Court of Appeal (WA)|2008-09-19|Before: Buss JA

LEEDER -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 192 (19 September 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : LEEDER -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 192

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : LEEDER -v- THE STATE OF WESTERN AUSTRALIA [2007] WADC 16

Negligence - Personal injury - Assault of prison officer by prisoner - Claim by prison officer that employer negligent in failing to warn him of prisoner's previous aggressive conduct - Finding of trial judge that warning was given - Finding that warning would not have prevented assault - Findings not open to trial judge on the evidence - Failure by trial judge to explain why evidence of defendant's medical witnesses preferred to that of plaintiff's medical witnesses - Obligation to assess effect of inaccuracies in medical history on opinion given by medical witness - Requirement to give adequate reasons for decision

3 NEWNES AJA: This appeal arises out of an incident at the Hakea Prison on 1 February 2000 in which the appellant, then a prison officer employed by the respondent at the prison, was injured as a result of being assaulted by a prisoner (Willett) after he had opened the door to Willett's cell to allow a nurse into the cell to assess Willett.

4 The appellant subsequently brought an action for damages against the respondent alleging that his injuries were caused by the negligence of the respondent as the occupier or controller of the prison. The appellant said that as a result of the assault he suffered, among other things, an injury to his spine and a major depressive illness, resulting in his total, or substantial, and permanent incapacity for work.

5 The respondent denied that it was negligent in any respect but said that, if it was in breach of its duty of care to the appellant, the injury suffered by the appellant as a result of the assault was simply a soft tissue injury, from which he had made a full recovery.

6 The appellant's action went to trial in the District Court in September 2006 and February 2007 before Stavrianou DCJ. On 9 March 2007, the claim was dismissed: Leeder v The State of Western Australia [2007] WADC 16. It is against that decision that this appeal is brought.

7 The appellant's case was that when, at the commencement of their shift on the morning of 1 February 2000, he and another prison officer, Mr Phillip West, were directed to open Willett's cell to allow a mental health nurse, Mr Graham Craig, access to the cell to assess Willett, neither he nor Mr West was made aware of incidents the previous day in which Willett had engaged in violent threats and behaviour. It was the appellant's case that had he been told of Willett's conduct the previous day, he would have sought what was described as a 'three officer unlock' procedure (that is, where three officers are present with pepper spray, restraints and a baton) or at the least he would have dealt with Willett in a way which would have avoided the assault.

8 The appellant contended, in substance, that the respondent was negligent in:

Failing to alert the appellant to Willett's violent threats and behaviour the previous day;
Failing to display appropriate instructions for the management of Willett on the whiteboard in the control room or on the whiteboard outside his cell;
Failing to implement any or any appropriate prisoner management for Willett, such as the 'three officer unlock' procedure.

9 The appellant said that as a result of the assault he suffered, among other things, a posterior annulus fissure and disc bulge at L4/5 and L5/S1 of his spine and the aggravation of previously asymptomatic disc degeneration at those levels, a major depressive illness, and sexual dysfunction. He said his permanent thoraco-lumbar disability was assessed at 15%, his permanent psychiatric disability at 25% and his permanent sexual dysfunction at 25%. The appellant said he had no more than very limited prospects of any future earning capacity and would require continuing treatment and medication.

10 The respondent denied that Willett had engaged in violent threats and behaviour on the day before the assault, saying that Willett's conduct had amounted to no more than using abusive language. The respondent denied that it was negligent. There was no plea of any contributory negligence on the part of the appellant.

11 In relation to the appellant's alleged injuries and disabilities, the respondent said that the appellant had suffered only a transient soft tissue injury to his lumbar spine as a result of the assault and had made a full recovery. In the alternative, the respondent said that if the appellant had suffered any ongoing symptoms or disabilities, they were not a result of the assault but of a longstanding, pre-existing and progressive degenerative disease in his lumbar spine which would have caused the appellant's premature retirement as a prison officer in any event. The respondent further alleged, in the alternative, that the appellant had a retained earning capacity and by failing to return to the workforce had failed to mitigate his economic loss.

12 At the trial, it was not in contention that, at approximately 3.50 pm on 31 January 2000, there was an incident in the yard at the prison involving Willett, a remand prisoner, and a prison officer, Mr Pulford, which led to Willett being placed in a multipurpose cell, C5, in C wing. Mr Pulford reported to his senior officer, Mr White, that he had placed Willett in C wing because of Willett's aggressive behaviour.

13 It is necessary to interpolate that C wing was a section of the prison containing 10 cells consisting of multipurpose cells, safe cells and medical observation cells. They were used to hold prisoners for disciplinary reasons or prisoners who for some other reason required a special regime. The decision to hold a prisoner in that wing was ultimately made by the assistant superintendent prisoner-management, under delegated authority from the superintendent. In this instance, it appears that Mr White subsequently spoke to the assistant superintendent prisoner-management (Mr Carberry), who authorised the holding of Willet in C wing pending an assessment of him by the forensic case management team and by Mr Carberry personally.

14 Mr Pulford prepared a report of the incident which he gave to Mr White that day. The report was apparently prepared in a standard format. Against the heading 'Incident', Mr Pulford entered 'used insulting language' and, below that, against the heading 'Brief description' he entered 'Prisoner Willett J used insulting language towards officer W M Pulford'. The report then contained the following description of the incident.

On Monday January 31, 2000 I was rostered recreation officer on the 7.30 19.30 shift. At approximately 15.50 prisoner Willett J approached myself at the stick office and requested to be let out to the oval. I asked Willett if he had an oval pass, to which he replied no. I informed him that he required an oval pass and shoes to go to the oval. Willett stated 'that's fucked I just want to go for a walk on the oval and I haven't got any shoes'. I told Willett to see his wing officer to get shoes. Willett then left the area. Approximately a minute later Willett walked past the stick office waving his oval pass in his hand. I informed Willett that he still required shoes. Willett walked to the stick office door and in an aggressive manner said 'just shut your mouth and listen you fucking idiots what would a wing officer do for me you fucking idiot'. As I approached Willett, he took an aggressive stand and said 'just fucking listen you fucking idiot'. I informed Willett I was going to place him in 'C' wing until he calmed down. Willett replied 'if you want trouble just fucking try'. I then started escorting Willett to C wing. Twice Willett stopped and took a fighting stance and said 'come on then let's bring it on'. At this stage staff from unit 6 arrived and escorted Willett to 'C' wing. I informed senior officer B White that I had placed Willett into 'C' wing due to his aggressive behaviour. I recommend that Willett be charged.

15 Mr Pulford gave evidence (ts 296) that when Willett was placed in C wing four or five prison officers were present. Mr Pulford said in respect of the incident in the yard:

[Willett] was aggressive at the time and I was thankful when the other staff came along. If the other staff weren't there I did think that I might have worn a punch from him, type of thing, because he was quite angry. (ts 296)

16 Mr Pulford said that it was not a common thing for him to put a prisoner in detention. It occurred only once every few months.

17 Hakea Prison had, among other things, a reports and occurrences book (occurrence book) in C wing. It was maintained by the senior officer on the shift and kept in the control room in C wing. It was accessible by prison officers working in C wing. The occurrence book contained a separate entry for each of the prisoners who were placed in C wing and any significant occurrence concerning the prisoner was required to be entered in it. It contained the following entries on 31 January 2000 regarding Willett:

Received Willett - time out for abusing staff - awaiting ASP & FCMT
G Williams (physic) to see prisoner
Dinner given
Defed

18 It appears from the evidence that Mr Williams is a psychologist at the prison, the abbreviation 'ASP' is a reference to the 'assistant superintendent prisoner-management' (Mr Carberry), and the abbreviation 'FMCT' is a reference to the forensic case management team, which is responsible for assessing prisoners to assist prison staff in their management of them.

19 The entries in the occurrence book are consistent with the evidence as to the events following Willett's placement in C wing. Willett was placed in cell C5 at 3.50 pm. While he was in cell C5, Willett was seen by Mr Williams at about 4.50 pm and received his evening meal at 5.35 pm and was 'de-fed' at 6.35 pm. The latter is a procedure in which the cell door is opened and the prisoner is told to bring out his utensils and any leftovers. It appears that Willett was moved to cell C3 at about 6.35 pm.

20 Mr White gave evidence (ts 510) that following the incident with Mr Pulford, Willett was placed in C5 'to calm down and on the understanding he would be assessed the following day by the assistant superintendent, and for his own safety and for the officers' safety'. Mr White said that prison procedure required that Willett be assessed by the assistant superintendant and the forensic case management team before he could be returned to his usual cell.

