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.

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources. If you do not wish to receive newsletters from us, please let us know.

Latest Insights

Teacher convicted for failing to report sexual abuse of a child

Teacher, Mr Webb of Trinity College Perth, was unsuccessful in his appeal against his conviction of failing to report sexual abuse of a child in a decision delivered on 13 October 2021. In April 2017, a group of boys from the school went on a school rugby trip to...

Annual Dinner – Parramatta & District Regional Law Society

Western Sydney's legal profession gathered for the Annual Dinner of the Parramatta & District Regional Law Society at CommBank Stadium! We are particularly grateful to Dr Hugh McDermott MP, Parliamentary Secretary to the Attorney General, Senior Vice...

What compensation can I get if I have been injured at work?

If you have a work-related injury or illness, you may be able to claim compensation for lost income, medical expenses, travel expenses, domestic assistance, pain and suffering and permanent impairment. All employers are required to have workers compensation insurance...

Court makes provision for son left out of father’s Will

The recent Supreme Court of New South Wales decision of Rathswohl v Court  NSWSC 356, involved 3 siblings disputing their entitlements to their late father’s estate. The defendant, Yvette, claimed she cared for her father for the last 18 months before he...

If I die without a Will what can happen?

If you die without a Will there can be many unintended consequences. Some of these consequences may be: A person who you do not intend could control your estate.  This could even be someone you do not know.  An executor is a person who controls an estate...

10 Myths of Deceased Estates

Myth #1 – If I die without a Will it is no big deal. Truth:  It can be a very big deal.  There are lots of reasons for having a Will including controlling who is appointed as Executor, controlling who your Estate is paid to, appointing a Guardian for...

Unfair Contract Terms

Changes to the law relating to unfair contract terms come into effect on 9 November 2023. From this date, proposing, using or relying on unfair contract terms in standard form contracts will be banned. Penalties for breaches of the law will apply. The law has also...