes. He put honey on his penis and put it penis in her mouth. He had an erection at the time. The applicant sucked the respondent's penis for two or three minutes. She did not wish to do that at the time.
All of the offences to which I have so far referred occurred when the applicant was about 8 years of age.
Count 6 relates to an occasion when the applicant was 9 years of age. The applicant was in bed. The respondent came to her bed dressed only in a bathrobe and asked her to touch his penis. He was underneath the bed covers with her. He had his head down in the area of her feet. He was dressed only in his bathrobe. The applicant touched the respondent on the penis as she was required to do and she fondled it for a while. He did not have an erection nor did he ejaculate. After about 10 minutes he left.
Count 7 involved an allegation of an offence that occurred when the applicant was 10 years of age. Promising to give her a present the respondent got the applicant to go into is room where he gave her some head phones for listening to music. She was sitting on the bed. The applicant thinks she was wearing pyjamas. The respondent sat next to her and started to rub her breasts and vagina underneath her clothes on her skin. He was rubbing her breasts with one hand and her vagina with the other hand. He did not penetrate her with his fingers. This occurred for about 10 minutes and then the respondent went to bed.
Count 8 relates to an allegation of the respondent rubbing the applicant's breasts and vagina under her pyjamas again.
Count 9 relates to a similar sort of incident that occurred whilst the respondent and applicant and two other children were camping. On this occasion the respondent rubbed cream or moisturiser on the applicant's legs and back and then rubbed her on the breasts and vagina with his hands on her bare skin. This took about 10 minutes.
The uncontested evidence of the applicant is that she was frightened and embarrassed whenever the respondent engaged in this sort of behaviour. She was scared about what he might do if she resisted. She felt unable to tell her mother because she thought she might get into trouble. The applicant cannot remember every occasion that occurred but states that the behaviour continued until she was about 11½ years of age.
The last occasion, which was not the subject of any prosecution, occurred at about the time of the applicant's thirteenth birthday when the respondent attempted to touch her in the area of her vagina but she successfully resisted him.
In 1991, some eight years of so later, the respondent confessed to and apologised for his behaviour.
The applicant's affidavit of 12 January 1999 details the effects of the respondent's abuse of her in strong terms. At par 33, for example, she states:
"I cannot begin to explain what effect this has had on my life. I feel as though my life was taken away from me when I was a child, that I had no choice but to grow up fast. I don't think that I ever had a childhood, and the childhood that I remember is one of fear, pain and rejection, and not one of happy times as a child should have.
(Par 34) I feel that my right as a child to grow into a well adjusted happy person was taken away from me in my childhood. …
(Par 35) As a result of the sexual abuse from the respondent I have suffered from mental problems ever since. I feel confused all the time and not able to escape the thoughts that just come to my mind no matter what I do. I never feel safe and the fear of being abused again is always in my mind.
(Par 36) On most days I find that I have large mood swings, I feel depressed or even suicidal for no reason at all. I suffer from paranoia and fear of being attacked when left in my home at night. I cannot be left alone at night as I suffer from severe nervous attack.
(Par 37) Since the sexual abuse started I have problems relating to my fears and also with my boyfriends as I started to go out with boys.
(Par 38) I still have low self esteem and find it very hard to like myself and to believe that others could like or love me.
(Par 39) In my relationship with my husband I am unable to talk openly with him about sexual matters or of my sexual wants or needs and often become frustrated at my inability to do so. Our sex life is often sporadic and at the best of times emotionally painful for me and this has caused a great many arguments between us. My husband and I have sought professional help with our marriage. Without the counselling that we attend I believe that my husband and I would have separated. The problems that we have in our marriage are, I believe, a direct result of the sexual abuse that I suffered.
(Par 40) I often have flashbacks of the abuse and this is extremely upsetting to me.
