Bujdoso v State of New South Wales

3 A final hearing of the proceedings thus commenced took place on 16 and 17 August 2006. The decision of the Court was reserved.

The Relevant Legislation 4 The Civil Liability Act 2002 (NSW), ("the principal Act"), has a deemed commencement date of 20 March 2002: see section 2 of the Act. The purpose of the Act is explained in the long title of the Act as being: "………….to make provision in relation to the recovery of damages for death or personal injury caused by the fault of a person; to amend the Legal Profession Act 1987 in relation to costs in civil claims; and for other purposes." 5 In fact the Act makes sweeping changes to the antecedent common law respecting civil liability. Of particular relevance for present purposes is Part 2 of the Act, dealing with the topic of personal injury damages. Various Divisions of Part 2 alter drastically the antecedent law respecting such matters as the fixing of damages for economic and for non-economic loss; and the accruing of interest on damages. 6 Section 9 of the Act deals with the application of Part 2. Its relevant provisions are: "(1) This Part applies to and in respect of an award of personal injury damages, except an award that is excluded from the operation of this Part. (2) The following awards of damages are excluded from the operation of this Part: (a) An award where the fault concerned is an intentional act that is done with intent to cause injury or death ……………. ." 7 Schedule 1 to the Act contains various savings and transitional provisions. Now relevant are clause 2 and part of clause 4 of the schedule. Those relevant provisions are: "2. Application of Act to existing injuries and pending claims. (1) Part 2 of this Act extends to an award of personal injury damages that relates to an injury received, ………., whether before or after the commencement of this Act. (2) However, Part 2 of this Act does not apply to or in respect of: (a) An award of damages in proceedings commenced in a court before the commencement of this Act, or (b) An award of damages, or settlement or consent order in respect of damages, made before the date of assent to this Act. …………………………………………………….. 4. Application of Act to Claims against the Crown notified before 20 March 2002 (1) Part 2 of this Act does not apply to or in respect of an award of damages on a claim against the Crown if the Crown has been notified in writing of the claim before 20 March 2002 and: (a) The damages are awarded (or are the subject of a settlement or consent order made, before 1 September 2002, or (b) Proceedings on the claim are commenced in a court before 1 September 2002, or (c) Proceedings on the claim cannot be commenced before 1 September 2002 because the injury concerned has not stabilised. ……………………………………………………. (3) In this clause: Crown means the Crown within the meaning of the Crown Proceedings Act 1988 ……………….." 8 On 28 November 2002 the Royal assent was given to the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW), "the Personal Responsibility Act"). The Act commenced, so far as is now relevant, on 6 December 2002. This amending Act effected a major revision of the original Civil Liability Act. The revision included the inserting into the original Act of a new Part 7 dealing with the topic of "Self-Defence and Recovery by Criminals". The details of the new Part 7 are not now relevant. 9 The revising amendments repealed section 9 of the original Act and replaced it with a new section 3B. That section provides, relevantly: "(1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: (a) Civil liability in respect of an intentional act that is done with intent to cause injury or death. ……………." 10 Transitional provisions were made by the addition to Schedule 1 of the original Act of a new Part 3. Clause 6 of the new Part 3 provides, relevantly: "(1) The amendments to this Act made by the 2002 amending Act extend to civil liability arising before the commencement of the amendments, but do not apply to or in respect of proceedings commenced in a court before that commencement. ……………………………………………………. 