H v Criminal Injuries Compensation Commissioner Rigby
[2007] TASSC 3
•5 February 2007
[2007] TASSC 3
CITATION: H v Criminal Injuries Compensation Commissioner Rigby [2007] TASSC 3
PARTIES: H
v
CRIMINAL INJURIES COMPENSATION
COMMISSIONER RIGBY
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M259/2006
DELIVERED ON: 5 February 2007
DELIVERED AT: Hobart
HEARING DATE: 30 January 2007
JUDGMENT OF: Underwood CJ
CATCHWORDS:
Administrative Law – Judicial review – Grounds of review – Unreasonableness – "Wednesbury unreasonableness" – What constitutes.
Judicial Review Act 2000 (Tas), ss17(2)(e) and 20(g).
Victims of Crime Assistance Act 1976 (Tas), ss2(2) and 5.
Attorney-General (NSW) v Quin (1990) 170 CLR 1, applied.
Aust Dig Administrative Law [1036]
REPRESENTATION:
Counsel:
Applicant: J Hutchinson
Respondent: P Turner
Solicitors:
Applicant: FitzGerald and Browne
Respondent: Director of Public Prosecutions
Judgment Number: [2007] TASSC 3
Number of paragraphs: 19
Serial No 3/2007
File No M259/2006
H v CRIMINAL INJURIES COMPENSATION COMMISSIONER RIGBY
REASONS FOR JUDGMENT UNDERWOOD CJ
5 February 2007
The applicant has invoked the provisions of the Judicial Review Act 2000, ss17(2)(e) and 20(g), to seek an order to review a decision of the Criminal Injuries Compensation Commissioner ("the Commissioner"). The Commissioner made a final award in favour of the applicant in the sum of $7,000 for pain and suffering and $7,619.61 for lost wages and costs. No complaint is made about the award for lost wages and costs. The application for judicial review attacks the award for pain and suffering and a failure to award any sum for past and future medical expenses and counselling fees.
The Judicial Review Act, s17(2)(e), provides for a review upon the ground:
"(e)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."
Section 20 provides particulars of s17(2)(e), par(g) of which states that an improper exercise includes:
"(g)an exercise of a power that is so unreasonable that no reasonable person could so exercise the power."
The applicant is the mother of three children, K, born 20 March 1986, S, born 24 February 1988, and A, born 17 May 1990. The applicant ceased living with the father of K and S in about 1989 and shortly thereafter commenced living with the father of A. I shall refer to him as the accused because on 5 August 2002, he was sentenced to a term of imprisonment upon two counts of maintaining a sexual relationship with a young person. K and S were his victims. The accused's criminal conduct commenced in about 1991 when K was aged about 5 and S was about 3 years old. There is no need to detail the criminal conduct. Suffice to say that it included getting the victims to masturbate the accused, have oral sex with him, and him touching them indecently. The accused's criminal activities continued until the end of 2001.
On 25 March 2004, the applicant made an application for compensation pursuant to the Victims of Crime Assistance Act 1976 ("the Act"), s5. The following is an edited version of the applicant's account set out in her claim for compensation:
"Details of the injuries suffered as a consequence of the offence/s:
When [the accused] and I broke up on the 1st of December 2000, K, who was 14 at the time, moved out with the [the accused]. K wanted to go with him. She had been a rebellious teenager and was somewhat protective of [the accused]. I had been having a lot of trouble with K for some time. We argued a lot. I put our differences down to the fact that I split up with [K's father]. Looking back I think that our differences were due to [the accused's] unlawful relationship with K and her protective feelings towards him.
[The accused's] crimes have affected my relationship with my daughters greatly. My relationship with K was constantly strained. My relationship with S is damaged and my youngest daughter A, I think, blames me for her father going to jail.
Please detail how the claimant's life has changed as a result of the injuries.
I have lost a great deal of trust in people as a result of what [the accused] has done. He has robbed my children of a normal childhood and damaged my relationships with my children forever. [The accused] blamed me for what he had done. I feel terribly remorseful [sic] for what [the accused] did to my children.
My relationship with my daughters and the relationships between each of them has suffered as a result of [the accused's] conduct. The girls cannot be in the same room for more than one hour at a time because they start to fight and I have to be the referee. This puts additional pressure on me and my relationship with each of my daughters."
In her claim to the Commissioner, the applicant stated that she did not want to attend a hearing and was content for her application to be determined on the written material.
No medical report accompanied the application, but the Commissioner was later sent a report by a professional counsellor. It is dated 2 March 2005 and informed the Commissioner that the applicant had attended three counselling sessions in mid-2004. The report refers to the applicant's feelings of anger and frustration "at having to endure the intrusion of various services into their family life due to her former husband's behaviour". The report also refers to the applicant's level of stress being so great that "initially" she feared losing her job. The counsellor reported that the applicant's greatest concern, a concern which caused her "mental torture", was that the accused might criminally assault her recently born grandchild. The report concluded with information that the counselling that the applicant had undertaken had been free of cost to her. There was no suggestion that the applicant needed any further counselling.
Subsequently, the Commissioner was sent a report from the applicant's general practitioner dated 19 May 2005. This report referred to the applicant being investigated for an unknown abdominal complaint that had persisted intermittently over the previous 12 months. It informed the Commissioner that the applicant had complained of stress and depression, particularly at the time of the court proceedings and it made the general statement that the criminal case "has had a significant effect on her health both physically and psychologically".
