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- 19 October 2005
Civil Liability Amendment (Offender Damages Trust Fund) Bill
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Page: 18867
Second Reading
Debate resumed from an earlier hour.
Ms LEE RHIANNON [8.57 p.m.]: To be a victim of crime can be a terrible experience. In extreme cases it can be an experience that damages the life of the victim permanently. As would all members of this House, I extend my sympathy to the victims of crime. Parliaments must strike a balance between the interests and needs of the victims of crime, sound legal principles and practice, and the needs of the offender. It can be a tricky issue to strike the appropriate balance, and politicians who pretend that it is easy are doomed to make poor laws. Unfortunately, the bill is quite unbalanced and poorly thought through—as has been so much of the crime-related legislation introduced by the Government. Aspects of the bill are unfair, unwieldy and impractical. I will move amendments in Committee to address the Greens concerns.
It is not surprising that this legislation is unbalanced, for once again the Government is responding to a Daily Telegraph campaign. This particular campaign was launched in reaction to the 2004 Court Of Appeal case of Bujdoso v the State of New South Wales. Lawyers for the prisoner in that case, T. D. Kelly and Company, have written to me outlining their concerns with the bill and how it came about. The offender was in prison, having been sentenced to a minimum term of three years and four months imprisonment after pleading guilty to several charges of homosexual intercourse with a minor. The Hon. Dr Arthur Chesterfield-Evans has detailed how this prisoner was attacked and suffered serious injuries. Prison authorities had prior actual knowledge that the prisoner was at risk of attack, but, for substantial periods, within every two hours, there was no officer on duty at the prison work release unit where the prisoner was held, leaving prisoners entirely unguarded.
The District Court at first instance and the Court of Appeal accepted that the lock on the plaintiff's cell door was inadequate to prevent forced access by the fellow prisoners who assaulted him. The lock was described by the Court of Appeal as "flimsy and out of date". The Court of Appeal judged that the New South Wales Government had breached the duty of care it owed to the prisoner and that the prisoner had the right to pursue damages in the District Court. This duty is said to include taking reasonable care to prevent harm stemming from the unlawful activities of other prisoners.
The lawyers for the prisoner explained that "No doubt pushed by a sustained campaign in the Daily Telegraph the … Government appealed to the High Court." The appeal was heard in the High Court on 5 October this year, but judgment has been reserved. The Daily Telegraph campaign was based around its outrage that a paedophile should be able to sue the Government for compensation for a breach of duty of care—even if it involved a brutal bashing. Sadly, we know that if the Daily Telegraph is outraged, more than likely the Government has a knee-jerk reaction. The Daily Telegraph roared in an editorial on 24 September 2004:
By all means it is unacceptable that prisoners should attack other inmates and the culprits should have been punished appropriately.
But compensation for paedophiles? Most people would reason that those who commit such vile crimes can take their chances in prison. In his second reading speech the Minister, while taking a slightly more conciliatory tone than the Daily Telegraph, commenced his speech as follows:
The community is rightly outraged when offenders receive large amounts of compensation for injuries received in custody … the community perceives such offenders to be using the law for their own purposes when it suits them, but disrespecting the law and the community in the commission of their crimes.
For the Government, the "community" here would appear to be the Daily Telegraph. I must say I find this comment from the Minister quite sick. He is effectively negating the duty of care of the Department of Corrective Services. Let us remember that prisoners are punished by their loss of liberty. In this State we no longer have stocks, we no longer have capital punishment, we are no longer a penal colony. When prisoners go to gaol, that is their punishment. They have not been sentenced to get bashed, but that is what this legislation effectively delivers. I sometimes wonder whether members of this house understand that the punishment is going to gaol, not all these other add-ons that they are able to squeeze in these days. The offender's lawyers make the following well-considered comment:
Most members of the community would no doubt agree th at whatever the offences committed in the past by a prisoner, when the State has deprived [a prisoner] of his [or her] liberty it has a duty to take reasonable steps to ensure [the prisoner's] physical safety while in detention.
This Bill would clearly have the effect of discouraging prison inmates from ever taking proceedings against the government for a failure to carry out that duty.