11 The principal Act was further amended by the Civil Liability Amendment (Offender Damages) Act 2004 (NSW). The principal purpose of this amending Act was, according to its long title, "…….. to make special provision in connection with certain claims for damages for negligence, for death or injury suffered by offenders in custody". 12 The amending Act inserted into the principal Act a new Part 2A dealing with the topic: "Special provisions for offenders in custody". 13 The new Part 2A came into effect on 19 November 2004. It contains five Divisions embracing new sections 26A to 26J inclusive. 14 Section 26B provides for the applicability of the new Part 2A. It is in these terms: "(1) This Part applies to and in respect of an award of personal injury damages against a protected defendant in respect of: (a) an injury to a person received while the person was an offender in custody, or (b) the death of a person resulting from or caused by an injury to the person received while the person was an offender in custody, being an injury caused by the negligence (that is, the failure to exercise reasonable care and skill) of a protected defendant. (2) This Part does not apply to: (a) an award of damages pursuant to an action under the Compensation to Relatives Act 1897 , or (b) an award of damages for mental harm (within the meaning of Part 3) to a person who was not an offender in custody at the time of the incident that resulted in the mental harm. (3) Part 2 is subject to this Part. (4) Section 19 (Third party contributions) extends to an award of damages to which this Part applies as if that section were a provision of this Part. (5) A reference in Divisions 2-5 to an offender includes a reference to a person who, subsequent to the injury concerned, ceases to be an offender." 15 The descriptions: "offender in custody", "offender" and "protected defendant" are defined in the newly inserted section 26A which provides relevantly: " 26A Definitions (1) In this Part: CAS Act means the Crimes (Administration of Sentences) Act 1999. offender in custody or offender means each of the following (a) an inmate within the meaning of the CAS Act, namely a person to whom Part 2 (Imprisonment by way of full-time detention) of that Act applies ……………………………………………….. protected defendant means each of the following: (a) the Crown (within the meaning of the Crown Proceedings Act 1988) and its servants ……………………………………………………. (2) Other expressions used in this Part have the same meanings as in Part 2." 16 The enactment of the new Part 2A brought with it a need to make provision for existing injuries and pending claims. That topic was addressed by inserting a new Part 5 into Schedule 1 of the principal Act. Clause 16, which is the only clause in the new Part 5, provides relevantly: " 16. Application of offender damages provisions to existing injuries and pending claims (1) Part 2A of this Act extends to an award of personal injury damages that relates to an injury received, or to a death resulting from an injury received, whether before or after the commencement of that Part. (2) However, Part 2A of this Act does not apply to or in respect of: (a) an award of damages in proceedings commenced in a court before 15 January 2004, or ………………………………………………… " 17 In 2005 yet further amendments were made to the principal Act by the Civil Liability Amendment (Offender Damages Trust Fund) Act 2005 (NSW). The principal purpose of this further amending Act is stated in its long title as that of providing "……… for the satisfaction of personal injuries damages claims by victims of crime from certain damages awarded to offenders; …………." 18 The amendments add to Part 2A of the principal Act a new Division 6 dealing with the topic: "Offender Damages Trust Funds". The new Division 6 embraces new sections 26K to 26W both inclusive. The nub of the statutory scheme is the concept of a compulsory attachment of any damages awarded to an offender in custody, the purpose of that attachment being to establish a fund out of which any lawful claim against the offender by any victim of the offender can be paid; and to prevent the offender's rendering such a lawful claim abortive by the expedient of asserting that he has no available property out of which he can pay a claim. 