21 It appears from Mr Carberry's evidence (ts 738) that he requested that Willett be assessed by a member of the forensic case management team. Willett was seen at 4.50 pm that afternoon by Mr Williams, who was a member of the forensic case management team. Mr Carberry gave evidence (ts 739) that Mr Williams, after seeing Willett, told him that Willett was 'travelling alright'. Mr Carberry could not recall at what time that conversation took place but said it must have been before 6.00 pm, when Mr Williams finished work that day. I should say that Mr Williams did not give evidence at the trial.

22 At some point on 31 January 2000, the window in the door of cell C5 was broken. Mr White gave evidence (ts 507) that substantial force would have been required to break the window. Whether the window was broken by Willett while he was in the cell, and if it was, when he broke it, assumed some significance at the trial in relation to Willett's disposition after the incident with Mr Pulford.

23 There was no direct evidence as to when or by whom the window was broken. However, on 31 January 2000 Mr White signed a written maintenance request for the repair of the broken window. At the trial, Mr White could not recall at what time he signed the maintenance request, but it was clear that it must have been signed before 7.30 pm, when he left work for the day. Mr White gave evidence (ts 570 - 572) that the window would not have been in a damaged condition when Willett was placed in the cell at 3.50 pm because Willett would not have been placed in an unserviceable cell, and once the window was damaged it would not have been safe for Willett to remain in the cell. There was no suggestion that any other prisoner was placed in cell C5 after Willett was moved to cell C3 at 6.35 pm. Mr White said (ts 572) that a prisoner would not be left in the cell if the window was broken and he accepted that the window must have been broken while Willett was occupying cell C5. He also accepted that the only logical conclusion was that Willett broke it.

24 In the light of that evidence and the evidence of Mr Carberry as to Mr Williams's assessment of Willett, it is, I think, to be inferred that the window had not been broken when Mr Williams saw Willett at 4.50 pm.

25 The appellant came on duty at 7.00 am on 1 February 2000. He was rostered to work as a miscellaneous officer in C wing with Mr West, who was the 'wing officer'. The duties of a miscellaneous officer were to provide assistance to other officers during the busy periods that occurred in the course of the morning when prisoners received their breakfast and medications were dispensed.

26 The appellant said that the normal shift handover was conducted and he looked at the whiteboard in the control room. The whiteboard contained specific information in relation to each of the prisoners. He saw that all of the multipurpose cells were occupied, except C5 against which there appeared the notation 'US'. He said that denoted that the cell was unserviceable. He also saw on the whiteboard that Willett was in cell C3, which was a medical observation cell.

27 In addition to the whiteboard in the control room, there was a small whiteboard on the outside of the door of each cell, including C3.

28 It was not in issue that there was nothing on either the whiteboard in the control room or the whiteboard outside cell C3 referring to the incident involving Willett the previous day or which was otherwise material to the events which occurred on 1 February 2000.

29 The appellant said that he did not look at the occurrence book when he commenced his shift on 1 February 2000. It is not apparent from the evidence whether it was the normal practice of prison officers to do so but, in any event, nothing turns on it. There was no reference in the occurrence book to the incident with Mr Pulford or the breaking of the window in cell C5.

30 In addition to the occurrence book, a record was maintained by the senior officer on each shift in which entries were made for the purpose of the handover to the senior officer on the next shift. The pages tendered in evidence were headed 'Debrief notes'. Relevantly, the note for 31 January 2000 contained an entry that Willett had been placed in a multipurpose cell 'after abusing staff'. It also noted that the window in cell C5 was broken and the cell was 'u/s until [the window was] replaced'. It did not, however, indicate any connection between Willett and the broken window. There is no evidence to suggest that the appellant saw the 'debrief note'.

31 The appellant said that shortly after he commenced the shift he was standing with Mr West when Mr West was instructed by the senior officer, Mr White, that a mental health nurse, Mr Craig, would be visiting Willett at approximately 8.00 am. Mr White instructed Mr West to open the door to Willett's cell as Mr Craig did not have an access key to the cells.

32 At around 8.00 am, the appellant and Mr West went with Mr Craig to Willett's cell and the appellant opened the cell door. Mr Craig entered and shortly afterwards the appellant saw Mr Craig and Willett sitting on the mattress in the cell, talking. The appellant and Mr West remained outside the cell. The appellant gave evidence that Mr Craig then asked the appellant and Mr West why Willett was in C3. The appellant said he moved into the doorway of the cell to say that he would check. Willett was in a squatting position but suddenly rose, shouting, and punched the appellant on the side of the face with a clenched fist. There was a brief struggle until Willett was restrained. The appellant gave evidence that he then felt a very sharp powerful pain in his back that radiated down to his knee.

33 The appellant said in evidence that he had known Willett for about three months prior to the incident, but had not known him to be involved in incidents involving violence. He had no warning or expectation that Willett would assault him when he entered the cell.

34 The appellant said that when he commenced the shift that morning he was not informed about the incident involving Willett and Mr Pulford the previous day, nor was he informed that Willett had broken the window in C5. The appellant said (ts 123) that, had he been informed of the incident involving Mr Pulford, he would have made enquiries with the senior officer as to how to handle Willett and he would have been prepared for what might be a volatile situation.

35 At the trial, Mr West did not recall being instructed by Mr White to open the cell for Mr Craig and thought that he had been asked to do so by Mr Craig. However, Mr West's evidence as to the circumstances of the assault of the appellant by Willett does not, for present purposes, differ in any material respect from that of the appellant. Mr West also gave evidence (ts 370) that he had not been informed of Willett's conduct the previous day before the assault on the appellant. Mr West said that had he been informed of it he would have approached Willett differently, in particular by following a procedure by which, before the cell door is opened, the prisoner is required to stand with his back against the wall furthest from the door and raise his hands with his palms open. According to Mr West, the procedure indicates whether the prisoner is going to be compliant. If he is not, the prison officer would not enter the cell and other measures such as a 'three officer unlock' would be employed.

36 I should say that the learned trial judge considered that Mr West did not have a good recollection of the relevant events and, in particular, did not have a good recollection of what was said by Mr White at the commencement of the shift. The learned trial judge concluded that he was not prepared to rely on Mr West's evidence.

37 Mr White was the senior officer in C wing on that shift on 1 February 2000. He said in evidence (ts 515) that when he came on duty that day he asked Mr Craig, who was a mental health nurse, to see Willett to enable him (Mr White) to find out how to manage Willett. He said he could not recall why he had asked Mr Craig, rather than the forensic case management team, to assess Willett but said it was probably because the forensic case management team was not available.

38 Mr White gave evidence (ts 516) that he recalled explaining to Mr Craig why Willett was in cell C3 so that Mr Craig understood why he was being asked to assess Willett. Mr White said he did not have any recollection of 'briefing' the appellant and Mr West but said he 'would have brief[ed] them on the situation down there', as it was part of the routine. The reference to 'down there' appears to be a reference to Willett in cell C3. But Mr White could not say from his own recollection whether or not he had in fact 'briefed' the appellant and Mr West.

39 The learned trial judge found that Mr White was a conscientious prison officer and an honest witness whose evidence was reliable.

40 Mr Carberry was the assistant superintendant at the prison on 31 January 2000. He gave evidence (ts 727) that he considered the incident with Mr Pulford involved 'abusive language', which he described as a very usual occurrence within the prison, and that Willett was 'a little bit aggressive which is normal for anybody that uses bad language and abusive language towards someone'. Mr Carberry said (ts 730) that when he saw Willett later in the afternoon of 31 January 2000, he considered Willett 'very, very settled.' In his evidence, Mr Carberry made no reference, however, to the breaking of the window in cell C5. As I mentioned earlier, Mr Carberry said that, on 31 January 2000, he was told by the psychologist, Mr Williams, that Willett was 'travelling alright'.

41 Expert evidence was led on both sides. The admissibility of a good deal of the expert evidence is, at best, doubtful, although no objection appears to have been taken to much of that evidence at trial. The appellant called a Mr Butler, who had some 30 years experience in the prison system. Mr Butler gave evidence that, based on the incident report of 31 January 2000, he would have ensured that at least three prison officers were present when Willett's cell was unlocked on 1 February 2000.

