PARTIES: Cindy Corina Brown
v
Northern Territory of Australia
and
Shane Forrester
TITLE OF COURT: Local Court
JURISDICTION: Crimes (Victims Assistance) Act
FILE NO(s): 20210163, 20210164, 20210587, 20210588
DELIVERED ON: 28 March 2003
DELIVERED AT: Darwin
HEARING DATE(s): 28 February 2003
DECISION OF: V M LUPPINO SM
CATCHWORDS:
Crimes (Victims Assistance) Application – Principles of assessment – Multiple injuries of which only four are the subject of claims – Apportionment where mental injury results from an extended course of conduct not all of which are subject to claims – Allowance to be made on account of the conduct of the applicant.
Crimes (Victims Assistance) Act ss 4(1), 5(1), 9, 10, 17.
Woodroffe v Northern Territory of Australia (2000) 10 NTLR 52; Lanyon v Northern Territory of Australia [2002] NTSC 6; McIlfatrick v Chard & Northern Territory of Australia (1995) 5 NTLR 9; Chabrel v Northern Territory of Australia & Mills (1999) 9 NTLR 69; T v State of South Australia & Anor (1992) Aust Torts Rep 8-167
REPRESENTATION:
Counsel:
Plaintiff: Ms Farmer
First Respondent Mr Johnson
Second Respondent Did not appear
Solicitors:
Plaintiff: Withnall Maley & Co
First Respondent Priestly Walsh
Second Respondent Unrepresented
Judgment category classification: B
Judgment ID number: [2003] NTMC 013
Number of paragraphs: 33
IN THE LOCAL COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No(s). 20210163, 20210164, 20210587, 20210588
BETWEEN:
CINDY CORINA BROWN
Applicant
and
NORTHERN TERRITORY OF AUSTRALIA
First Respondent
and
SHANE FORRESTER
Second Respondent
REASONS FOR DECISION
(Delivered 28 March 2003)
Mr Luppino SM:
1. These four claims under the Crimes (Victims Assistance) Act (“the Act”) were heard contemporaneously on 28 February 2003. The four matters are inter-related and all involve the same parties.
2. Each of the matters represented a claim for one isolated incident in a series of assaults, many serious, perpetrated on the applicant by the second respondent.
3. The issues before me were firstly the assessment of the amount of an assistance certificate for applicant in each of the matters and secondly, whether there is to be any reduction on account of section 10 of the Act by reason of the conduct of the applicant.
4. The assessment of an assistance certificate is complicated by reason of the psychological aspect of the applicant’s injuries. The four assaults the subject of the actual claims made represent only a small proportion in number of the entire assaults inflicted by the second respondent on the applicant. Allowance therefore needs to be made for the extent of the psychological injuries not resulting from the four incidents the subject of claims.
5. The essential facts of the four claims which were not challenged and which I therefore accept are as follows:-
1. Claim No. 20210587 involved an assault alleged to have occurred on our about 26 May 1997. On this occasion the second respondent is alleged to have repeatedly punched the applicant to the head chest and arms resulting in the applicant losing consciousness;
2. Claim No. 20210588 involves an assault alleged to have occurred on 12 May 1997. The applicant alleges that the second respondent hit and punched her to the face and chest numerous times resulting in nausea, vomiting and headaches;
3. Claim No. 20211063 involves an incident occurring approximately between 21 and 25 November 1996. The applicant alleges the second respondent grabbed her by the hair, pushed her head into the floor, threatened to kill her and anally raped her;
4. Claim No. 20211064 involves an incident occurring on or about 3 July 1997. The applicant alleges the second respondent inflicted multiple punches to the applicant’s face. He then grabbed her by the throat and began to choke her. He then inflicted multiple punches to her body. He then hit her with a steel pole to the head and kicked her to the stomach and legs. He then urinated on her face and body. Then, using an aerosol can of hairspray as an accelerant, set the spray alight and directed the flame into the applicant’s face in an attempt to set her on fire. The applicant suspects, probably correctly so in my view, that it was only the extent of the blood on her face and hair which prevented her hair fully catching alight. As a result only her eyebrows and small amount of her hair was burnt.
