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What damages may be available for clients who suffered bodily injury while in detention?
Part 2A of the Civil Liability Act (NSW) 2002 (CLA) contains special provisions for offenders in detention.
For any claim for injury sustained by a person while in custody, Part 2A applies whether or not the injury was caused by an intentional act with intent to cause harm (an intentional tort) or by negligence. Consequently, it applies in respect of injuries sustained as a result of accidents, the actions of officers and staff of the Correctional Center as well as of other inmates of the Correctional Center.
“Detained offender” is defined in Section 26A of the CLA to include a child who has been detained under the Children (Detention Centers) Act 1987. However, if the injuries were sustained as a result of “child abuse”, Part 2A no longer applies. Please refer to my article “Recent Developments Concerning the Abuse of Child Victims of Detention”.
There are significant restrictions on the ability to claim damages for personal injury, due to Part 2A.
Damages are only recoverable for bodily injury if the injury results in the death of the person or a degree of impairment which is at least 15% of the overall impairment of the person: section 26C.
If a person does not meet this threshold, they are not entitled to claim damages for personal injury.
Impairment threshold for the whole person of 15%
- This threshold is very difficult to cross and is much higher than the 15% most extreme case threshold under Section 16 of the CLA for other personal injury claims.
- Impairment is determined in the same manner as under the Workers’ Compensation plan, by a licensed medical specialist who applies the American Medical Association 5th Edition guide and WorkCover guidelines.
- If there is a dispute regarding the extent of the impairment, then the dispute is referred to the Personal Injury Board. The Board will appoint a medical specialist from its panel to determine the extent of the impairment and the findings of that specialist will be binding on the parties, except for certain limited grounds of appeal.
- Physical and psychological injuries cannot be combined to reach a threshold, they must be assessed separately.
- Physical injuries will require either multiple injuries or significant continuing impairment and often some type of surgery must have been undertaken. It is almost impossible for healing alone to reach this threshold.
- The psychological injuries will have to have a considerable impact on the daily life of the client. Discounts will be applied for any other psychological condition that is not directly related to the incident in detention.
- The amount payable for non-economic loss is limited to the amount payable under the workers’ compensation plan.
Difficulties for bodily injury claims
Therefore, it is very difficult for a client to claim damages for injuries sustained in custody unless the injuries are very serious. Even so, the amount payable is very limited for non-economic loss / pain and suffering. If the threshold can be met, other losses can be claimed such as lost wages and salary, if applicable.
If the amount claimed is less than $ 100,000, legal costs will be limited under the CLA.
If the injuries were inflicted by other inmates, then the client will have to establish state negligence. For example, that Correctional Center officers / staff failed to protect the client when they knew they were at risk of harm.
An offender must give notice within 6 months of the incident of his intention to claim damages for bodily injury, unless he is a “vulnerable offender”: CLA Section 26BA.
The claim for bodily injury must be brought within 3 years from the date on which the action was discovered: article 50C of the Limitation Act 1969.
What other claims may be available?
The client may have the right to apply for victim services, if he or she was on remand and not a “sentenced detainee” for the purposes of Victims’ Rights and Support Act 2013, except in special circumstances or if the client was a child at the time.
If the injuries were caused by the actions of officers / staff of the Correctional Center, as employees of the State, then it is possible that an action may be brought against the State for assault and battery, without making a claim. claim for the injuries themselves. The actions of officers / personnel should be “illegal” to establish assault and battery.
Then the claim could be assessed as an intentional tort under the common law. The damages available could include general / compensatory damages, aggravated damages and, in some cases, exemplary damages (if the defendant’s actions were in total disregard of the client’s rights and were totally unwarranted) .
Paragraph 14 (1) (b) of the Limitation Act provides a 6-year statute of limitations for other torts, such as intentional torts, which do not include bodily injury.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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