42 The appellant also called a Mr Touchell, who had been an assistant superintendant at Canning Vale and Albany prisons at various times between 1987 and 1998. Mr Touchell gave evidence that Mr Pulford's incident report should have been provided to the appellant when he commenced his shift. Mr Touchell considered that the question of who broke the cell window, and how it came to be broken, was an important factor in assessing whether Willett had calmed down after the incident with Mr Pulford. He considered that, in light of Willett's behaviour, on 1 February 2000 a 'three officer unlock' was appropriate.

43 In relation to Mr Touchell's evidence, the learned trial judge said:

The impression I formed was that his opinion as to appropriate conduct was very much influenced by what happened on 1 February 2000, namely the assault on the plaintiff.

In the circumstances I find him to be an unsatisfactory witness. He was last in the prison system two years before the incident in question.

44 The basis for the finding that Mr Touchell was an unsatisfactory witness could, with respect, have been more clearly expressed. However, I take his Honour to be saying that he found Mr Touchell an unsatisfactory witness because he considered Mr Touchell's opinion was unduly influenced by the actual events of 1 February 2000, rather than simply because Mr Touchell was last in the prison system two years before the incident.

45 The respondent called a Mr Fisher, the general manager of a remand prison in Brisbane. Mr Fisher was previously employed in the Western Australian prison system for 29 years, commencing as a prison officer and ultimately attaining the rank of superintendent. He had worked at Hakea prison in that time. He had, the learned trial judge concluded, the most impressive credentials of the expert witnesses called.

46 Mr Fisher considered (ts 750) that the incident involving Mr Pulford was a 'pretty low level incident in a remand prison'. He gave evidence (ts 751) that on the basis of Mr Pulford's report of the incident of 31 January 2000, a 'three officer unlock' of Willett's cell on 1 February 2000 was not required. Mr Fisher also expressed the opinion (ts 753) that even if the appellant had been informed of the earlier incidents involving Willett, and a three officer unlock had been implemented, that would not have avoided the assault. The size of the cell would have prevented all three prison officers entering it together and the assault was spontaneous, with no prior warning, and therefore could not have been prevented regardless of the number of prison officers present.

47 In a written report which went into evidence, Mr Fisher said that by the time of the assault of the appellant there was no indication that Willett had not 'settled down' or that he was more prone than any other remand prisoner to assault a prison officer. Mr Fisher expressed the opinion in his written report that 'once a prisoner has acted out, it is unusual for them to demonstrate further violent behaviour, particularly physical violence against a prison officer', although in cross-examination he conceded that it did occur.

48 On the issue of damages, evidence was given on behalf of the appellant by his treating general practitioner (Dr Lam), a consultant in rehabilitation medicine (Dr Ker), a general practitioner practising in the area of sexual health problems (Dr Lee) and two psychiatrists (Dr Black and Dr Ball), and on behalf of the respondent by an occupational physician (Dr Connaughton) and a psychiatrist (Dr Proud).

49 Dr Lam gave evidence that the appellant had suffered a lower back facet joint injury with referred pain into the leg. Dr Ker's evidence was that the appellant had suffered an acute lower back strain leading to disc abnormality at the L5/S1 level. Dr Black's evidence was to the effect that the appellant was suffering from a major depressive illness as a result of the consequences of the incident. Dr Ball's evidence was that the appellant had a major depressive illness consequent upon his back problems.

50 On the other hand, Dr Connaughton gave evidence that the appellant had suffered a lower back strain as a result of the incident, but that his continuing spinal problems were caused substantially by unrelated degenerative changes. Dr Proud's evidence was to the effect that the appellant had a major depressive illness resulting from his back injury and his perception of maltreatment by the respondent in connection with it. He considered that the appellant's depression was relatively well controlled with treatment and that he could return to work.

51 The learned trial judge found that the respondent owed to the appellant a duty to take reasonable care to avoid exposing the appellant to unnecessary risk of injury. His Honour was satisfied that it was foreseeable that the appellant and other prison officers might be assaulted by prisoners. But his Honour concluded that on the facts there had been no breach of duty by the respondent.

52 His Honour further found that, in any event, the appellant had not established that the respondent's alleged negligence was a cause of the appellant's injuries, concluding that the assault would have occurred even if the respondent had taken the measures the appellant says should have been taken. He therefore dismissed the appellant's claim.

53 The learned trial judge made a provisional assessment of damages of $30,000. His Honour did not accept that the appellant's injuries were as significant as the appellant claimed. He accepted the evidence of the respondent's expert medical witness, Dr Connaughton, that the injury sustained by the appellant was simply a lower back strain. The learned trial judge was not satisfied that the appellant's problems with his back after December 2001 were related to the assault.

54 The learned trial judge's reasons for those findings are, with respect, not easy to follow. It is also not easy to discern with clarity from his reasons for judgment whether in respect of some important parts of the evidence, what, if any, findings of fact were made by his Honour.

55 The learned trial judge did, however, expressly accept the evidence of the respondent's expert witness, Mr Fisher, that the incident of 31 January 2000 involving Mr Pulford was a 'pretty low level incident in a remand prison'.

56 His Honour said he was not satisfied that the window to cell C5 was broken by Willett. His Honour found there was no evidence that Willett was the only person who had access to the cell window when it was broken and, whilst noting that Mr White had said it was logical to conclude that it was broken by Willet, the learned trial judge declined to draw such an inference.

57 The learned trial judge did not accept the appellant's evidence that at the commencement of his shift he had not been given any information in relation to Willett's earlier behaviour. The trial judge referred to the evidence of Mr White that he 'would have briefed' the appellant and Mr West 'as to the situation' and said he was satisfied, on the basis of Mr White's evidence, 'that the [appellant] was given proper instructions at the commencement of the shift on 1 February 2000'. His Honour did not, however, make any finding as to the content of the 'briefing' that Mr White would have given the appellant and therefore made no finding as to what instructions were in fact given to the appellant by Mr White.

58 The learned trial judge said that, in any event, he was satisfied that by the commencement of the appellant's shift Willett had calmed down to such an extent that 'a specific warning was not required'. While it is not entirely clear, it seems the learned trial judge came to that conclusion, first, on the basis that Willett had, as his Honour found, 'been given time to cool down' and had not made any threats to prison officers after the incident with Mr Pulford and before the assault on the appellant (during which time he had been seen by Mr Williams and fed and 'defed' without incident); and secondly, in reliance on the evidence of Mr Fisher and Mr Carberry that after the incident with Mr Pulford, Willett had settled down.

59 His Honour also concluded that the breaking of a cell window was 'not an infrequent occurrence' in the prison and, neither of itself nor in combination with the incident of 31 January 2000, did it call for additional measures to be taken by the respondent to discharge its duty of care to the appellant. No special or additional warning or instructions to the appellant at the commencement of his shift on 1 February 2000 were required.

60 His Honour found that the incident on 31 January 2000 had been

properly handled by the [respondent] ... and that the [respondent] exercised reasonable care on that date and on 1 February 2000. Mr Willett had been given time to cool down and nothing further was required. It was unnecessary for there to be any further measures taken. The incident which occurred on that date was not unusual and nothing further was required [271].

61 The learned trial judge found that there was no want of care on the part of the respondent in failing to write any information concerning Willett on the whiteboard in the control room or on the cell door of C3. His Honour concluded that the whiteboard in the control room could be seen by the general prison population, as could the whiteboard outside each cell. In those circumstances, there was potential for problems if prisoners were able to access information concerning other inmates.

62 His Honour found that a 'three officer unlock' procedure on 1 February 2000 was unnecessary. He further found that even if a three officer unlock procedure had been adopted when the door of Willett's cell was opened, it would not have prevented the assault, which was spontaneous and without warning. His Honour was not satisfied that the presence of more prison officers would have prevented the assault.

63 The learned trial judge also rejected the appellant's evidence that if he had been informed of the incident involving Mr Pulford and the breaking of the window in C5 he would have acted differently when he went to open Willett's cell. His Honour found that the appellant would have acted no differently. That finding appears to be based upon his Honour's conclusion that the incident with Mr Pulford was 'a minor everyday occurrence within the remand centre' and 'the breaking of a window occurred not infrequently'. It seems his Honour inferred that the appellant would have viewed them in that light and would not have regarded them as calling for any different approach in dealing with Willett on 1 February 2000. His Honour further noted that the appellant had also had the opportunity to observe Willett talking to Mr Craig and that the assault was unexpected and without warning.

64 As I have mentioned, the learned trial judge made a provisional assessment of damages of $30,000. His Honour did not regard the appellant as a credible witness and did not accept that the appellant's incapacity was as significant as he claimed. His Honour was not satisfied that the appellant would have provided an accurate history to the various medical practitioners who examined and treated him.