6. All of the evidence before me was in documentary form. It comprised the various affidavits of the applicant in each matter as well as the one statutory declaration she made to the police in relation to all the matters. I had a report from Dr Markou, psychiatrist, in relation the applicant’s mental condition. In relation to the physical injuries I had various medical records of the plaintiff involving hospital notes, clinic notes and other medical records. Two letters from the applicant to the second respondent dated respectively 23 February 1999 and 27 August 1999 were put in evidence by the first respondent.
7. A brief summary of the relationship puts the issue of the assessment of psychological factors into perspective. The applicant commenced a relationship with the second respondent approximately September 1996 and the relationship ended in February 1998. There is evidence that multiple assaults, including sexual assaults, occurred in that period. A sexual assault is also alleged to have occurred after the separation.
8. The applicant’s evidence is that the assaults commenced within two weeks of the commencement of the relationship. The first assault involved the second respondent inflicting multiple punches to the face and chest of the applicant and kicks to the legs over a period of twenty minutes. This resulted in a fractured left cheek and multiple bruises. This assault is not the subject of a claim.
9. The applicant also describes a series of assaults, on at least seven separate occasions, occurring during October 1996. Three of these appear to have been very severe. They all involved punches to the head and the face and the description of the assaults contains references to fractures, severe headaches and substantial bleeding.
10. The applicant describes another episode occurring in the same month as the assault the subject matter of the claim in File No. 20211063. She does not say which occurred first in time, however, as with the assault in File No. 20211063, that other assault also involved a bashing and anal rape. The other assault however also involved forced fellatio.
11. The applicant also describes, albeit without any specifics, two assaults occurring on consecutive days on the 18th and 19th December 1996. She next describes an assault occurring sometime in March 1997 involving a severe beating comprising punches to the face and head as well as choking. A short time after that, on or about 4 April 1997, the applicant says that she was hit over the head with a dumb bell.
12. Other severe assaults involving multiple punches to the face and head are alleged to have occurred on or about 20 May 1997 and on a date in July of 1997.
13. The assault the subject of the claim in File No. 20210588 involved another serious assault. The second respondent is said to have struck the applicant over the head with a log taken from a campfire. The applicant describes a resulting period of unconsciousness. She described how she later vomited blood while at home and was sore in the stomach area. She suspects, probably correctly in my view, that the second respondent kicked her in the stomach area during the period she was unconscious.
14. She estimates that in all she was raped approximately ten times by the second respondent. Her evidence is that on most of these occasions intercourse occurred against her will but that she did not resist for fear of reprisals from the second respondent.
15. In the context of the above I need to assess the extent of an allowance for mental injuries in the various assistance certificates. The relevant evidence mostly comprises the report of Dr Markou dated 23 July 2002. The key features of that report in summary form are as follows:-
1. Dr Markou interviewed the applicant specifically for the purpose of these claims on 18 July 2002;
2. There was no relevant family history of mental disorder and that other than her experiences with the second respondent, the applicant had not had any other significant traumatic experiences;
3. The various assaults are described in detail; particular emphasis seems to be made of the fact that the assaults were accompanied with threats of further assaults and even death to dissuade her making reports to the police; the account of the assault by the second respondent on the applicant’s brother when the applicant’s brother was encouraging her to leave the second respondent was put in the same context;
4. He describes the impact of the assaults as profound to the extent that in 2003 the applicant continues to suffer the consequences of those assaults;
5. He describes a history of frequent panic attacks, binge eating as a means of alleviating the psychological distress, extreme depression, and suicidal ideation; current symptoms are hyper vigilance, problems with eating of a bulimic nature, intermittent anxiety and panic, distrust of aboriginal people (the second respondent was part aboriginal) and some difficulty in achieving sexual fulfilment;
6. He diagnosis a mental illness namely a post traumatic stress disorder, which is in partial remission, and bulimia nervosa;
7. He opines that the symptoms of post traumatic stress disorder and the bulimia disorder are a direct consequence of the overall abuse she suffered at the hands of the second respondent;
8. He cannot separate the effects of the episodes the subject of claims from all the other traumatic experiences that occurred in the relationship;
9. The applicant is getting on with her life and her prognosis is ultimately good but he expects some periods of relapse of significant anxiety and depressive symptoms from time to time;
10. He estimates future treatment to be required over a course of several years at a cost of somewhere between $5,000.00 and $7,000.00;
16. The provisions in the Act relevant to the assessment of an assistance certificate and the issues in this case are as follows:-
4(1) In this Act, unless the contrary intention appears –
“injury” means bodily harm, mental injury, pregnancy, mental shock or nervous shock but does not include an injury arising from the loss of or damage to property (which loss or damage is the result of an offence relating to that property);
“victim” means a person who is injured or dies as the result of the commission of an offence by another person;
5(1) A victim or, where the victim is an infant or the Court is satisfied the victim, because of injury, disease or physical or mental infirmity, is not capable of managing his or her affairs in relation to the application, a person who, in the opinion of the Court, is a suitable person to represent the interests of a victim, may, within 12 months after the date of the offence, apply to a Court for an assistance certificate in respect of the injury suffered by the victim as a result of that offence.