The consequences of this will be that prisoners can be bashed with impunity and prison authorities are unlikely ever to be called to account in the Courts for their failure to protect such inmates.
The bill, drawn up by the Government against the backdrop of this Daily Telegraph campaign, is another example of the Government undermining a just legal system. It may be useful to remember that victim compensation moneys are already repayable by the offender from damages, provided the recovery claim is bought by the Government in time. I will explain in Committee the Greens' reservations about the bill and the amendments that seek to overcome the real deficiencies that exist in these proposed new laws. Our amendments attempt to strike a far better balance between the interests and needs of victims and the interests and needs of offenders than the Government's bill in its present form provides.
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [9.04 p.m.], in reply: I thank honourable members who spoke to this bill. At this point I wish to illustrate the success of the Government's measures to restrict offender litigation. In the second reading speech to the Civil Liability Amendment (Offender Damages) Bill 2004, delivered on 18 March 2004, the former Minister for Juvenile Justice, Minister for Western Sydney and Minister Assisting the Minister for Infrastructure and Planning, the Hon. Diane Beamer, noted the effects, to that time, of the Civil Liability Act 2002 on litigation in New South Wales. Ms Beamer reported a decrease in District Court civil matters of 62 per cent in two years and a decrease of "pending" cases of 61 per cent—primarily as a result of the introduction of the Civil Liability Act 2002.
The experience of the Department of Corrective Services since March 2004 shows the effect of Part 2A of the Civil Liability Act 2002, which was inserted by the Civil Liability Amendment (Offender Damages) Act 2004. On 5 May 2004, in debate on the Civil Liability Amendment (Offender Damages) Bill 2004, the former Minister for Justice, the Hon. John Hatzistergos, advised the Legislative Council:
In the 12 months before the announcement of the Civil Liability Act 2002, that is, between 1 April 2001 and 1 April 2002, the Department of Corrective Services received 32 claims from inmates and offenders … In the two years since the Civil Liability Act was passed—between 22 April 2002 and 17 March 2004—there has been an average yearly drop in claims of about 22 per cent and an average yearly drop in negligence claims of about 13 per cent.
The average yearly drop that the Minister quoted was based on the fact that between April 2002 and March 2004 the Department of Corrective Services received 50 claims from inmates and offenders—an average of 25 claims per year. Of those 50 claims, 45 involved alleged negligence. Between 17 March 2004 and 17 June 2005 the Department of Corrective Services received 18 claims from inmates and offenders, of which two claims were subsequently withdrawn when the requirements of Part 2A of the Civil Liability Act 2002 were pointed out to the claimants. All the claims involved alleged negligence. That translates to an average of 13 claims per year—a 60 per cent reduction from the 2001-02 figures.
Most of the claims lodged since the commencement of the operation of the Civil Liability Amendment (Offender Damages) Act 2004 have not reached finality, so trends have not yet emerged. Of the common law cases that have been finalised since 1 January 2003, the trend has been fairly stable: some 28 per cent have been settled, 54 per cent have resulted in a verdict for the plaintiff, and 18 per cent have resulted in a verdict for the department. In 2003, 20 offender claims were finalised, seven by settlement, nine by verdict for the plaintiff, and four by verdict for the department. In 2004, 26 offender claims were finalised, seven by settlement, 14 by verdict for the plaintiff, and five by verdict for the department. As at 17 June 2005, in addition to the two claims that were withdrawn, five claims have been finalised, one by settlement, and four by verdict for the plaintiff.
The scheme to be introduced by this bill is not intended to reduce the number of claims lodged against protected defendants. What it will do is ensure that any successful claims can be acted upon by victims of the offender concerned, to ensure justice between the offender and the victim and not just between the offender and the State. I commend the bill to the House.
Motion agreed to.
Bill read a second time.
In Committee
Clauses 1 to 3 agreed to.
Ms LEE RHIANNON [9.10 p.m.], by leave: I move Greens amendments Nos 1, 2 and 6 to 21 inclusive in globo:
No. 1 Page 3, schedule 1 [1], lines 18–24. Omit all words on those lines. Insert instead:
victim claim means a claim for personal injury damages in respect of the death of or injury to a person caused by conduct of an offender that, on the balance of probabilities, constitutes an offence.
