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
State of New South Wales v Corby [2010] NSWCA 27 (3 Mar 2010)
Presland v Hunter Area Health Service & Ors; Hunter Area Health Service v Presland