Negligence - Administration of prisons - Assault by one prisoner on another - Claim against State as employer of prison officers - Whether State a "person" within the meaning of s 111 Prisons Act 1981 - State vicariously liable for actions of prison officers - Whether claim barred by s 111 - Whether State breached duty of care owed to prisoner

Prisons Act 1981, s 111

Broom v Morgan [1953] 1 QB 597

Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714

Darling Island Stevedoring and Lighterage Co v Long [1957] HCA 26; (1957) 97 CLR 36

Dixon v The State of Western Australia [1974] WAR 65

Hall v Whatmore [1961] VicRp 35; [1961] VR 225

Howard v Jarvis [1958] HCA 19; (1958) 98 CLR 177

Klavins v The State of Western Australia, unreported; DCt of WA; Library No D970212; 9 June 1997

McGraw-Hinds (Aust) Pty Ltd v Smith [1979] HCA 19; (1978-1979) 144 CLR 633

Nada v Knight, unreported; FCt SCt of WA; Library No 8050; 8 February 1990

Parker v The Commonwealth [1965] HCA 12; (1965) 112 CLR 295

Madras Electric Supply Corporation Ld v Boarland [1955] AC 667

Puntoriero v Water Administration Ministerial Corporation [1999] HCA 45; (1999) 165 ALR 337

1 COMMISSIONER LEY: This is an action for damages for negligence brought by the plaintiff who, at the time of the trial, was an inmate of Albany Regional Prison but who was, at the time of the events the subject of these proceedings, an inmate of Casuarina Prison ("the Prison"). The action is brought against the first defendant, the State of Western Australia, which, it is alleged, at the material time, had the care and control of the Prison and employed the prison officers at the Prison. The action is also brought against the second defendant who, at the material time, was also an inmate of the Prison.

2 The plaintiff alleges that, on 3 February 1995, he was in his cell at the Special Handling Unit at the Prison ("the SHU") when the second defendant came into the cell and struck him repeatedly about the head with his fists, causing the plaintiff to suffer injury. The plaintiff alleges that the first defendant owed him a duty of care while he was incarcerated at the Prison and breached that duty of care by failing to take certain pleaded precautions to prevent the second defendant from assaulting the plaintiff. It is on the basis of that allegation of the breach of the duty of care that the plaintiff claims damages from the first defendant for his injuries.

3 The claim against the second defendant is not particularly clear on the face of the statement of claim. It seems to be characterised as a claim for damages for negligence but, on the facts, that cannot be. It can only really be a claim for damages for trespass for the assault.

4 In any event, the claim against the second defendant did not proceed at the trial. I was told that the proceedings against the second defendant had been stayed pursuant to an order made by Deputy Registrar Hewitt in chambers on 30 April 1997 and no attempt was made to have that order set aside so that the plaintiff could proceed against the second defendant.

5 I was also told at the trial that the quantum of the plaintiff's damages, at least as between the plaintiff and the first defendant, had been agreed between the plaintiff and the first defendant. Therefore, the trial was effectively a trial of the issue of the first defendant's liability to the plaintiff only.

6 In the statement of claim, after alleging that the first defendant owed him a duty of care, the plaintiff alleges that the first defendant breached that duty by:

(a) failing to monitor, supervise and exercise control over the movements and activities in the SRU area and in particular the movements and activities of the second defendant;

(b) failing to warn or properly advise the plaintiff that because of certain circumstances, the second defendant in order to placate a feeling of betrayal by his peers was likely to seek out and exact a revenge on the inmates in the SRU and in particular the plaintiff;

(c) failing to reassure the second defendant that a special operations search conducted by the first defendant on 2 February 1995 was made not as a result of any complaint or advices from the plaintiff.

(a) admits that it was the employer of the prison officers at the Prison;

(b) says that the Prison is a prison within the meaning of the Prisons Act 1981 ("the Act");

(c) says that by s 16 of the Act the plaintiff and the second defendant were at all material times in the custody of the Chief Executive Officer of the Prison;

(d) admits that it owed the plaintiff a duty to take reasonable care for his safety while he was an inmate of the Prison;

(e) denies that it breached its duty of care to the plaintiff;

(f) says, in the alternative, that if it did breach its duty of care, which it denies, the plaintiff was also negligent and his negligence contributed to the injuries which he suffered in the assault;

(g) says that, in any event, no action lies by the plaintiff against the first defendant by virtue of the provisions of s 111 of the Act.

