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Catherine Henry Partners Lawyers Newcastle
Types of claims
Persons held in custody may suffer injury to their health in a number of circumstances with most types of harm falling into one of two categories:
- Injury resulting from an incident occurring whilst in custody, perhaps most commonly an assault by other people held in custody; or
- Injury resulting from sub-standard medical care, which may touch on issues of access to medical care or may be more aligned with traditional medical negligence claims where care was provided but for some reason that care was below acceptable standards.
Reduced time limits
In addition, the legislation introduces quite onerous time constraints on any claim to be pursued by a person who is an offender. Where a person intends to make a claim for personal injury that occurred whilst in custody, the defendant must be given notice of the incident that gives rise to the claim within 6 months of the incident happening or, where the claim relates to a death, within six months of the person’s death.
Restrictions on damages
In New South Wales, the Civil Liability Act 2002 significantly curtails the damages that a person may otherwise be entitled to where the injury the subject of the claim occurs whilst they are held in custody or during or following the commission of a serious offence.
Injury during or following commission of a serious offence
The Civil Liability Act 2002 also precludes an award of damages to a person where the injury occurred during or following the conduct of the person that, more likely than not, constitutes the commission of a serious offence (s 54) if that conduct materially contributed to the injury (s 54). Where the conduct of the claimant would have constituted a serious offence had they not been suffering a mental illness at the time of the conduct, no damages will be payable for non-economic loss (that is, pain and suffering) and damages for economic loss may not be assessed to include damages for loss of earnings (54A).
Injury whilst in custody
Even where negligence can be established, no damages are payable unless the injury the subject of the claim results in death or a degree of permanent impairment that exceeds 15% (s 26C). Permanent impairment is assessed on the scale contained with the Workers’ Compensation Act (s 26D).
A recent case has indicated that aggravated damages will not be available, as they fall within the class of damages for non-economic loss, however, where the defendant’s conduct shows a contumelious disregard for the plaintiff’s rights, an award of exemplary damages may be made: State of New South Wales v Corby [2010] NSWCA 27 (3 Mar 2010).
Disbursement of damages award
Perhaps of greatest significance to the offender, the legislation provides for victims of the offender to be paid compensation for injuries they may have suffered at that hand of the offender out of any award of damages made to the offender.
Any damages ultimately held payable to an offender are to be held in trust by the New South Wales Trustee and Guardian to comprise a victim trust fund (s 26L). The defendant is required to notify any victims who may have a claim against the offender that a trust fund exists and any claim must be brought within the specified eligibility period (s 26N). Once all eligible claims have been paid from a victim trust fund, any surplus may be paid to the offender (s 26R).
Exemptions
The restrictions on claims for personal injury brought by an offender are not applicable to claims for compensation to relatives (s 26B(2)(a)), that is claims where the offender dies as a result of the alleged negligence and an action is brought by the deceased’s relatives for injury caused to them by the death.
The provisions of the Civil Liability Act 2002 generally do not apply to claims where the civil liability of a person is in respect of an intentional act done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person. However, where the intentional tort occurs against an offender in custody or against a person during the commission of a serious offence, the restrictions outlined above will continue to apply (s 3B).
Significant Cases
There have been a few fairly recent decisions touching on issues of injuries sustained whilst in custody or during the commission of an offence, including:
New South Wales v Bujdoso [2005] HCA 76
Mr Bujdoso was convicted of three counts of sexual assault on male persons under the age of 18 years and sentenced to a minimum term of two and a half years imprisonment. Some time into his sentence he was admitted to a Work Release Programme. The Programme involved prisoners leaving the prison each day to undertake paid employment; such prisoners were housed in one of four accommodation units, each unit having nine rooms. Each prisoner had their own room. There was only one prison officer allocated to supervise the prisoners in the accommodation units.
Mr Bujdoso was the subject of taunts and threats from other prisoners, a situation of which the prison authorities were aware. Mr Bujdoso was bashed in his room by other prisoners with iron bars, suffering a fractured skull.
Mr Bujdoso subsequently sued alleging the prison authority had breached its duty of care to him by failing to provide adequate supervision of the prisoners. At first instance, Mr Bujdoso was unsuccessful, the trial judge finding that it was reasonable for the prison authority to conclude that the prisoners in the Work Release Programme were able to be trusted not to inflict an assault upon a fellow inmate. Mr Bujdoso successfully appealed. The Court of Appeal considered that the prison authority had breached its duty of care to Mr Bujdoso. Ipp JA (with whom Sheller and McColl JJA concurred) held that the prison authority had reduced the number of guards on duty to one for reasons unrelated to prisoner safety and importantly, that the prison officers were aware that Mr Bujdoso was at risk of assault but took no additional steps to protect him. The prison authority appealed to the High Court.
