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Accident Compensation Cases

M v M (VictimsSpecClaimT, 11/05/09)

Judgment Text

The interim decision of the Tribunal was delivered by 
JUDGE P A MORAN:
[1]
M is a prison inmate. On 26 November 1999 he raped Ms M. On 28 February 2001, Potter J sentenced him to 16 years' imprisonment. 
[2]
On 4 February 2008 the New Zealand Police agreed to pay M compensation in the sum of $1,200 to settle a claim that his privacy had been interfered with by the police. He alleged that the police had failed to respond to his requests for information and improperly withheld information from him. The compensation has been paid to a Victims' Special Claims Trust bank account. 
[3]
Ms M has been notified of this payment. As a victim of M's offending she now claims damages from M, a claim that I must now determine. 
Legislative framework — Prisoners' and Victims' Claims Act 2005 
[4]
Where an imprisoned offender recovers compensation from the State for breaches of, or interference with, any right recognised by the New Zealand Bill of Rights Act 1990, the Human Rights Act 1993 or the Privacy Act 1993, that compensation must be paid to the Secretary for Justice. The Secretary must apply it to payment of legal-aid charges, outstanding reparation, and any established victims' claims for compensation. The balance must then be paid into a Victims' Claims Trust bank account. The Secretary must then give notice of that payment to victims of the offender who are invited to lodge their own claims for compensation against the offender.1
| X |Footnote: 1
Sections 17-21. 
 
[5]
A victim may file a claim with the secretary of the Tribunal within the time specified in the notice if he or she is indeed a victim of the prisoner and has not obtained and is not seeking a judgment in civil proceedings brought in respect of the offending conduct.2
| X |Footnote: 2
Section 28. 
 
[6]
The victim's claim is then served on the offender to afford the offender a reasonable opportunity to make written submissions on it within a prescribed time.3
| X |Footnote: 3
Section 31. 
Once the submissions are received, or the time for making them has expired, the Tribunal must determine the victim's claim. Unless there are exceptional circumstances that make it necessary in the interests of justice for the Tribunal to hear oral submissions from the parties, the victim's claim must be determined on the papers.4
| X |Footnote: 4
Sections 34 and 38. 
 
[7]
Before it can order that any amount of money be paid to the victim, the Tribunal must be satisfied on the balance of probabilities that: 
the claimant is a victim of the offender; 
the victim has, through or by means of the offence, suffered loss or damage for which he or she has not received, and is not to receive, effective redress; 
the claim discloses a cause of action that is, under the general law, one for which damages are, in the particular case, payable.5
| X |Footnote: 5
Section 46. 
 
[8]
“General law” is not defined. 
[9]
If these prerequisites are met, the Tribunal may order that an amount of money be paid to the victim. The matter is discretionary. Moreover, the Tribunal may order payment of an amount of money that the victim and offender agree to, and that the Tribunal considers is reasonable, by way of final settlement of the victim's claim.6
| X |Footnote: 6
Section 46. 
 
[10]
The Tribunal must determine the amount to be paid to the victim without taking into account in any way the amount actually held in the account of the offender. Whether to order an amount to be paid by way of damages or exemplary damages, and in quantifying such amount, the Tribunal must apply the general law relating to the awarding of damages.7
| X |Footnote: 7
Section 47. 
Interest may be awarded. 
[11]
If the amount awarded to the victim is equal to or less than the money in the account, then the award is to be paid in full. If the amount awarded exceeds the money held in the account, then that money is applied in partial satisfaction of the award. The victim may enforce payment of the unsatisfied portion by deduction from any future amounts awarded to the offender as compensation for breach of his or her rights, or it may be recovered as a judgment of the District Court.8
| X |Footnote: 8
Section 48. 
 
[12]
Any surplus remaining in the account is to be released to the prisoner but subject to the prior implementation of any out-of-Court settlement of an offender's claim requiring compensation to be withheld to satisfy fines.9
| X |Footnote: 9
Section 52. 
 