8 If this last defence is made out, it will be a complete answer to the plaintiff's claim even if the plaintiff establishes that the first defendant breached its duty of care to him. For that reason, I will consider it first. However, before doing that, I will outline briefly the facts of the matter.

9 In February 1995, the plaintiff and the second defendant were both prisoners held in the SHU. The SHU, at the time, comprised two separate wings of the Prison and was the most secure unit in the Prison. It was locked off from the other parts of the Prison. Prisoners were held in the SHU if they were considered dangerous to prison officers or generally or if they had shown a propensity to escape from custody in the past. During day shift, the number of prison officers in the SHU was approximately the same as the number of prisoners.

10 In February 1995, there were six prisoners in the SHU. They were all housed in separate cells in one of the wings of the SHU. The plaintiff was in cell SA4, the second defendant was in cell SA3 and another inmate, Philip James Gleeson ("Gleeson"), was in cell SA2.

11 At approximately 10.30 am on 2 February 1995 the Metropolitan Security Unit ("the MSU") conducted a search of some of the cells in the SHU. The MSU was a specialist unit within the WA prison system which was charged with the responsibility of searching cells if it was thought that such a search was required to maintain prison security.

12 The search was conducted by the MSU without any prior warning having been given to the prisoners in the SHU, which was the usual practice. When such a search was conducted, the usual practice was for all the prisoners in the SHU to be removed from their cells and taken to another part of the SHU (usually the SHU exercise yard) until the search had been completed. It was not usual for a prisoner to be permitted to remain in his cell while a search of a cell or cells in the SHU was being conducted.

13 On this occasion, the only two cells searched were those of the second defendant and Gleeson. The second defendant was removed from his cell during the search and Gleeson saw a visitor in the visitors' section of the SHU. The plaintiff, who was involved in university studies at the time, was permitted to remain in his cell, with the door closed. The search concluded at about 12.30 pm on 2 February 1995 and the other prisoners, including the second defendant, were taken back to their cells.

14 The following day, 3 February 1995, the second defendant requested and was granted an interview with the Superintendent of the Prison, Robert William Stacey. The interview took place at about 1.40 pm in the adjudication room of the Prison. The second defendant was angry that his cell had been searched and asked Stacey why it had been searched. Stacey told the second defendant that searches in the Prison were the prerogative of the Superintendent. The second defendant then asked Stacey whether other prisoners had provided information that had caused the search. Stacey told the second defendant that, as the Superintendent of the Prison, he had the right to call a search of the SHU as a whole or any part of it whenever he chose and for whatever reason he chose. Stacey gave no indication to the second defendant that either the plaintiff or any other prisoner had provided information which had prompted the search of the second defendant's cell. At the end of the interview, the second defendant was still angry. He was escorted from the adjudication room and taken back to his cell in the SHU at about 2.00 pm.

15 At about 2.30 pm the second defendant went into the plaintiff's cell. At the time the plaintiff was sitting in his cell using a word processor. When the second defendant went into the plaintiff's cell he expressed anger towards the plaintiff and accused him of being the cause of the search of his (the second defendant's) cell on 2 February 1995.

16 No direct evidence was given of what happened next. The second defendant was not called to give evidence. The plaintiff says his next recollection is awaking on the floor of his cell bleeding profusely. Photographs taken of him shortly after the incident show significant bruising and swelling, particularly around the area of his right eye. On the evidence, I am prepared to infer that at about 2.30 pm on 3 February 1995, in the plaintiff's cell in the SHU, the second defendant assaulted the plaintiff by punching him in the head with his fists.

Prisons Act, s 111

17 Section 111 of the Act provides:

"No action or claim for damages shall lie against any person for or on account of anything done or ordered or authorised to be done by him which purports to be done for the purpose of carrying out the provisions of this Act unless it is proved that the act was done or ordered or authorised to be done maliciously and without reasonable and probable cause."

18 The effect of that provision has only been considered by a Court in this State on one previous occasion. However, a very similar provision in the New South Wales Prisons Act 1952 ("the NSW Act") was considered by the New South Wales Court of Appeal in Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714.

