The First Issue
24 The correct starting point for the discussion and resolution of this issue is, in my opinion, clause 6(1) of Schedule 1 of the principal Act. Clause (1) is set out at paragraph 10 above.
25 It is, I apprehend, completely clear from the terms of clause 6(1) that amendments made to the principal Act by the Personal Responsibility Act, section 3B being one such amendment, "extend to civil liability arising before", relevantly, 6 December, 2002. It is, in my opinion, clear that the relevant civil liability of the defendant to the plaintiff arose before 6 December 2002. The defendant's relevant duty of care to the plaintiff arose on 16 February 1990 when the plaintiff entered into the defendant's custody in order to serve his sentence of imprisonment. The breach by the defendant of that duty of care occurred on and prior to 21 September 1991, the date of the relevant assault of the plaintiff by unidentified and unidentifiable assailants. The damage necessary to perfect the plaintiff's relevant cause of action against the defendant was suffered on 21 September 1991.
26 That being so, any "proceedings commenced in a Court" after 6 December 2002 would also have been caught by the amendment. So much must follow, I apprehend, from the explicit exclusion of any such proceedings that were commenced prior to 6 December 2002.
27 The plaintiff's proceedings against the defendant were commenced in the District Court prior to 6 December 2002. They were governed, therefore, by the law antecedent to the amendments effected by the Personal Responsibility Act. That antecedent law did not include the provisions of the principal Act, - see clauses 2 and 4 of Schedule 1 to the principal Act quoted in paragraph 7. For this reason McLaughlin DCJ assessed the plaintiff's damages according to the relevant pre-2002 common law principles and it was not submitted that his Honour had erred in that approach.
28 Is the present dispute about what should happen to the damages thus awarded to the plaintiff, a dispute "in respect of" the proceedings that the plaintiff commenced in a Court prior to the coming into effect of section 3B and of its statutory predecessor, the repealed section 9 of the principal Act?
29 In my opinion it is not.
30 The relevant curial proceedings had nothing to do with the current dispute as to the payment out by the defendant of the fruit of those proceedings. Those proceedings were concerned with the assessment in the District Court of the proper quantum of damages which the Court of Appeal had held the plaintiff to be entitled in law to recover from the defendant. The proposition that the defendant is required by statute to withhold from the plaintiff either the whole or some part of that assessed entitlement is not a proposition advanced in respect of the assessment proceedings; it is a proposition advanced quite independently of those proceedings.
31 I conclude, therefore, that section 3B of the principal Act as inserted by the personal responsibility amendments does apply to the present dispute, so that it becomes necessary to proceed to the consideration of how the relevant provisions of section 3B should now be construed.
32 The plaintiff's case in that connection could not be simpler. It is, to quote from the plaintiff's written outline of submissions:
"9. It is the notorious fact that the defendant's liability to pay the plaintiff common law damages was civil liability in respect of intentional acts done with intent to cause injury or death to him: see section 3B(1)(a) of the Act.
11(b) secondly, that whilst, without doubt, the plaintiff's injuries were caused by the negligence of the defendant within the meaning of section 26B(1) of the Act, the defendant's liability to the plaintiff was a civil liability in respect of intentional acts done with intent to cause injury or death, within the meaning of section 3B(1)(a) of the Act."
33 The defendant's case in response, also, can be summarised conveniently by quoting the following portions of the defendant's written outline:
"15. In relation to that issue the defendant makes two submissions. The first is that although the assault on the plaintiff by a person or persons unknown was intentional, the civil liability (of the State of New South Wales) arose "in respect of" negligent acts or omissions on its part in failing properly to protect the plaintiff from the assault. Section 26B expressly refers to damages caused by negligence.
16. The defendant submits that the focus of the Act is on civil liability and here the civil liability is the defendant's civil liability and the defendant's civil liability arose from negligence and not from an act on its part which was "an intentional act that is done with intent to cause injury or death" outside the regime of the Act and to common law principles concerning damages. The defendant submits the legislative intention was that the actual doer of an intentional act would not benefit from the Civil Liability Act damages regime which was introduced to limit damages (including by way of excluding any entitlement to exemplary or aggravated damages) so as to make compensation for torts more affordable to the community. The legislature never intended that where the victim sues the State because the perpetrator of the intentional act is impecunious or cannot be found, the State's liability, arising by reason of its negligence rather than intentional act, should be the wider common law damages rather than the more affordable Civil Liability Act damages. If the plaintiff's submission is correct, every prisoner who is assaulted is entitled, assuming liability, to bypass the Civil Liability Act damages regime and to recover from the State all traditional common law heads of damage. The defendant submits that this was not the legislative intent and the construction of s3B(1)(A) for which the defendant contends is the correct approach.
18. Secondly, and in the alternative, clauses 20 and 21 are more specific than s3B(1)(a) and they specifically bring the plaintiff's award of damages under the umbrella of Division 6 for the reasons already advanced."
