Changes to prisoner related compensation a cause for concern

30th Jul 2015

The Wrongs Amendment (Prisoner Related Compensation) Act 2015 (VIC) came into operation in Victoria on 16 June 2015 (the Act).

This Act mandates that a trial judge must reduce the award of damages for non-economic loss (pain and suffering; loss of amenities of life; loss of enjoyment of life) with respect to mental harm suffered by a claimant where:

  • The mental harm (psychological or psychiatric injury) was caused by the death or injury of a prisoner whilst they were in custody or on a detention or preventative detention order.
  • The person making the claim for compensation has criminal convictions which were imposed upon them as an adult.

In determining the percentage reduction of the award of damages, the judge or jury must consider the number and severity of the prior offences, relationship between the claimant and the injured prisoner, remorse or rehabilitation and whether the offences of prisoner in claimant were related (s28LAF(2)).

If the claimant has a prior conviction for a ‘profit motivated offence’ (as defined in Schedule 2 of the Confiscation Act 1997 (Vic)), the award of damages MUST be reduced by 90-100%. Schedule 2 offences include a large range of offences including dishonesty offences involving $50,000 or more and trafficking drugs.

The jury or the court may make a reduction of 100%, which would result in the claim for damages being defeated.

Notably, this Act applies retroactively, specifically applying to any claims already on foot but not yet determined at the time the legislation came into force.

It is unclear whether the provisions of the Act may also be invoked in circumstances where the ‘claimant’ and the ‘prisoner’ are the same person.

Whilst the government now refuse to be drawn on the issue, it is apparent that the genesis for this legislation has been the highly publicised compensation claim by the father, ex-wife and daughter of the notorious ‘gangland’ figure Carl Williams. Their claim alleged negligence against Corrections Victoria for failing to ensure Williams’ safety in circumstances where serious risks to his ongoing safety had been identified, primarily due to his co-operation with police in relation to a highly sensitive murder prosecution.

The Wrongs Amendment  (Prisoner Related Compensation) Act 2015 (VIC) came into force just over a month before the trial of the Williams compensation claim was due to commence on 20 July 2015. The claim had been already been on foot for several years at that time. As a consequence of the new provisions, if the claim of negligence had been found proven at trial, and damages for ‘mental harm’ payable to Roberta Williams (the ex-wife), such damages would have been required to be reduced by no less than 90% and up to 100%.

The effect of these amendments was to ensure that an otherwise legitimate claim which was before the courts would necessarily be defeated if it proceeded to trial, even if a judge and/or jury was satisfied that  there had been negligence which was attributable to the State, and which resulted in a psychological injury to the claimant.

Whilst this legislative appears to have had some populist approval it is concerning on a number of levels.

Persons convicted of criminal offences already receive punishment as imposed by the courts and further may be subjected to the extensive regime of potentially ‘draconian’ civil penalties and forfeiture of assets provisions under State and Commonwealth Confiscation Laws. The Act arguably mandates further penalising of the individual, even years after they have otherwise been dealt with by criminal and civil courts.

The willingness of the State to enact legislation limiting its own liability for negligence – particularly when it relates to claims relating to injury of vulnerable and powerless individuals who are detained within state institutions – should be met with considerable concern. 

Nicole Spicer is an Accredited Criminal Law Specialist and Principal of Spicer Lawyers, Melbourne who has a particular interest in the intersection between the criminal and civil jurisdictions. Nicole was admitted to practice in 1997 after graduating from Melbourne University with Honours. Previously a partner at Robert Stary and Associates, Nicole continues to maintain a strong commitment to defending individuals charged with criminal offences, however, has also developed a strong practice in the areas of confiscation law, Sentencing Act compensation matters, employment law and civil proceedings arising from criminal matters.

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Victoria Wrongs Act Crime Nicole Spicer