Injury and compensation

The NSW Government has announced 'in principle' support to recommendations in the report [PDF] by the Honourable Michael Campbell QC, a retired Supreme Court judge, regarding compensation for women who lose an unborn child as a result of a criminal act.

The report follows an incident in which a NSW woman lost her unborn child after being hit by a vehicle whose driver was charged with multiple offences, including aggravated dangerous driving causing grievous bodily harm. NSW Attorney General John Hatzistergos indicated that -

After the incident, the Government appointed the Honourable Michael Campbell QC to undertake a review of laws to determine if current offences allow the justice system to respond appropriately.

The Campbell Report concludes that the current offence provisions and sentences do allow the justice system to respond appropriately to criminal behaviour that leads to the death of a foetus.

For example, as a result of the 2005 legal change known as 'Byron's Law', a person who deliberately inflicts grievous bodily harm upon a pregnant woman, causing the destruction of a foetus, faces 25 years in jail – the same maximum as manslaughter.

The severity of the sentence gives recognition to the trauma suffered by expectant mothers who lose an unborn child as a result of being a victim of crime.

The 2005 change to the Crimes Act 1900 (NSW), through the Crimes Amendment (Grievous Bodily Harm) Act 2005 (NSW) codified the decision in R v King (2003) NSWCCA 399.

In that decision the court held that an injury causing the destruction of a foetus could constitute infliction of grievous bodily harm upon the mother. The subsequent codification amended the statutory definition of grievous bodily harm to include "the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm".

The Campbell Report recommends that consideration be given to -

- amending the Victims Support & Rehabilitation Act 1995 (NSW) to include the loss of a foetus, so as to provide for compensation to victims who lose an unborn child as a result of a criminal act; and,

- establishing a scheme to provide for the payment of the funeral costs of a stillborn child, in certain circumstances, lost as a result of a criminal act.

A woman who loses a foetus as a result of criminal conduct could receive victims' compensation without the need to establish psychological injury.