Part 2A Special provisions for offenders in custody
(1) In this Part:CAS Act means the Crimes (Administration of Sentences) Act 1999.
injury means personal injury and includes the following:
(a) impairment of a person’s physical or mental condition,(b) disease.offender in custody or offender means each of the following:
(a) an inmate within the meaning of the CAS Act, namely a person to whom Part 2 (Imprisonment by way of full-time detention) of that Act applies,(b) an offender within the meaning of Part 3 (Imprisonment by way of intensive correction in the community) of the CAS Act,(c) an offender within the meaning of Part 4 (Imprisonment by way of home detention) of the CAS Act,(d) a detainee under the Children (Detention Centres) Act 1987,(e) a person performing community service work under, or attending a place in compliance with the requirements of, a community service order or children’s community service order, as provided by the CAS Act or the Children (Community Service Orders) Act 1987, whether or not the person is an offender in custody under any other paragraph of this definition,(f) a person in custody who is in the keeping of a correctional officer, as provided by Part 13 (Custody of persons during proceedings) of the CAS Act.personal injury damages means damages that relate to the death of or injury to a person.
protected defendant means each of the following:
(a) the Crown (within the meaning of the Crown Proceedings Act 1988) and its servants,(b) a Government department and members of staff of a Government department,(c) a public health organisation (within the meaning of the Health Services Act 1997) and members of staff of a public health organisation,(d) any person having public official functions or acting in a public official capacity (whether or not employed as a public official), but only in relation to the exercise of the person’s public official functions,(e) a management company or submanagement company (within the meaning of the CAS Act) and members of staff of such a company.(2) (Repealed)
(1) This Part applies to and in respect of an award of personal injury damages against a protected defendant in respect of:(a) an injury to a person received while the person was an offender in custody, or(b) the death of a person resulting from or caused by an injury to the person received while the person was an offender in custody,being an injury caused by the negligence (that is, the failure to exercise reasonable care and skill) of the protected defendant or caused by the tort (whether or not negligence) of another person for whose tort the protected defendant is vicariously liable.(2) This Part does not apply to:(a) an award of damages pursuant to an action under the Compensation to Relatives Act 1897, or(b) an award of damages for mental harm (within the meaning of Part 3) to a person who was not an offender in custody at the time of the incident that resulted in the mental harm.(3) Part 2 is subject to this Part.(4) Section 19 (Third party contributions) extends to an award of damages to which this Part applies as if that section were a provision of this Part.(5) A reference in Divisions 2–5 to an offender includes a reference to a person who, subsequent to the injury concerned, ceases to be an offender.
Division 1A Duties of claimant for offender damages
26BA Protected defendant must be given notice of incident giving rise to claim
(1) A person (referred to in this Division as a claimant) who makes or is entitled to make a claim against a protected defendant for an award of personal injury damages to which this Part applies must give the protected defendant notice of the incident that gives rise to the claim within 6 months after the relevant date for the claim.(2) The relevant date for the claim is the date of the incident that gives rise to the claim unless the claim is made in respect of the death of a person, in which case the relevant date is the date of the person’s death.(3) Notice of an incident must be in writing and must:(a) specify the date of the incident, and(b) describe the incident (in ordinary language), and(c) state that the incident may give rise to a claim against the protected defendant.(4) Notice given to an officer or employee of a protected defendant is taken to have been given to the protected defendant.(5) Time does not run for the purposes of this section while the claimant is a vulnerable offender under section 26BC.
26BB Claimant must comply with requests for information
(1) A claimant must comply with any reasonable request by the protected defendant to furnish specified information, or to produce specified documents or records, for the purpose of providing the protected defendant with sufficient information:(a) to be satisfied as to the validity of the claim and, in particular, to assess whether the claim or any part of the claim may be fraudulent, and(b) to be able to make an early assessment of liability, and(c) to be able to make an informed offer of settlement.(2) The reasonableness of a request under this section may be assessed having regard to criteria including the following:(a) the amount of time the claimant needs to comply with the request,(b) whether the information sought is cogent and relevant to a determination of liability or quantum of loss, having regard to the nature of the claim,(c) the amount of information that has already been supplied to or is available to the protected defendant to enable liability and quantum of loss to be assessed and an offer of settlement made,(d) how onerous it will be for the claimant to comply with the request,(e) whether the information is privileged,(f) whether the information sought is sufficiently specified,(g) the time of the request and whether the claimant will be delayed in commencing proceedings by complying with the request.(3) A claimant is not required to comply with a requirement under this section while the claimant is a vulnerable offender under section 26BC.(4) The duty under this section applies only until court proceedings are commenced.
