New South Wales v Corby

The New South Wales Court of Appeal considered an appeal by the State of New South Wales against a District Court decision concerning damages awarded to an offender in custody. The dispute arose from an intentional tort committed against the respondent while he was in custody, leading to a claim for damages. The central issue revolved around the application of provisions within the *Civil Liability Act 2002* (NSW) that restrict the recovery of personal injury damages in certain circumstances.

The Court was required to determine whether aggravated and exemplary damages should be characterised as "personal injury damages" for the purposes of the *Civil Liability Act 2002* (NSW). Specifically, the Court had to consider whether the prohibition on recovering personal injury damages, where the permanent impairment is less than 15%, extended to these categories of damages, and whether an offender in custody could maintain a claim for exemplary damages independently of compensatory damages.

The Court reasoned that while aggravated damages are compensatory in nature and thus fall within the definition of "personal injury damages" for the purposes of the Act, exemplary damages serve a different purpose, being punitive rather than compensatory. Consequently, the prohibition under section 26C of the *Civil Liability Act 2002* (NSW) did not apply to exemplary damages. The Court held that the plaintiff could not recover compensatory damages, including aggravated damages, unless the threshold of 15% permanent impairment was met, but could still pursue a claim for exemplary damages.

The Court of Appeal allowed the appeal in part, setting aside the District Court orders. It declared that the plaintiff could not recover compensatory damages, including aggravated damages, absent satisfaction of the requirements of section 26C of the *Civil Liability Act*, but could maintain a claim for exemplary damages. Leave was granted to amend the plaintiff's pleading, and the defendant's motion was otherwise dismissed. The State was ordered to pay the respondent's costs of the proceedings in the Court of Appeal.