9(1) In assessing the amount of assistance to be specified in an assistance certificate in respect of an application under section 5(1) or (2), the Court may, subject to this Act, include an amount in respect of –
(a) expenses actually incurred as a result of the injury suffered by, or the death of, the victim;
(b) pecuniary loss to the victim as a result of his or her total or partial incapacity for work;
(c) pecuniary loss to the dependants of the victim as a result of his or her death;
(d) any other pecuniary loss arising in consequence of injury suffered by, or the death of, the victim and any other expenses reasonably so incurred;
(e) pain and suffering of the victim;
(f) mental distress of the victim;
(g) loss of the amenities of life by the victim;
(h) loss of expectation of life by the victim; and
(i) loss of, or damage to, the clothing of the victim being worn at the time of the commission of the offence.
(2) For the purposes of subsection (1)(f), mental distress does not include grief.
10(1) In considering an application for assistance, and in assessing the amount of assistance to be specified in an assistance certificate, the Court shall have regard to the conduct of the victim and to any other matters it considers relevant.
(1) Where the Court, on having regard under subsection (1) to the conduct of the victim, is satisfied that the victim's conduct contributed to the injury or death of the victim it shall reduce the amount of assistance specified in the assistance certificate by such amount as it considers appropriate in all the circumstances.
17(1) A fact to be proved by an applicant in proceedings under this Act shall be sufficiently proved where it is proved on the balance of probabilities.
17. Mental injury is a term that is referred to in the definition of “injury” but is not separately defined. However, section 9(1) of the Act, which sets out the matters to be taken into account in assessing the amount of an assistance certificate, in section 9(1)(f), specifically directs regard be had to mental distress. Further, section 9(2) of the Act directs that mental distress does not include grief.
18. It is therefore necessary to determine how much, if any, of the applicant’s mental condition is “grief” within the meaning of section 9(2) of the Act. I think some guidance in distinguishing grief from mental injury can be drawn from Chabrel v Northern Territory of Australia and Mills (1999) 9 NTLR 69 (“Chabrel”). In that case Mildren J approved of the decision of Olsson J in T v State of South Australia & Anor (1992) Australian Torts Rep 8-167 (“T”) where in discussing the meaning of “mental injury” as used in the South Australian Act his Honour said:
“Whilst I accept that the statute obviously has in contemplation something more than a condition of mere sorrow and grief, nevertheless what the court is required to do so is to consider the situation of a claimant following a relevant criminal act and contrast it with that which pre-existed the Act in question. Leaving aside proven conditions of mental or nervous shock, if the practical effect of the relevant conduct has been to bring about a morbid situation in which there has been some more than transient deleterious effect upon a claimant’s mental health and well being, so as to adversely affect that persons normal enjoyment of life beyond a situation of mere transient sorrow and grief, then, in the relevant sense, the person has sustained mental injury.”
19. The gist of Dr Markou’s opinion is that the applicant’s mental condition as diagnosed by him results directly from the continued assaults inflicted by the second respondent on the applicant during the period of the relationship. What can be clearly drawn from Dr Markou’s opinion is that applicant’s mental injury is significant and ongoing and has persisted for more than four years since the end of the relationship. This clearly puts the applicant’s condition beyond mere grief according to Chabrel and T. Moreover Dr Markou has clearly diagnosed a recognised mental disorder, which, according to the extract cited above, again puts the condition beyond mere grief. I therefore find that the applicant’s condition does not fall within section 9(2) of the Act.
