Osborne, Kirsty --- "Prisoner compensation claims" [2018] PrecedentAULA 46; (2018) 147 Precedent 35

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PRISONER COMPENSATION CLAIMS

By Kirsty Osborne

There are many ways a prisoner can be injured in prison, from being physically assaulted by another inmate to injuring themselves on defective prison equipment. If a prisoner is injured in prison, they may be able to bring a claim for compensation. In Victoria, general personal injury claims are governed by the Wrongs Act 1958 (Wrongs Act).^[1]

TYPES OF CLAIMS

There are broadly two categories of personal injury claim that a prisoner can bring:

1. Negligence claims; and

2. Intentional tort claims, such as assault and battery.

A negligence claim is usually brought against the authority that owns and operates the prison. In most cases, this is a state authority but can sometimes be a private organisation. Negligence claims against prison authorities are explained in more detail below. However, to be successful the prisoner must establish that the authority failed to take reasonable care to prevent him/her from suffering a foreseeable injury.

Intentional tort claims can be brought where a person has deliberately inflicted harm or offensive contact on another. In a prison context, these claims usually arise where a prisoner has been physically or sexually assaulted by another inmate. They can also be made when a prison officer intentionally acts outside their power by deliberately using excessive force when managing a prisoner.

The following questions should be considered when determining whether to bring a personal injury claim on behalf of a prisoner:

1. Is the prisoner within the three year statute of limitations period to bring a claim?

2. Is the claim in negligence or intentional tort?

3. If negligence, does the prisoner have a ‘significant injury’?

4. Is there sufficient evidence to establish the claim?

5. Is the prisoner aware that any compensation they receive will be held in the Prisoner Compensation Quarantine Fund for a minimum of 12 months, providing an opportunity to their victims to make a claim against them?

WHAT COMPENSATION CAN BE CLAIMED?

Compensation can be awarded for:

1. medical and other related expenses (past and future);

2. loss of income (past and future); and

3. non-economic loss (pain and suffering).

When prisoners are injured, they will usually be provided with medical care at the expense of the prison authority. Consequently, unlike people who are injured in the community, prisoners will usually have minimal, if any, out-of-pocket expenses for their past medical treatment. However, prisoners may have a claim for future medical care if further surgery is likely to be required.

Regarding loss of income, it is often difficult for prisoners to show that their injury has impacted their income or ability to earn income in the future. This is for obvious reasons; the prisoner is not usually employed or earning any substantial income at the time they are injured and, once they are released, there are other factors in addition to their injury which may impact their employability. Therefore, to make out a claim for loss of income, evidence would usually need to show that the prisoner had a particular career or set of skills prior to incarceration and that their injury has had a clear impact on their ability to return to that career and earn income. For example, a claim may be established if a prisoner was trained as a mechanic prior to incarceration and had worked consistently in that field for a sustained period and then suffered a debilitating injury to his/her dominant hand that meant they could no longer return to this line of work upon their release.

Due to these factors, prisoner claims often consist only of compensation for non-economic loss, or pain and suffering. Pain and suffering is compensation for the loss of the prisoner’s enjoyment of life, and addresses things such as the prisoner’s inability to engage in social or recreational hobbies and any physical pain or emotional distress they suffer as a result of their injuries.

NEGLIGENCE CLAIMS

Significant injury threshold

A prisoner can only bring a negligence claim against a prison authority if they have suffered a ‘significant injury’. An injury is ‘significant’ if it meets the threshold level of impairment required by the Wrongs Act.

Impairment is assessed by a medical practitioner who is qualified in the relevant sections of the American Medical Association Guidelines. The medical practitioner will examine the prisoner in accordance with the guidelines and determine their level of impairment, which is expressed as a percentage.

To be ‘significant’, the prisoner’s injury must reach the following impairment thresholds:

• 5 per cent or more whole person impairment for spinal injuries;

• more than 5 per cent whole person impairment for non-spinal physical injuries;

• 10 per cent or more whole person impairment for psychological injuries.

If a prisoner’s injury is assessed as meeting this threshold, they will be given a Significant Injury Certificate which entitles them to bring a claim in negligence. The prison authority will also be given an opportunity to challenge the impairment assessment and have the prisoner’s injury reassessed by a panel of medical practitioners.^[2]

If the prisoner’s injury is very serious and would obviously meet the impairment threshold, the prisoner can request that the prison authority waive the requirement to obtain a Significant Injury Certificate.^[3] This is a particularly useful option in a prison context as it can often be difficult and expensive to arrange for a prisoner to be medically examined by an appropriately qualified practitioner while they are incarcerated.