(1) An offender in custody is considered to be a vulnerable offender for the purposes of this Division if:(a) the offender has a reasonable apprehension that the offender’s safety will be put at risk if the offender gives notice as required by section 26BA or complies with a request of the protected defendant under section 26BB, and(b) the offender has (as a result of that reasonable apprehension) applied to be placed in protective custody or transferred to another correctional facility.(2) The offender ceases to be a vulnerable offender when any of the following happens:(a) the offender is transferred to another correctional facility or placed in protective custody in response to the offender’s application,(b) the offender declines an offer to be transferred to another correctional facility or be placed in protective custody in response to the offender’s application,(c) the offender’s application is rejected on the ground that the offender has failed to establish that the application is made on reasonable grounds.
26BD Dismissal of court proceedings for failure to give notice or co-operate on claim
(1) A protected defendant against whom court proceedings for an award of damages to which this Part applies are commenced may apply to the court to have the proceedings dismissed on the grounds of a failure to comply with section 26BA or 26BB in connection with the claim concerned.(2) An application under this section cannot be made more than 2 months after the statement of claim is served on the protected defendant.(3) On an application under this section, the court must dismiss the proceedings unless the court is satisfied that:(a) section 26BA has been complied with in respect of the claim or the claimant has a full and satisfactory explanation for non-compliance with that section and the required notice of the incident was given to the protected defendant within a reasonable period in the circumstances, and(b) the claimant has complied with section 26BB in respect of the claim or has a reasonable excuse for any non-compliance with that section.
Division 2 Damages subject to 15% permanent impairment threshold
26C No damages unless permanent impairment of at least 15%
No damages may be awarded (whether for economic or non-economic loss) unless the injury results in the death of the offender or in a degree of permanent impairment of the offender that is at least 15%.
26D Assessment of permanent impairment
(1) The degree of permanent impairment that results from an injury is to be assessed as provided by this Part and Part 7 (Medical assessment) of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 WC Act).(2) Part 7 of Chapter 7 of the 1998 WC Act extends to an assessment of degree of permanent impairment for the purposes of this Part and for that purpose applies as if:(a) an assessment under this Part were an assessment under and for the purposes of that Part of the 1998 WC Act, and(b) a reference in that Part of the 1998 WC Act to a worker were a reference to an offender, and(c) a reference in that Part of the 1998 WC Act to a worker’s employer were a reference to the Crown, and(d) section 330 (Costs of medical assessment) of the 1998 WC Act were omitted from that Part, and(e) a reference in that Part to the WorkCover Guidelines were a reference to guidelines issued under subsection (2A), and(f) the provisions of that Part applied with such other modifications as may be prescribed by the regulations.(2A) The Minister administering the CAS Act may, by order published in the Gazette, issue guidelines for the purposes of the application of Part 7 of Chapter 7 of the 1998 WC Act to offenders in respect of the same kinds of matters for which the WorkCover Guidelines may make provision for the purposes of that Part.Note. The Minister may amend or repeal an order made under this subsection. See section 43 of the Interpretation Act 1987.(2B) Without limiting subsection (2A), an order made under that subsection may apply, adopt or incorporate (whether wholly or in part or with or without modifications) the provisions of the WorkCover Guidelines, either as published or as in force from time to time.(2C) Sections 40 (Notice of statutory rules to be tabled) and 41 (Disallowance of statutory rules) of the Interpretation Act 1987 apply to an order made under subsection (2A) in the same way as they apply to a statutory rule.(3) If there is a dispute about the degree of permanent impairment of an injured offender, a court may not award damages unless the degree of permanent impairment has been assessed by an approved medical specialist in accordance with the 1998 WC Act.(3A) A dispute about the degree of permanent impairment of an injured offender cannot be referred for assessment unless the offender has provided the protected defendant with a medical report by a medical practitioner that assesses that the degree of permanent impairment of the injured offender is at least 15% and sets out the medical practitioner’s reasons for that assessment.(4) A court may, at any stage in proceedings on a claim for damages, refer the matter for assessment of the degree of permanent impairment by an approved medical specialist in accordance with the 1998 WC Act.(5) Section 151H (No damages unless permanent impairment of at least 15%) of the Workers Compensation Act 1987 applies for the purposes of an assessment under this Part of whether the degree of permanent impairment resulting from an injury is at least 15%.(6) In this section:modification includes an addition, omission or substitution.