65 His Honour accepted and preferred the evidence of Dr Connaughton that the injury sustained by the appellant was a lower back strain. The learned trial judge did not, however, explain why he preferred Dr Connaughton's evidence to the evidence of Dr Ker, the expert medical witness called by the appellant.

66 The learned trial judge said he was not satisfied that the appellant's problems with his back after December 2001 were causally related to the assault. Similarly, the learned trial judge said he was not satisfied that the appellant's psychiatric problems or his sexual dysfunction problems were causally related to the assault. Those conclusions appear to have been based on his Honour's finding that the appellant suffered only a lower back strain as a result of the assault and that he had made a full recovery from that injury within three months.

67 There were 10 grounds of appeal. It is unnecessary to set them out in full and they can be sufficiently summarised as follows.

68 The learned trial judge erred in fact in failing to find that on the balance of probabilities Willett damaged the cell window in C5, alternatively in failing to provide adequate reasons for concluding that he was not satisfied that Willett broke the window.

69 The learned trial judge erred in law in failing to have proper regard to the evidence concerning the conduct of Willett in threats to Mr Pulford and damaging the cell window in C5 on 31 January 2000.

70 The learned trial judge erred in law in finding that Mr White had briefed the appellant and Mr West on 1 February 2000.

71 The learned trial judge erred in fact and in law in concluding that prior to the assault Willett had calmed down to such an extent that a specific warning was not required to be given to the appellant, and in failing to give any adequate reasons for concluding that Willett had in fact calmed down.

72 The learned trial judge erred in fact and in law in finding that there had been no breach of duty by the respondent, those errors being based upon errors of fact as to the breaking of the cell window in C5; alternatively in failing to give adequate reasons for concluding that the breaking of the window in combination with the incident of 31 January 2000 did not call for additional measures to discharge the respondent's duty of care.

73 The learned trial judge erred in fact in finding that the whiteboards outside the cells could be viewed by the general prison population.

74 The learned trial judge erred in fact and in law in concluding that he was not satisfied that more officers present would have prevented the assault.

75 The learned trial judge erred in fact and in law in failing properly to characterise the misconduct of Willett and misconstruing the evidence of the appellant as to the unexpectedness of Willett's behaviour.

76 The learned trial judge erred in law in failing to make any comparative evaluation of the evidence of the medical experts called by the appellant with the evidence of Dr Connaughton.

77 The learned trial judge erred in law in failing to give any reasons why he concluded that the appellant's psychiatric problems were not causally linked to the incident when the totality of the psychiatric evidence was to the contrary.

78 The appellant's case on this appeal can be summarised quite shortly. On liability, the appellant says that the learned trial judge should have found that the exercise of reasonable care on the part of the respondent required the respondent to inform the appellant of the incident involving Mr Pulford and the breaking of the window by Willett, before the appellant went to Willett's cell to unlock it; that the respondent had failed to do so; that had the respondent informed the appellant of those matters the appellant would have taken precautions which would have avoided the assault on him by Willett; and that the failure to inform the appellant of those matters caused him to be assaulted and suffer injury.

79 In grounds 1 to 4, 6 and 8 of the grounds of appeal, the appellant attacks a number of findings of fact of the learned trial judge; in particular, his Honour's findings as to the significance of the incident involving Mr Pulford, the breaking of the window in cell C5, whether the appellant was informed of Willett's conduct of the previous day when he commenced his shift, whether by the morning of 1 February 2000 Willett had appeared to have calmed down to such an extent that no such warning was required to be given to the appellant, and whether (if warned) the appellant would have acted differently in dealing with Willett.

80 As I understand it, by ground 5 of the grounds of appeal the appellant seeks to contend, in effect, that as a result of the errors of fact he made, the learned trial judge wrongly concluded that there had been no breach of duty by the respondent. Although the ground of appeal could have been more clearly framed, as the appeal was argued it was, in my view, clear that the parties understood that to be the appellant's case.

81 Similarly, although ground 7 (on the issue of causation) is in its terms directed to whether a 'three officer unlock' would have prevented the assault, as the appeal was argued the issue of causation turned more broadly on whether the appellant would have approached Willett differently, whether by means of a 'three officer unlock' or otherwise.

82 As grounds of appeal 1 to 4, 6 and 8 deal with questions of fact relating to whether the respondent was in breach of its duty of care, I will deal first with those before turning to ground 5, and then with the issue of causation in ground 7. I will then turn to grounds 9 and 10, dealing with damages.

83 Before doing so, it is important to observe that this appeal is by way of a rehearing solely on the evidence which was before the trial court. In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 125, Gleeson CJ, Gummow and Kirby JJ pointed out that that shapes the requirements and limitations of an appeal. They went on to say:

On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance' Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 at 561 ... On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record ... These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share ...

...

[But] if, making proper allowance for the advantages of the trial judge, [appellate courts] conclude that an error has been shown, they are authorised and obliged to discharge their appellate duties ... (125 - 126).

84 As the appeal turns substantially on the learned trial judge's findings of fact, it must also be recognised that the onus which lies on an appellant who appeals against findings of fact goes beyond merely showing that an alternative finding was available on the facts. The appellant must show that a factual error was made by the learned trial judge. As the Full Federal Court said in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 184; (1992) 35 FCR 359:

The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made [369].

85 See also Williams v The Minister Aboriginal Land Rights Act 1983 and The State of New South Wales [2000] NSWCA 255 [60]; Adler v Australian Securities and Investments Commission [2003] NSWCA 131 [17]; Dobler v Halverson [2007] NSWCA 335 [52].

86 Against that background, I turn to the specific grounds of appeal relied upon by the appellant.

The learned trial judge erred in fact in failing to find that on the balance of probabilities Willett damaged the cell window in C5, alternatively in failing to provide adequate reasons for concluding that he was not satisfied that Willett broke the window.

87 As I have mentioned, it was not in issue that following the incident with Mr Pulford, Willett was placed in cell C5 at about 3.50 pm on 31 January 2000. At 6.35 pm, after his evening meal, Willett was moved to cell C3.

88 Mr White accepted, on the basis of the repair request he prepared on 31 January 2000, that the window had been broken by the time he left work that day at 7.30 pm. In cross-examination he accepted that it must have been broken after Willett was placed in the cell and that logically the only explanation was that Willett broke the window some time between 3.50 pm and 6.35 pm, when he was moved to C3.

89 There was no evidence that any other prisoner was placed in C5 that day after Willett was moved out of it at 6.35 pm. Mr White said in evidence that a prisoner would not be left in a cell with a broken window. There was also no evidence to suggest that the window might have been broken by some other prisoner from outside C5.

90 It was, of course, for the appellant to satisfy the trial judge on the balance of probabilities that Willett broke the window. It was not incumbent upon the respondent to establish that the window was broken by someone other than Willett, or to show how it came to be broken or by whom it was broken. But on the evidence, the only conclusion reasonably open was that the window was broken by Willett. With respect, in the absence of any other plausible possibility, it was not sufficient for the learned trial judge simply to say that he was not satisfied the window was broken by Willett. In my view, in so concluding, the learned trial judge erred. He should have found as a fact that the window was broken by Willett while he was in cell C5.

The learned trial judge erred in law in failing to have proper regard to the evidence concerning the conduct of Willett in threats to Mr Pulford and damaging the cell window in C5 on 31 January 2000.

92 The gravamen of this ground, as developed in oral argument, was that the learned trial judge failed to have proper regard to the incident with Mr Pulford on 31 January 2000, together with the breaking of the window by Willett later that day, in determining what steps were required of the respondent to discharge its duty of care to the appellant.

93 The findings of the learned trial judge in relation to the incident with Mr Pulford on 31 January 2000 are not easy to discern from his Honour's reasons. In his findings, his Honour said:

Mr Pulford's evidence was that Willett was aggressive and quite angry on 31 January 2000. He gave evidence that he was thankful when other officers became involved. However the written report describes the incident as being one involving the use of abusive language. Mr Pulford was not physically assaulted in the incident and saw no reason to recommend a three office unlock procedure. That said, the decision as to a three officer unlock was not one he could make as he was not a senior officer. There was no evidence of the use by Mr Pulford of his duress alarm which could have suggested the incident was serious so far as Mr Pulford was concerned.

Mr Pulford reported the incident of 31 January 2000 to his senior officer Mr West [sic, Mr White] and recommended that Mr Willett be charged over his conduct. However Mr Pulford did not follow up that recommendation by lodgement of the necessary documentation to enable a charge to be laid against Mr Willett.