19 In Cowell, a former prisoner brought proceedings for false imprisonment against the Corrective Services Commission of New South Wales and the State of New South Wales on the ground that he had been confined in prison for a period longer than the law provided because his entitlement to remissions had been calculated in accordance with an incorrect interpretation of the remission provisions of the NSW Act. The Commission and the State defended the action inter alia on the ground that no action such as that brought by the plaintiff could lie against either of them because of the provisions of s 46 of the NSW Act. Section 46 was, to all intents and purposes, in identical terms to s 111 of the Act.

20 The Commission was a body established under amendments to the NSW Act passed in 1978, to administer prisons in New South Wales. Prior to the 1978 amendments, a natural person, the Commissioner for Corrective Services, had the responsibility for care and control of prisoners.

21 At first instance, the plaintiff's claim both against the Commission and against the State was dismissed. On appeal, and by a 2-1 majority, his claim against the Commission was upheld but the dismissal of his claim against the State was affirmed.

22 Clarke JA (with whom Priestley JA agreed) considered that both the prison governor who was in charge of the prison in which the plaintiff had been unlawfully detained and the Commission were directly responsible for the plaintiff's unlawful detention. He did not think that the Commission was vicariously liable for the actions of the governor, who would have been immune from suit by virtue of s 46.

23 He then considered the question of whether the Commission could avail itself of the protection of s 46. He said (at 739):

"In the light of this clear expression of intention by the legislators who set up the body corporate at the same time I am of the view that 'person' in s 46 should be interpreted no more widely than it was before 1978; that is, as applying to individuals and, perhaps, the government as a body politic. This was because no corporation was charged with the obligation of carrying out the provisions of the Act and there was no body corporate which could have sought its protection.

If the terms of the Act as they were prior to 1978 provided clear evidence of an intention not to extend the meaning of 'person' in s 46 to bodies corporate, as I believe they did, the 1978 amendments would have had to have the effect of widening the meaning of the word. There is no doubt this could have been done. Indeed if the Act, as amended, had not included Schedule 3, clause 15, then there would be a respectable argument that the amendments creating the body corporate removed the context which displaced the statutory meaning of the word.

But when those amendments contain a provision protecting individuals and not the corporation I am bound to conclude that the statutory context continued to limit the meaning of person in s 46."

24 On that basis, he held that s 46 could not be construed so as to protect the Commission from suit and held that it was liable for the plaintiff's claim. He upheld the dismissal of the action against the State on the ground that the Commission was the correct party to be sued as it was the Commission and not the State which had care and control of the prison.

25 In Nada v Knight, unreported; FCt SCt of WA; Library No 8050; 8 February 1990 the Full Court heard an appeal against a decision of this Court in which the appellant's claim for damages arising out of two separate assaults on him whilst he was a prisoner on remand at Fremantle Prison was dismissed. The claim had been brought against the Superintendent of Fremantle Prison and the State of Western Australia. However, on the hearing of the appeal, the respondents did not rely on s 111 of the Prisons Act. Pidgeon J said (at p 3):

"Mr Cock, for the respondents, made it clear at the hearing of this appeal that the State of Western Australia would not be relying on this section, the view taken by it was that the section applied to 'natural persons' and that the State of Western Australia does not come within the protection of the section. He said that the State of Western Australia also takes the view that the provision that no action or claim for damages shall lie against natural persons may not be used as a plea by the State of Western Australia that it is not vicariously responsible for the negligent acts of its employees. Mr Cock said that this is the view that has prevailed with his instructing solicitors for some time and submits that a decision of New South Wales Court of appeal in Cowell v Corrective Services Commission of New South Wales (1998) 13 NSWLR 714 gives some support for this view."

26 That was not the position taken by the first defendant in this case. In his closing submissions, counsel for the first defendant made it clear that his client's attitude to the applicability of s 111 had changed since the hearing of the appeal in Nada. He said that the first defendant now believed that it was a "person" within the meaning of s 111 and that Cowell was not an authority to the contrary.

27 The only previous occasion on which a court in this State has considered the operation of s 111 was in Klavins v The State of Western Australia, unreported; DCt of WA; Library No D970212; 9 June 1997. That was a decision by Gunning DCJ in an appeal from a decision of a Deputy Registrar who had refused an application by the defendant for an order striking out the statement of claim on the ground that s 111 provided a complete defence to the claim.