WorkCover Guidelines has the same meaning as it has in the 1998 WC Act.
Division 3 Damages for economic loss
26E Damages for past or future loss of earnings
(1) This section applies to an award of damages:(a) for past economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or(b) for future economic loss due to the deprivation or impairment of earning capacity.(2) In awarding damages, the court is to disregard the amount (if any) by which the injured or deceased offender’s net weekly earnings would (but for the injury or death) have exceeded the amount that is the maximum amount of weekly payments of compensation under section 35 of the Workers Compensation Act 1987 (even though that maximum amount under that section is a maximum gross earnings amount).(3) The maximum amount of weekly payments of compensation under section 35 of the Workers Compensation Act 1987 for a future period is to be the amount that the court considers is likely to be the amount for that period having regard to the operation of Division 6 (Indexation of amounts of benefits) of Part 3 of that Act.
In awarding damages for future economic loss due to deprivation or impairment of earning capacity, the court is to disregard any earning capacity of the injured offender after age 65.
26G Future economic loss—assumption about release on parole
In making an assessment for the purposes of an award for future economic loss about future earning capacity or other events on which an award is to be based in respect of an offender eligible for release on parole, a court is to assume that the offender is likely to be released when the offender becomes eligible for release on parole.
Division 4 Damages for non-economic loss
26H Restriction on damages for non-economic loss
A court is not to award damages for non-economic loss except as permitted by this Division.
26I Non-economic loss damages limited to workers compensation amount
(1) A court may award damages for non-economic loss up to a maximum of the total amount to which a worker would be entitled as compensation under Division 4 (Compensation for non-economic loss) of Part 3 of the Workers Compensation Act 1987 if the worker had received an injury that entitled the worker to compensation under that Act and that resulted in a degree of permanent impairment that is the same as the offender’s degree of permanent impairment.(2) When determining the total amount to which a worker would be entitled as compensation under a provision of the Workers Compensation Act 1987, the amount is to be determined under the provision as it was in force when the injury to the offender was received.
Division 5 Victims support payments owed by offender
26J Authority for deduction from damages
(1) A protected defendant who is liable to pay damages to an offender pursuant to an award to which this Part applies is entitled to deduct from those damages the amount of any victim support payment required to be paid by the offender.(2) A victim support payment is an amount ordered to be paid by the offender by an order for restitution under Division 8 of Part 2 of the Victims Support and Rehabilitation Act 1996.(3) In the case of an amount ordered to be paid by the offender pursuant to a provisional order for restitution under Division 8 of Part 2 of the Victims Support and Rehabilitation Act 1996, the protected defendant may (while the provisional order is pending) withhold that amount from the damages payable to the offender.(3A) A protected defendant who withholds an amount under subsection (3) may require the NSW Trustee and Guardian to hold the amount on its behalf. However, the protected defendant must require the NSW Trustee and Guardian to hold the amount if the offender requests it.(3B) Interest is payable on an amount that is withheld under subsection (3). The amount of interest payable on the withheld amount is:(a) if the protected defendant has retained the withheld amount—the amount of interest determined in accordance with the provisions relating to interest payable under a judgment of the same amount of the Local Court in proceedings on a statement of claim under the Civil Procedure Act 2005, or(b) if the NSW Trustee and Guardian holds the withheld amount for the protected defendant—the amount of interest received by the NSW Trustee and Guardian in respect of the investment of the amount as provided by the NSW Trustee and Guardian Act 2009.