Proving negligence

In order to receive compensation, a prisoner with a significant injury must then show that the prison authority:

1. owed them a duty of care;

2. breached that duty of care; and

3. the breach caused the prisoner a foreseeable injury.

Prison authorities owe a duty to prisoners to take reasonable care to prevent them from harm. While the duty on prison authorities is not necessarily higher than the duty on owners/occupiers of premises generally, the prison context means that the authority is often required to take steps to prevent prisoners from harming each other, as they are on notice of the inherent danger prisoners pose to themselves, the community and others.^[4] However, the case law explains that the standard that applies to prison authorities is still ‘reasonable care’, and this usually does not require the constant surveillance of prisoners.^[5]

Whether the prison authority has breached its duty of care will depend largely on the circumstances and what it knew or should have known about the risk of harm. Negligence is more easily established in cases where a prisoner injures themselves because the authority has provided defective equipment, such as a broken chair, or required them to use tools to perform manual labour but has not adequately trained or supervised them to ensure safety.

Breach is more difficult to establish in cases where the prisoner is claiming that the authority should have done more to prevent another inmate from harming them. As the standard is reasonable care, all relevant factors need to be considered when determining whether the authority breached its duty. Such factors can include:

• what the prison knew about the risk the offending prisoner posed to the injured prisoner;

• how expensive, difficult and burdensome it would have been for the authority to do more than it did to alleviate the risk of harm to the injured prisoner; and

• whether there was any safety risk to the prison authority or its officers in intervening in a particular situation.^[6]

Breach in these types of cases is often difficult to establish unless it can be shown that the authority was on notice that the offending prisoner posed a threat of harm to the injured prisoner.

Finally, the prisoner has to establish that the authority’s breach actually caused their injury. Or, in other words, that their injury would likely have been avoided had the prison authority done what it should have to reduce the risk of harm.

INTENTIONAL TORT CLAIMS

Unlike in negligence claims, a prisoner does not need to show that they have suffered a significant injury to bring an intentional tort claim. However, if the injury to the prisoner is only minor and does not have a substantial impact on the prisoner’s quality of life, the compensation they stand to receive may not justify the time and cost involved in bringing a personal injury claim.

In circumstances where a prisoner has assaulted another prisoner, the injured prisoner is entitled to bring an intentional tort claim against the offending prisoner. However, even if such a claim were successful, generally the offending prisoner would not have assets to pay compensation to the injured prisoner. Consequently, it is often not practical to bring this type of claim and the injured prisoner is better placed to bring a negligence claim against the prison authority for failing to prevent them from harm.

CLAIMS AGAINST PRISON OFFICERS

In order to operate a prison effectively, prison authorities and their officers are granted certain powers. One of these powers is the ability to use reasonable force to compel a prisoner to comply with a legitimate order. Prison officers and authorities are not liable for any personal injury caused to a prisoner when exercising this power.^[7]

However, where a prison officer acts outside this power, there is a basis to bring a personal injury claim. Often these claims will argue that the force used by the prison officer in the circumstances was excessive and therefore an abuse of power. If the abuse of power was intentional, than an intentional tort claim can be brought against the prison officer. Alternatively, if the abuse of power was negligent or careless, then a negligence claim can be brought. Often these cases argue both intentional and negligent abuse of power. Technically, if operating outside the scope of their power, prison officers are personally liable to pay the prisoner compensation for their loss. However, in these types of claims, the prison authority will often indemnify the officer.

TIME LIMITS

It is also important to remember that prisoners have three years from the date they discover that their injury is caused by the fault of another to bring a personal injury claim. This time limit applies to both negligence and intentional tort claims. If the prisoner is out of time, they may apply for an extension, but this often involves additional costs.

LEGAL COSTS OF BRINGING A CLAIM

Often lawyers who assist with personal injury claims act on a no-win no-fee basis. This means that legal fees will not be charged unless the prisoner’s claim is successful.

The exception to the no-win no-fee arrangement is that prisoners will have to pay disbursements regardless of whether or not they are successful. Often a prisoner will not have the means to pay disbursements and will require a litigation funder in order to bring a personal injury claim.

