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Wrongs Amendment (Prisoner Related Compensation) Bill 2015

 Wrongs Amendment (Prisoner Related
      Compensation) Bill 2015

                         Introduction Print


               EXPLANATORY MEMORANDUM


                                  General
The Wrongs Amendment (Prisoner Related Compensation) Bill 2015 amends
the Wrongs Act 1958.
The aim of the Bill is to restrict the amount of damages that may be awarded
for non-economic loss in respect of mental harm caused by the death or
injury of a prisoner if as an adult the claimant has been convicted of an
offence.

                                Background
The Bill inserts a new Part VBAA into the Wrongs Act 1958 which requires
the jury or the court (as the case requires) to reduce the award of damages for
non-economic loss in respect of mental harm caused by the death or injury of
a prisoner where the claimant has criminal convictions.

                                Clause Notes
Clause 1    provides that the purpose of the Bill is to amend the Wrongs Act
            1958 to restrict the amount of damages that may be awarded for
            non-economic loss in respect of mental harm caused by the death
            or injury of a prisoner if as an adult the claimant has been
            convicted of an offence, in particular, a profit motivated offence.

Clause 2    provides that the Bill will come into operation on the day after
            the day on which it receives the Royal Assent.




581032                                 1       BILL LA INTRODUCTION 4/5/2015

 


 

Clause 3 inserts new Part VBAA, containing new sections 28LAD, 28LAE, 28LAF, 28LAG and 28LAH, into the Wrongs Act 1958. New section 28LAD sets out the definitions of various terms used in the Bill. The definitions are-- claimant means a person who makes, or is entitled to make, a claim for the recovery of damages for non-economic loss in respect of mental harm caused by the death or injury of a prisoner; court is defined to include a tribunal, and, in relation to a claim for damages, means any court or tribunal by or before which the claim falls to be determined; criminal record is defined to mean a document that sets out-- · all the person's previous convictions; and · in relation to each previous conviction, the date of the conviction, the court in which the conviction took place, the place of sitting of that court, the offence committed and the sentence imposed; Crown Prosecutor has the same meaning as in the Criminal Procedure Act 2009; damages includes any form of monetary compensation; legal practitioner has the same meaning as in the Criminal Procedure Act 2009; mental harm means psychological or psychiatric injury; non-economic loss means any one or more of the following-- · pain and suffering; · loss of amenities of life; · loss of enjoyment of life; police officer has the same meaning as in the Victoria Police Act 2013; prisoner is defined to mean a person referred to in section 28LAE(1)(a), that is, a person who is the subject of-- · a sentence of imprisonment; 2

 


 

· a preventative detention order within the meaning of the Terrorism (Community Protection) Act 2003 or an order for a person's detention made under a corresponding preventative detention law within the meaning of the Act; or · a detention order or interim detention order within the meaning of the Serious Sex Offenders (Detention and Supervision) Act 2009. This definition does not extend to a person who has not been convicted of an offence but who is temporarily in police custody; profit motivated offence means an offence referred to in Schedule 2 to the Confiscation Act 1997, as qualified by any circumstances or thresholds that are specified in relation to that offence. For example, Schedule 2 to the Confiscation Act 1997 specifies theft where the stolen property has a value equal to or greater than the threshold specified in clause (2)(c) of that Schedule. Convictions for theft where the stolen property has a value of less than that threshold will not be covered by the definition of profit motivated offence. New section 28LAE provides that Part VBAA applies to an award of damages for non-economic loss in respect of mental harm if the mental harm is caused by the death or injury of a person who was a prisoner (as defined in this section) when the death or injury occurred and the claimant, as an adult, has been convicted of an offence. A person who is under the age of 18 years will therefore not be affected by the Part, nor will an adult who has only juvenile offences. New section 28LAF provides for the assessment of damages under Part VBAA and sets out the factors to which the jury or the court must have consideration. New section 28LAF(1) provides that the jury or the court if the trial is without a jury must consider the relevant factors, and having regard to those factors reduce the amount of damages. In the case of a claimant who has been convicted of an offence other than a profit motivated offence, the reduction must be by a percentage that the jury or the court considers appropriate. Where the claimant has been convicted of a profit motivated offence, the reduction must be of an amount that the jury or the court considers appropriate, being a percentage that is not less than 90 per cent. 3

 


 

New section 28LAF(2) sets out the factors that must be considered when making the reduction. The factors are-- · the number and seriousness of the claimant's previous convictions; and · the nature of the relationship between the claimant and the prisoner including any agreement, arrangement or understanding with respect to criminal activity; and · the relationship (if any) between the conduct constituting an offence for which the claimant has been convicted and the conduct constituting an offence for which the prisoner has been convicted; and · the claimant's character, behaviour or attitude at any time, whether before, during or after the commission of an offence for which the claimant has been convicted, including any evidence of rehabilitation, remorse or subsequent offending; and · any other factor that the court considers relevant. New section 28LAF(3) clarifies that the jury or the court may make a reduction of 100 per cent, which would result in the claim for damages being defeated. New section 28LAF(4) requires that the jury or the court specify the percentage by which the amount of damages is reduced under Part VBAA. New section 28LAF(5) provides that, except as provided by Part VBAA, nothing in the Part affects any other law relating to the discounting of sums awarded as damages. New section 28LAG provides that, for the purposes of Part VBAA, the court may require the production of a claimant's criminal record. A claimant's criminal record is inadmissible as evidence unless it is signed by a police officer, a Crown Prosecutor, or a member of staff of the Office of Public Prosecutions who is a legal practitioner. 4

 


 

New section 28LAH is a transitional provision. It provides that Part VBAA applies to an award of damages irrespective of when the act or omission causing the death or injury and giving rise to the claim for the recovery of damages occurred. Section 28LAH also provides that Part VBAA has retroactive operation, and applies to an award of damages in a proceeding that immediately before the commencement of the Bill has been commenced but has not been finally determined. Clause 4 provides that the Bill will be repealed on the first anniversary of its commencement. 5

 


 

 


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