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Personal Injury Claims for Clients in Custody

Published on December 23, 2021 by Emily KatheklakisEmily Katheklakis

What damages may be available for clients who have suffered personal injuries whilst in custody?

Part 2A of the Civil Liability Act (NSW) 2002 (CLA) contains special provisions for offenders in custody.

For any claim for an injury suffered 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.  Therefore, it applies in respect of injuries suffered as a result of accidents, the actions of the Officers and staff of the Correctional Centre and also other inmates of the Correctional Centre.

“Offender in custody” is defined under Section 26A of the CLA to include a child who has been detained under the Children (Detention Centre) 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 for Child Abuse Suffered in Custody”.

There are extensive restrictions on the ability to claim any damages for injuries, due to Part 2A.

Damages are only recoverable for a personal injury if the injury results in the death of the person or in a degree of impairment which is at least 15% whole person impairment:  Section 26C.

If a person does not reach that threshold, then they are not entitled to claim any damages at all for the personal injury.

15% Whole Person Impairment Threshold

1. This threshold is very difficult to overcome and is much higher than the threshold of 15% of a most extreme case under Section 16 of the CLA for other personal injury claims.
2. The impairment is determined in the same way as it is under the workers compensation scheme, by an Approved Medical Specialist who applies the American Medical Association 5th Edition Guide and the WorkCover Guidelines
3. If there is a dispute in relation to the extent of impairment, then the dispute is referred to the Personal Injury Commission. The Commission will appoint a medical specialist from its panel to determine the extent of impairment and that specialist’s findings will be binding upon the parties, except for some narrow grounds of appeal.
4. Physical and psychological injuries cannot be combined to reach a threshold, they must be assessed separately.
5. Physical injuries will require either multiple injuries or significant ongoing impairment and often some type of surgery must have been undertaken. It is almost impossible for scarring alone to reach that threshold.
6. Psychological injuries will be required to substantially impact upon the client’s day-to-day life. Discounts will be applied for any other psychological condition which is not directly related to the incident in custody.
7. The amount payable for non-economic loss is limited to the amount payable under the workers compensation scheme.

Difficulties for personal injury claims

Accordingly, it is very difficult for a client to claim any damages for injuries suffered while in custody, unless those injuries are very severe.  Even then, the amount payable is very limited for non-economic loss/pain and suffering.  If the threshold can be met, other losses may be claimed such as wage loss and treatment, if applicable.

If the amount claimed is less than $100,000, then legal costs will be restricted under the CLA.

If the injuries were inflicted by other inmates, then the client will need to establish negligence by the State. For example, that the officers/staff of the Correctional Centre 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 their intention to claim personal injury damages, unless they are a “vulnerable offender”:  Section 26BA of the CLA.

The claim for personal injury must be brought within 3 years from the date the action was discoverable:  Section 50C of the Limitation Act 1969.

What other claims may be available?

The client may be entitled to bring a Victims Services claim, if they were on remand and not a “convicted inmate” for the purposes of the Victims Rights and Support Act 2013, unless there are special circumstances or the client was a child at the time.

If the injuries were caused by the actions of officers/staff of the Correctional Centre, as employees of the State, then it is possible that an action could be brought against the State for assault and battery, without making a claim for the injuries themselves.  The actions of the officers/staff would need to be “unlawful” to establish assault and battery.

Then the claim could be assessed as an intentional tort under common law.  The damages available could include general/compensatory damages, aggravated damages and in some cases, exemplary damages (if the actions of the Defendant were in total disregard of the client’s rights and were completely unjustified).

Section 14(1)(b) of the Limitation Act provides a 6 year limitation period for other torts, such as intentional torts, which do not include a personal injury.

For more details on intentional tort claims, please contact Emily Katheklakis.