19 To that end, the newly inserted sections 26K, 26L and 26m provide relevantly: " 26K Interpretation (1) In this Division: award of damages means an award of damages by a court (including such an award pursuant to judgment entered in accordance with an agreement between the parties to a claim for damages). offender means a person to whom an award of offender damages is made. offender damages means personal injury damages awarded pursuant to an award to which this Part applies. victim claim means a claim for personal injury damages in respect of: (a) an injury to a person caused by conduct of an offender that, on the balance of probabilities, constitutes an offence, or (b) the death of a person caused by or resulting from an injury to the person caused by conduct of an offender that, on the balance of probabilities, constitutes an offence. victim trust fund means offender damages awarded to an offender that are held on trust under this Division …………………………………………………………….. 26L Offender damages to be held in trust as victim trust fund (1) The amount of any offender damages awarded to an offender is to be held in trust for the offender by the protected defendant liable to pay those damages and may be paid out only as authorised by this Division. (2) Offender damages held by a protected defendant in trust for an offender under this Division comprise a victim trust fund for victims of the offender. The protected defendant if responsible for the fund. (3) This section does not affect (and is subject to) any obligation imposed on the protected defendant by or under an enactment of the State or the Commonwealth to pay to some other person money owed or due to or held on account of the offender. (4) An amount deducted or withheld from offender damages under Division 5 (Victims support payments owed by offender) is not required to be held in trust under this section. (5) An amount held in a victim trust fund for victims of an offender is: (a) not available for the payment of a creditor of the offender, and (b) not liable to be attached or taken in execution at the instance of a creditor of the offender." 26M Victim trust fund available to satisfy eligible victim claims (1) A victim trust fund is available to satisfy victim claims against the offender concerned as provided by this Division but only if the claim is eligible to be satisfied from the victim trust fund as provided by this section. (2) A victim claim is eligible to be satisfied from a victim trust fund only if within the eligibility period for the victim trust fund: (a) the person commences proceedings on the claim in a court (or proceedings by the person on the claim are pending in a court at the beginning of the eligibility period), and (b) the person gives the protected defendant responsible for the victim trust fund notice in writing of those proceedings together with such details of those proceedings as the protected dependant may request, and (c) the person certifies to the court before which those proceedings are taken that the person is making the claim as a claim that is eligible to be satisfied from the victim trust fund. (3) The eligibility period for a victim trust fund comprising offender damages awarded to an offender is the period of 6 months following the date (the award date for those damages) on which the claim for those damages is finally determined by a court award of those damages. (4) A claim is not finally determined by a court until the time for appealing against the award of damages expires with no appeal having been made or when all appeals against the award have been withdrawn or finally determined. (5) The protected defendant responsible for a victim trust fund must give the registrar of each court in which a victim claim may be brought notice of each victim claim of which the protected defendant is given notice under this section." 20 Yet again, transitional provisions are inserted into Schedule 1 of the principal Act, this time by the addition of a new Part 7 to that schedule. Part 7 adds clauses 20 and 21 to Schedule 1. The clauses provide:

" 20 Extended operation of Part 2A Division 6 For the purposes of the operation of Division 6 (Offender damages trust funds) of Part 2A: (a) that Part extends to an award of personal injury damages in proceedings commenced before the commencement of that Part, and (b) Parts 5 and 6 of this Schedule do not limit the operation of that Part. 21 Amendments extend to existing claims and damages awards A provision of Division 6 (Offender damages trust funds) of Part 2A extends to: (a) an award of offender damages made before the commencement of the provision that has not been satisfied by the protected defendant concerned as at that commencement, and (b) an award of offender damages made after the commencement of the provision in respect of a claim for damages that arose before that commencement, and (c) a victim claim made in respect of a cause of action that arose before the commencement of the provision."

The Issues for Present Decision 21 There are two such issues: 22 The first issue is whether section 3B of the amended principal Act, and in particular 3B(1)(a), entails upon its proper construction that the plaintiff's damages as assessed by McLoughlin DCJ are not caught at all by the amended principal Act. 23 The second issue, which presupposes the applicability to the plaintiff's damages of the amended principal Act, is whether clauses 20 and 21 of Schedule 1 of the Act operate so as to bring the plaintiff's award within the statutory scheme for the compulsory attachment of "offender damages".

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.

The Second Issue 49 This issue can arise only upon the basis that, contrary to my previously expressed view, the entirety of the relevant legislation is not excluded, in the case of the plaintiff's damages, by section 3B(1)(a). 50 In that event, the plaintiff's damages would be putatively subject to Part 2A of the Act, and in particular to Division 6 of Part 2A. 51 A difficulty at once arises from the defendant's point of view, because the applicability of Part 2A at all depends, at least prima facie, upon the operation of section 26B which is quoted in paragraph 14 of these reasons. It is conceded by the defendant that the plaintiff, at the time of the assault committed upon him, was not "an offender in custody" as defined in section 26A. That is so because the section 26A definition is linked to the Crimes (Administration of Sentences) Act 1999 (NSW) which was not enacted until some 8 years after the assault, and some 7 years after the plaintiff's release from prison. 52 The defendant meets this impediment by calling upon clauses 20 and 21 of Schedule 1. The clauses are quoted in paragraph 20 of these reasons. 53 The Crimes (Administration of Sentences) Act came into operation on 3 April 2000. Because sections 26A and 26B specifically link the applicability of Part 2A, as originally enacted without Division 6, to an injury suffered by a person who is an inmate within the meaning of the Crimes (Administration of Sentences) Act, the intention of Parliament would seem to have been that the 2004 amending Act would apply only to an award of damages made later than 3 April 2000, and made in respect of an injury suffered later than 3 April 2000. 54 That seeming intention of the Legislature is glossed by the provisions of the new Clause 16 of Schedule 1. The terms of Clause 16 are noted at paragraph 16 of these reasons. The clause provides that Part 2A will extend to an award of damages for an injury occurring before or after 19 November 2004, the commencing date of Part 2A. The clause provides, further, that Part 2A will not extend to an award of damages in proceedings commenced in a Court before 15 January 2004; or to an award of damages made before 13 May 2004. 55 In the result, Part 2A will catch an award of damages made after 13 May 2004, in respect of an injury occurring either between 3 April 2000 and 19 November 2004 or after 19 November 2004. A concession is made for an award of damages where the relevant Court proceedings were commenced between 3 April 2000 and 15 January 2004. 56 Nothing in Clause 16 is apt to suggest an intention to make Part 2A, as originally enacted without Division 6, applicable to an injury suffered prior to 3 April 2000. In other words, nothing in Clause 16 is apt to suggest an intention to break or to gloss the Section 26A and Section 26B linkage to the commencement of the Crimes (Administration of Sentences) Act. 57 The new Division 6 of Part 2A came into effect on 26 October 2005. Ordinarily it would have been expected that the new division would apply only to awards of offender damages made after 26 October 2005 and made in proceedings commenced after 26 October 2005. It seems clear that Clause 20(a) operates to capture awards made in proceedings commenced before 26 October 2005, but leaving open the question: commenced by whom? It seems, likewise, that Clause 21(b) captures an award made after 26 October 2005 in respect of a claim that arose prior to 26 October 2005, but leaving open the question: a claim by whom? 58 The defendant submits that the circumstances of the plaintiff's claim can be brought within clauses 20(a) and 21(b); and can be so caught by nothing more than the ordinary grammatical meaning of the words of the clauses. 59 The difficulty which I see in that submission is that it does not seem to me to take sufficient account of the relevant statutory history and of the statutory context that such history suggests. 60 It seems to me to be a striking feature of the relevant statutory history and context that there is no clear breaking of the original, and clear, nexus between the operation of Part 2A and the Crimes (Administration of Sentences) Act. Had it been the intention of Parliament to extend the Section 26A definition of an offender, or of an offender in custody, so as to break that nexus, then, as I suggested in an earlier and different context, it would have been a simple matter to have amended Section 26A by adding, for example, to Section 26A(1)(a) some such words as: "or an inmate within the meaning of the Correctional Centres Act 1952 (NSW)". In the absence of any such clear indication, I believe that the correct construction of the somewhat tangled provisions of clauses 20 and 21 is that those clauses are intended to extend the operation of Division 6 to awards, being awards to offenders coming within the relevant section 26A definition, which would not otherwise be caught in the temporal net of the new Division 6. 61 I conclude, therefore, that the plaintiff is entitled to succeed on the second issue.

I make the declaration sought in paragraph 4 of the Summons. I order the defendant to pay the plaintiff's costs.

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