28 Klavins was a rather odd case. It was a claim by an inmate of Albany Regional Prison for damages for negligent misstatement. The plaintiff alleged that the defendant had been negligent by its servants and agents in telling the plaintiff that it was not necessary for him to be assessed in the Sexual Offenders Treatment Program for the purpose of obtaining work release six months before his sentence was due to expire. He did not participate in the program and was denied work release. He sued the defendant to recover as damages the income he would have earned had he been released six months early and had been able to work during that period.

29 Gunning DCJ allowed the appeal and struck out the statement of claim. At p 16 of his reasons he said:

"Here it is quite obvious that with all due respect to the learned Deputy Registrar when he stated 'If, therefore, I accept Cowell's Case as an authority for the proposition advanced by the defendant the consequences must be that it is not possible for a prisoner to bring an action in negligence against the Crown' he did not, or perhaps refused to, recognise the distinction between the non-delegable duty on the State, for instance, the duty of care in all its aspects and the vicarious liability for acts done such as negligent mis-statement. There does not appear to me to be any argument, nor is there any advanced, to the contrary that s 111 offers no protection to the State in the former case. As has been pointed in the latter case the State will only be liable if the individuals would themselves be liable ..."

30 The first defendant relies on Klavins but says at the same time that the approach taken by Gunning DCJ to the interpretation of the section was wrong. The first defendant says that the first question that must be asked is whether the defendant seeking to avail itself of the protection of s 111 is a "person" within the meaning of the section. That is the same approach as was taken by Clarke JA to s 46 of the NSW Act in Cowell and, in my view, it is correct.

31 However, there is very little assistance to be gained from any of the available materials in determining the answer to that question. Neither the other provisions of the Act nor the provisions of the Interpretation Act are of any help. The first defendant sought to rely on the decision of the High Court in McGraw-Hinds (Aust) Pty Ltd v Smith [1979] HCA 19; (1978-1979) 144 CLR 633. In that case, the High Court considered a similar question when it was asked to determine whether the Crown was a "person" for the purposes of the Unordered Goods and Services Act 1973 (Qld).

32 Under s 8(1) of that Act, it was an offence for a person to assert a right to payment for the making of a directory entry which that person had reasonable cause to believe that a notice complying with s 7 of the Act had been duly signed. Under s 8(2) the receipt by a "person" at any place within Queensland of a prescribed document in relation to a directory entry was deemed to be the assertion of a right to payment.

33 The appellant had posted from Sydney to the Queensland Government Tourist Bureau, which was an agency of the Crown, a document which was held to contain an assertion of a right to payment for the purposes of s 8(1). The appellant argued, inter alia, that because the Act did not bind the Crown, the word "person" in s 8(1) could not include the Crown and, therefore, nor could the same word in s 8(2). If "person" in s 8(2) did not include the Crown, the document was not received by a "person".

34 The High Court rejected that argument. It held that the natural and ordinary meaning of "person" included the Crown.

35 However, the legislative provisions under consideration in McGraw- Hinds were very different to s 111 of the Prisons Act and I would hesitate to use it to determine this case.

36 Unlike Cowell, this case involves a claim for damages for negligence. The allegations of negligence made against the first defendant are all allegations of omissions made by its employees, the prison officers at the Prison. The plaintiff is seeking to have the first defendant held vicariously liable for the allegedly negligent omissions of its employees.

37 The principle of vicarious liability is that a master is liable not for a breach of duty resting on him and broken by him but for a breach of duty resting on another and broken by another. In other words, the master is only liable for the acts or omissions of a servant if the servant would himself be liable: Darling Island Stevedoring and Lighterage Co v Long [1957] HCA 26; (1957) 97 CLR 36 at 57 (per Fullagar J); Hall v Whatmore [1961] VicRp 35; [1961] VR 225 at 229.

38 It has been suggested that, notwithstanding that principle, the master cannot take advantage of an immunity from suit conferred on the servant: Broom v Morgan [1953] 1 QB 597. However that proposition was rejected by the High Court in Parker v The Commonwealth [1965] HCA 12; (1965) 112 CLR 295 at 301 and 303 per Windeyer J.

