STATE OF NEW SOUTH WALES v CORBY [2010] NSWCA 27

Reported Decision: 76 NSWLR 439

New South Wales Court of Appeal

CITATION: STATE OF NEW SOUTH WALES v CORBY [2010] NSWCA 27

HEARING DATE(S): 12 February 2010

JUDGMENT DATE: 3 March 2010

JUDGMENT OF: Beazley JA at 1; Tobias JA at 2; Basten JA at 3

(1) Grant leave to appeal on condition that the State pay the respondent's costs in this Court in any event. (2) Appeal allowed in part and orders in the District Court made on 5 June 2009 set aside. (3) In place thereof, DECISION: (a) declare that the plaintiff, absent satisfaction of the requirement of s 26C of the Civil Liability Act, cannot recover compensatory damages (including aggravated damages) but may maintain a claim for exemplary damages, (b) grant the plaintiff leave to amend his pleading, and (c) otherwise dismiss the defendant's motion. (4) Order that the State pay the respondent's costs of the proceedings in this Court.

CATCHWORDS: TORTS – damages – aggravated and exemplary – intentional tort – injury to offender in custody – recovery of personal injury damages prohibited in circumstances where permanent impairment less than 15% – whether aggravated and exemplary damages constitute personal injury damages – Civil Liability Act 2002 (NSW), ss 3B, 26B, 26C - WORDS & PHRASES – "aggravated damages" – "exemplary damages" – "offender in custody" – "personal injury damages"

Civil Liability Act 2002 (NSW), ss 3, 3B, 4, 9, 11, 15, 21, 26A, 26B, 26C, 31; Pt 2A; Sch 1, Pt 11, cll 34, 36 LEGISLATION CITED: Civil Liability Legislation Amendment Act 2008 (NSW), Sch 1 [5] Interpretation Act 1987 (NSW), s 33 Workers Compensation Act 1987 (NSW), ss 151, 151R