Godfrey v New South Wales

Reported Decision : (2003) Aust Torts Reports 81-700

CITATION : Godfrey v New South Wales [No 2] [2003] NSWSC 275 revised - 6/06/2003 HEARING DATE(S) : 10/3/03, 11/3/03, 12/3/03, 13/3/03, 14/3/03, 17/3/03, 18/3/03 JUDGMENT DATE : 9 April 2003

JUDGMENT OF : Shaw J DECISION : In matters 20344 and 20345 of 2000: (1) I declare that the defendant is liable for the injuries suffered by the plaintiff as a result of the failure to take effective measures to prevent Mr Hoole from escaping from Bathurst Gaol on 27 July 1990; (2) I enter judgment for the plaintiff; (3) I order that damages are to be paid in an amount to be assessed and; (4) I direct that the matters are to be placed in the next available list to be allocated a hearing date for this assessment; (5) The defendant is to pay the costs of the plaintiffs as agreed or assessed of the proceedings to date.

CATCHWORDS : Tort - Duty of care - liability of Department of Corrections for injuries caused following escape of prisoner from gaol - reasonable foreseeability - policy - special relationship - special knowledge - control LEGISLATION CITED : Evidence Act 1995 (NSW) s 140(1) Ashrafi Persian Trading Co Pty Limited (t/as Roslyn Gardens Motor Inn) v Ashrafinia [2001] NSWCA 243; Bryan v Maloney (1995) 182 CLR 609; Caltex Oil (Australia) Pty Limited v The Dredge 'Willemstad' (1976) 136 CLR 529; Caparo Industries Pty Limited v Dickman [1990] 2 AC 605; CSR Limited v Wren (1997) 44 NSWLR 463; Donoghue v Stevenson [1932] AC 562; Graham Barclay Oysters Pty Limited v Ryan [2002] HCA 54; Hill v Chief Constable of West Yorkshire [1989] 1 AC 53; Home Office v Dorset Yacht Co Limited [1970] AC 1004; Jaensch v Coffey (1984) 155 CLR 549; K v Secretary of State for the Home Department [2002] EWCA Civ 775; March v E & M H Stramare Pty Limited (1991) 171 CLR 507; Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 205 CLR 254; CASES CITED : Mount Isa Mines Limited v Pusey (1970) 125 CLR 383; Mulligan v Coffs Harbour City Council [2003] NSWSC 49; Palmer v Tees Health Authority and Hartlepool and East Durham NHS Trust (Lloyd's Law Reports, 2 July 1999); Proprietors of Strata Plan 17226 v Drakulic [2002] NSWCA 381; Pyrenees Shire Council v Day (1998) 192 CLR 330; Romeo v Conservation Commission (1998) 192 CLR 431; Smith v Leurs (1945) 70 CLR 256; Smith v Littlewoods Organisation Limited [1987] 1 AC 241; State of New South Wales v Napier [2002] NSWCA 402; Sullivan v Moody (2001) 207 CLR 562; Tame v NSW (2002) 76 ALJR 348; Thorne and Rowe v The State of Western Australia [1964] WAR 147; WD & HO Wills (Australia) Limited v State Rail Authority (NSW) (1998) 43 NSWLR 338; Wyong Shire Council v Shirt (1980) 146 CLR 40; Andrew William Godfrey (by his tutor Carol Ruth Godfrey) - Plaintiff PARTIES : Carole Ruth Godfrey - Plaintiff The State of New South Wales - Defendant FILE NUMBER(S) : SC 20344/00; 20345/00 COUNSEL : B Gross, QC with D Williams - Plaintiffs J Sexton, SC with D Kell - Defendant SOLICITORS : Carroll and O'Dea - Plaintiffs Crown Solicitor - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Andrew William Godfrey (by his tutor Carol Ruth Godfrey) (Plaintiff)

20345 of 2000 Carol Ruth Godfrey (Plaintiff)

1 At about 5:12pm on Friday 5 October 1990 Barry Raymond Hoole entered the Schofield Newsagency in Railway Terrace at Schofields in western Sydney. He was carrying a shotgun. He pointed this shotgun at the face of Carol Ruth Godfrey, a plaintiff in these proceedings and an employee at the newsagency. He demanded money. He screamed that if anybody in the newsagency moved then 'she would get it'. 2 Mrs Godfrey felt numb, and was concerned that two children in the newsagency might move for fear of the offender. She was afraid for her life. She handed money to Mr Hoole. He ran from the shop, stopping briefly to collect money that fell from his hands.

3 Mr Hoole had escaped from Bathurst Gaol on 27 July 1990.

4 Mrs Godfrey was at that time 23 weeks, or approximately five months, pregnant with her first child. After the robbery she felt abdominal cramps that she now identifies with going into labour. The feeling persisted for the weekend and on Wednesday 10 October 1990 she was admitted to Hawkesbury Hospital at Windsor. Eight days later the other plaintiff in these proceedings, Andrew William Godfrey, was born prematurely, weighing 95 grams.

5 Mrs Godfrey became distressed, frightened and concerned for her child. Her husband gave evidence that she would not see her baby. It took some time before she could bring herself to do so.

6 Andrew Godfrey currently has a low comprehension and great difficulty with his social behaviour, as he is easily distractible. He has difficulties with fine motor skills. At birth, significant hydrocephalus was remedied by the placement of a Rickham reservoir, but this was complicated with meningitis. Later, a shunt was placed inside his skull.

