34 Cases involving prisoners and gaolers therefore offer greater assistance in the resolution of this matter. In Ashrafi, Heydon JA recognised (at [64]) that the relationship between gaolers and prisoners is an established relationship that the law has recognised will impose a duty upon a gaoler to prevent injury to prisoners; or persons injured by escaping and escaped prisoners; or prisoners who are injured by others in gaol. I note the submission of Mr Sexton, SC, for the defendant that the established category in the law of negligence of the obligation upon prison authorities with respect to escapees is limited to crimes committed during the escape.
35 The only reported decision in Australia on this precise point is the case of Thorne and Rowe v State of Western Australia [1964] WAR 147. In that case the plaintiffs alleged that the State of Western Australia was negligent in failing to appropriately secure a prisoner who, upon escape, seriously injured his wife and her partner. Negus J held against the plaintiffs upon a number of bases. The first was that the knowledge of the prison officers of the threats made by Mr Thorne regarding his wife, could not be imputed to the Crown. Second, Negus J held, regarding the officers themselves:
I emphasize that a mere breach of their duty to the Crown to keep prisoners in safe custody could not give the plaintiffs a right of action. The plaintiffs must establish they had a special duty to Mrs Thorne and failed in that duty. The existence of such a special duty, assuming the facts of this case provide an exception to the general rule, that one man is under no duty of controlling another to prevent his doing damage to a third (per Dixon J, as he then was, in Smith v Leurs (1945) 70 CLR 256 at 262) depends on their knowledge that Thorne had a propensity and intention or was likely to attack his wife. They knew of the threat, but it cannot be inferred from the fact of the threat having been made that Thorne had that propensity and intention. He must have had many opportunities of attacking and injuring his wife. There is no evidence that he had ever done more than poke a pistol in her back: but did not press the trigger - though he could have done so.
36 Thorne was considered by Dilhorne VC in a dissenting speech in Home Office v Dorset Yacht Co Limited [1970] AC 1004 at 1047:
Negus J did not suggest that there was any common law duty of care to prevent the escape of prisoners when it was reasonably foreseeable that damage might ensue. He decided the case on the assumption that there was a special duty of care owed to Mrs Thorne if Thorne's propensity and intention were known to the warders, and , holding that they were not known, it was not necessary for him to decide that such a special duty of care existed.
This case is no authority for the proposition that there is a common law duty of care owed by custodians where it is reasonably foreseeable that damage is likely to follow if through negligence persons are allowed to escape, nor, indeed, is it any authority for saying that such a duty arises if the custodians have knowledge of a prisoner's particular propensities.
37 Heydon JA in Ashrafi described Thorne as authority for the proposition that a duty will arise if the gaoler knew that the prisoner was 'likely to attack his wife' (at [64]). Also, particular aspects of Negus J's fact finding in that case give cause for concern -particularly the finding that the prisoner's propensity for violence towards his wife was not supported by the fact that 'he had [not] ever done more than poke a pistol in her back: but did not press the trigger - though he could have done so'.
38 I am bound by the unanimous judgment of the High Court of Australia in Sullivan v Moody (2001) 207 CLR 562 which held that the English view of the criteria to establish negligence set down in Caparo Industries Pty Limited v Dickman [1990] 2 AC 605 was not to be applied in the Australian courts. It also held that foreseeability is not, of itself, sufficient to lead a court to find a duty of care or liability in a public authority (at [64]). The case determined that, in relation to a South Australian public authority concerned with the welfare of children, it would be inconsistent with the statutory obligations of such a body for it to be subject to a legal duty to protect persons suspected of being the sources of sexual abuse of children.