(3C) If the provisional order for restitution on the basis of which an amount was withheld under subsection (3) is confirmed under the Victims Support and Rehabilitation Act 1996, any interest payable on the withheld amount under this section must be paid as follows:(a) if the NSW Trustee and Guardian holds the withheld amount for the protected defendant—the reasonable costs of the NSW Trustee and Guardian in connection with that holding are to be paid out of the interest,(b) if the amount ordered for restitution is not reduced on the confirmation—all of the interest (or remaining interest after payment of the NSW Trustee and Guardian’s costs) must be paid to the person (payee) to whom the order for restitution requires payment to be made or, if there is more than one payee, to each payee in the same proportion as corresponds to the payee’s proportion of the total amount of restitution,(c) if the amount ordered for restitution is reduced on the confirmation:(i) the offender must be paid the proportion of the interest (or remaining interest after payment of the NSW Trustee and Guardian’s costs) that corresponds to the proportion by which the withheld amount was reduced, and(ii) the rest of the interest must be paid to the payee or, if there is more than one payee, to each payee in the same proportion as corresponds to the payee’s proportion of the reduced amount.(4) The protected defendant or the NSW Trustee and Guardian (as the case may be) is to pay an amount deducted under this section to the person to whom the order for restitution requires payment be made.(5) Payment made by a protected defendant or the NSW Trustee and Guardian (as the case may be) pursuant to this section is, to the extent of the amount paid, taken to be a payment to the offender in satisfaction of the obligation to pay the damages concerned.
Division 6 Offender damages trust funds
(1) In this Division:award of damages means an award of damages by a court (including such an award pursuant to judgment entered in accordance with an agreement between the parties to a claim for damages).
offender means a person to whom an award of offender damages is made.
offender damages means personal injury damages awarded pursuant to an award to which this Part applies.
Note. For the purposes of this Division, this Part has an extended application. See Part 7 of Schedule 1.victim claim means a claim for personal injury damages in respect of:
(a) an injury to a person caused by conduct of an offender that, on the balance of probabilities, constitutes an offence, or(b) the death of a person caused by or resulting from an injury to the person caused by conduct of an offender that, on the balance of probabilities, constitutes an offence.victim trust fund means offender damages awarded to an offender that are held on trust under this Division.
(2) The definition of victim claim in this section:(a) operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned, and(b) extends to conduct of a person that would have constituted an offence if the person had not been suffering from a mental illness at the time of the conduct (whether or not the person was acquitted of an offence concerning that conduct by reason of mental illness or was found by a court not to be fit to be tried for an offence concerning that conduct by reason of such an illness).
26L Offender damages to be held in trust as victim trust fund
(1) The protected defendant liable to pay offender damages awarded to an offender is to pay those damages to the NSW Trustee and Guardian to be held in trust for the offender and paid out only as authorised by this Division.(2) Offender damages held in trust for an offender under this Division comprise a victim trust fund for victims of the offender. The protected defendant liable to pay those damages is responsible for the fund.(3) This section does not affect (and is subject to) any obligation imposed on the protected defendant by or under an enactment of the State or the Commonwealth to pay to some other person money owed or due to or held on account of the offender.Note. Section 26T also provides an exception to this section for legal costs.(4) An amount deducted or withheld from offender damages under Division 5 (Victims support payments owed by offender) is not required to be held in trust under this section.(5) An amount held in a victim trust fund for victims of an offender is:(a) not available for the payment of a creditor of the offender, and(b) not liable to be attached or taken in execution at the instance of a creditor of the offender.(6) While offender damages are held in a victim trust fund, the liability of a protected defendant to pay those damages is suspended.