7 Mrs Godfrey has since had other children, which she carried to full term. She no longer works at the newsagency. Medical opinion, adduced by the plaintiff, states that the premature birth of Andrew was precipitated by the robbery.

8 Mr Hoole had been imprisoned in October 1997 for break, enter and steal offences. He had no prior record of armed robbery. He has spent periods of that sentence in Parramatta, Goulburn, Cessnock, Long Bay and Bathurst Gaols. He was released on parole in October 1988 but returned to custody in January 1989. He committed further offences of break, enter, and steal in this period of time and was sentenced to serve the remainder of his original term.

9 Mr Hoole gave evidence that he knew of the newsagency and that it was reasonably close to the home of his parents. He said that he had maintained a pre-existing addiction to heroin whilst in prison and had committed criminal acts following his escape to fund that addiction. He said that following his escape, when he could do so, he travelled to Sydney and to the areas he knew.

10 Mrs Godfrey brings an action against the state of New South Wales alleging that she suffered nervous shock (in the form of post traumatic stress disorder and a severe anxiety-depressive disturbance) as a result of the incident on 5 October 1990. Andrew Godfrey brings a separate action against the State alleging that his disabilities are a result of his premature birth brought about by the same incident.

11 The basis of the claim is that the State was negligent, through its agent, the Department of Corrective Services, for failing to secure Mr Hoole in custody. The plaintiff claims: The Defendant knew or ought to have known and/or foresaw or ought to have foreseen that following his escape from Bathurst Gaol, Hoole was very likely to go, or would or could go, to the region of his mother's home at Blacktown/Mt Druitt/Blackett and commit armed robberies or other offences in the suburbs in that region in order to finance his addition to heroin and to fund his continuing status as a prison escapee on the run from Bathurst Gaol.

12 This pleading raises two issues. The first is whether there is a duty of care owed to the plaintiffs by the defendant. The second is the scope of that duty.

13 The question as to whether there was a breach of the duty of care is resolved by a letter dated 26 May 1997 in which the Crown Solicitor confirmed that the defendant was prepared to admit, for the purposes of these proceedings only, that the escape of Mr Hoole from Bathurst Gaol on 27 June 1990 occurred in circumstances where there was a want of reasonable care on the part of the Department of Corrective Services and that such want of reasonable care allowed the escape to occur. Duty of care

14 The first issue is whether the defendant owed a duty of care to the plaintiffs to prevent what was alleged to be a reasonably foreseeable injury. 15 In Home Office v Dorset Yacht Co Limited [1970] AC 1004 Lord Reid said at 1026: In later years there has been a steady trend towards regarding the law of negligence as depending on principle so that, when a new point emerges, one should ask not whether it is covered by existing authority but whether recognised principles apply to it.

16 Similar observations were made by Gleeson CJ in Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 205 CLR 254 at 262: Most actions in tort which come before trial courts arise out of relationships in which the existence of a duty of care is well established, and the nature of the duty well understood. Cases arising out of the use of a motor vehicle, or involving employer and employee, or bailor and bailee, turn upon the application to the facts of well settled principles concerning legal responsibility. References to duty of care, breach of duty and causation provide convenient sub-headings for a judgment, but in many cases the concepts require no further analysis. In other cases…there is a real issue as to the scope of legal responsibility. Such an issue can not be resolved by a detailed recitation of the facts, the repetition of standard rubrics under which discussion of the tort of negligence is commonly organised, and an appeal to common sense…In some cases, where there is a problem as to the existence and measure of legal responsibility, it is useful to begin by identifying the nature of the harm suffered by a plaintiff, for which a defendant is said to be liable.

17 There have been few cases analogous to the present situation. They provide some guidance. However, I am satisfied that this matter must be decided through the application of principle in the light of the agreement between the parties that there is no directly applicable precedent. This is a novel case. 18 The plaintiffs seek compensation for injuries occurring as a result of the armed robbery committed by Mr Hoole. However, the plaintiffs' case is not that the State of New South Wales is responsible for all actions committed by an escapee, or that all victims of crime can pursue compensation against law enforcement or prison officials. Obviously such a case would fail. In such circumstances the terms 'victim of crime', 'duty of care' or even 'the state' are of such categorical indeterminacy that no legal principle could attach to such classes of person or appropriate liability attach to such broad references. General principles: foreseeability

19 The plaintiffs instead meticulously sought to prove that the injury caused by this act, by this man, and in these particular circumstances, was reasonably foreseeable. The plaintiffs say that, but for the actions of the Department, they would not have suffered injury. Prima facie, and on established principle, if the plaintiff can prove such a case then the reasonably foreseeable injury is compensable: Dorset Yacht; Donoghue v Stevenson [1932] AC 562. Indeed, Gleeson CJ said specifically in Modbury Triangle at 267: There may be circumstances in which, not only is there a foreseeable risk of harm from criminal conduct by a third party, but, in addition, the criminal conduct is attended by such a high degree of foreseeability, and predictability, that it is possible to argue that the case would be taken out of the operation of the general principle and the law may impose a duty to take reasonable steps to prevent it.

