Does Division 1A of Part 2A of the Act Apply?
20As set out in paragraph 6 above, Division 1A commenced on 12 November 2008. Clause 35 of Schedule 1 of the Act provides as follows:
"35 Duties of Claimant for Offender Damages
Division 1A of Part 2A does not apply in relation to an award of damages if the incident giving rise to the claim occurred before the commencement of that Division."
21The words "the incident that gives rise to the claim" are not defined in the Act. The defendants submit that the incident occurred on 15 January 2010, whereas the plaintiff submits that the relevant "incident" in this case comprised the three occasions when the defendants failed to inform him of his Hepatitis C status, all of which occurred prior to the commencement of the Division. Hence, the plaintiff relies on Clause 35 of Schedule 1 to submit that Division 1A of Part 2A does not apply.
22The defendants contend that the "incident giving rise to the claim" occurred on 15 January 2010 when the results of the ultrasound was published. At this time the plaintiff should have become aware, not of his Hepatitis C status, but that he had parenchymal liver disease. The reason they submit that 15 January 2010 is the relevant date, is that negligence is actionable only on proof of damage, and a cause of action in negligence is complete only when the damage is caused by the breach of duty sustained. It is at this time, in the ordinary case that the cause of action first accrues (relying on Hawkins v Clayton (1988) 164 CLR 539 and Commonwealth v Cornwall (2007) 229 CLR 519). The defendants submit that prior to 15 January 2010 there was no known damage to give rise to a claim.
23The plaintiff's evidence was that he was in prison when he had the ultrasound on 13 January 2010, and was not informed of the results. His solicitor received the results on 18 May 2010.
24The plaintiff submits that "the date of the incident that gives rise to the claim" is the date of the occurrence of injury afforded by the defendants to the plaintiff, namely, when the defendants failed to inform the plaintiff that he had tested positive for Hepatitis C. The plaintiff has submitted that the principles of construction to be applied in construing the meaning of the words "the date of the incident that gives rise to the claim" are found in the judgment of Allsop P in Wilson v State Rail Authority of NSW [2010] NSWCA 198 at [12-15]. Those principles are now well settled, and require a purposive approach, consistent with the language and purpose of all the provisions of the statute (Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]).
25In Wilson v SRA, supra, Allsop P said at [12]:
"Fundamental to the task, of course, is the giving of close attention to the text and structure of the Act, as the words used by Parliament to effect its legislative purpose. Nevertheless, general words, informed by an understanding of the context, and of the mischief to which the Act is directed, may be constrained in their effect." (Authorities omitted)
26Regard must be had to the context in which Part 2A Division 1A of the Act appears. The Act is concerned with recovery of damages for death or personal injury caused by fault, in other words, actions for damages for personal injury for negligence except where excluded by the Act (s 3B). Part 2A must be read in the context of other provisions, for example, Part 1A, which sets out general principles in relation to breach of duty of care (s 5B and 5C) and causation (s 5D) which would of course apply to any action for damages litigated pursuant to Part 2A.
27Having regard to the purpose of the Act and the context in which Part 2A appears, namely, in respect of claims brought against protected defendants by offenders in custody in respect of incidents occurring after 12 November 2008, the words "the incident that gives rise to the claim" in s 26BA and s 26BD must mean, on its plain meaning and giving effect to the purpose of the legislation, the date of occurrence of injury as submitted by the plaintiff.
28To uphold the defendants' submission that the words "the date of the incident that give rise to the claim" is the date the cause of action is completed, or the date when the plaintiff has an awareness that damage is caused, imports words into the section which are not required. There is no ambiguity in the words used by Parliament here, and no conflict that arises from the language used in these sections. In its context, the phrase "the incident that gives rise to the claim" means the date of occurrence of injury, or omission giving rise to the claim. Had parliament intended the words to mean "the time at which the plaintiff became aware of the damage" or "the date when the plaintiff's cause of action became complete", the Act would be couched in very different terms.
29The judgments of the High Court in Hawkins and Cornwall relied on by the defendants both concerned the construction of limitation provisions which required the Court to determine when a cause of action "first accrues" to a plaintiff. Both cases are therefore of no assistance in construing s 26 BA.
30For these reasons I find that Part 2A Division 1A does not apply to the plaintiff's claim and therefore I do not have to decide whether s 26BD has been satisfied. It would be difficult to so find here where the incidents occurred over ten years previously and no notice was given. I note the judgment of Sidis DCJ in Larry Dawson v State of NSW unreported, 23 March 2012, in which her Honour dealt with this issue on the basis of whether the defendant was prejudiced by the elapse of time to the extent that it could not secure a fair trial.