39 In this case, it is quite clear that if the claim for damages for negligence had been brought against the prison officers themselves, they could have availed themselves of the protection afforded by s 111. As a result, no right of action against the prison officers would arise. Accordingly, the first defendant, as the employer of the prison officers, and sued in respect of the same conduct, can have no liability either.

40 In my view, s 111 of the Act provides a complete defence to the plaintiff's claim against the first defendant.

41 In case I am subsequently found to be wrong in the view I have expressed as to the liability of the first defendant by virtue of the operation of s 111 of the Act, I now turn to examine the allegations by the plaintiff that the first defendant owed him a duty of care which it breached.

42 A person in control of a prison has a duty at common law to exercise reasonable care for the safety of prisoners: Howard v Jarvis [1958] HCA 19; (1958) 98 CLR 177. The duty extends to the taking of reasonable precautions to prevent one prisoner from harming another: Dixon v The State of Western Australia [1974] WAR 65.

43 As I have already mentioned, the first defendant, in its defence, admits that it owed the plaintiff a duty to take reasonable care for his safety while he was an inmate of the Prison. However, it denies that it breached that duty of care.

44 I have also mentioned earlier the particular allegations of negligence made by the plaintiff against the first defendant. I will deal with each of them.

45 This allegation comprises the general charge that the first defendant failed to monitor, supervise and exercise control over the movements and activities in the SHU and the more particular charge that the first defendant failed to do those things in respect of the movements of the second defendant. As there was no evidence which tended to suggest that the first defendant failed generally to monitor, supervise and exercise control over the SHU, the real issue was whether the first defendant had failed to do those things in relation to the activities of the second defendant.

46 Although the SHU was the most secure unit in the Prison (it was locked off from the remainder of the Prison) and was used to house the most dangerous inmates of the Prison, the evidence suggested that, within the SHU, conditions were remarkably open. David John Hide, who was, at the material time, the Co-ordinator Special Purpose Units at the Prison, and whose special responsibility was the SHU, gave evidence that the prisoners in the SHU had free access to all areas within the SHU except locked unoccupied cells and the Control Room, from where the SHU was monitored and controlled. Hide said that occupied cells were usually unlocked and that it was quite normal for prisoners within the SHU to visit each other's cells outside of lockdown hours and other occasions on which prisoners were confined to their cells.

47 The Superintendent, Stacey, gave evidence along similar lines. He said that prisoners in the SHU were encouraged to leave their cell doors unlocked and were also encouraged to interact with each other and with the prison officers.

48 The plaintiff also agreed that the cell doors in the SHU were usually unlocked and that one prisoner could walk into another prisoner's cell simply by opening the door. He said that was what had happened on the day in question.

49 All witnesses agreed that, in February 1995, notwithstanding the general nature of the SHU and the propensities of the prisoners housed within it, relations between the prisoners were generally quite cordial. All witnesses also agreed that, immediately prior to the incident on 3 February 1995, there were no signs of antagonism between any of the prisoners in the SHU.

50 One of the other witnesses called by the first defendant was Gordon Fairbairn Daly Leask, who was employed as a prison officer in the SHU in February 1995. Leask said that he was in charge of the Control Room of the SHU from 2.05 pm on 3 February 1995. He said that from the Control Room he could see the doors of all the cells in the SHU. He said that, between 2.05 pm and 2.50 pm, he saw the plaintiff come out of his cell. When the plaintiff walked closer to him, Leask noticed that he was unsteady on his feet and had facial injuries. That was obviously after the plaintiff had been assaulted by the second defendant.

51 Leask said he did not recall seeing the second defendant enter the plaintiff's cell prior to the time he saw the plaintiff come out of his cell. His evidence about the matter was as follows:

"THE COMMISSIONER: Mr Leask, can you explain why you wouldn't have seen Napier enter or leave the cell?---Again, sir, I'm not saying I didn't see it. I may have seen it, but I don't recall seeing it. The fact that it wouldn't have been out of the normal for something like that to have happened, it just wouldn't have registered with me. Cell doors were open at all times and prisoners had access to each other's cells.

So you might have seen him do it and it wouldn't have meant anything to you. It would happen all the time?---It just didn't mean anything to me at the time.