Mr Carberry [the assistant superintendent of Hakea prison] received an oral report as to the incident involving Mr Pulford on 31 January 2000 soon after it had occurred.

I accept the evidence of Mr Carberry that on 31 January 2000 he reviewed the incident report prepared by Mr Pulford. He carefully considered the matter. Mr Willett had been seen by the psychologist after the incident involving Mr Pulford and had been fed and de-fed. This involved opening the cell door to Mr Willett's cell on a number of occasions. There is no evidence to suggest there was any difficulty on any of these occasions. Mr Carberry assessed the situation and made a decision in relation to management of Mr Willett after he had spoken to Mr White. His decision was made in accordance with the practice adopted by the defendant. The incident report contained no evidence of a struggle. There was no threat directed to officers in general made by Mr Willett.

There was no evidence that Mr Willett had made any threats directed to other prisoners or officers either before the incident involving Mr Pulford or between when that incident occurred and when the plaintiff was assaulted [255] - [259].

94 The learned trial judge accepted Mr Fisher's evidence that the incident described in Mr Pulford's report of 31 January 2000 was a 'pretty low level incident in a remand prison'. His Honour concluded:

The breaking of a cell window was described as a not infrequent occurrence. The breaking of the window either of itself or in combination with the incident of 31 January 2000 did not call for any additional measures to be taken by the defendant in the discharge of its duty to exercise reasonable care. No special or additional warning or instructions to the plaintiff prior to commencement of the shift of 1 February 2000 were required. This was Mr Fisher's opinion. As I have said I cannot be satisfied that the cell window was broken by Mr Willett.

I accept the evidence of Mr Fisher that the appropriate action was to settle the situation down if possible. This is what occurred on 31 January 2000 and was in accordance with the exercise of reasonable care by the defendant.

I find that the incident had been properly handled by the defendant on 31 January 2000 and that the defendant exercised reasonable care on that date and on 1 February 2000. Mr Willett had been given time to cool down and nothing further was required. It was unnecessary for there to be any further measures taken. The incident which occurred on that date was not unusual and nothing further was required [269] - [271].

95 It is evident from the detailed description in the body of Mr Pulford's report that, contrary to the conclusion the learned trial judge appears to have reached, the incident on 31 January 2000 involved more than simply abusive language. Although it is true that Mr Pulford was not assaulted by Willett, his report makes it plain that Willett was aggressive and had twice adopted a fighting stance towards Mr Pulford and sought a physical conflict. Mr Pulford said in the report that he had placed Willett in C wing because of 'his aggressive behaviour' and recommended that Willett be charged. Mr Pulford's assessment of the seriousness of the incident was reflected in his evidence at the trial that he did not commonly put a prisoner in detention; that it occurred only once every few months. It was also reflected in Mr White's evidence that Willett was placed in C wing 'to calm down' and 'for his own safety and for the officers' safety'.

96 It is also apparent that the learned trial judge attached little, if any, significance to the subsequent breaking of the window in cell C5, even if it was broken by Willett. His Honour's view of that appears to have been based, at least in part, on the evidence of Mr White that the breaking of a window was a not infrequent occurrence at Hakea prison.

97 In my respectful view, however, his Honour misunderstood the import of that evidence. In his evidence in chief, Mr White, having said that the windows were not easy to break, was asked about prisoner behaviour 'towards those sort of windows'. He replied:

It wasn't unusual for them to get broken, just a part of the routine. If it happens, it happens, you know. They put prisoners in here who are particularly violent. They're aggro. They take it out on something and that's probably the softest thing they'll take it out on. Not an unusual occurrence. (ts 508)

98 On the basis of that evidence, the breaking of the window was not simply a run of the mill event to which no real significance was to be attached. On the contrary, in light of the earlier incident in the yard, it suggested a continuation or reoccurrence of Willett's aggressive disposition. It was, therefore, an important factor in assessing the prospect of further aggressive behaviour on his part.

99 His Honour also referred to an opinion he said had been expressed by Mr Fisher that, neither of itself nor in combination with the incident with Mr Pulford, did the breaking of the window require any special warning or instruction to be given to the appellant. That, however, appears to be based upon a misunderstanding of Mr Fisher's evidence. Mr Fisher did not say that no special or additional warning or instruction was required to be given to the appellant at the commencement of his shift on 1 February 2000. Mr Fisher's evidence was directed to whether a 'three officer unlock' was required, not whether any special warning or instruction was required to be given to the appellant regarding Willett. In fact, it appears from his evidence in cross-examination that Mr Fisher assumed that the officers who unlocked Willett's cell on 1 February 2000 would have been aware, or would have been made aware, of Willett's earlier conduct, including breaking the window. I will refer to that evidence in more detail in connection with the next ground of appeal.

100 The learned trial judge also referred to an assessment of the situation by Mr Carberry and Mr Carberry's decision in relation to the management of Willett. However, while Mr Carberry gave evidence that he reviewed Mr Pulford's report and considered that a 'three officer unlock' was not required, his evidence did not touch upon whether the appellant should be informed of Willett's conduct before the appellant had any contact with Willett. Mr Carberry did not refer in his evidence to the breaking of the window and it is not apparent whether he was aware of it prior to the events of 1 February 2000.

101 In my view, the learned trial judge substantially underestimated the significance of the incidents on 31 January 2000. I consider that this ground of appeal has been made out.

The learned trial judge erred in law in finding that Mr White had briefed the appellant and Mr West on 1 February 2000.

102 The learned trial judge dealt with the question of the instructions given to the appellant as follows:

The evidence of the plaintiff was that on 1 February 2000 he was not given any information by anybody in relation to the disposition of Mr Willett. It was Mr West's evidence that he could not recall any conversation with a senior officer in relation to the management of prisoners on 1 February 2000. It was the evidence of Mr White that he would have briefed the plaintiff and Mr West as to the situation. He said this is what he did with all officers in the unit. When pressed in cross-examination Mr White gave evidence that there was no reason why he would not have warned the plaintiff on 1 February 2000. Mr White knew about the broken window. He had signed the maintenance repair request dated 31 January 2000 before the end of his shift on that date.

I accept and prefer Mr White's evidence to that of the plaintiff and of Mr West, and am satisfied based upon the evidence of Mr White that the plaintiff was given proper instructions at the commencement of the shift on 1 February 2000. In his evidence the plaintiff said that in relation to the 1 February 2000 incident that he could not think 'anything was different to a normal shift hand-over' [262] - [263].

103 As I observed earlier, the learned trial judge did not make any findings as to what, in the circumstances, constituted 'proper instructions' to the appellant, nor as to what instructions were actually given to the appellant, in relation to Willett's behaviour the previous day. Further, in my view, it was not open to his Honour on the evidence to find that the appellant had been given any instructions as to Willett's conduct on 31 January 2000.

104 In evidence in chief, Mr White did not refer specifically to any instructions he gave to the appellant about Willett's behaviour of 31 January 2000. In his evidence in chief, the only evidence in connection with the commencement of the shift was as follows:

And what's your normal procedure when you commence a shift?---Well, get the keys from the front gate; go to the unit; brief your staff in the morning. Quite often you actually find yourself - for example, if something happened overnight, if anything happened overnight, you get up to speed yourself and then brief your staff on what happened. Anything that's going to happen during the day, maybe say Joe Blow is going to court or if the boss is coming through or whatever, just any more information that you've got probably handed over from night shift, you get yourself up to speed and then you tell the staff. That's pretty well the routine.

So when you came on duty that morning was any further information brought to your attention about Prisoner Willett about the evening before?---Not that I can recall, sir.

And then did you have any conversation with the mental health nurse?---Yes, I seem to recall speaking to - giving Mr Craig a call.

Why did you do that?---Because I wanted to get this bloke seen.

...

And can you roughly recall your conversation or discussion with Mental Health Nurse Craig?---Well, I just was - as far as I can recall I just said to him, 'Can you give us a hand, Graham? You're the right bloke for it, but can you come down and see him? You're a mental health nurse. Can you come down and see him and see what he's up to and see where he's at mentally?' That was to help me with my management of the prisoner.

Did you mention anything of the reasons why you should assess him?

...

Yes?---What I would have briefed - - -

Not 'would have'?---Sorry. When I briefed - sorry.

Just tell us what happened, not what would have happened?---Right. When I briefed Graham I explained the situation of why he was in there. He had to have the background to know why I wanted him to see him.