No. 2 Page 3, schedule 1 [1], lines 27–8. Omit all words on those lines.
No. 6 Page 4, schedule 1 [1], line 25 on page 4 to line 17 on page 5. Omit all words on those lines. Insert instead:
26M Victim claims permitted to be satisfied from victim trust fund
(1) For the purposes of this Division, a victim claim against an offender is permitted to be satisfied from a victim trust fund comprising offender damages awarded to the offender only if the claim is eligible to be satisfied from the victim trust fund as provided by this section and, within the eligibility period for the victim trust fund, the person:
(a) 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) 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 defendant may request, and
(c) 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.
(2) A victim is eligible to be satisfied from a victim trust fund comprising offender damages only if the claim is in respect of the death of or injury to a person caused by conduct of the offender that, on the balance of probabilities, constitutes an offence in respect of which the offender was an offender in custody when the offender suffered the injury for which those offender damages were awarded.
(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.
No. 7 Page 5, schedule 1 [1], line 23. Omit "against the offender". Insert instead "that is eligible to be satisfied from the victim trust fund".
No. 8 Page 5, schedule 1 [1], lines 28–30. Omit all words on those lines. Insert instead:
(c) stating that a victim claim that is eligible to be satisfied from the victim trust fund and that is made within the eligibility period for the fund is permitted to be satisfied from the fund.
No. 9 Page 6, schedule 1 [1], lines 5 and 6. Omit "be entitled to make a victim claim against the offender". Insert instead "have a claim that is eligible to be satisfied from the fund".
No. 10 Page 6, schedule 1 [1], line 13. Insert "within the eligibility period for the victim trust fund" after "Division".
No. 11 Page 6, schedule 1 [1], line 33. Omit "against the offender". Insert instead "that is eligible to be satisfied from the fund".
No. 12 Page 7, schedule 1 [1], line 15. Omit "eligible". Insert instead "permitted".
No. 13 Page 7, schedule 1 [1], line 22. Omit "eligible". Insert instead "permitted".
No. 14 Page 7, schedule 1 [1], line 31. Omit "eligible". Insert instead "permitted".
No. 15 Page 7, schedule 1 [1], line 38. Omit "eligible". Insert instead "permitted".
No. 16 Page 8, schedule 1 [1], line 3. Omit "eligible". Insert instead "permitted".
No. 17 Page 8, schedule 1 [1], line 15. Omit "eligible". Insert instead "permitted".
No. 18 Page 8, schedule 1 [1], line 30. Omit "eligible". Insert instead "permitted".
No. 19 Page 10, schedule 1 [1], line 10. Omit "eligible". Insert instead "permitted".
No. 20 Page 10, schedule 1 [1], line 35. Omit "eligible". Insert instead "permitted".
No. 21 Page 11, schedule 1 [1], line 5. Omit "eligible". Insert instead "permitted".
The Greens amendments seek to strike a fairer balance when it comes to claims by victims to awards of damages and compensation to offenders. The bill as it stands essentially provides no time limit for any claim by a victim against an offender. It is not limited to claims made by those who are victims of the offence that presently results in the offender being in gaol. For example, an offender who conducts a break and enter against a home owner in Victoria in 1990 spent six months in gaol for that offence. Much later the same person is found driving under the influence in New South Wales and is again gaoled in 2005. While in gaol the offender is repeatedly stabbed with a pair of scissors by a fellow inmate who is psychotic. Assuming the offender can overcome the 15 per cent whole impairment threshold and recover damages against the State—and as we know, that is not a safe assumption by any means—under this bill the offender may also face a claim for property damage from the break and enter more than 15 years after it happened.
The Government would never allow insurance companies to be in that position. It is inherently unfair to defendants to have to face such old claims. If a person commits a crime he or she does their time in prison and that should be the end of it. It also means that the Department of Corrective Services would have to locate and notify each and every possible past victim. For some prisoners with lengthy criminal records that will be an extremely difficult administrative task for the department. I believe it is just not practicable. That again highlights that this is a Daily Telegraph bill; it is not a considered piece of legislation that will bring more justice to our community. The Greens amendments limit the class of victims who can make a claim to those who are victims of the offence for which the offender is presently in custody. This is a simpler, more practical and fairer solution. I commend the amendments to the Committee.