26M Victim trust fund available to satisfy eligible victim claims
(1) A victim trust fund is available to satisfy victim claims against the offender concerned as provided by this Division but only if the claim is eligible to be satisfied from the victim trust fund as provided by this section.(2) A victim claim is eligible to be satisfied from a victim trust fund only if within the eligibility period for the victim trust fund:(a) the person commences proceedings on the claim in a court (or proceedings by the person on the claim are pending in a court at the beginning of the eligibility period), and(b) the person gives the protected defendant responsible for the victim trust fund notice in writing of those proceedings together with such details of those proceedings as the protected defendant may request, and(c) the person certifies to the court before which those proceedings are taken that the person is making the claim as a claim that is eligible to be satisfied from the victim trust fund.(3) The eligibility period for a victim trust fund comprising offender damages awarded to an offender is the period of 12 months following the date (the award date for those damages) on which the claim for those damages is finally determined by a court award of those damages.(4) A claim is not finally determined if:(a) any period for bringing an appeal as of right in respect of the claim has not expired (ignoring any period that may be available by way of extension of time to appeal), or(b) any appeal in respect of the claim is pending (whether or not it is an appeal brought as of right).(5) The protected defendant responsible for a victim trust fund must give the registrar of each court in which a victim claim may be brought notice of each victim claim of which the protected defendant is given notice under this section.
26N Notice to persons entitled to make victim claim
(1) The protected defendant responsible for a victim trust fund must send to each person who appears (from any information reasonably available to the protected defendant) to have a victim claim against the offender a notice in writing:(a) naming the offender and stating that there is a victim trust fund for victims of the offender, and(b) specifying the eligibility period for that victim trust fund, and(c) stating that a victim claim made within the eligibility period for the victim trust fund may be eligible to be satisfied from the victim trust fund.(1A) The notice must be sent as far as practicable within 28 days after the award date for the damages concerned (but this subsection does not prevent the notice from being sent more than 28 days after the award).(2) The notice is to be sent to a person at the address of the person last known to the protected defendant or as disclosed by any information reasonably available to the protected defendant.(3) The protected defendant may also publish such a notice in the Gazette.(4) To remove doubt, victim claim in this section includes a victim claim that can be made as a result of section 26P (Commencement of victim claims proceedings despite expiry of limitation period).(5) The Commissioner of Police is authorised to provide a protected defendant with any information in the Commissioner’s possession that the protected defendant may reasonably require for:(a) identifying and contacting persons who may have a victim claim against the offender, or(b) determining whether a person appears to have a victim claim against the offender.
26O Provision of information to persons entitled to claim
(1) A protected defendant must, in response to a request made during or within 1 month after the eligibility period for a victim trust fund by or on behalf of a person who appears to the protected defendant to be entitled to make a victim claim against the offender, provide such information as the protected defendant is reasonably able to provide concerning:(a) the award of damages to the offender and the amount of the victim trust fund, and(b) any other victim claim against the offender that may be eligible to be satisfied from the victim trust fund and of which the protected defendant has been given notice under this Division.(2) The provision of information by a protected defendant under this section:(a) is authorised despite any agreement to which the protected defendant is a party that would otherwise prohibit or restrict the disclosure of information concerning an award of offender damages, and(b) does not constitute a contravention of any such agreement.(3) A person to whom information is provided under this section must not disclose that information to any other person except for the purposes of or in connection with the taking and determination of proceedings on a victim claim against the offender concerned.Maximum penalty: 50 penalty units.
(4) Proceedings for an offence under this section may be dealt with summarily before the Local Court.
26P Commencement of victim claims proceedings despite expiry of limitation period
(1) If there is a victim trust fund for victims of an offender, an action on a cause of action to recover damages pursuant to a victim claim against the offender is (despite any provision of the Limitation Act 1969) maintainable by proceedings on the cause of action commenced during the eligibility period for the victim trust fund.(2) The right and title to damages of a person formerly having such a cause of action that has been extinguished by the expiration of a limitation period fixed by or under the Limitation Act 1969 is reinstated for the purposes of proceedings on the cause of action that are commenced during the eligibility period for the victim trust fund.(3) However, an award of damages in proceedings commenced under this section (that could not otherwise be commenced):(a) has effect only for the purpose of enabling an order to be made under this Division for the payment of the whole or a specified part of those damages out of money held in the victim trust fund concerned, and(b) cannot otherwise be enforced against the offender concerned or any property of the offender.