20 His Honour qualified this point (at 268) by stating that he could express no conclusion on the matter but that in such a case the predictability and foreseeability of the criminal conduct, absent a special relationship, must be of a sufficient 'degree', and doubted whether this could ever be proved: referring to Mason P in W D & H O Wills (Australia) Limited v State Rail Authority (NSW) (1998) 43 NSWLR 338 at 358-359. However, in the absence of any authoritative test on this point, the court must assess proof of that degree on the balance of probabilities: see s 140(1) Evidence Act 1995 (NSW). Policy

21 There are competing factors in relation to the general proposition that injury is ordinarily compensable. As Mason P noted in W D & H O Wills at 350: The High Court has, in recent years, repeatedly emphasised the need to find something more than reasonable foreseeability before a duty of care will arise outside ' the more settled areas of the law of negligence concerned with ordinary physical injury to the person or property of the plaintiff caused by some act of the defendant ' .

22 His Honour referred to Bryan v Maloney (1995) 182 CLR 609 at 617-618; Janesch v Coffey (1984) 155 CLR 549 at 579-80, 583, 585 per Deane J; and Pyrenees Shire Council v Day (1998) 72 ALJR 152 at 167 per Toohey J.

23 Recent authority promotes a greater acceptance by the courts for trial judges to consider, in factoring in this 'something more', policy considerations in assessing the liability of a defendant for the injuries suffered by a plaintiff: March v E & M H Stramare Pty Limited (1991) 171 CLR 507 per Mason CJ at 515; per Deane J at 524; per Toohey J at 524 (applying common sense and policy considerations in the tests of causation in difficult cases); Jaensch v Coffey (1984) 155 CLR 549 at 585 per Deane J (in recognizing duties of care in a new area or class of case); Caltex Oil (Australia) Pty Limited v The Dredge 'Willemstad' (1976) 136 CLR 529 at 567 per Stephen J (in formulating principles from policy considerations when imposing liability in novel cases); Bryan v Maloney (1995) 182 CLR 609 at 617-618 per Mason CJ, Deane and Gaudron JJ (applying policy considerations to tests of proximity); see also CSR Limited v Wren (1997) 44 NSWLR 463 at 477-483 per Beazley and Stein JJA. Legal tests

24 In some cases there are also further legal tests. In cases where the injury to the plaintiff is caused by a third party intermediary between the defendant and the plaintiff these tests are expressed in terms such as 'special relationship', 'control' and 'assumption of responsibility'. 25 These tests are further expressed to ensure that 'control' includes 'knowledge' (Graham Barclay Oysters Pty Limited v Ryan [2002] HCA 54 at [151] per Gummow and Hayne JJ) and can include 'management' (Mulligan v Coffs Harbour City Council & Ors [2003] NSWSC 49 at [235], [248] per Whealy J); 'responsibility' includes both 'capacity' and 'obligation' (Modbury Triangle per Gleeson CJ at 264) and an assumption of responsibility includes 'special vulnerability' of the plaintiff and 'special knowledge' of the defendant (Modbury Triangle at 270 per Gaudron J). 26 In Modbury Triangle at 279 Kirby J said in a dissenting judgment: In this area of legal discourse, the opaque adjective ' special ' has been invoked for want of a more informative concept. It is not, in my view, a helpful adjective it all. It is an admission that questions of legal policy control the scope of liability in such cases. What is ' special ' in the circumstances, in the relationships of the parties or in the vulnerability of the victim is what a court says is ' special ' for policy reasons. It is far more honest and principled to acknowledge that this is so and to deal with such cases taking into account frankly the issues of principle and policy that are raised. 27 Thus, where the guidance of the higher courts is expressed as a need to take a careful, principled approach with such well established terms as 'duty of care' and 'causation' similar care to be precise must extend to modern additions to the conceptual lexicon of negligence.

28 Mason P said in W D & H O Wills at 351: If proximity is an unhelpful notion, more focused concepts need to be considered. The search for factors such as assumption of responsibility, control, and reliance concentrate upon the positive side of the judicial equation. The High Court has also enunciated a number of policy considerations which tend to limit or exclude a duty of care.

29 I am thus required, in the words of Mason P, to balance this judicial 'equation': can it be said that the defendant is liable to the plaintiff given that on the one hand the injury would not have occurred without the negligence of the defendant? On the other hand, should liability be imposed given that the defendant submits it could not control Mr Hoole or foresee that he would commit this crime in these circumstances?

30 Applying the various tests that I have expressed, certain questions are difficult to resolve. First, is it reasonable to conclude that the plaintiffs were in a position of special vulnerability as victims of an offender, given that he should not have been at liberty to commit these offences? Is it an available inference, open to me, to conclude that the Department assumes responsibility for all prisoners in NSW gaols? Is it the case that the plaintiffs relied, and the general population relies, upon the Department to prevent escapes that would expose them to the risks of criminal activity when crime is an unpredictable, irrational and yet unavoidable activity? In Modbury Triangle, Callinan J said at [136]: The problem about criminal conduct is that at one at the same time, it may be both unpredictable in actual incidence, wanton and random, and, on that account, always on the cards.

31 Two general propositions must be reconciled to produce an answer to the dispute before me. The first is that reasonably foreseeable injury, caused by the actions of anyone, are, prima facie, compensable by that person. The second is that, where the injury was in fact caused by a third party 'something more' than reasonable foreseeability is required to impose liability upon a defendant unless that defendant had control or responsibility over that third party.