Can you remember telling him that?---Yes, I can recall that. (ts 515 - 516)

105 In cross-examination, Mr White was asked what he would have done when he got to work on 1 February 2000. He replied:

The routine would have been - for a start, my personal routine would have been to come in a few minutes early, read up the cards from the night before, get myself up to scratch with what's happening overnight. Then I would have briefed the staff of what was happening and then got the prison working. You just like - carrying on - it's just a certain routine you go through; get the prisoners fed and watered and ---

Before feeding and watering them, how long would that have taken? Familiarising yourself and briefing your officers?---Five to 10 minutes probably. (ts 584)

106 Later in the cross-examination of Mr White the following exchange occurred:

My question is, did you concern yourself specifically, turn your mind specifically, to the safety of Prison Officer Leeder and Prison Officer West who were to accompany Nurse Craig when he was going to assess this prisoner?---Not particularly, sir. They are trained prison officers. They have a duty to do and they're just doing their normal routine duties, sir.

Their normal routine. That was your thinking?---That was their normal routine, to go down - they were working in that wing. They were dealing with prisoners. The only thing that I would have done was to brief them on the situation down there as I did with all the officers in the unit.

But that's not the evidence you gave to my learned friend yesterday?---What evidence did I give, sir?

You didn't say that you briefed Prison Officer West or Prison Officer Leeder about the situation there. You said that you briefed Nurse Craig?--- I said - think I said, sir, I could be wrong.

...

Are you saying you have a recollection now of having a discussion with Officer Leeder and Officer West on 1 February?---Sir, I'm saying that I don't have any recollection but I would have briefed the officers.

You would have? If Mr Leeder says on sworn evidence that you didn't warn him would you be prepared to accept that you might have been mistaken - because you don't recall. You are just saying you would have done this?---I can't - I'm just trying to find the correct words to use, sir.

There's no reason why I would not have done it. If they say I didn't do it I can't argue because I can't remember it, but there's no reason why I would not have done it.

You might have forgotten?---It's part of the routine.

You might have told Nurse Craig and hoped that Nurse Craig relayed the information. There are a number of reasons why you might not have done it. You accept that you can't ?---I can't say I did or I didn't, sir. (ts 587 - 589)

107 That evidence fell to be considered in the light of the express denials by the appellant and Mr West that they were informed of Willett's conduct of the previous day. In that regard, it was not, with respect, a proper approach to Mr West's evidence simply to disregard it in its entirety (as his Honour appeared to do) on the basis that Mr West did not have a good recollection of events. Mr West was unequivocal on this point. If the learned trial judge did not accept that evidence, it was incumbent upon his Honour to explain why he did not accept it. His Honour did not do so.

108 In my view, with respect, on the evidence before him the learned trial judge could not properly conclude that the appellant was given proper instructions at the commencement of the shift on 1 February 2000.

109 Moreover, as I have said, while Mr White believed that he 'would have briefed' the appellant and Mr West, nowhere in the evidence is there any indication of what such a 'briefing' (if it occurred) would have involved. In the absence of a finding as to what was said to the appellant by way of such a briefing, in my opinion the learned trial judge could not find that the appellant had been adequately informed of Willett's conduct of 31 January 2000 before opening Willett's cell.

The learned trial judge erred in fact and law in concluding that prior to the assault Willett had calmed down to such an extent that a specific warning was not required to be given to the appellant, and in failing to give any adequate reasons for concluding that Willett had in fact calmed down.

111 The basis upon which the learned trial judge found that by the morning of 1 February 2000 'Willett had calmed down to such an extent that a specific warning [to the appellant] was not required', does not clearly emerge from his Honour's reasons for decision. The finding is simply made in one sentence at the end of the passage of his Honour's reasons which I have set out in relation to ground 3.

112 Nor is it entirely clear what his Honour intended by that finding. His Honour accepted that the assault on the appellant was entirely unprovoked. On the face of it then, Willett plainly had not in fact 'cooled down' to the extent that no warning was required.

113 However, I take the learned trial judge to mean that the respondent was entitled to assume, and act on the basis, that Willett had 'cooled down' to such an extent that no warning was necessary.

114 As I said earlier, it would appear from his reasons for judgment that that finding was based on two grounds; first, on the absence of any further incidents involving Willett from the time he was placed in cell C5 up to the time he assaulted the appellant, and secondly, on the evidence of Mr Carberry and that of the respondent's expert witness, Mr Fisher.

115 In relation to the first ground, his Honour did not, however, take into account the breaking of the window in cell C5 by Willett during that period, having concluded that he was not satisfied Willett had broken the window. The breaking of the window was evidence that Willett either had not cooled down after the incident with Mr Pulford or was prone to flare up again. The fact that while he was in cell C5 he was seen by Mr Williams and fed and defed without incident is of very limited weight in circumstances where it is unclear at what time Willett broke the window. In fact, in light of Mr White's evidence that a prisoner would not be left in a cell with a broken window, and given that Willett was moved to cell C3 after he was defed at 6.35 pm, the evidence indicates that the window was broken later rather than earlier in Willett's spell in cell C5.

116 In relation to the second ground, in my view the evidence of Mr Fisher and Mr Carberry does not provide a proper basis for the finding of the learned trial judge.

117 In a written statement tendered in his evidence in chief, Mr Fisher said:

Mr Fisher will state on the evidence there is no indication the prisoner had not settled down nor that he was more prone than any other remand prisoner to assault a prison officer. Further, in a prison environment, it is Mr Fisher's opinion it is not unusual for prisoners to act out in the stress they are under, and once a prisoner acts out, or demonstrates violent behaviour, that behaviour quickly and significantly reduces, and the prisoner is no longer prone to physical violence.

118 In cross-examination, Mr Fisher was asked about that evidence:

Was there any evidence that the prisoner had in fact settled down?---Well, I would say that the fact that he was moved from one cell to another, that he was there for 12 hours - there was nothing in any of the logs to say that he's not. At the end of the day, it's an assessment that a prisoner officer makes.

Let's look at the fact, as you say, that he was moved from one cell to another. What is your understanding of what happened and when?---My understanding - I can't recall when - my understanding is that he was put in a multipurpose cell.

Initially?---It was initially when he was brought in from outside.

After exhibit 9, after Officer Pulford's ?---After Mr Pulford, so that was quite appropriate.

Yes?---My understanding is he broke the glass in the door.

Yes?---And my understanding is he was then moved to another cell.

So your understanding is that he was transferred to another cell because he had actually damaged property?---Yes, he had damaged property.

When did he damage property?---After he was placed in that cell.

Do you know what time?---No, I don't, as I recall.

After he was fed and ?---I don't recall. I need to look at that, if it hasn't been written down.

Wouldn't it be relevant to know at what precise time, whether it was after he was fed or before he was fed?---Not necessarily.

It is your evidence that the fact that he was fed showed that he had calmed down?---Yes.

If he had broken the window after he had been fed, it would show that he had got upset again, wouldn't it?---Well, my evidence would be that prisoners in remand centre very quickly can flare up and be very quiet again.

...

You agree with me that if he had broken this window after 1835, that would be evidence that he had played up again?---Yes.

So is there a difficulty agreeing with the proposition that it would be relevant to know when he broke the window?---Not in my mind. I don't really - whether he was fed before the window was broken or he was fed after the window was broken, he had obviously settled down when he broke the window.

How do you know that?---There's nothing to say that he hadn't.

And there was nothing to say that he had?---No, there's nothing to say that he had.

And in a risky high-volatile remand centre it's your evidence that it's all right to just assume that he had settled down?---No, you don't assume anything. I thought in my evidence which I gave previously I said that prison officers need to be aware of what they are doing. They need to go there and I think I did say that the prison officer would assess the prisoner when he got into the cell. He would assess them when he opened the cell, so I thought I said that.

If the cell is broken after he has been fed and defed, it doesn't matter; you wouldn't have to assess his situation afterwards?---You always assess the situation before you open one of those cells.

And there's no evidence that the assessment had taken place in relation to the damaged window, is there?---No, there's no evidence to say it wasn't.

There is no evidence to say that it was?---No, other than when the officers opened the cell. The next morning, as I stated previously - the next morning when the officers went to the cell I would expect them to do that.

To have done what?---To do exactly what I said, assess the situation.

But this prisoner had been transferred from the multipurpose cell to another cell which was not - did not have a broken window. How would the officers the following morning know that he had broken a window in another cell if that's not recorded anywhere?---Wouldn't they see it?

Say again?---Wouldn't the officer see it, the wing officer? I don't know. They could have got a briefing. I'm sure that they could have got a briefing.