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [9.13 p.m.]: The Government opposes Greens amendment No. 1. In relation to who can claim, the scheme only applies to personal injury victims, including victims who have suffered psychological injury. It does not cover property damage victims such as cases of theft since, in most cases, people can take out insurance against property damage. A victim of a robbery could claim injuries suffered in the robbery but not in relation to the property stolen.
The Government opposes this amendment. At first glance combining subparagraphs (a) and (b) appears to simplify the definition, but that is not so. The amendment removes the words "or resulting from" from subparagraph (b). The inclusion of those words in the bill is not mere semantics. The bill allows a victim claim where a person's death results from an injury to the person caused by the offender's criminal conduct even if the conduct did not directly cause the death. For instance, a person may be assaulted, not fatally, but may develop an infection from the injury that proves fatal. The bill includes this scenario; the amendment does not. Justice clearly requires that the words "or resulting from" remain in the bill, and for that reason the amendment is opposed.
The Government opposes Greens amendment No. 2 as it would make the bill inconsistent with existing section 54A of the Act, which was inserted by the Civil Liability Amendment Act 2003 in response to the Presland case. Section 54A restricts the damages that can be awarded to people who are injured while committing what would otherwise be a serious offence but who cannot be found criminally responsible because they are mentally ill. Nevertheless, a person who is mentally ill at one time may not be mentally ill permanently. That person may commit other offences and be imprisoned. It would be incongruous if some persons injured by criminal acts could be included in the scheme, and others could not.
The Government opposes amendments Nos 6 to 21 inclusive. Essentially amendment No. 6 would restrict victim claims to injuries suffered by the offender whilst in custody for an offence against that victim. But what of the victim who is a victim of a past offence? What about a victim of the offender's first recorded assault, for which the offender was not imprisoned as a first offender, and the offender subsequently re-offends and assaults someone else and is imprisoned? Should victims have to take their chances on the subjective features of offenders that may enable them to avoid imprisonment? Of course not.
I will give a specific example. Many victims of sexual assault, particularly in family situations, do not proceed with their claim of sexual assault because they are either emotionally unable to do so, are too young to withstand the court experience, or they take the view that there are sufficient charges sustainable against an offender to probably result in a lengthy prison sentence and one more will not make much difference so they do not proceed with a criminal charge. Those people have just as much right to act against the offender as an "official" victim. The Government opposes amendment No. 7. The protected defendant is only in a position to ascertain victims of the offender. It is not in a position to determine whether a claim is eligible to be satisfied from the victim trust fund. The court hearing a claim ultimately determines whether a claim is eligible to be satisfied from the victim trust fund. Adoption of this amendment would derogate from the power of the court.
The Government opposes Greens amendment Nos 8, 9 and 10 as they add nothing to the bill and are meaningless. The Government opposes Greens amendment No. 11. A claim is against the offender. It is, at this stage, still to be determined if the claim is eligible to be satisfied from the fund. A court may determine that it is not eligible. In relation to Greens amendments Nos 12 to 21 inclusive, eligibility is referable to the Act. "Permitted" is not referable. It is inconsistent for Ms Lee Rhiannon to propose amendments that remove the word "eligible" from amendments Nos 12 to 21 inclusive and inserts the word "eligible" in amendments Nos 9 and 11.
The Hon. DAVID CLARKE [9.18 p.m.]: For the same reasons articulated by the Minister the Opposition also opposes these amendments. It is a pity the Opposition was not given a copy and greater notice of the amendments so that we could go through them in greater detail. Greens amendment No. 2 does not appear to make any sense at all. It says to omit all words from lines 27 and 28, and that would make no sense at all. If we had more notice of these amendments, of course, we would be able to pick up these things. I note that Ms Rhiannon assumes that it refers to lines 27 and 28. If that is the case, it makes no sense whatsoever. It may be that it was lines 27 to 38. Perhaps Ms Rhiannon could clarify that. In any event, based on what is there, the Opposition will oppose all of these amendments.
