APPLICANT ENTITLED TO CRIMINAL INJURIES COMPENSATION ASSERTS THAT THE AMOUNT AWARDED TO HIM IS UNREASONABLE
Mario-Ring v Piggott [2021] TASSC 19 (18 May 2021)
This is a review sought by the applicant for the compensation for his criminal injuries alleging that the amount awarded to him is insufficient and constitutes an improper exercise of power by the Commissioner.
Facts:
The applicant in this case, Kondok Mario-Ring. For a long time, he has suffered from post-traumatic stress disorder, schizophrenia, anxiety and symptoms of paranoia.
One afternoon in October 2017, he was at home in his unit in North Hobart when a neighbor's son, Justin Leary, entered his unit, punched and kicked him, and stole some Valium from him. The attack resulted in the applicant suffering some minor physical injuries, and in his mental health problems becoming worse.
In 2019, he applied for compensation under the Victims of Crime Assistance Act 1976 ("the VCA Act"). On 29 July 2020, a Criminal Injuries Compensation Commissioner, Sarah Piggott, the respondent to this application, awarded him $12,000 for his pain and suffering and a further $2,000 in respect of future psychological treatment. The applicant is dissatisfied with that award. He has applied for the Commissioner's decision to be reviewed under the Judicial Review Act 2000.
The applicant has applied for judicial review of that decision on the ground that the decision was an improper exercise of power because: the decision-maker failed to assess the compensation for pain and suffering in accordance with the ordinary principles governing the quantum of damages; and the award for pain and suffering was below the range of what could have reasonably been awarded for the Appellant's pain and suffering.
Issue: Was the Commissioner so unreasonable in awarding the applicant such amount which constitutes an improper exercise of power?
Law:
- Under 17(2)(e) of the Judicial Review Act, an application for judicial review may be made on the ground that "the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made".
- Under S.20(g) of that Act, "an exercise of a power that is so unreasonable that no reasonable person could so exercise the power" amounts to an improper exercise of power for the purposes of 17(2)(e).
Analysis:
Very little evidence was presented to the Commissioner about the extent to which the applicant's psychiatric conditions had deteriorated, the likely duration of their deterioration, or the likelihood of him recovering to some degree. It was clear that he suffered from a number of chronic mental illnesses. The Commissioner's notes reveal that he told her he had been receiving a disability support pension for 10 years. It can be inferred that his psychiatric impairment resulted in a continuing inability to work for that period. The material before the Commissioner suggested that his psychiatric conditions got worse in only two significant respects, namely flashbacks and paranoid fears. Evidently, he was not having flashbacks before he was attacked. However, he was suffering from paranoia before he was attacked. The attack resulted in new fears about getting attacked at home again.
If all of the applicant's mental health problems had been caused by his attacker, and he had pursued a claim for common law damages, he might well have been awarded $100,000 or more for his pain and suffering. But the attack resulted only in an exacerbation, possibly temporary, of chronic conditions that had rendered the applicant unfit for paid work for many years. In the circumstances, the award of $12,000 might be seen as a low one, but I am not satisfied that it was unreasonably low. The court is certainly not satisfied that it was so unreasonable that no Commissioner acting reasonably could have awarded so little.
Conclusion: For these reasons, the application is dismissed.
