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Medical: Delayed diagnosis in a prison setting.


Mindemir v Correct Care Australasia & Anor [2022] VCC 1189 (on JADE).

Whilst in custody at both Port Phillip Prison and in Marngoneet Correctional Centre, the plaintiff exhibited symptoms consistent with an underlying condition of cancer. It was not until a significant time after his complaints of various symptoms that the plaintiff was diagnosed with metastatic urothelial carcinoma.

The proceeding settled as against the third and fourth defendants.  Pursuant to the settlement terms, the plaintiff was to receive the amount of $500,000 plus costs (“the settlement sum”).  The settlement sum comprised of damages for pain and suffering, loss of earnings and gratuitous care.

Although the proceeding had settled, there was an outstanding issue to be resolved: namely, whether the settlement sum must be disbursed in accordance with Part 9C of the Corrections Act 1986 (“the Act”). In broad terms, the Act provides that in certain circumstances damages awarded to prisoners must be quarantined for a period of time so as to preserve the funds, in case victims of the crimes perpetrated against them by the prisoner, or creditors of the prisoner, wish to bring proceedings against the prisoner to recover damages.

The Court held at [48]:

In my judgment, paragraph (c) of the definition of “civil wrong” requires that there be a causal nexus between the negligence and the plaintiff’s detention in custody.  In this case I am persuaded that the defendants’ negligence arose out of and in connection with the plaintiff’s detention in custody in prison.

And at [52]:

I am satisfied that the causal nexus required by paragraph (c) of the definition of “civil wrong” is met for the following reasons:

(a)   the defendants’ negligence occurred as a direct consequence of the plaintiff’s detention in custody in a prison;

(b)   the prison was required to provide competent medical care to the plaintiff.  That duty arose because of the plaintiff’s status as a prisoner in the custody and under the control of the defendants;

(c)   the defendants’ involvement in the plaintiff’s medical care arose because the plaintiff was a prisoner and the defendants, as sub-contractors, were contractually bound to provide that care and treatment to the plaintiff;

(d)   the defendants’ failure to provide competent medical care to the plaintiff, a person to whom the duty of care was owed, arose only because the plaintiff was imprisoned and because the prisons engaged the defendants to discharge the prisons’ duty to provide for the welfare of its prisoners, including the plaintiff.

The following general comments appear at [54]:

Parliament intended to strike a balance between the rights of victims of crime and the need to ensure that a prisoner’s ongoing costs of medical treatment and care are provided for.  On the one hand Parliament intended that the ability of victims to obtain compensation should be enhanced; however, on the other hand it also sought to safeguard from quarantine funds referable to medical and ongoing care costs and funds referable to legal costs and fees.[16]  In any event, the scheme does not seek to deprive prisoners of awards of damages forever.  Funds are quarantined for a limited period of time.  A prisoner will be entitled to the proceeds of the award of damages if there are no relevant notifications made within time, or to the balance of any proceeds remaining after any successful claims are paid out of the quarantined funds.

However in all the circumstances, neither the third nor the fourth defendants (Correct Care and St Vincent’s Hospital) could be classified as a “contractor” for the purposes of Part 9C of the Act. Therefore, neither of them is included in the definition of “State” for that Part. It is not open to find that this is a case of a “civil wrong” as defined in s104O of the Act because the relevant acts or omissions that gave rise to the plaintiff’s claim were neither acts nor omissions of the “State” as also defined in that section.

Accordingly the Court ruled that the settlement sum was not subject to the provisions of Part 9C of the Act.

[BillMaddensWordpress #2017]


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