Principles of negligence: special relationship 32 Cases involving employer and employee, bailor and bailee, and landlord and invitee offer guidance. However there are good reasons to see the principled approach in each of those areas of law as based upon the content of those particular legal relationships. 33 The duty said to arise between the State and the plaintiffs does so out of the relationship between the Department and prisoners placed in its care. That is, the plaintiffs plead that it was the failure of the Department to prevent the escape of Mr Hoole that gave rise to a duty to prevent the reasonably foreseeable injury that could occur as a result of that failure. Thus, it is important to tailor the tests of vulnerability, control and, in general, responsibility, according to the nature of the special relationship pleaded by the plaintiffs: Pyrenees Shire Council v Day (1998) 192 CLR 330 at [101] - [102] per McHugh J referred to by Heydon JA in Ashrafi Persian Trading Co Pty Limited t/as Roslyn Gardens Motor Inn v Ashrafinia [2001] NSWCA 243 at [62].

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.

English cases 39 English cases which apply Caparo can be distinguished upon a number of bases. For instance, in K v Secretary of State for the Home Department [2002] EWCA Civ 775 Simon Brown, Law and Arden LLJ applied Camparo to approve a decision of Holland J to strike out a claim against the Secretary of State, following the rape of the plaintiff by an offender who was released from custody at the order of the Secretary. The allegedly negligent administrative decision of the Secretary in that case, however, is of a very different character to the failure to take care to prevent the offender escaping custody as alleged in this case. 40 Similarly, the decision of Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 is of assistance in the elaboration of principle, though not pursuasive in the sense of being applicable to the facts of this matter. In that case the House of Lords affirmed a principle that law enforcement officials owe no duty of care to victims of crime to prevent that criminal activity from occurring. In general, this accords with the statements of general principle elaborated by the High Court in Sullivan v Moody, Graham Barclay Oysters Pty Limited v Ryan [2002] HCA 54 and Modbury Triangle. That is, the statutory duty of the police to investigate crime would be burdened by the establishment of an additional obligation to prevent criminal activity. 41 In Palmer v Tees Health Authority and Hartlepool and East Durham NHS Trust (Lloyd's Law Reports, 2 July 1999) Stuart-Smith, Pill and Thorpe LLJ approved a decision of Gage J to dismiss an appeal from the Master to strike out a claim brought by a mother of a victim murdered by a psychiatric patient of the defendants. The allegation was that the health authority and hospital failed to diagnose that there was a: real, substantial and foreseeable risk of Armstrong committing serious sexual offences against children and of causing bodily injury to any child victims. And as a consequence: failed to provide any adequate treatment for Armstrong to reduce the risk of him committing such offences, and/or prevent him from being released from the Hospital or some other appropriate institution whilst he was at risk of committing such offences.

42 The Court of Appeal dismissed the appeal on the basis that, applying Caparo, there was no sufficient relationship of proximity between the claimant and the defendants. Stuart-Smith LJ said: …a defective machine or mechanical device will behave in a predictable way depending on the laws of physics and mechanics. But a human being will not, save in readily predictable circumstances. 43 His Lordship referred to the speech of Lord Reid in Home Office v Dorset Yacht Co Limited [1970] AC 1004 at 1030: I do not think that a mere foreseeable possibility is or should be sufficient, for then the intervening human action can more probably be regarded as a new cause than as a consequence of the original wrongdoing. But if the intervening action was likely to happen I do not think that it can matter whether that action was innocent or tortious or criminal. 44 Of particular significance is Stuart-Smith LJ's observation that: …Lord Diplock [in Dorset Yacht ] draws a distinction between an escaped prisoner and one who is released. Dorset Yacht

45 Obviously, the decision of the House of Lords in Dorset Yacht looms large in the argument in the present case. The case concerned a number of Borstal boys who were working on an island under the supervision of juvenile detention officers. The juveniles escaped by boarding a yacht moored off the island. 46 In an application for summary judgment, the House of Lords held that this was not a situation in which policy factors prevented a duty of care from arising. The House of Lords was prepared to assert that relevant public officers could owe a duty to take reasonable care with a view to preventing the boys under their control from causing damage to property following their course of escape. 47 It seems that the decision remains the law of England and has been applied in Dutton v Bognor Regis UDC [1972] 3 WLR 299; Smith v Scott [1972] 3 WLR 783; Anns v Merton LBC [1978] AC 728; and Ross v Caunters [1980] Ch 297, although it is true that certain dicta of Lord Reid, who delivered the leading speech in the case, were not applied in Lamb v Camden LBC [1981] QB 625. 48 Lord Diplock said at 1070-1071: I should therefore hold that any duty of a Borstal officer to use reasonable care to prevent a Borstal trainee from escaping from his custody was owed to persons whom he could reasonably foresee had property situate in the vicinity of the place of detention of the detainee which the detainee was likely to steal or to appropriate and damage in the course of eluding immediate pursuit and recapture. Whether or not any person fell within this category would depend upon the facts of the particular case including the previous criminal and escaping record of the individual trainee concerned and the nature of the place from which he escaped (emphasis added).

