Citation: Corby v State of New South Wales [2009] NSWDC 117
Court: District Court of New South Wales
Date: 5 June 2009
Judge(s): Murrell SC DCJ
Background
The plaintiff was in custody at Wagga Wagga Police Station in February 2006 when he alleged he was assaulted by a police officer and officers from the Department of Corrective Services. The State of New South Wales accepted vicarious liability for the conduct of those officers but sought to have the plaintiff's damages claim struck out.
The plaintiff conceded that his injuries did not result in death or a permanent impairment of at least 15%, which is the threshold ordinarily required under Part 2A of the Civil Liability Act 2002 before an offender in custody can recover damages. He therefore abandoned claims for pain and suffering, loss of amenities, and economic loss, but pressed his claim for aggravated and exemplary damages.
The State argued that the 2008 amendments to the Civil Liability Act extended Part 2A to cover intentional torts committed against offenders in custody, and that because the plaintiff could not meet the 15% permanent impairment threshold in section 26C, his claim for aggravated and exemplary damages should also be struck out.
Legal Issues
- Whether Part 2A of the Civil Liability Act 2002 (as amended in 2008) applies to a claim for aggravated or exemplary damages arising from an assault on an offender in custody.
- If Part 2A does apply, whether section 26C precludes recovery of aggravated and exemplary damages where the plaintiff cannot satisfy the 15% permanent impairment threshold.
Decision
The court held that Part 2A does not apply to a claim for aggravated or exemplary damages in these circumstances, for three distinct reasons. First, Part 2A applies to awards of damages "for injury to a person," and the injured feelings compensated by aggravated damages, such as outrage, humiliation, and indignity, do not constitute an "impairment of a mental condition" or any other form of "injury" within the meaning of Part 2A. Second, exemplary damages are not compensatory in nature and therefore do not qualify as "damages" within the Act's meaning. They address the conduct of the wrongdoer rather than the harm suffered by the plaintiff. Third, the legislative purpose of the 2008 amendments was to close a pleading "loophole" by which prisoners framed negligence claims as intentional torts to avoid the 15% threshold. That purpose had nothing to do with aggravated or exemplary damages.
The court also held that, even if Part 2A did apply, section 26C would not bar the recovery of aggravated and exemplary damages. Section 26C only precludes "damages for economic or non-economic loss," and aggravated and exemplary damages address neither category as defined in the Act. The concept of "permanent impairment" embedded in section 26C has no relevance to the subject matter of either form of damages. This reading is also consistent with section 21 of the Act, which expressly prohibits aggravated and exemplary damages only in negligence actions, with no equivalent provision extended to intentional torts committed against offenders in custody.
The court noted that had the legislature intended to remove an offender's right to claim aggravated and exemplary damages for intentional torts, it would have done so expressly, either by amending section 21 or by including clear language in Part 2A. No such language appeared in the 2008 amendments.
Orders Made
• The application to strike out the claim is refused.
Key Takeaways
- The District Court held that aggravated damages, which compensate for injured feelings such as humiliation and outrage, do not constitute an "injury" within the meaning of Part 2A of the Civil Liability Act 2002, and Part 2A therefore does not apply to such claims brought by offenders in custody.
- Exemplary damages fall outside the Act's framework entirely because they are not compensatory in character and address a tortfeasor's conduct rather than the impact on the plaintiff.
- The 2008 amendments to the Civil Liability Act were directed at closing a pleading loophole concerning the 15% impairment threshold, not at extinguishing offenders' rights to aggravated or exemplary damages for intentional torts.
- Under section 26C, the 15% permanent impairment threshold applies only to damages for "economic or non-economic loss," categories that do not encompass aggravated or exemplary damages.
- Where legislation is silent on a specific entitlement, courts will be slow to read in a limitation not expressed in the text, particularly where Parliament could readily have provided for it expressly.
Legislation and Cases Referenced
Legislation:
- Civil Liability Act 2002 (NSW), ss 3B(1)(a)(iii), 5, 11, 21, 26A, 26B, 26C, 26D
- Civil Liability Legislation Amendment Act 2008 (NSW)
Cases:
- Coyle v State of New South Wales [2006] NSWCA 95
- Fatimi Pty Ltd v Bryant [2004] NSWCA 140
- Lamb v Cotogno [1987] HCA 47
- New South Wales v Ibbett [2006] HCA 57
- New South Wales v Riley [2003] NSWCA 208
- State of New South Wales v Ibbett [2005] NSWCA 445