A prisoner who suffered injuries after being assaulted by a fellow prisoner and cellmate, and who sued the State of Victoria in negligence, has been awarded a total of $125,000 in general damages.
On 12 January 2015, the then 39-year-old Dylan Hartwick was arrested and held in custody. He was transferred to the Metropolitan Assessment Prison (MAP) and was allocated to a three bed shared cell. A few days later another prisoner with a known history of mental instability and a potential for erratic and aggressive behaviour (“the assailant”) was placed in the cell with Mr Hartwick and another prisoner.
In the early hours of 20 January 2015, the assailant stabbed Mr Hartwick multiple times in the face, head and arm with a metal butter knife.
In June 2015 after being released on bail, Mr Hartwick started seeing another woman. Early one morning his ex-wife drove to his home and a fracas occurred. His ex-wife started ramming her car into the back of his female friend’s car and Mr Hartwick became jammed between the car and a house, suffering a fractured right tibia.
Mr Hartwick commenced proceedings against the State of Victoria, in negligence and claimed damages. He alleged that the assault and his injuries were a result of negligence on behalf of the State. The State admitted negligence and the matter proceeded as an assessment of damages, limited to general damages only. In addition, Mr Hartwick also claimed damages in relation to psychological injuries flowing from the assault, which was disputed. The State argued that the motor vehicle accident in June 2015 contributed to the psychological injuries.
His Honour Dyer J accepted the medical evidence that Mr Hartwick sustained a permanent injury to the trigeminal nerve with numbness and frequent nerve pain, recurrent headaches, and scarring. Further, that Mr Hartwick suffered post-traumatic stress disorder and unspecified anxiety disorder, with the cause being a combination of his early developmental life, past and ongoing relationship issues, assault in gaol, and the assault incident with a motor vehicle.
Given the issue as to the extent to which Mr Hartwick’s psychological injuries can be said to be caused by the prison assault, Dyer J reduced the assessment of general damages by 60% to take account of the subsequent motor vehicle incident and other unrelated factors.
Accordingly, Dyer J awarded general damages in the total sum of $125,000, which included $65,000 for the physical injuries and $60,000 for the psychological effects taking into account a discount of 60%.
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This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au
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