Academic commentary 49 Dorset Yacht has not been doubted, let alone rejected, by any subsequent Australian case. Professor John G Fleming in his authoritative text The Law of Torts (9th ed, 1998) in discussing Dorset Yacht posed some questions and opined as follows: Is the duty owed only to nearby residents? Or, only for crime committed in the immediate aftermath of the escape? Although the risk might well persist until recapture, any more extensive responsibility is perceived as going too far. 50 And (at 253) the author said: In an increasing range of situations, however, the law is now prepared, if still somewhat hesitantly, to exact liability for negligently providing an opportunity for wrongdoers to cause deliberate harm. Easiest are those where the defendant is duty bound to guard against that very eventuality; where, in other words, risk of such intervention is the , or at least a , reason for calling him negligent. 51 A number of other academic commentaries touch on this point, without necessarily referring expressly to Dorset Yacht. A casenote in the Harvard Law Review (Police Liability for Negligent Failure to Prevent Crime (1981) 94(1) 821) propounds the argument that, whilst courts have generally shielded law enforcement agencies from tort liability for failure to provide reasonable protection against crime that: Recent developments in tort law affecting both the public and private sectors might lead one to expect a relaxation of judicially constructed barriers to recovery. In the public sectors governmental tort liability is significantly expanded through judicial and legislative narrowing of the scope of protection provided by the doctrine of sovereign immunity;

See also Karen Hogg, ' The Liability of a Public Authority for a Failure to Carry out a Careful Exercise of its Statutory Powers: the significance of the High Court's decision in Sutherland Shire Council v Heyman ' (1991-1992) 17 Mon Uni LR 285 at 289. 52 There is an interesting discussion by Thomas Geuther (The Search for Principle - the government's liability in negligence for the careless exercise of its statutory powers (2000) 31 Vic Uni of Wellington LR 629) in which the author argues that the Australian courts have not determined conclusively whether irrational behaviour is a bar to the liability of a public authority in negligence.

53 Judge Phegan of the NSW District Court (also a Professor Emeritus of the University of Sydney) has published an important article distilling the law of torts at the end of the 20th century: C. Phegan, The Tort of Negligence into the New Millenium (1999) 73 ALJ 885. He argued that the revamping of the law of negligence by the High Court in the 1980s may not survive in the new millenium. The author was sceptical about the litmus tests of 'proximity' and 'general reliance' developed in that era. He concluded that the plea of Murphy J in Jaensch v Coffey (1984) 155 CLR 549 at 557-558 for a more coherent body of law in negligence has gone unanswered. Special knowledge

54 In Ashrafi, Heydon JA offered an analysis of the liability for the criminal acts of third parties by reference to the decision of the High Court in Modbury Triangle, which adopted the approach of Lord Goff in Smith v Littlewoods Organisation Limited [1987] 1 AC 241 at 279: I wish to emphasise that I do not think that the problem in these case can be solved simply through the mechanism of foreseeability. When a duty is cast upon a person to take precautions against the wrongdoing of third parties, the ordinary standard of foreseeability applied, and so the possibility of such wrongdoing does not have to be very great before liability is imposed. I do not myself subscribe to the opinion that liability for the wrongdoing of others is limited because of the unpredictability of human conduct (emphasis added) .

55 This case is distinguishable from the 'occupier' cases of Modbury Triangle, Ashrafi and Proprietors of Strata Plan 17226 v Drakulic [2002] NSWCA 381 because in those cases the duty of care asserted was upon occupiers of land to prevent criminal activity they did not know would occur, or against whom it would occur: see Drakulic at [72] - [73]. In such cases the law does not deviate from the general proposition that the law does not, ordinarily, impose liability for omissions (Modbury Triangle per Gleeson CJ at 265). 56 In this case, the prison authorities could be said to know that there was a risk that Mr Hoole would escape. Indeed, the very reason for incarceration of offenders in gaols is to prevent their return to the community by escaping. Such knowledge would, in my opinion, satisfy the requirement of a high degree of foreseeability that seems to be necessary in a case such as this: Modbury Triangle per Gleeson CJ at [30]; per Hayne J at [117]; cf Heydon JA in Drakulic at [92]. Alternatively, I am satisfied that the knowledge that Mr Hoole would be likely to take an opportunity to escape was special knowledge, that in the context of the special relationship between the Department and Mr Hoole, also gave rise to a duty to prevent it. In any event, the defendant concedes a breach of the duty of care in relation to the escape itself: see [13] above. 57 The question is whether the risk that Mr Hoole would re-offend if he did escape should be imputed to the Department. Control

58 Another important authority on the question of whether a duty of care was owed to the plaintiffs is the judgment of the Court of Appeal in State of New South Wales by its Department of Corrective Services and Anor v Napier [2002] NSWCA 402. That was litigation brought by an employee of the private administrator of the Junee Correctional Centre based upon injury suffered as a result of the threats and actions of inmates of that establishment directed towards the plaintiff. The question was whether the injury suffered by the plaintiff in that case was reasonably foreseeable and whether it was open to the trial judge on the facts to find that there were deficiencies in the security provided by the institution for its employees. 59 The Court applied the judgments of the High Court both in Modbury Triangle and Tame v NSW (2002) 76 ALJR 348.

60 Spigelman CJ made it clear that there were three interrelated factors that could create a relevant duty of care in a case such as that before the court: …vulnerability, control and assumption of responsibility (at 31). 61 His Honour emphasised the critical nature of the consideration of control in determining whether there was a common law duty of care on the part of a public authority (at [17]). 62 I do not think that there can be any serious question about the vulnerability of a pregnant woman working in a newsagency to armed robbery. Similarly, I do not think that there can be a serious doubt about the assumption of responsibility that a prison administration must take for persons who are entrusted to its custody and who escape from lawful detention, particularly those who have a demonstrated capacity for serious crime by reason of a serious drug addiction and prior criminal history.