26Q Orders for payment of damages out of money held in trust for victims of offender
(1) A court that awards damages to a person on a victim claim against an offender may, if satisfied that the claim is eligible to be satisfied from a victim trust fund for victims of the offender, order that the whole or a specified part of those damages is to be paid out of money held in the victim trust fund.(2) Before the court orders the payment of damages out of money held in the victim trust fund, the court must consider:(a) whether there are or are likely to be other victim claims eligible to be satisfied from the victim trust fund that may be ordered to be wholly or partly satisfied by payment from the victim trust fund, and(b) the amount of the damages likely to be awarded in respect of those claims.(3) In determining the amount of any damages to be ordered to be paid out of a victim trust fund, a court must ensure that the amount ordered to be paid:(a) is fair and reasonable having regard to the existence of other claims that are eligible to be satisfied from the fund and that may be ordered to be wholly or partly satisfied by payment from the fund, and the amounts likely to be awarded in respect of those claims, and(b) does not, as a proportion of the amount of the victim trust fund, exceed the proportion that the damages awarded represents as a proportion of the total damages likely to be awarded in respect of all claims eligible to be satisfied from the fund.(4) A court may defer making an order for the payment of damages out of a victim trust fund until the court is satisfied that it is able to make a reasonable assessment of the extent of claims eligible to be satisfied from the fund.(5) The payment of an amount out of a victim trust fund in accordance with an order of a court under this section is taken to be a payment made at the direction of the offender and operates as a discharge, to the extent of the payment, of:(a) the liability of the protected defendant to pay the amount to the offender concerned as offender damages, and(b) the obligation of the NSW Trustee and Guardian to hold the amount in trust for the offender concerned.(6) An order of a court under this section is not subject to appeal except on a question of law.
26QA Court may deal with victim claim on the papers
A court is to determine a victim claim made to it without conducting a hearing unless it is satisfied that the interests of justice require that a hearing be held in the presence of the parties.
26R Payment to offender of trust fund surplus
(1) When the protected defendant responsible for a victim trust fund is satisfied that all claims eligible to be satisfied from the fund have been finally determined, the protected defendant is to make a determination of the surplus (if any) in the fund.(1A) A claim is not finally determined if:(a) any period for bringing an appeal as of right in respect of the claim has not expired (ignoring any period that may be available by way of extension of time to appeal), or(b) any appeal in respect of the claim is pending (whether or not it is an appeal brought as of right).(2) A court that awards damages to a person on a victim claim against an offender may give directions to the protected defendant concerned in respect of the determination by the protected defendant of the surplus (if any) in the victim trust fund concerned.(3) If a protected defendant responsible for a victim trust fund determines and certifies to the NSW Trustee and Guardian that there is a surplus in the fund, the NSW Trustee and Guardian must pay the certified surplus to or at the direction of the offender concerned.(4) The surplus in a victim trust fund is the amount that will remain in the fund after payment out of the fund of the following amounts:(a) the amount of all claims eligible to be satisfied from the fund that are ordered by a court under this Division to be paid out of the fund,(b) all amounts payable to the NSW Trustee and Guardian out of the fund.
26S Functions of the NSW Trustee and Guardian
(1) (Repealed)(2) Interest received by the NSW Trustee and Guardian in respect of the investment of an amount held by the NSW Trustee and Guardian under this Division is payable to and forms part of the victim trust fund of which the amount forms part.(3), (4) (Repealed)(5) The fees and expenses payable to the NSW Trustee and Guardian in connection with the exercise of functions by the NSW Trustee and Guardian under this Division are payable out of the victim trust fund in connection with which those functions are exercised.(6) The certificate of the NSW Trustee and Guardian as to the fees and expenses payable to the NSW Trustee and Guardian in connection with the exercise of functions by the NSW Trustee and Guardian under this Division is sufficient authority for the payment of the relevant amounts out of the victim trust fund concerned.