Yes?---Yes, could have. (ts 754 - 757)

119 Mr Fisher was also referred in cross-examination to the following statement in his written report:

It is not unusual for prisoners to act out in the stress they're under. Once a prisoner acts out or demonstrates violent behaviour that behaviour quickly and significantly reduces and the prisoner is no longer prone to physical violence.

---Yes, that's my experience.

Within what period of time would such a prisoner's behaviour quickly and significantly reduce such that a prisoner is no longer prone to physical violence?---It would all depend what the prisoner was upset about; I mean, if you're talking about hypothetical cases or we're talking about this particular case.

I'm talking about your usual experience first?---It varies. It can be two minutes to - if it's just something that's upset a remand prisoner, it can be very quickly; it can be a day, but usually in that space of time, and obviously it would all depend what's upset them.

There would have to be a process of assessing what is upsetting the prisoner initially?---Yes. (ts 760 - 761)

121 Mr Fisher was also referred in cross-examination to the following statement in his written report:

Once a prisoner has acted out, it is unusual for them to demonstrate further violent behaviour.

It's unusual but it does occur, doesn't it?---You mean, once they've acted out they can get worse? Yes. (ts 766)

123 It is evident that Mr Fisher concluded that Willett had settled down simply on the basis of his view that 'there [was] nothing to say he hadn't'. It is, however, with respect, difficult to reconcile that view with the breaking of the window, which Mr Fisher conceded indicated that Willett had 'played up again'. It is also difficult to understand his conclusion that it was immaterial when Willett broke the window because 'he had obviously settled down when he broke the window'. Indeed, once it is accepted that Willett broke the window some time after the incident with Mr Pulford, it is not at all easy to understand the basis upon which Mr Fisher concluded that Willett had settled down.

124 In any event, as I understand the import of Mr Fisher's evidence, he considered that in the end no assumption should be made that Willett had in fact calmed down and that before opening his cell an assessment of him first had to be made by the prison officers who were to open the cell. It is, I think, clear from his evidence that he considered that in order to make any realistic assessment of Willett on 1 February 2000 the appellant and Mr West would have required knowledge of the Pulford incident and the breaking of the window.

125 Mr Carberry's evidence that Willett was 'very, very settled' when he saw him on the afternoon of 31 January 2000, some time after the Pulford incident, is of no real weight in this context. In light of Mr White's evidence that a prisoner would not be kept in a cell with a damaged window, it is to be inferred that at the time Mr Carberry saw Willett the window in cell C5 had not been broken. That is consistent with the absence of any reference by Mr Carberry to the broken window.

126 In my view, this ground of appeal has been made out.

The learned trial judge erred in fact in finding that the whiteboards outside the cells could be viewed by the general prison population.

127 In light of the conclusions I have reached in relation to the earlier grounds, I do not think it is necessary to consider this ground.

The learned trial judge erred in fact and in law in finding that there had been no breach of duty by the respondent, those errors being based upon errors of fact as to the breaking of the cell window in C5; alternatively in failing to give adequate reasons for concluding that the breaking of the window in combination with the incident of 31 January 2000 did not call for additional measures to discharge the respondent's duty of care.

128 The learned trial judge found that the respondent owed to the appellant a duty to take reasonable care to avoid exposing the appellant to the unnecessary risk of being assaulted by a prisoner. There is no challenge to that finding.

129 In my respectful opinion, on the evidence his Honour erred in concluding that there had been no breach of that duty by the respondent. In the circumstances, the exercise by the respondent of reasonable care for the safety of the appellant required that, before going to open Willett's cell, the appellant be informed of Willett's conduct of 31 January 2000, both in respect of the incident with Mr Pulford and in subsequently breaking the window in cell C5, so that he was in a position to make a proper assessment of the situation before opening the cell.

130 For the reasons I have given, I consider, with respect, that his Honour erred in finding that the appellant was given proper instructions in respect of the conduct of Willett on 31 January 2000 and also in his alternative finding that the respondent was entitled to assume that by the morning of 1 February 2000 Willett had calmed down to such an extent that no warning was required to be given to the appellant.

131 In my view, the learned trial judge should have found that the respondent was in breach of its duty of care to the appellant by failing to inform him of Willett's conduct of 31 January 2000 before the appellant went to unlock Willett's cell.

132 In light of that conclusion, it is necessary to turn to the finding of the learned trial judge on causation. That is dealt with in ground 7 of the grounds of appeal.

The learned trial judge erred in fact and in law in concluding that he was not satisfied that more officers present would have prevented the assault.

133 The substance of this ground, as it was developed in oral argument, was that the learned trial judge erred in finding, first, that whether or not he had been informed of Willett's conduct of 31 January 2000, the appellant would not have acted differently when he went to open Willett's cell on 1 February 2000; and secondly, that measures such as a 'three officer unlock' would not have prevented the assault that occurred.

134 At the outset of his submissions, counsel for the appellant acknowledged that the first point was not 'elegantly raised' in the grounds of appeal. That is, at best, something of an understatement, but the appeal was argued on the basis of both of the grounds to which I have referred and no objection to that was taken by counsel for the respondent. It is appropriate that it be considered on both.

135 I did not understand the relevant principles to be in controversy. They can, for present purposes, be stated quite shortly.

136 The general principle was stated by Gaudron J in Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, in an oft-cited passage, as follows:

[G]enerally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury (420 - 421).

137 That does not, however, mean that the legal burden shifts to the defendant. Once a plaintiff demonstrates that a breach of duty has occurred followed by injury within the area of foreseeable risk, a prima facie causal connection will be established and the defendant has an evidential burden to adduce evidence that the breach had no effect or that the injury would have occurred even if the duty had been performed. If there is evidence sufficient to displace the prima facie case, it remains for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact that the injury was caused by the defendant's negligence: Amaca Pty Ltd v Hannell [2007] WASCA 158; (2007) 34 WAR 109 [395].

138 The appellant gave evidence (ts 231) that if he had been informed of Willett's behaviour on 31 January 2000 he would have asked for a 'three officer unlock', but if that was refused by the senior officer (in whom lay the authority to cause such a procedure to be implemented), he would in any event have been ready for what might be a 'volatile situation'.

139 The learned trial judge rejected the appellant's evidence that if he had been aware of the incident the previous day he would have approached the unlocking of Willett's cell differently. His Honour said on the issue of causation:

I do not accept that, in the circumstances, the plaintiff would not have entered the cell in any event, or that he would have acted differently in any way. The incident involving Mr Pulford was, as I have accepted, a minor everyday occurrence within the Remand Centre. Similarly the breaking of a window occurred not infrequently. Importantly, the plaintiff had had the opportunity to observe Mr Willett talking to Mr Craig. As the plaintiff said the assault was quite unexpected. In the circumstances I do not accept that the plaintiff has established a causal connection between the alleged breach and the injury.

I find that a three officer unlock procedure, even if adopted, would not have prevented the assault by Mr Willett upon the plaintiff. The assault was spontaneous and without warning. I am not satisfied that more officers being present would have prevented the assault. As noted by Mr Fisher the size of the cell would have prevented all three officers from entering. I do not accept that the plaintiff has established that the pleaded allegations of negligence caused or materially contributed to his injury [280] - [281].

140 It is evident that the finding of the learned trial judge that the appellant would not have done anything differently was based on his findings that the incident involving Mr Pulford was 'a minor everyday occurrence' in the remand centre and that the breaking of a window occurred not infrequently, that is to say, that it was not a matter of any significance. It is inherent in his Honour's finding that he considered the appellant would have seen those incidents in that light and therefore would have seen no reason to act differently.

141 For the reasons I have earlier given, in my view his Honour erred by substantially understating the significance of those events. When proper regard is had to them, his Honour's finding that the appellant would have acted no differently if informed of them cannot be sustained. I consider the learned trial judge erred in making that finding. His Honour should have accepted the appellant's evidence that he would have dealt with Willett on the basis that the situation might be volatile.

142 Turning then to the measures available to prevent the assault, at trial the primary focus of the respondent's case on causation was on the effectiveness of a 'three officer unlock' to prevent the assault. His Honour accepted the evidence given on behalf of the respondent that a 'three officer unlock' would not have prevented the assault because, it appears, he found that the size of the cell would have prevented all three officers entering at the one time so that the presence of three officers would have made no difference. In his reasons for judgment, the learned trial judge did not give consideration to any measure apart from a 'three officer unlock'.