(Par 41) Because of the abuse and the effect that it has had on my life, I seem to struggle through each day and am only able to take each day as it comes. Every day I suffer, through no fault of my own and the person responsible can go on with his life with no real repercussions. I have to struggle through each day trying to understand why a person could be so cruel to a child entrusted into his care. …
(Par 45) I believe that only people who have suffered sexual abuse themselves can really know the despair, the pain, the loneliness and the fear that each day brings and as each day passed along with it the hope that the nightmare will be over. My only hope for the future is that one day it will become less painful, less of a struggle and that one day I will truly be free from the nightmare that is my life and one day to know what true happiness is."
I am told that the applicant and her husband separated in October 1999 and he is seeking custody of their children.
I had limited opportunity to assess the applicant myself. She gave brief sworn evidence. She spoke about her feelings of depression. She spoke about the difficulty she is having in disputation with her husband concerning custody of her children. She proved the cost of various medication. She said that she is attending counselling in the form of interaction with a person she described as a counsellor who was not a psychologist "or anything". The applicant was not cross‑examined.
There can be no doubt that the effect of the respondent's behaviour, occurring as it did when the plaintiff was between 8 and about 11½ years of age, was very significant. This sort of behaviour, occurring as it did on the eve of the applicant's puberty, must have caused her great distress, anxiety and misery.
However I must not lose sight of the basic facts of the matter in the sense that the activity alleged comprises, in the main, indecent fondling and rubbing save for count 5 when the respondent put his penis in the applicant's mouth. That act, nowadays, would be classified as a penetration and subject to the same range of penalties as any other penetration. Apart from that act, however, there are no acts of penetration of the applicant. The behaviour of the respondent, disgraceful and abhorrent though it is, could not be said to fall into the category of the worst class of indecent dealing imaginable. However it was repeated and it occurred upon a young girl of very tender years. And it obviously had significant and distressing after effects.
As was submitted on behalf of the Chief Executive Officer:
"Although the community attitude towards the sexual exploitation of a child by an adult is one of extreme revulsion coupled with overwhelming sympathy for the victim, and the applicant's subjective reaction to the offences committed is of overwhelming importance, an element of objectivity based on the nature of the offences committed is required in assessing the degree of injury likely to have been suffered by the child."
And reference was there made to an unreported decision of the District Court in Glover v Van Den Ancker, unreported; DCt of WA; Library No 4962; 20 June 1996.
Furthermore I think it needs to be noted that in the circumstances of this case it is not each individual or isolated incident which is likely to have had an identifiable significant effect upon the applicant but it is the combination of all of them. It is the total effect of the conduct of the respondent over a period of some 3½ years or so which is relevant. The applicant's difficulties are a consequence of the totality of the respondent's behaviour. Thus it is appropriate to reach a view about the quantum of compensation that would be appropriate and then look to see how that quantum, if it does not exceed the total available, can fairly be attributed to the respondent's behaviour by counts.
Evidence was provided on behalf of the applicant to substantiate her claim for damages in the form of affidavits and reports from two psychologists and a transactional analyst.
Suzanne Hicks is a qualified clinical psychologist who swore an affidavit dated 16 August 2000. She interviewed the applicant at the request of her solicitors on three occasions in April and May 2000. Ms Hicks reports that the applicant described her problems but was uncomfortable in discussing details because it was "too distressing". In par 12 of her affidavit Ms Hicks reports that the applicant:
"Has symptoms consistent with clinical depressions, feelings of distress and inadequacy, disturbances and conflicts about normal sexual activities, and also a very low self‑esteem as a result of the sexual abuse perpetrated against her.
This has affected and will continue to effect her daily life and mental health without future medical and psychiatric treatment."
A copy of Ms Hicks' confidential report dated 20 May 2000 was annexed to her affidavit. She described detailed tests that she carried out and concluded that the applicant was experiencing a "borderline level of clinical depression". Ms Hicks summarised her views thus:
"Based on the information available to me at this time, the problems reported by Ms R… and corroborated by her test results are consistent with those to be expected from someone with her history. The professional literature is replete with research supporting the intuitive belief that sexual abuse, and especially the betrayal of trust by those who might be expected to protect them, is profoundly traumatic for children and gives rise to serious and pervasive psychological problems of the sort suffered by this woman over many years."