20. I therefore proceed to assess the appropriate allowance to be made in the various assistance certificates on account of mental injury. The use of the words “for that offence” in section 5(1) of the Act requires an apportionment to be made to reflect the contribution of the assaults the subject of claims to the overall mental injury suffered by the applicant. There is no evidence on which such an apportionment can be made. Dr Markou expressly stated that he could not make that apportionment. The approach to the situation in such a case is dictated by Woodroffe v Northern Territory of Australia (2000) 10 NTLR 52 (“Woodroffe”). In that case, in determining the correct approach to be taken in such a case, said at paragraphs 40-41:
“However, the correct approach is not necessarily to arrive at a total figure for the whole of the damage sustained at the hands of the perpetrator, and then to discount it to allow for that proportion of the psychological injury that was caused for the offences, not the subject of the application, although in this particular case, given the state of the evidence, this may be appropriate. It may be that a finding would be open on the evidence, that the particular offences, the subject of the application, are separately or together sufficient to cause the psychological injuries the appellant ultimately sustained after the first assault in June 1991 and that an award, or awards, can be made on that basis, bearing in mind two considerations. The first is that, to the extent that the appellant was already pre-disposed to psychological injury prior to then, the respondent must take the victim as she is found, but is still only liable to the extent that the injuries for which the respondent is liable, made the condition worse: see Dillingham constructions Pty Ltd v Steel Mains Pty Ltd & Another (1975) 49 ALJR 233
The second is the principle discussed in Watts v Rake (1960) 108 CLR158, that if the disabilities of the appellant:
….can be disentangled and one or more traced to causes in which the injuries (she) sustained through the (offences) play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the (offences) as a contributory cause (per Dixon CJ, at p160).”
21. In relation to the mental injury component of the assistance certificates, the starting point is therefore to make an assessment of the applicant’s overall mental injury and to then apportion that to the claims made as best one can and taking a commonsense approach.
22. Dealing first with a preliminary matter, in my view the assistance certificate to issue in the case of File No. 20211063 should be the maximum of $25,000.00. In my view, based on a common law assessment and even without any allowance on account of the mental injury, the applicant’s award would exceed that maximum. I must however still make some allowance in relation to the mental injury component in that claim as else it would corrupt the appropriate apportionment of the award for mental injury in relation to the remaining claims.
23. In my view damages at common law on account of the applicant’s overall mental injury would be $50,000.00. In arriving at this figure I have had regard to the evidence presented particularly the evidence of Dr Markou. Specifically I have had regard to the described extreme episodes of violence and the fact that the applicant’s symptoms persist for nearly seven years from the commencement of the relationship and approximately five years after the end of the relationship. To this figure I add of the amount of $5,000.00 on account of future treatment expenses. These expenses are recoverable under section 9(1)(d) of the Act per McIlfatrick v Chard & Northern Territory of Australia (1995) 5 NTLR 9. The estimated cost of this treatment according to Dr Markou is between $5,000.00 and $7,000.00. However I have no basis for fixing the proper amount within that range. The onus is on the applicant to prove her claim (refer section 17 of the Act). Given the lack of precision or detail in the estimate made by Dr Markou, I cannot find that the applicant has proved an entitlement greater than $5,000.00 and I therefore allow this amount only. I add the allowance for future treatment expenses at this point as an appropriate apportionment of this cost between the matters which are the subject of claims and those which are not must also be made and this is an effective way to do so.
24. That then leaves the issue of the application of section 10 of the Act. Mr Johnson submitted that some allowance might be appropriate having regard to the fact that the applicant did not take the opportunity to leave the second respondent. He submitted that I should give consideration to the application of section 10 in this case.