143 It is clear, however, that if the appellant had been warned of Willett's previous conduct, a 'three officer unlock' was not the only measure that was available to deal with the risk of violence by Willett and, indeed, it is by no means evident that it is the measure that would have been employed when Willett's cell was unlocked to allow Mr Craig access. That was not a decision for the appellant to make. It fell to Mr White or Mr Carberry, neither of whom considered that a 'three officer unlock' was necessary.

144 The sort of measure that might have been taken short of a 'three officer unlock' was referred to in the evidence of Mr West, who was the wing officer the appellant was assisting at the time the assault occurred. I described it earlier. The purpose of the procedure was to reveal, before the cell was unlocked, whether the prisoner was likely to cause trouble.

145 The respondent did not adduce any evidence that that, or any other measure that the appellant might reasonably have availed himself of, would not have prevented the assault. In the absence of any evidence that other measures that the appellant might reasonably have taken - and in particular, the procedure described by Mr West - would not have prevented the assault, the only finding that was open was that the respondent's breach of duty caused the appellant's injury.

146 In my respectful view, the learned trial judge erred in finding that the appellant's injuries were not caused by a breach of duty on the part of the respondent. I would uphold this ground of appeal.

The learned trial judge erred in law in failing to make any comparative evaluation of the evidence of the medical experts called by the appellant with the evidence of Dr Connaughton.

The learned trial judge erred in law in failing to give any reasons why he concluded that the appellant's psychiatric problems were not causally linked to the incident when the totality of the psychiatric evidence was to the contrary.

147 On the hearing of the appeal it was conceded by counsel for the respondent that if this court found for the appellant on the issue of liability, the issue of quantum should be remitted to the District Court for a fresh hearing before a different judge. In my view, that concession was properly made. With respect, the reasons for decision of the learned trial judge on the issue of damages fall well short of what was required in this case and the only appropriate course is for that aspect of the matter to be reheard. My reasons for that conclusion can be briefly stated.

148 In Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) WAR 273, 283, the Full Court pointed out that the giving of reasons is a normal (albeit not universal) incident of the judicial process. That is because the duty is a function of due process, and therefore of justice. Fairness requires that the parties should know why they have won or lost. A requirement to give reasons is likely to produce a more soundly based, rational judgment and it also furthers judicial accountability. As to what is required in that regard, the court said [29]:

Reasons need not be lengthy and elaborate: Re Powter; Ex parte Powter (1945) 46 SR (NSW) 1 at 5; Beale, at 443; nor do they need to refer to all the evidence led in the proceedings: Mifsud v Campbell (1991) 21 NSWLR 725 at 728. However, relevant evidence should be referred to (albeit not necessarily in detail) and, where there is conflicting evidence of significance to the outcome, both sets of evidence should be referred to. Where one set of significant evidence is preferred over another, the trial Judge should set out findings sufficient to explain why: Beale, at 443. Similarly, where a dispute involves a form of 'intellectual exchange, with reasons and analysis advanced on either side', the Judge 'must enter into the issues canvassed before him and explain why he or she prefers one case over the other': Flannery (at 382).

149 In my view, with respect, the reasons given by the learned trial judge in relation to the medical evidence do not satisfy those requirements.

150 The learned trial judge dealt with the medical evidence in relation to the appellant's injuries and back disability as follows:

The accuracy of the diagnosis and prognosis of the various medical practitioners upon whom the plaintiff attended necessarily depended upon an accurate history being provided to them. I cannot be satisfied that the plaintiff did provide an accurate history.

Prior to February 2000 there was radiological evidence of a degenerative appearance in the lower two segments of the plaintiff's spine.

I accept and prefer the evidence and opinion of Dr Connaughton that the injury sustained by the plaintiff was a low back strain to the L4-5 segment. By the end of 2001 the plaintiff's symptoms had changed significantly. The scans at that time demonstrated additional pathology. He had been able to work on a full-time basis from 28 April 2000. Dr Lam had noted the plaintiff was 85 per cent better by 4 April 2000.

Between about May 2000 and August 2001 the plaintiff was able to work on a full-time basis. He had treatment in this period from a chiropractor. However in December 2001 the plaintiff's back condition deteriorated. I am not satisfied that the plaintiff's problems with his back after December 2001 are related to the incident of 1 February 2000.

...

I find that the injury sustained by the plaintiff to his lower lumbar spine in the incident of 1 February 2000 was not significant [284] - [292].

151 The learned trial judge dealt with the psychiatric evidence as follows:

I accept the evidence of Dr Ball that the plaintiff's psychiatric problems were secondary to his physical problems. This was also the view of Dr Proud. The nature of the plaintiff's psychiatric condition as identified by Dr Proud and Dr Black is depression. The plaintiff first sought assistance in relation to psychiatric issues from Dr Lam in 2002 who then referred him to Dr Mustac.

I have determined that the effects of the plaintiff's back problems arising out of the accident had resolved to such an extent that by three months after the accident he was able to return to full-time employment and remained so employed until December 2001.

I am not satisfied that the plaintiff's psychiatric problems are causally linked to the incident of 1 February 2000.

The plaintiff first sought assistance from Dr Lee in January 2003. I do not accept that the plaintiff's sexual dysfunction problems are causally related to the incident of 1 February 2000 [288] - [291].

152 While his Honour concluded that he could not be satisfied the appellant provided an accurate medical history to the various medical practitioners who examined him, he does not explain in what respects he considered the history given by the appellant to particular medical practitioners to be inaccurate nor how any inaccuracy in that history affected the opinions of the medical practitioners concerned.

153 As the court pointed out in Beer v Duracraft Pty Ltd [2004] WASCA 192 [80], there will often be discrepancies between the medical history on which a medical practitioner has relied for his or her opinion and the facts proved at trial. It is the role of the trial judge to examine any variation between the two in order to assess whether any unproven fact relied on by the medical practitioner or any omission from the material given to him or her renders the opinion inadmissible or of no weight.

154 That role is not, with respect, fulfilled simply by dismissing, without any such analysis, all of the evidence of a medical witness on the basis that there were errors in the medical history on which the witness relied.

155 Nor does his Honour explain the findings which led him to prefer the opinion of Dr Connaughton to that of Dr Ker. The conclusion that he prefers the opinion of Dr Connaughton is merely stated. While earlier in his reasons, when summarising the evidence of Dr Connaughton (along with each of the other witnesses), his Honour did comment that Dr Connaughton 'had made a detailed and thorough examination of the material' and that his Honour 'accept[ed] his evidence as reliable', that cannot take the place of a reasoned basis for preferring the opinion of Dr Connaughton to that of Dr Ker.

156 Similarly, there is no reasoned basis for his Honour's conclusion that the appellant's problems with his back after December 2001 were not related to the assault of 1 February 2000.

157 While his Honour refers to the appellant's symptoms having changed significantly by the end of 2001 and to scans which 'demonstrated additional pathology', he does not describe the nature of change in the appellant's symptoms or the additional pathology, or the significance he attached to them.

158 In relation to the psychiatric evidence, the learned trial judge accepted the evidence of Dr Ball and Dr Proud that the appellant's psychiatric problems were secondary to his physical problems. He then appears to have concluded that the appellant's psychiatric problems were not causally related to the assault because within three months of the assault the effects of the plaintiff's back problems had resolved to such an extent that he was able to return to full-time employment and remained so employed until December 2001. That is, as I understand it, his Honour found that the appellant's psychiatric problems are secondary to physical problems which were unrelated to the assault. It is, however, not clear how his Honour came to arrive at that view.

159 Similarly, the learned trial judge did not accept that the appellant's sexual dysfunction problems were causally related to the assault because the appellant first consulted Dr Lee regarding those problems in January 2003. That was more than 18 months after, in the view of the learned trial judge, the appellant's back problems had resolved sufficiently for the appellant to return to full-time employment. His Honour does not, however, explain why a finding that the appellant's back problems had resolved sufficiently for the appellant to return to full-time employment is necessarily inconsistent with a conclusion that the appellant's sexual dysfunction problems were causally related to the assault.

160 Moreover, as I have said, in my view his Honour does not explain how he reached his finding that the injury to the appellant's lumbar spine was not significant and that his continuing back problems were unrelated to the incident.

161 I would allow the appeal, set aside the judgment of the learned trial judge of 9 March 2007 and enter judgment for the appellant for damages to be assessed. I would order that the action be remitted to the District Court for a re-trial on the issue of damages only, to be heard by a different judge.

Land Rights Act 1983

LEEDER -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 192 (19 September 2008)

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Judgment (196 paragraphs)

LEEDER -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 192 (19 September 2008)

Legislation Cited (1)

Cases Cited (6)