34 I would say at once that the proposition advanced in the quoted paragraph 18 cannot be, in my opinion, correct. If section 3B(1)(a) operates at all in the way for which the plaintiff contends, then it so operates, not as to the principal Act as amended, but with the exception of clauses 20 and 21 of Schedule 1; but as to the whole Act with a stated and very particular exception not now relevant.
35 The resolution of the competing arguments really comes down to the construction, in the context of section 3B(1)(a) of the expression "in respect of". Relevant guidance is given, as follows, in the joint judgment of Deane, Dawson and Toohey JJ in The Workers' Compensation Board of Queensland v Technical Products Proprietary Limited (1988) 165 CLR 642 at 653, 654:
"Undoubtedly the words 'in respect of' have a wide meaning, although it is going somewhat too far to say, as did Mann CJ in Trustee Executors & Agency Co Ltd v Reilly , that 'they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer'. The phrase gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends."
36 This statement was subsequently cited with approval in the joint judgment of Gaudron AC-J, McHugh, Gummow and Callinan JJ in Commissioner of Taxation of the Commonwealth of Australia v Scully (2000) 201 CLR 148 at 171.
37 Section 3B(1)(a) speaks of the exclusion of a particular category of civil liability. It could not be contended sensibly that the defendant's established liability to the plaintiff is not a civil liability.
38 Is it a civil liability in respect of an intentional act done with intent to cause injury? That there was such an intentional act perpetrated upon the plaintiff while he was in the custody and under the complete practical control of the defendant, also, could not be sensibly disputed.
39 Is there, then, the necessary nexus between the established civil liability and the demonstrated intentional act done with the prescribed intent? In my opinion there is.
40 What made the defendant civilly liable in damages to the plaintiff was not the defendant's negligence and nothing more. It was that negligence coupled with the suffering by the plaintiff of damage consequential upon that negligence. That damage is not to be either defined or measured in some kind of conceptual vacuum. It is to be, and it can only be in fact, defined and measured by reference to the circumstances and the incidents of the relevant intentional act done with the prescribed intent. That suffices, in my opinion, to provide the nexus which the plaintiff must establish in order to succeed on the first issue.
41 That conclusion can be supported, in my opinion, by two additional considerations.
42 The first consideration is that the construction for which the defendant contends requires section 3B(1)(a) to be read as though it were expressed, relevantly, somewhat to this effect:
"(a) Civil liability in respect of an intentional act done by the person or persons thus liable and done with intent to cause injury …………………".
43 It seems to me that had Parliament so intended, nothing would have been easier than for Parliament to have said so. Parliament has not said so; and a Court should not lightly insert words, and certainly not words of great potential importance, into the chosen words of the Legislature.
44 The second consideration engages the defendant's submission, previously noted, that:
"If the plaintiff's submission is correct, every prisoner who is assaulted is entitled, assuming liability, to by-pass the Civil Liability Act damages regime and to recover from the State all traditional common law heads of damage."
45 The tenor of the submission suggests to me that there lies behind the submission itself a proposition that, even absent a plain statutory provision to the contrary, there is as a matter of principle something rather shocking or outlandish about the stated hypothesis. I do not so regard that hypothesis.
46 In that connection it is worthwhile quoting from the judgment of Ipp JA speaking for the Court of Appeal:
"35. On the night of 21 September 1991, ……..(the plaintiff) ………came home from work and locked the door to his room. At about 11.00 pm he saw a face looking through the window in the door. He got out of bed, saw the door being pushed, and put his shoulder against it. The door was forced open, however, and three or four men burst into the room. They were wearing balaclavas. They severely assaulted him with iron bars. He suffered a fractured skull, broken left thumb, his left arm was put in a caste and his back, arm and leg were painful.
36. When the assault was investigated those prepared to make a statement testified that they heard scuffles, noises and screaming."
47 As has been previously noted, the amending Act which inserted section 3B into the principal Act effected a major re-casting of the civil law of negligence, and did so upon the basis that the exercise was designed to re-balance the antecedent law by linking significant statutory caps and restrictions to a concept of personal responsibility. If there is one thing that cannot be laid at the door of this plaintiff it is that he had any personal responsibility for an unprovoked, unexpected and vicious assault. It can certainly be laid at the door of the defendant, and has been so laid by a unanimous Bench of the Court of Appeal, and subsequently by the High Court of Australia, that the defendant bears direct responsibility for the coming into existence of the opportunity for the carrying out of that assault. In such a state of affairs why, it might well be asked, should the blameless victim of the assault not be permitted to have his normal common law entitlement to just compensation, assessed without reference to restrictive legislation which could readily have enacted in simple language the limitation now proposed by the defendant, but which has not done so?
48 In my opinion the plaintiff is entitled to succeed on the first issue.