State of New South Wales v Bujdoso

The Court of Appeal of New South Wales considered an appeal by the State of New South Wales against a decision concerning the liability of the State for failing to prevent harm to the respondent, Mr. Bujdoso, from the intentional acts of a third party. The central dispute revolved around the application of the *Civil Liability Act 2002* (NSW) to Mr. Bujdoso's claim for damages.

The primary legal issues before the court were: first, whether the State's liability for negligently failing to prevent harm from the intentional acts of a third party fell within the exclusion in section 3B(1)(a) of the *Civil Liability Act 2002* (NSW), which exempts liability for an intentional act done with intent to cause injury or death; and second, the retrospective operation of sections 26A and 26B of the Act, particularly concerning the definition of "offender in custody" and the effect of clauses 20, 21, and 26 of Schedule 1. The court also considered the meaning of "finally determined" in clause 26(4) of Schedule 1 and whether an award of damages payable by the State was available as a victim trust fund under section 26L of the Act.

The Court of Appeal reasoned that the State's liability did not arise from an intentional act done by the State with intent to cause injury or death, but rather from negligence in failing to prevent harm caused by a third party's intentional act. Therefore, section 3B(1)(a) did not apply to exclude the claim. Regarding the retrospective provisions, the court found that the appeal was not "finally determined" before the commencement of the relevant provisions, meaning the new definitions and provisions applied. The court also determined that section 26L did not create a victim trust fund in the circumstances of this case.

Consequently, the Court of Appeal granted the appellant leave to amend its notice of appeal but ultimately dismissed the appeal. The parties were granted leave to file further submissions on costs if they were unable to agree within 14 days.