The Hon. PETER BREEN [9.20 p.m.]: I support amendment No. 1. It is important to understand that the victim's claim is made against a prisoner, who is in a disadvantaged position. Often a victim will have the benefit of a claim under the victims compensation legislation. That claim can be as much as $50,000, as the cap presently stands. If the prisoner is involved in some kind of accident or injury in the prison when there has been a breach of duty of care by a prison officer and that claim is $50,000 or less, then the claim under the compensation legislation would be subsumed by that claim and the prisoner would, as a result of the legislation, not be entitled to any damages for what might amount to a considerable injury. Greens amendment No. 1 seeks to narrow the claim, and to that extent I support it.
In relation to Greens amendment No. 2, as to what appear to be lines 27 and 28, I agree with the observation of the Hon. David Clarke that that means that the particular amendment no longer makes sense. If the amendment is extended to line 38, then amendment No. 3 makes no sense. It seems to me there is an error in the numbering of the amendments.
The Hon. David Clarke: You mean in the construction?
The Hon. PETER BREEN: It seems to be a pagination error in relation to the numbering. If that can be sorted out then we can have a debate on it, but otherwise it seems to me we are probably stuck with the bill as it is.
The Hon. David Clarke: Do you agree that whatever way one reads it, it makes no sense whatsoever?
The Hon. PETER BREEN: Yes, I agree that it does not make sense, that is, amendments Nos 2 and 3.
Ms LEE RHIANNON [9.20 p.m.]: I apologise. I had not picked up that there is a clear problem in the wording on the amendment sheet that we have before us. I cannot resolve that problem at the moment with the information I have. I apologise to the House for the confusion.
Amendments negatived.
Ms LEE RHIANNON [9.21 p.m.], by leave: I move Greens amendments Nos 4 and 5 in globo:
No. 4 Page 4, schedule 1 [1], lines 2–5. Omit all words on those lines. Insert instead:
(1) The following offender damages awarded to an offender are 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:
(a) damages awarded for non-economic loss,
(b) damages awarded for past or future economic loss.
No. 5 Page 4, schedule 1 [1]. Insert after line 24:
(6) In this section, a reference to past or future economic loss is a reference to:
(a) past economic loss due to loss of earnings or the deprivation or impairment of earning capacity, and
(b) future economic loss due to the deprivation or impairment of earning capacity.
The bill attempts to allow all past victims to claim against the whole of any personal injury damages awarded to the offender. The Greens believe a more equitable outcome is to allow the claims to be met from that proportion of the offender's damages that are related to general damages or the pain and suffering element of damages. That would result in the much more desirable and sensible situation, whereby a seriously injured offender who has received damages to cover future economic loss and the costs of medical treatment—damages necessary to carry on with his or her life after gaol with adequate medical treatment and without being a burden on Medicare and social security—is allowed to retain those damages. I commend these amendments to the House.
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [9.24 p.m.]: The Government opposes these amendments. In relation to amendment No. 4, the amendment would mean that only damages for economic loss and non-economic loss would be included in a victims trust fund. Damages awarded for future care would not be included. That would place offenders in a different position to other litigants in the community who receive damages and simultaneously owe money to creditors. At present there is nothing to stop a creditor of a successful litigant enforcing a judgment debt against damages awarded to the litigant, notwithstanding that a substantial component of such damages is for that person's future care.
In assessing different heads of damages, courts only perform a calculation; there is no requirement that a plaintiff must spend the damages in the same amounts that a court has assessed. Even where a trust fund is managed by the Public Guardian for a catastrophically injured person, the money is the person's and could be seized by a judgment creditor of the person, notwithstanding that damages were assessed in anticipation of providing for the person's future care. In relation to amendment No. 5, economic loss and non-economic loss are defined, and comprehensively addressed, in divisions 2 and 3 respectively of part 2 of the Civil Claims Act. It is ridiculous to insert a different definition for this division of the Act.
The Hon. DAVID CLARKE [9.26 p.m.]: The Opposition also opposes these amendments. We support the words and their intention as proposed in the bill.
Amendments negatived.
Schedule 1 agreed to.
Title agreed to.
Bill reported from Committee without amendment and passed through remaining stages.
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