The need for the offender to be given effective notice of the victim's claim 
[13]
It is important to note that a victim's claim for compensation is not restricted to the amount of money held in the Victims' Claims Trust bank account. Compensation awarded to the victim may well exceed the amount in the trust account. Indeed, the Tribunal is directed to have no regard to the amount in the trust account when determining the compensation payable to a victim. The payment of the offender's compensation into the trust account is simply the trigger that activates the victim's claim. So the offender's compensation is potentially a poisoned chalice. 
[14]
It may be observed that both victims and offenders are unlikely to realise that a victim's claim may result in an award of damages that far exceeds any sum held in the trust account. That appears to be so in the present case. Ms M has been notified that $1,200 has been paid into the trust account on behalf of M and she has been invited to “make a claim against it”. She has made a claim on a form provided for the purpose but does not quantify her claim. In response to that claim, M has expressed the wish that the compensation moneys of $1,200 should not go to Ms M. So both parties appear to be labouring under the misapprehension that these proceedings are restricted to the sum of $1,200. For M this is, to say the least, unfortunate. The Act provides that he is to be given a reasonable opportunity to make written submissions on Ms M's claim10
| X |Footnote: 10
Section 31. 
. Natural justice demands no less. That claim is potentially for tens of thousands of dollars. If M does not know this, how can he be said to have had a reasonable opportunity to respond to it? 
[15]
So the net result is this. M has received $1,200 compensation for the breach of his privacy rights by the police. His victim, Ms M, has made a claim against that sum that she does not quantify. M has responded to that claim not knowing what she seeks and in the apparent belief that her claim is restricted to $1,200. I have to determine that claim having no regard to the amount in the trust account so M is likely to be ordered to pay tens of thousands of dollars, a likelihood of which he has no effective notice. Nor does he know that the claim against him is to be determined according to the “general law relating to the awarding of damages”, a standard that the statute does not define. The police may have breached his privacy rights but, as matters presently stand, the Tribunal is set to commit an even greater breach of M's rights — a breach of his right to justice: 
“Every person has the right to the observance of the principles of natural justice by any tribunal, or other public authority, which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law.11
| X |Footnote: 11
Section 27(1) of the New Zealand Bill of Rights Act 1990. 
 ”
[16]
Natural justice demands an effective right to be heard. That, in turn, requires a notice of claim that brings home to M the nature and extent of Ms M's claim, namely, a claim for damages that is to be assessed having no regard to the sum held in the trust account, a claim to be determined according to “the general law relating to the awarding of damages”, whatever that means. 
[17]
Subject to certain requirements of the Act, the Tribunal is the master or mistress of its own procedure.12
| X |Footnote: 12
Section 45. 
It is necessary to ensure that the potential for a substantial breach of M's right to justice is remedied. To that end, before Ms M's claim is determined, this will be an interim decision and the secretary of the Tribunal will be instructed to give M further written notice in the terms appended to this interim decision. 
What is “the general law relating to the awarding of damages”
[18]
I take it to mean the common law relating to claims for damages for personal injury untrammelled by the prohibition of such claims contained in the Injury Prevention, Rehabilitation and Compensation Act 2001 and its predecessors. 
[19]
The term “general law” has to be given meaning. The meaning of an enactment must be ascertained from its text and in the light of its purpose.13
| X |Footnote: 13
Section 5 of the Interpretation Act 1999. 
 
[20]
So what of the text of the Act? Section 46(2) of the Prisoners' and Victims' Claims Act 2005 provides that: 
“The Tribunal must not accept a victim's claim unless satisfied, on the balance of probabilities, that— 
(a)
the claimant is a victim of the offender; and 
(b)
the victim has, through or by means of the offence, suffered injury, loss or damage for which the victim has not received, and is not to receive, effective redress; and 
(c)
the claim discloses a cause of action that is, under the general law, one for which damages are, in the particular case, payable. ”
[21]
The text of s 46(2) seems to recognise circumstances where effective redress that was otherwise available to a victim under the general law, has been denied to the victim by some specific law. 
[22]
In the case of physical or mental injury, effective redress in the form of lump-sum compensation is compromised by the Injury Prevention, Rehabilitation and Compensation Act 2001 and, of relevance to the present case, its predecessor, the Accident Insurance Act 1998. These statutes prohibit claims for damages by victims of sexual violation for mental injury that reaches the threshold of clinicallysignificant behavioural, cognitive or psychological dysfunction.14
| X |Footnote: 14
Sections 317, 26 and 21 of the 2001 Act, and ss 394, 29, 40 and 30 of the 1998 Act. 
So the text of s 46(2), suggests that a claim for damages for personal injury by a victim of sexual violation for which effective redress is denied by statute, is to be accepted by the Tribunal and determined as if the statutory prohibition did not exist. 
[23]
And what of the purpose of the Prisoners' and Victims' Claims Act 2005? 
[24]
Its apparent purpose is to ensure that compensation payable to a prisoner for breaches of his specified rights is applied to the compensation of the victims of his offending in cases where they would not otherwise have any effective redress. Those claims are not to be inhibited or proscribed by legislation that denies effective redress in the form of lump-sum compensation for physical or mental injury. 
[25]
Moreover, to facilitate such claims, limitation periods prescribed by the Limitation Act 1950 are suspended while the offender is serving a sentence of imprisonment.15
| X |Footnote: 15
Sections 63 and 64. 
This is plainly directed at causes of action in tort founded in the common law albeit proscribed by statute. 
[26]
I conclude that “the general law relating to the awarding of damages” means the common law relating to claims for damages for personal injury untrammelled by the prohibition of such claims contained in the Injury Prevention, Rehabilitation and Compensation Act 2001 and its predecessors. I am fortified by a conclusion to the same effect reached by the Victims' Special Claims Tribunal in H v H.16
| X |Footnote: 16
5/12/06, Blackie J, PVC001/05-1
 