63 However the question arises as to whether the prison authorities, and therefore the State of NSW, have any 'control' over a potential escapee. 64 In one literal sense, such authorities do not control the actions of escapees once they escape. It might be said that the most they can do in such situations is seek to locate and incarcerate the person who has been sentenced to imprisonment but who has escaped. 65 However, I can find that prison authorities have 'control' over an escapee in the relevant legal sense based upon what was said by Heydon JA in Drakulic at [75] where his Honour points out that at least in some parts of the judgments in Modbury Triangle the references to 'control' are not to control in fact but rather, 'the right to control'. Once the test is framed in these terms the issue becomes capable of resolution. If one accepts that criminal behaviour is unpredictable and sporadic but nonetheless foreseeable, it is open to conclude that there was a legal duty upon the Department to control escapees to prevent them from escaping and to exercise that control to limit the opportunities available to prisoners to escape and thus to commit further offences during the period of that escape which may injure persons or property.

66 Heydon JA said in Drakulic, on Dorset Yacht, that: officers in charge of Borstal boys have 'control' of them even if the boys escape (emphasis added).

67 His Honour referred to Lord Morris of Borth-y-gest in Dorset Yacht at 1038-1039; Dixon J in Smith v Leurs (1945) 70 CLR 256 at 262 and Gleeson CJ in Modbury Triangle at [20]-[21]. Furthermore, Heydon JA went on to say (at [75]) that: …a gaoler has control over prisoners even if those prisoners are running amuck and injuring the plaintiff because the gaoler has the right to control dangerous prisoners (emphasis added).

68 Ultimately the matter must be resolved through proof of the claim asserted by the plaintiffs on the balance of probabilities. I am satisfied that the law, as currently expressed, does impose a general duty of care upon the defendant and should allow the plaintiffs to recover compensation for their injuries although the quantification of that claim is a matter for later consideration. 69 I am satisfied that there is no authority that expressly precludes this finding. Nor does the imposition of a duty upon the defendant conflict with any statutory obligation of the Department.

70 The duty imposed is not to prevent escapees from committing criminal acts. Nor is the duty to keep all prisoners in gaol. It may be accepted that some escapes are inevitable. In the context of this case, the duty I am prepared to find there was a duty to take reasonable steps to prevent harm to the plaintiff by controlling the opportunities of a prisoner to escape. 71 It must now be established what the content of that duty that was owed to the plaintiffs in this case actually was and whether the breach of that duty renders the defendant liable to compensate the plaintiffs for their injuries. Content of the duty of care

72 Having found a general duty to take care it is necessary to focus upon the nature, or as it is commonly described, the 'content' of the duty, which is useful in an analysis of whether the duty has been breached: Romeo v Conservation Commission (1998) 192 CLR 431 at 487 per Hayne J; Modbury Triangle per Gleeson CJ at 263; per Hayne J at 289; see also Mulligan v Coffs Harbour City Council & Ors [2003] NSWSC 49 at [262] - [268].

73 The plaintiff alleges that it was the 'failure to take effective measures to ensure that the said Barry Raymond Hoole was prevented from escaping custody' that led to the injury to the plaintiff. The case was framed in this way because it was at that point in time (that is, whilst Mr Hoole remained in custody) that the defendant exercised the maximum amount of control over his actions. 74 It is alleged that negligence at this point in time renders the defendant liable for the subsequent actions of Mr Hoole. The plaintiffs submit that reasonable steps should have been taken by the Department at that point to prevent the harm that occurred. That is, armed with knowledge of the prisoner's propensity to escape, his likely passage to the area of his mother's home, and foreseeable venture into criminal activity including the possibility of committing armed robbery, the failure to keep Mr Hoole from escaping was negligent. 75 I note that the duty asserted was not framed as one to keep Mr Hoole in gaol. Such a duty would be inconsistent with the obligations of officers of the Department. Rather, it was an obligation to prevent the escape of Mr Hoole. The difference between the two is more than semantic. A duty to keep prisoners in gaol, if required of the Department, would involve a departure from beneficial reforms of the prison system undertaken by the Department following several judicial inquiries into custodial conditions. Such a case would fail because the defendant would have good grounds to base a 'policy defence' of a kind foreshadowed in the Review of the Law of Negligence (The Hon D. Ipp (Chair) September 2002) at Chapter 10. Further, such a case would fail in accordance with the authoritative decisions of Dorset Yacht, Modbury Triangle, Drakulic and Ashrafi.

76 Here, the duty was to prevent the escape of Mr Hoole. Not all escapees will go home or to the surrounding areas. Not all escapees will engage in criminal activities in that area. Not all escapees will commit armed robbery. And not all escapees will commit an armed robbery upon a pregnant victim. However, these are not matters of logic, or experience, but they are matters of proof. This is consistent with the speech of Lord Diplock in Dorset Yacht. Propensity

77 The plaintiff relied upon a letter sent to Mr Hoole by Mr Adrian Potts ("Pottsy") in May 1988. The letter invites Mr Hoole to commit an armed robbery, or rather a 'payroll job', with Mr Potts when he is released. 78 The letter states: …if you do want to team up I can get the tools that we will need to do the job (bang bang). 79 A memorandum of the Internal Investigation Unit of the Department states: Information is that the two above prisoners when released are possibly planning and may attempt 'stick up jobs' together. 80 The plaintiff submits that this is proof that the possibility that Mr Hoole could commit armed robbery at some point in the future was known by the Department. I accept this letter combined with the history of Mr Hoole, means that the Department had acquired a special knowledge of the likelihood that Mr Hoole would take an available opportunity to escape and that it was within the knowledge of the Department to realise that in such circumstances Mr Hoole could possibly re-offend. 81 The defendant submits that this letter offers no assistance to the Court on this point as the letter was received by Mr Hoole prior to his release on parole in 1988, a period in which Mr Hoole committed break, enter and steal offences but no armed robbery. Nevertheless, the memorandum records that the Department regarded the information as 'possibly true'.