Lastly, the Commissioner received another report from the general practitioner. It is dated 16 May 2006 and reports that the applicant had been attending the practice for the previous three years with a number of medical problems, including functional dyspepsia, reactive depression, degenerative disease in thoracic and lumbar spine and patellofemoral syndrome. The report advised that the functional dyspepsia is exacerbated by stressors in life and "related temporally to the assaults on her daughters".
The report also advises that the reactive depression had improved with several changes in the applicant's home situation, including a new marriage and the passage of time since the assaults on her daughters, together with some medicine that she had been taking.
The inference is clear that the degenerative disease and the patellofemoral syndrome are not related to the accused's criminal conduct.
In her reasons for decision, the Commissioner generally accepted the accuracy of the information in the applicant's claim and supporting documents to which I have referred. In particular, the Commissioner accepted that as a result of stress and anxiety the applicant suffered injury as a result of the accused's criminal conduct, noting that she "suffers episodic cramping upper abdominal pain that is currently controlled by medication." The Commissioner also accepted that the applicant "suffers low mood at times with poor concentration, poor quality sleep and appetite changes". Immediately prior to awarding $7,000 for pain and suffering, the Commissioner noted the improvement in the applicant's relationship with her daughters and that a new relationship, together with medication, had caused the applicant's physical and psychological injuries to stabilise.
The Act, s5, confers an unfettered power on the Commissioner to award compensation, subject to s6A and the Regulations which, together, impose upper limits on the amount of awards. The Act, s4, prescribes the basis for an award of compensation which, relevantly to the present matter, is to compensate for injuries suffered as a result of the commission of an offence including expenses actually and reasonably incurred by the applicant as a result of her own injury, the cost of medical, psychological or counselling services which the Commissioner is satisfied the applicant will require in the future, loss of wages or salary, the pain and suffering of the applicant arising from her own injury, and expenses reasonably incurred by her in claiming compensation. The Act, s2(2), provides that a reference in the Act to an injury shall be construed as including references to any impairment of bodily or mental health, and also to becoming pregnant.
The Judicial Review Act, ss17(2)(e) and 20(g), gives statutory form to the common law concept known as Wednesbury unreasonableness, a nomenclature originating from the decision of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. This administrative law remedy succeeds only in exceptional cases, for success depends upon an applicant demonstrating that the impugned decision is one that no one acting reasonably could have come to. It has been said that the Wednesbury principle operates to protect the merits of administrative decisions unless the decision is so unreasonable it reflects an abuse of power. See Nottinghamshire County Council v Secretary of State for the Environment [1986] AC 240 at 249; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36. The reasoning justifying judicial restraint upon a review of the merits of an administrative decision except in very extreme cases is set out in the judgment of Brennan J (as he then was) in Quin at 37, a decision which I applied in Lark v Nolan [2006] TASSC 12 and which I apply to this application.
The complaint in the application for a judicial review that error occurred by reason of a failure to award compensation for past and/or future medical and counselling costs fails. Leaving the Wednesbury principle to one side for the moment, there was simply no evidence before the Commissioner that the applicant had incurred any counselling fees in the past or that she was likely to incur them in the future. Although there was material that informed the Commissioner that the applicant had attended her medical practitioner, and was likely to do so in the future, the reports made it clear that such consultations were partly referable to medical conditions causally unrelated to the accused's criminal conduct and thus, any expenses incurred may have been incurred in any event. Further, the Act, s6(1)(e), provides that compensation must not be awarded for expenses that are claimable under the Health Insurance Act 1972 (Cth), PtII, and there was no evidence to suggest that as a result of the accused's criminal conduct, the applicant had incurred an expense in excess of any sum claimable under that Act.
A degree of stress is part of everyday life for the average person, as is a degree of emotional disturbance and sometimes, grief. The Act provides for awards of compensation for injury defined to include references to impairment of bodily or mental health. It is unlikely that Parliament intended the wide inclusionary definition of injury to encompass any stress, any emotional disturbance, or any grief. I would read it as a reference only to such stress, emotional disturbance or grief that causes more than trifling or transitory impairment of bodily or mental health; something more that what might be called the ordinary "ups and downs" of everyday life. In the case of impairment to mental health, the impairment would have to affect social, occupational or other important areas of functioning before it constituted an injury within the meaning of the Act, s2(2).
The material before the Commissioner did not speak of a post-traumatic stress disorder and referred to stress only in a general way, noting however that at the time the reports were written, the stressful condition was settling. Certainly there was an early period of acute stress which interfered with the applicant's ability to work. As a result of this impairment to her functioning, she lost income for which the Commissioner compensated her. The Commissioner accepted the medical opinion of a causal link between dyspepsia and stress, although I doubt whether that opinion would be shared by either Professor Marshall or Dr Warren, the winners of the 2005 Nobel Prize for research on Helicobacter Pyloria, as the cause of stomach ulcers! However the Commissioner did accept the medical opinion in the material but noted in accordance with it, that the episodic cramping upper abdominal pain was currently controlled by medication.
In these circumstances, it plainly cannot be said that an award of $7,000 for pain and suffering was an award that no Commissioner acting reasonably and properly instructed as to the law could have made.
The application for a review is dismissed.
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