In an unanimous decision, the High Court held that the prison authority had failed in its duty of care to Mr Bujdoso. The Court held that there was an expressed threat to Mr Bujdoso, which if realised, would cause considerable physical injury to him, yet, despite this, the prison authority adopted no effective measure to ameliorate the risk. The Court was of the opinion that there were a number of measures which could have reasonably been adopted to avert the risk to Mr Bujdoso including: closer and more regular monitoring of prisoners; better and stronger locks on the doors; checking for weapons; and housing Mr Bujdoso closer to the guard on duty. The Court held that as Mr Bujdoso was a known target of other prisoners, the prison authority was under a duty to adopt measures to reduce the risk of harm to him and had not taken reasonable care to protect Mr Bujdoso. Mr Bujdoso was awarded damages.
State of New South Wales v Corby [2010] NSWCA 27 (3 Mar 2010)
Mr Corby claimed that he was assaulted by a number of correctional services officers and a police officer at Wagga Wagga police station. He brought a claim for compensatory, aggravated and exemplary damages. The claim was subject to the provisions of the Civil Liability Act which state that no damages may be awarded (whether for economic or non-economic loss) unless the injury results in the death of the offender or in a degree of permanent impairment of the offender that is at least 15%.
Mr Corby abandoned his claim for compensatory damages, conceding that he did not suffer a 15% permanent impairment which is the threshold for entitlement to such damages.
The Supreme Court referred to the ‘plethora’ of authority to support the proposition that aggravated damages are compensatory. The Court held that there is no ready basis for distinguishing between aggravated damages and general damages; and that aggravated damages are a form of general damages. Therefore, Mr Corby was not entitled to claim aggravated damages.
In contrast, the Court held that exemplary damages are of a different nature and are assessed to reflect the contumelious disregard of a plaintiff’s rights. The Court held that there was nothing to indicate that the statutory provisions were intended to preclude the recovery of exemplary damages where the impairment suffered by the offender is relatively minor. The Court stated that “[t]he Parliament may well not have been prepared to exclude liability for exemplary damages, even in cases of relatively minor physical or mental impairment, where the conduct of its officers, for which it accepts vicarious liability, demonstrates egregious disregard of the civil rights of its citizens.”
Presland v Hunter Area Health Service & Ors; Hunter Area Health Service v Presland
Mr Presland was taken by police to a public hospital following an episode of bizarre and violent behaviour. He was transferred later that evening to a psychiatric hospital for assessment and was admitted as a voluntary patient. He was assessed the following morning before being discharged into the care of his brother. Six hours after his discharge, he killed his brother’s fiancé.
Mr Presland was acquitted of murder on the grounds that when he attacked and killed Ms Laws he was in a psychotic state which so affected his capacity to reason that he did not know what he was doing was wrong, and so he was not guilty on the grounds of mental illness. He was detained in a mental health facility as a forensic patient until released by due process of law. He subsequently sued the Area Health Service in respect of the consequences for him of learning he had killed his brother’s fiancé, when he later recovered awareness of his behaviour. Mr Presland alleged that the psychiatrist and mental health facility had breached their duty of care to him by failing to detain him for treatment.
Mr Presland was successful at first instance but the decision was overturned on appeal. All three judges of the Court of Appeal agreed that the psychiatrist concerned and the mental health facility owed Mr Presland a duty of care to exercise reasonable care and skill in the provision of professional advice and treatment and that that duty extended to the exercise of statutory powers to detain mentally ill persons. Whilst it was generally accepted that that duty had been breached, the judges differed in their opinion as to whether Mr Presland should be entitled to recover damages for any injury flowing from that breach.
Spigelman CJ was in the minority. His Honour held that where a person has not been held criminally responsible for his actions on the grounds of insanity, as in this case, the law should not deny a person the right to a remedy.
In contrast, Sheller JA and Santow JA held that public policy rendered it unjust to hold the psychiatrist or mental health facility legally responsible for the mental injury to Mr Presland resulting from his own unlawful conduct. Sheller JA stated that public policy must loom large in a court’s consideration of whether a person should be compensated for harm suffered as a consequence of killing a person. Santow JA held that the duty of care owed to Mr Presland did not extend to allowing him to recover damages for non-physical injury. He noted that his decision was not based on the moral culpability of Mr Presland but rather on what he perceived legal policy would consider just, in light of community values.
Subsequent to this case, the Civil Liability Act 2002 was amended to limit damages available to a person where the injury complained of occurred at the time of, or following, conduct that most likely would constitute a serious offence if the person had not been suffering a mental illness at the time.
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