82 Both the plaintiff and the defendant relied upon the opinions of people they asserted were experts.

83 The plaintiff relies upon the evidence of Peter Wick, a retired police officer. Mr Wick was formerly the team leader for the Consorting Squad and Armed Hold-up Squad of the NSW Police responsible for the tracking and apprehension of escaped prisoners within the State. I admitted this evidence as opinion evidence during the trial: see Godfrey v NSW (No 1) [2003] NSWSC 160. 84 Mr Wick provided a report to the court. Based on documents generated by the Department and the history of the offender (including his heroin addiction and previous escapes from juvenile detention centres) Mr Wick deposes: It was quite apparent that a pattern of behaviour could be determined for certain classifications of escapees, based on an examination of their prior antecedents, criminal activity and prison records.

85 The report, in summary, expressed the following opinions:

(a) escapees will try to go where they know and will seek out relatives and associates for financial assistance and other support; (b) almost every escapee commits other crimes while at large; (c) if the offender is addicted to heroin then offences such as armed robbery will be ' virtually certain ' to be committed by the escapee to obtain money to fund the addiction; (d) responsible law enforcement and prison officials would, if they had turned their minds to the question, have been aware that it was probable and foreseeable that Mr Hoole, following escape, would proceed to the area in which he had grown up and would probably commit offences in that region to obtain money to satisfy his heroin addiction; and (e) it was more probable than not that Mr Hoole would commit more serious offences than housebreaking, and would engage in armed robbery, under the influence of his elder brother's career in that form of activity.

86 Mr Wick conceded in cross examination that Mr Hoole had previously visited many other areas of the State, including his girlfriend in Cooma. Mr Wick also conceded that criminal activity is often impulsive and difficult to predict.

87 In response, the defendant relied upon the evidence of Dr Jonathon Phillips, a consultant psychiatrist. The extent to which Dr Phillips could give a similar kind of propensity evidence to Mr Wicks is limited in that Dr Phillips has undergone no special training or study, and admitted to having no experience, in relation to the therapeutic programs for people with criminal backgrounds or tracking escaped prisoners. He limited his experience to those of an experienced psychiatrist and a senior teacher in that discipline.

88 Dr Phillips also conceded in cross examination that he had not taken into consideration the fact that Mr Hoole continued to feed his heroin addiction whilst in gaol. He said that it would be fair to say that although drug rehabilitation programs had been offered to Mr Hoole, he did not appear, at 1990, to have had engaged seriously in those programs.

89 The defendant also relied upon the evidence of Dr Angela Gorta, Research Manager with the Independent Commission Against Corruption and formerly the Chief Research Officer for the Department of Corrective Services. Dr Gorta is recognised as a criminologist. She gave evidence that the Department compiled statistical information about escapees and that this information was consolidated into research bulletins for publication.

90 Dr Gorta gave evidence about statistical information relating to escapees as contained in these research bulletins. Though the finding of the bulletins reveals that there is little difference between escapees who are using prohibited drugs in gaol and those who are not Dr Gorta revealed that this information was very difficult to obtain since it often involved self-reporting. However, Dr Gorta was prepared to state that her research indicated that it was: …very hard to work out the reasons why people escape or find any definite patterns in how or when they escape.

91 Dr Gorta also said that the research showed that three quarters of prisoners who escape from gaol are not convicted of any offence on recapture. A small proportion of escapees are convicted: 5.5 per cent for violent offences and 2.8 per cent for armed robbery. Dr Gorta conceded that the absence of a charge or conviction is not the best indication for whether an offence was committed but indicated that the 'clear up rate' for police investigations in these matters would be higher for violent offences than for, for example, property offences and so it is likely that the latter are more prone to be missing from the statistical information than the former.

92 Significantly, the evidence of Dr Gorta was: Q. There would be a predictable propensity for that person [that is, an escapee who is also a heroin addict] to commit serious crime in order to have that cash? A. My presentation was that the prisoners after escaping want to get away from where they escaped from and want to remain low key, did not want to attract attention.

93 I must determine whether this evidence supports or denies the plaintiffs' claim that it was the 'failure [of the Department] to take effective measures to ensure that the said Barry Raymond Hoole was prevented from escaping custody' that was negligent because: The Defendant knew or ought to have known and/or foresaw or ought to have foreseen that following his escape from Bathurst Gaol, Hoole was very likely to go, or would or could go, to the region of his mother's home at Blacktown/Mt Druitt/Blackett and commit armed robberies or other offences in the suburbs in that region in order to finance his addition to heroin and to fund his continuing status as a prison escapee on the run from Bathurst Gaol

94 A relevant question arises as to whether the predictions of what a person might do in a given set of circumstances offered by Mr Wick and Dr Gorta, can be reconciled with what Mr Hoole did do. 95 The parties have argued whether it can be shown that the Department could or should have known that Mrs Godfrey might suffer injury if they did not take such 'effective measures' to ensure Mr Hoole was prevented from escaping. The question asked, then, is whether the injury was reasonably foreseeable?

