CHIEF Minister Andrew Barr has declined a request for an ex-gratia payment of $200,000 to cover medical and other costs for a boy who was viciously attacked by two dogs in 2010.
The case has finally been in court with a decision handed down in May finding no legal liability requiring the government to pay.
However, although no legal obligation, there is a moral one. This is why the lawyers for Jack Hartigan have asked the ACT government for an ex-gratia payment.
The court heard that, at six years old, Jack was attacked to such an extent that he spent more than six weeks in hospital, lost 13 teeth and had to have 17 medical procedures including a skin graft to his head.
It is appropriate for the Chief Minister to reconsider his decision that is based on the government having “breached no duty of care”. This is the very point of an ex-gratia payment. This case is not about legality but about justice. Section 130 of the Financial Management Act identifies such an expenditure as “an act of grace payment”. What is needed is an act of grace!
Liberal MLA Steve Doszpot has been persistent in relentless pursuit of the issue although he makes it clear that he has never met the family. Appropriately for an MLA, he has seen an injustice and has pursued it obstinately. And it is an injustice. The letter of the law does not always deliver either a fair or equitable outcome.
The government has more flexibility than the courts on such matters. The Financial Management Act states that act of grace decisions apply when payments “would not otherwise be authorised by law or required to meet a legal liability”.
Doszpot is not critical of the decision brought down by Justice Hilary Penfold. She found that the ACT Commissioner for Social Housing was not liable. Her judgement also found that the tenant “while she was clearly liable … would apparently not be able to satisfy any judgement against her”. In other words, she would unlikely be in a position to pay damages in the order of $200,000.
Steve Doszpot sees the approach of the Chief Minister as a case of mixed priorities. He draws attention to the government purchase of a Tradies Club property in Dickson for $4 million even though it remains occupied by the Tradies for a peppercorn rent of $1 a year. Then there is the $1.9 million spent on the failed container park and $750,000 for six beach volley ball courts.
Andrew Barr replied to Steve Doszpot explaining he was sympathetic to the serious injuries, but that he is “not satisfied that there are special circumstances to warrant authorising a payment to Mr Hartigan and it is for this reason that I am declining your request”.
Having read the judgement, my contention is that there are special circumstances. The judgement indicates compensation is appropriate and there is a way around setting a precedent.
Concerns about precedent are understandable. Government cannot open the floodgates for other claims that largely blame the government for actions of tenants. However, Justice Penfold’s judgement goes further than government liability. It implies that it is appropriate for Jack Hartigan to have compensation even though the tenant will not be able to pay. Her Honour does point to a process for the future (para 329). She suggests “an insurance scheme that could provide compensation to people like the plaintiff who suffer from the actions of dangerous dogs which have been lawfully kept in the ACT”.
Dangerous dogs are dogs that the Registrar of Domestic Animal Services has declared to be dangerous.
The trouble for Jack Hartigan is that this is for the future. However, it does provide a way forward for the Chief Minister without the concern of setting a precedent. The appropriate action for the Chief Minister is to make an act of grace payment after announcing the government’s intention to implement a scheme of the type suggested in the judgement.