[27]
However, in relation to Ms M's claim, all this may be academic. While she has undoubtedly suffered emotional harm there is no evidence to suggest that it reached the threshold of clinically-significant behavioural, cognitive or psychological dysfunction that would see her claim for damages prohibited by the statute. There would appear to be no statutory impediment in the way of her claim for damages. 
The offence 
[28]
That Ms M is a victim of the offender, M, is undisputed. On 14 December 2000 a Rotorua jury found him guilty of raping her. The facts, as I find them to be, are sufficiently recorded in the remarks of Potter J upon sentencing M on 28 February 2001 (R v M 28/2/01, Potter J, HC Rotorua T000045). They are to be treated as conclusive evidence of M's offence:17
| X |Footnote: 17
Section 37. 
 
“On 26 November 1999, the victim in this matter was at the Cue Bar on Pukuatua Street, Rotorua. She was drinking and socialising with a couple of people when the prisoner approached her and began talking to her. Both were involved in a conversation, exchanged pleasantries and generally socialised at the bar where they stayed until closing time. The victim then decided to go home and went outside and boarded a taxi. She was followed by the prisoner who invited himself back to her place which the victim reluctantly agreed to. She initially made an attempt to pay for his taxi ride home to his own address when she was dropped off, but he declined this offer, took the change she proposed to leave with the taxi driver for his fare and alighted with her. When they entered the house, the victim gave the prisoner a bottle of beer and was about to turn on the tape deck when the prisoner grabbed her from behind, forced her over a kitchen table and began kissing her. He then grabbed her breasts. The victim made it clear to him she was not interested. He then forced the victim out of the kitchen into her bedroom area where he pushed her over a bed so she was half on the floor, parted her legs, and grabbed her between her legs. During this time the victim tried to kick and punch him and to resist what was happening to her. He then put his penis into the victim's vagina and had full sexual intercourse. During intercourse he started kissing her breasts. The victim managed to push him off just before he ejaculated. She told him to leave. She rang a taxi. A short time later she returned to the lounge where she found the prisoner attempting to steal her television and video. She went outside to wait for the taxi. She then discovered that he had taken her vehicle and a Maori carving. ”
[Para 3]
The victim's claim 
[29]
Ms M's claim has been made on a form approved by the Secretary for Justice. Under the heading, “Nature of injury, loss, damage or harm” she has ticked the following boxes: 
Physical injury, 
Emotional harm, 
Loss or damage to property, 
Consequential economic loss as a result of loss of, or damage to, property. 
[30]
Under the heading, “Compensation sought” she has ticked the following boxes: 
Damages for loss of, or damage to, property, 
Damages for consequential economic loss as a result of loss of, or damage to, property, 
Damages for emotional harm resulting from loss of, or damage to, property. 
No claim is made for exemplary damages. None of the categories of damages claimed are quantified. 
[31]
In a space provided for reasons to be given for a wish to make oral submissions, Ms M has written: 
“Had to sell home at a loss. 
No ACC available to rape victims available between 1991-2001. ”
[32]
The claim form is deficient. The s 20 notice invited victims to make claims “against the $1,200” paid into the trust account. While this is strictly correct, it is misleading. It creates the impression that victims' claims are restricted to the sum in the trust account. The claim form does nothing to dispel this. It is not surprising, therefore, that Ms M did not quantify her claim. The s 20 notice and the claim form should both make it clear that victims' claims are not restricted to the amount in the trust account and are to be determined without taking that amount into account in any way. 
[33]
Moreover, the claim form is deficient in that it confines claims for damages for emotional harm to such harm “resulting from loss of, or damage to, property”. But the law has long recognised claims for damages for emotional harm arising from an assault and, in relation to rape, it is emotional distress that is invariably the most significant form of harm suffered by a victim: 
“It seems clear that in respect of an assault damages can be awarded not only in respect of physical injury, but also in respect of insult which may arise from interference with the person and the injury to his feelings, that is, the indignity, mental suffering, disgrace and humiliation that may be caused.18
| X |Footnote: 18
Fogg v McKnight [1968] NZLR 330 (SC)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] , at p 331, per McGregor J. 
 ”
[34]
Despite the shortcomings in Ms M's claim (for which she is in no way responsible), I intend to determine it as a claim for compensation for mental injury in the form of psychological or emotional harm occasioned by the rape. That should do justice to her claim without the need to consider the other heads of claim for which, in any event, there is little or no evidential foundation. 
The evidence of psychological or emotional harm 
[35]
Ms M was raped. She was raped by a man with whom she had been socialising and who invited himself back to her home. He forced himself on her violently. She vainly put up a struggle, albeit with limited noise because her children were asleep in the next room (a fact extracted from the notes of evidence by the sentencing Judge). To add insult to injury he then attempted to steal her television and video and stole her motor car and a Maori carving that was of great significance to her. 
[36]
With regard to the effect of all this on Ms M, a victim impact report obtained at the time of sentencing records shame and distress so great that she had to withdraw from her employment. Her GP prescribed Prozac to help her overcome the effects of the attack. A sense of insecurity that followed rendered her incapable of normal interaction with people making it difficult to undertake such routine tasks as a trip to the supermarket. Her condition was exacerbated by the inability of her children to come to terms with the rape of their mother, especially her 17-year-old son who was present in the house and slept through the rape. Her sense of insecurity in her own home was such that she was unable to sleep in her bedroom where the rape occurred and her son's father came and stayed in the house for 3 months as a comfort to her and her children. In the months that followed she began to drink heavily, put on weight and became severely depressed. 
[37]
In her sentencing remarks Potter J records that, the effect on the victim is “significant” and the long-term implications “incalculable”.19
| X |Footnote: 19
R v M 28/2/01, Potter J, HC Rotorua T000045, at para 19. 
 