The applicant was also seen by Jan Steel, a clinical psychologist, who swore an affidavit on 26 November 1998. Ms Steel's report, attached to her affidavit, speaks in similar terms to that of Ms Hicks and makes reference in its summary to professional literature that demonstrates:
"that a physical assault when occurring in a situation that the victim believed to be safe (such as in the home ‑ re sexual abuse) will result in far greater psychological impact for the victim than if the offence occurred in unfamiliar surroundings. This is because the victim's safety assumptions are violated.
Further to this (the applicant) believed and trusted that this man was her father, and as her parent trusted that he would love and take care of her. She did not discovery until she was 17 years of age that he was not her natural father."
The applicant had been referred to Ms Steel by Ms Zoe Butler who is a "qualified transactional analyst".
I am not at all clear what the function is of a person who describes herself as a transactional analyst.
However it appears that the applicant has been seeing Ms Butler on a large number of occasions and she derives benefit from the contact. The evidence of Ms Butler in the form of her affidavit sworn 12 December 1998 with attached report dated 10 November 1997 was not the subject of objection by counsel. Upon reading the report however, although the qualification of Ms Butler to express helpful opinion in these matters is not at all clear, what she has to say appears uncontroversial. Her views are similar to those of the psychologists.
The only other expert evidence relied upon by the applicant comprised a brief medical report from Dr Lawrence Ng dated 19 October 1997. In the report Dr Ng describes having prescribed anti‑depressants for the applicant. He had referred her to a psychiatrist but apparently the applicant did not follow that up because she had difficulty relating to persons of that profession.
It needs to be borne in mind that, apart from whatever difficulties the applicant had as a result of her sexual abuse, she had an "energetic 2 year old son and 3 month old daughter at home". She was also helping for two days per week in her husband's business. These sorts of factors have some relevance, I think, at least to the difficulty she had during that period in 1997.
Under the legislation "injury" means bodily harm and includes mental and nervous shock. There is obviously no bodily harm suffered in this case it being a case where the applicant asserts that her injuries are more mental and emotional. As was submitted on behalf of the Chief Executive Officer the expressions "mental shock and nervous shock" are not to be understood in any technical sense and are given a broad interpretation. However mere emotional reaction is not sufficient and fright, humiliation or anguish are not relevant. What needs to be identified is a mental or emotional difficulty of "a more enduring character which may, in both the legal sense and in common parlance, be described as an injury" ‑ and reference was then made, inter alia, to B v S, unreported; SCt of WA; Library No 950223; 10 May 1995 a decision of Justice Murray in the West Australian Supreme Court.

"Loss" as defined in the Criminal Injuries Compensation Act 1982 subsection 3 means:
"any loss of the following kinds caused by or directly arising from injury ‑
(i)…
(ii)expenses actually and reasonably incurred by the applicant…"
In my view expenses in the form of medical and other expenses reasonably incurred in the efforts of the applicant to deal with her mental and emotional difficulties can be compensated under the definition.
In my view a fair assessment of compensation for the applicant in the circumstances of this case being compensation for her injury as defined would be the sum of $25,000.
In addition I would allow the applicant the specific items claimed by her being as follows:

Zoe Butler ‑ $2,440
Jan Steel ‑ visits $275
STEP Programme for child rearing difficulties ‑ applicant's share $280.

I would not allow anything for the cost of the obtaining of reports which should be claimed as disbursements.
Consequently the quantum of compensation appropriate is the sum of $27,995 which I award as follows:
Count 1:               $2,000
Count 2:               $2,000
Count 3:               $2,000
Count 4:               $2,000
Count 5:               $7,500
Count 6:               $2,000
Count 7:               $2,500
Count 8:               $2,000
Count 9                $5,995
$27,995