PRISONER COMPENSATION QUARANTINE FUND

If a prisoner brings a personal injury claim and is successful in receiving compensation of more than $10,000 the compensation must be held in the Prisoner Compensation Quarantine Fund (Quarantine Fund) for at least 12 months. During this period the prisoner will not be able to access the compensation.^[8]

A public notice is then published alerting the community that the prisoner has received an award of compensation. If the prisoner has direct victims of their crime who have requested to be on the Victims Register those victims will also be directly notified of the award.

Any victims of the prisoner’s crime will then have an opportunity to bring their own legal claim against the prisoner for their injuries and any loss suffered as a result of the crime the prisoner committed against them. If the victim is successful in their claim the compensation awarded to them will be paid out of the money held in the Quarantine Fund.

Compensation is not automatically awarded to victims – they must take steps to bring a legal claim against the prisoner. There are often practical difficulties for victims in accessing compensation even with the existence of the Quarantine Fund, including overcoming statute of limitations issues. Also, given that the funds awarded to prisoners are often quite modest there is a risk that if a victim brings a claim and is successful, a large portion of the compensation held in the Quarantine Fund will be absorbed by the legal fees involved in bringing the victim’s claim. According to the State of Victoria’s Victims of Crime website, large compensation payments to prisoners are rare. On average, in Victoria only two awards of compensation worth $10,000 or more are made per year.^[9]

Earlier this year, the Sentencing Advisory Council published an Issues and Options paper regarding Restitution and Compensation Orders. According to this paper, since the Prisoner Compensation Quarantine Fund scheme commenced in September 2008, 15 prisoners have had money quarantined in the fund. However, data provided to the Council indicated that only five victims had been paid compensation or restitution out of the fund.^[10]

RECENT AMENDMENTS TO THE WRONGS ACT

In June 2015, the Wrongs Act was amended in response to a high-profile personal injury claim brought by Roberta Williams against Corrections Victoria in relation to the psychological injury she suffered as a result of her ex-husband, Carl Williams, being beaten to death in prison (the Wrongs Amendment (Prisoner Related Compensation) Act 2015). The legislative changes provide that compensation for pain and suffering must be reduced where a personal injury claim is brought by:

1. a claimant who has suffered a psychological injury or ‘mental harm’ because a prisoner has been injured or killed in prison; and

2. that claimant has been convicted of an offence as an adult.

The legislation is unclear as to whether compensation must be reduced in circumstances where the ‘claimant’ and the prisoner are the same person. Given the context of the amendments, the answer is likely to be no, although this has yet to be tested in the courts.

CONCLUSION

It is important to inform prisoners early about the Prisoner Compensation Quarantine Fund, as it can often influence whether they wish to pursue a personal injury claim arising out of their time in prison.

While intentional tort claims are open to prisoners, practically speaking, negligence claims against a prison authority are a more effective means of obtaining compensation. In bringing a negligence claim, the prisoner must show that they have a significant injury, and there must be sufficient evidence to make out that the prison authority failed to provide reasonable care.

Due to these factors, successful prisoner personal injury claims are not as common as one might expect.

Kirsty Osborne is a lawyer with Adviceline Injury Lawyers who practices in workers’ compensation, public liability and crimes compensation. Kirsty assists clients in Melbourne and the Latrobe Valley. Kirsty also volunteers her time to the Women’s Legal Service and has a strong commitment to pro bono work. EMAIL [e-mail].

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^[1] Note that the position may be different in other jurisdictions.

^[2] Wrongs Act 1958 (Vic), s28LW(2)(b).

^[3] Wrongs Act 1958 (Vic), s28LO.

^[4] New South Wales v Bujdoso [2005] HCA 76, [44].

^[5] Cekan v Haines (1990) 21 NSWLR 296.

^[6] See New South Wales v Bujdoso [2005] HCA 76; Cekan v Haines (1990) 21 NSWLR 296.

^[7] See Corrections Act 1986 (Vic), s9CB.

^[8] See Corrections Act 1986 (Vic), Part 9C.

^[9] State of Victoria, ‘Compensation from the offender’, Victims of crime (2018) <https://www.victimsofcrime.vic.gov.au/going-to-court/compensation-from-the-offender>.

^[10] Victoria State Government, Sentencing Advisory Council, ‘Restitution and compensation orders: Issues and options paper’ (March 2018).