[38]
So what sum should I award Ms M to compensate her for the emotional harm inflicted on her by M? 
Quantum 
[39]
I will defer determining the amount of the award until M has had the opportunity to respond to the further notice appended to this interim decision. 
Appendix
The secretary of the Tribunal is to give M further written notice as follows: 
Ms M's claim is for an indeterminate sum by way of damages for property loss, consequential losses and damages for physical and mental injury. 
Her claim will be confined to a claim for damages to compensate her for emotional harm caused by her sexual violation. 
Her claim is to be determined according to the general law without regard to the Accident Insurance Act 1998 that inhibits claims for damages for personal injury. 
Compensation will be determined without taking into account in any way the $1,200 actually held in the Victims' Claims Trust bank account and is likely to amount to many thousands of dollars. 
To the extent that the compensation awarded to Ms M exceeds the $1,200 in the Victims' Claims Trust bank account, the excess may be recovered from him as a judgment of the Court. 
M may wish to seek legal advice and, to that end, apply for legal aid. 
Any further submissions that he may wish to make are to be sent to the secretary of the Tribunal in writing within 60 days. 


Sections 17-21. 
Section 28. 
Section 31. 
Sections 34 and 38. 
Section 46. 
Section 46. 
Section 47. 
Section 48. 
Section 52. 
Section 31. 
Section 27(1) of the New Zealand Bill of Rights Act 1990. 
Section 45. 
Section 5 of the Interpretation Act 1999. 
Sections 317, 26 and 21 of the 2001 Act, and ss 394, 29, 40 and 30 of the 1998 Act. 
Sections 63 and 64. 
5/12/06, Blackie J, PVC001/05-1
Section 37. 
Fogg v McKnight [1968] NZLR 330 (SC)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] , at p 331, per McGregor J. 
R v M 28/2/01, Potter J, HC Rotorua T000045, at para 19. 

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