When you found out about the injuries Mr Everett had suffered, did that make you think back at all as to whether you had seen---?---Well, if I had seen anyone go in or out, but I couldn't remember at that time.

You couldn't remember then either?---I couldn't remember then whether anyone had gone in or out."

52 Leask also gave evidence that between the time of the MSU search of the SHU on 2 February 1995 and the plaintiff being injured on 3 February 1995 he did not detect any antagonism of any prisoner in the SHU towards the plaintiff. He said that, during the same time, he was not aware of any anger on the part of the second defendant. He said that the second defendant's assault of the plaintiff came as a complete surprise to him.

53 Hide and Graham John Smith, a senior prison officer employed in the SHU at the time, also gave evidence that, prior to the incident, they had neither observed nor been told of any antagonism between the second defendant and the plaintiff or even any aggression on the part of the second defendant.

54 Stacey said that the second defendant was angry during his meeting with him on 3 February 1995. However, the second defendant gave no indication to Stacey during the meeting that he was contemplating violence to any other prisoner.

55 It was the plaintiff's case, as pleaded, that the second defendant was "a person who has an unstable personality with a history of insubordination, disobedience, misconduct and assaults on other inmates in Casuarina Prison". However, that description was not borne out by the evidence.

56 The second defendant's prison record was admitted into evidence. Although it revealed a number of instances of insubordination and misconduct, it revealed only one prior assault on another prisoner (in 1990) and one attempt to assault another prisoner (also in 1990).

57 It was not put to any of the first defendant's witnesses that the second defendant had "an unstable personality". However, it was put to Hide that the second defendant was "explosive and unpredictable". Hide disagreed. Smith described the second defendant as "sulky" and "a quiet type" and said that he "keeps his feelings to himself ".

58 In my opinion, the evidence does not reveal any failure on the part of any of the personnel at the Prison to monitor, supervise or exercise control over the activities of the second defendant. It is true that Leask, who was the officer in charge of the Control Room at the time, did not see the second defendant enter the plaintiff's cell. However, even if he had, he would not have seen anything unusual about that. Neither he nor any of the other Prison personnel who gave evidence were aware that any antagonism existed between the second defendant and the plaintiff. Not even the plaintiff was aware of it. It was something that the second defendant appears to have kept to himself until the time he entered the plaintiff's cell.

59 Therefore, even if Leask had seen the second defendant enter the plaintiff's cell, he would not have done anything about it and, in all the circumstances, it would have been quite reasonable for him not to have done so.

60 In my view, no breach of duty has been established under this head.

61 This allegation is tied to the issue of whether the Superintendent and/or the prison officers were or should have been aware, prior to the assault, that the second defendant believed that the plaintiff was in some way involved in the MSU search of the second defendant's cell on 2 February 1995 and that the second defendant wanted to punish the plaintiff for that involvement.

62 I have already outlined the uncontradicted evidence of Hide, Smith and Leask to the effect that none of them was aware, prior to the assault, of any antagonism between the second defendant and the plaintiff. Stacey said that the second defendant had been angry in the meeting earlier in the afternoon of 3 February 1995 but had not indicated that he was angry with the plaintiff or that he believed that the plaintiff had said something which had caused the search. Stacey thought that the second defendant was angry with him for ordering the search.

63 On the basis of that evidence, which was not shaken under cross-examination, I find that neither Stacey nor any of the prison officers then working in the SHU was aware or had any reason to be aware, prior to the assault, that the second defendant believed that the plaintiff had been involved in the search being ordered and intended to assault him to punish him for that involvement.

64 In the absence of such knowledge, I consider that neither Stacey nor any of the other prison officers was under a duty to warn the plaintiff as alleged.

65 This allegation is directed at Stacey. It suggests that Stacey, as the Superintendent of the Prison, owed the plaintiff a duty of care in the way in which he dealt with the enquiry or complaint of the second defendant concerning the MSU search. In my opinion, Stacey owed the plaintiff no such duty.

66 Therefore, even if I were not of the view that the plaintiff's claim cannot lie by reason of the operation of the provisions of s 111 of the Prisons Act, I am not in any event satisfied that the plaintiff has established that the first defendant breached the duty of care which it owed him.

67 Accordingly, the action will be dismissed.