(1) This Division does not require any amount to be held in trust that is payable by the protected defendant as legal costs under an order for costs made against the protected defendant or (in the case of an award of damages that is inclusive of costs) that is reasonably attributable to the offender’s legal costs.(2) The amount reasonably attributable to the offender’s legal costs in the case of an award of damages that is inclusive of costs is the amount determined by the protected defendant on the basis of a bill for those costs provided to the protected defendant by the legal practitioner concerned.(3) If the amount determined by the protected defendant as the amount reasonably attributable to the offender’s legal costs is disputed, the protected defendant is to apply for the assessment of those costs under the Legal Profession Act 1987 or the Legal Profession Act 2004 (as if the protected defendant were liable to pay those costs as a result of an order for the payment of an unspecified amount of costs made by a court).(4) The costs of a costs assessment for the purposes of this section are payable:(a) by the offender (by deduction from the offender damages concerned), unless paragraph (b) applies, or(b) by the protected defendant if the amount of the costs as determined by the costs assessor is at least 10% more than the amount determined by the protected defendant.
26U Maximum legal costs of eligible claims
(1) The maximum costs for legal services provided to the plaintiff in connection with a victim claim that is eligible to be satisfied from a victim trust fund are fixed as follows:(a) if the amount recovered on the claim does not exceed $100,000—maximum costs are fixed at 20% of the amount recovered or $10,000, whichever is greater,(b) if the amount recovered on the claim exceeds $100,000 but does not exceed $250,000—maximum costs are fixed at 18% of the amount recovered or $20,000, whichever is greater,(c) if the amount recovered on the claim exceeds $250,000 but does not exceed $500,000—maximum costs are fixed at 16% of the amount recovered or $45,000, whichever is greater,(d) if the amount recovered on the claim exceeds $500,000—maximum costs are fixed at 15% of the amount recovered or $80,000, whichever is greater.(2) The regulations may prescribe an amount or percentage to replace any amount or percentage in subsection (1). When such a replacement amount or percentage is prescribed, it applies for the purposes of subsection (1) in place of the amount or percentage that it replaces.(3) Before the commencement of the Legal Profession Act 2004, Division 5B (Maximum costs in personal injury damages matters) of Part 11 of the Legal Profession Act 1987 applies in respect of the maximum costs for legal services provided to a plaintiff in connection with a victim claim that is eligible to be satisfied from a victim trust fund as if subsections (1) and (2) of this section were substituted for subsections (1) and (2) of section 198D of that Act.(4) After the commencement of the Legal Profession Act 2004, Division 9 (Maximum costs in personal injury damages matters) of Part 3.2 of the Legal Profession Act 2004 applies in respect of the maximum costs for legal services provided to a plaintiff in connection with a victim claim that is eligible to be satisfied from a victim trust fund as if subsections (1) and (2) of this section were substituted for subsections (1) and (2) of section 338 of that Act.(5) The amount recovered on a claim is the full amount of the damages awarded (not just the amount ordered to be paid from a victim trust fund).
(1) An act or omission by a person as a public official does not subject the person personally to any action, liability, claim or demand if the act or omission was done or omitted to be done in good faith in the administration or execution of this Division.(2) In this section:public official means:
(a) a member of staff of or agent of a protected defendant, or(b) the NSW Trustee and Guardian, or a member of staff or agent of the NSW Trustee and Guardian, when the NSW Trustee and Guardian is acting under this Division.
26W Division overrides Part 7 Division 2
Division 2 (Supervision of damages arising out of criminal conduct by persons suffering from mental illness) of Part 7 does not apply to damages required to be held in trust under this Division.
26X Limitation on exemplary, punitive and aggravated damages against protected defendant in cases of vicarious liability
(1) In an action against a protected defendant for the award of personal injury damages where the act or omission that caused the injury or death was a tort (whether or not negligence) of a person for whose tort the protected defendant is vicariously liable, a court cannot award exemplary or punitive damages or damages in the nature of aggravated damages.(2) Subsection (1) does not limit the application of section 21 to actions for the award of personal injury damages to which this Part applies.Note. Section 21 provides that a court cannot award exemplary or punitive damages or damages in the nature of aggravated damages in an action for the award of personal injury damages where the act or omission that caused the injury or death was negligence.