96 The legal test for answering this question is well established. In Wyong Shire Council v Shirt (1980) 146 CLR 40 at 48 Mason J said: …a risk of injury which is remote in the sense that is it extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. 97 Further, the test does not require that the defendant foresee the exact nature of the injury suffered by the plaintiff, or for that matter, the exact plaintiff that would suffer injury. Rather, the test inquires into whether the defendant foresaw a class of plaintiff that could suffer a similar type of injury: Foreseeability does not mean foresight of the particular course of event causing the harm. Nor does it suppose foresight of the particular harm which occurred, but only some harm of a like kind ( Mount Isa Mines Limited v Pusey (1970) 125 CLR 383 at 402 per Windeyer J; see also Chapman v Hearse (1961) 106 CLR 112). 98 However, Gleeson CJ in Tame cast doubt upon the applicability in Australia of the decision of the House of Lords in Wagon mound (No 2) (followed by the High Court in Wyong Shire Council v Shirt). McHugh J said at [98]:

So far as possible, the issue of reasonable foreseeability of risk in breach of duty situations should no longer be determined in isolation from the issue of reasonable preventability and the ultimate issue of what reasonable care requires…Whether the creation of the risk was unreasonable must depend on whether reasonable members of the community in the defendant's position would think the risk sufficiently great to require preventative action. This is a matter for judgment after taking into account the probability of the risk occurring, the gravity of the damage that might arise if the risk occurs, the expense, difficulty and inconvenience of avoiding the risk and any other responsibilities that the defendant must discharge.

99 No other member of the High Court in Tame doubted the validity of Wagon mound (No 2). However, McHugh J said at 473: I think that the time has come when this court should retrace its steps so that the law of negligence accords with what people really do, or can be expected to do, in real life situations. Negligence law will fall - perhaps it has already fallen- into public disrepute if it produces results that ordinary members of the public regard as unreasonable.

100 The legal basis for the tests to determine breach remain those established by the High Court in Shirt. The question, bearing in mind the criticisms of McHugh J in Tame, is: whether a reasonable person would view the risk to the plaintiff as a reasonable possibility, not dismissing it as far-fetched or fanciful, and given that it might not be possible to have prevented it from occurring. 101 It may be necessary to take into consideration factors such as how a person should prevent the manifestation of such a risk, and to weigh that consideration against a better appreciation of what we should expect of people in such situations. However this appreciation has its proper legal basis in the calculus of negligence. 102 A proper application of the calculus therefore takes into consideration the tests espoused in Shirt and the criticisms given voice in Tame (see Ipp, the Hon Justice, 'Negligence - Where lies the future' (2003) 23(2) Australian Bar Rewview 158 at 163). As was put by Mason J in Shirt at 47-48: In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of person including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

103 On this question I am satisfied that the defendant, having special knowledge of the possibility of Mr Hoole escaping, his potential to re-offend and the capacity to exercise a right of control to minimise that occurrence, has breached a duty of care owed to the plaintiffs. 104 The failure to take effective measures to prevent the escape is admitted by the defendant. This means that the defendant is aware that a greater amount of care was required to maintain the degree of control the Department had over Mr Hoole to prevent his escape. 105 It is not necessary for me to speculate what methods the Department could have employed to prevent the escape, their cost and inconvenience, as the Department has admitted that it was a lack of care that allowed Mr Hoole to escape. This is not a case in which the Department did everything it could within the boundaries of its statutory duty and the prisoner nevertheless escaped. 106 I am satisfied the likelihood of Mr Hoole escaping, as an eventuality, was reasonably foreseeable and could not be dismissed as fanciful. 107 The defendant therefore failed to prevent Mr Hoole from escaping and thus provided him with an opportunity to do so. This, in turn, caused injury to the plaintiffs. 108 I am satisfied that a reasonable person would find the risk of Mr Hoole causing injury to someone if he escaped justified that 'effective measures' should have been taken and observed to prevent him escaping. 109 In summary, I am satisfied: a) The commission of armed robberies by Mr Hoole, upon escape, was reasonably foreseeable; b) That the commission of such a serious and alarming crime by an escapee in the position of Mr Hoole would cause psychological and/or physical injury to innocent members of the public was reasonably foreseeable; c) That a pregnant woman was in a peculiarly vulnerable category in the context of an armed robbery; d) That the allegation of negligence against the defendant falls within an established category of that tort, namely the recognised obligation falling upon gaolers; e) Alternatively, that there were special circumstances arising from the knowledge of the defendant of Mr Hoole's likely conduct given an opportunity to escape and the right of the Department to control Mr Hoole to prevent such an opportunity arising.

Orders 110 Accordingly, I make the following declarations and orders:

In matters 20344 and 20345 of 2000, 1) I declare that the defendant is liable for the injuries suffered by the plaintiff as a result of the failure to take effective measures to prevent Mr Hoole from escaping from Bathurst Gaol on 27 July 1990; 2) I enter judgment for the plaintiff; 3) I order that damages are to be paid in an amount to be assessed and; 4) I direct that the matters are to be placed in the next available list to be allocated a hearing date for this assessment; 5) The defendant is to pay the costs of the plaintiffs as agreed or assessed of the proceedings to date.

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