25. Section 10 confers on the Court a discretion in assessing the amount of assistance to have regard to the conduct of the victim and any other matters the Court considers relevant (Lanyon v Northern Territory of Australia and Staker [2002] NTSC 6 (“Lanyon”)). That case also shows that the type of conduct which can be taken into account is not limited solely to conduct which has a direct and causal relationship to the injury sustained by the applicant such as provocation, consensual entry into a fight and the like. If that were not the case there would be no scope to apply section 10 here given that the relevant conduct of the applicant complained of is an omission as opposed to positive action. What is to be taken into account is conduct that has a significant contribution to the injury. Although I think that in appropriate cases the failure to leave a violent and abusive partner when an opportunity to do so is available may be taken into account, it is not appropriate to do so in this case. The unchallenged evidence of the applicant is that she tried “many times” to leave the second respondent but that he would not leave her alone. I am of the view that the applicant did not have a real opportunity to leave the second respondent during the period covered by these four claims. In saying this I have regard to the second respondent’s overall intimidation of the applicant. I also have regard to the reprisals which were evidenced firstly when the applicant attempted unsuccessfully to lock the second respondent out of her home and, secondly when the applicant’s brother attempted to intervene to achieve the separation and thirdly, the ease with which the second respondent dismissed the attempted intervention by the applicant’s mother.
26. I think it is also relevant that when the applicant first moved to Darwin that she was aware that the second respondent had gone to Darwin to look for her. She also says that when she told the second respondent that she had met someone else the second respondent’s reaction, typical and anticipated in my view, was to want to assault that person.
27. Having said that the sexual assault that occurred after the applicant had married has to be looked at differently. As best I can tell from the evidence this occurred sometime after October 1999. It appears that it pre-dates the letters referred to in paragraph 6 above. It was after the applicant had left the second respondent and after the applicant had married her current husband. The applicant deposed to having woken in the early hours and had commenced packing for a move to Darwin. She said that at that time she saw the second respondent approaching her home. Her husband was asleep in the house at the time. She made no attempt to avoid the second respondent. She made no attempt to call for assistance from her husband. She offered her fear that the second respondent would assault her husband as the reason for not doing so, yet in not doing so she put herself at risk of a further assault. The conduct described can only be relevant to the issue of the overall mental injury, as that assault is not the subject of a claim. This therefore mitigates the relevance of the two letters referred to in any event irrespective of whether they were written before or after the event. I am of the view that in accordance with Lanyon, a reduction in the overall award for the psychological component should be made on account of that conduct. However in the overall scheme of things, that assault is one of the more minor, hence I consider that the appropriate reduction is one of $500.00 and I therefore quantify the overall mental injury component at $54,500.00.
28. Applying the approach in Woodroffe, in my view the appropriate allowance in relation to the four assaults the subject of claims should be 10%. I believe the appropriate apportionment of this between the four claims made, based on their relative severity overall, is 4% for the claim in File No. 20211063, 3% for the claim in File No. 20211064, 2% for the claim in File No. 20210587 and 1% for the claim in File No. 20210588. This apportionment is based on the relative severity of each assault and is as appropriate as I can determine.
29. In relation to the physical aspects of the injuries I have already expressed the view that the claim in File No. 20211063 entitled the applicant to the maximum amount of an assistance certificate. I assess the physical injuries in the claim in File No. 20211064 at $20,000.00. The assaults there comprised multiple punches to the face, grabbing by the throat and choking, multiple punches to the body, a hit to the head with a steel pole, kicks to the stomach and legs and deliberate burning of the applicant with the apparent intention to cause serious harm.
30. The claim in File No 20210588 translates to an award of $7,500.00 for the physical injuries. That assault involved the applicant being hit over the head and knocked unconscious with a burning log taken from a campfire. On the material available to me, I find on the balance of probabilities, that the second respondent kicked the applicant in the stomach area while she was unconscious.
31. The remaining claim (File No. 20210587) involved repeated punches to the head, chest and arms that were severe and persistent enough to cause the applicant to lose consciousness. For the physical aspect of those injuries I consider the applicant entitled to an award in the sum $5,000.00.
32. However in regard to the foregoing in summary my assessment of the assistance certificates to issue in each of these cases is as follows;
1. File No. 20211063, $25,000.00 (including an allowance of $2,180.00 on account of psychological aspects);
2. File No. 20211064, $20,000.00 for the physical component and $1,635.00 on account of the psychological component, total $21,635.00;
3. File No. 20210587, $7,500.00 on account of physical injury and $1,090.00 on account of psychological aspects, total $8,590.00;
4. File No. 20210588, $5,000.00 for the physical component and $545.00 for the psychological component, total $5,545.00.
33. I issue assistance certificates accordingly and I will hear the parties as to costs.
Dated this 28th day of March 2003.
_________________________
V M LUPPINO
STIPENDIARY MAGISTRATE