Personal injury claims for individuals in custody

Oct 3, 2022 | Publication | 0 comments

If an inmate has suffered personal injury whilst in prison, the inmate may bring a claim in negligence against the prison authorities, however the Civil Liability Act 2002 (NSW) (CLA) has special provisions for such claims which are onerous.

Part 2A of the 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.

The inmate must provide written notice within 6 months of the date of incident (or date of death) – Section 26BA of the CLA.

The inmate must have a permanent impairment of at least 15% pursuant to American Medical Association 5th Edition Guide to claim damages for non-economic loss or economic loss. This threshold is 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.

As a result, it is difficult to claim damages for injuries suffered while an inmate, 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 injuries were inflicted by other inmates, then the inmate will need to establish negligence by the State.

If you require assistance in relation to a personal injury matter, please contact our personal injury team today.

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