His Honour set out this evidence (primary judgment, at 10). It is the subject of the first ground of appeal. I set it out when I deal with that ground. It is also relevant to note, at this stage, that later in his reasons his Honour found (primary judgment, at 18) that Ms Mumford explained the nature of protection to the appellant during his induction, that she asked him whether protection was sought, and that he declined it. His Honour also found the appellant did not tell Ms Mumford he had worked as a security guard.
40 The primary judge next considered the appellant's account of events leading up to the main assault. He was clearly unimpressed by the fact that the appellant could give no description of any of the inmates he said had threatened him prior to the main assault, or the officers to whom he said he had spoken. He observed the appellant had given "conflicting 'guesses'" as to the inmates' descriptions.
41 His Honour expressed doubt that the appellant had been punched in the head through the bars during the kettle incident. He observed (primary judgment, at 8) that the appellant had given conflicting accounts of the location of the injury on his head, and that he had made "no mention in his particulars of such an incident and no mention in earlier proceedings before Judge Coorey", nor had he referred to the punch in giving a history to a Dr John Roberts, a consultant psychiatrist retained by the appellant's solicitors. This observation is the subject of the third ground of appeal.
42 His Honour also observed (primary judgment, at 8) that it was "most unlikely that if he had been earlier threatened [the appellant] would accept an invitation from an inmate who is not identified to go into his cell and put his face so close to the window as to be punched from the outside".
43 The primary judge also had difficulty with the appellant's evidence relating to his location immediately prior to the main assault. According to the appellant's particulars, the attack occurred when he was sitting in the doorway watching TV. His Honour found (primary judgment, at 8 - 9) that this detail had "significant ramifications" because, from the layout of the appellant's cell and the ground floor plan of POD 13, a person in the doorway of that cell (or indeed just outside it) would not have been able to see the door to the exercise yard. The primary judge did not accept the appellant's account at trial that he was instead "just outside [the cell door] and able to see the doorway", dismissing this version (primary judgment, at 9) as "an implausible attempt on [the appellant's] part to evade the problem that he was in". This finding is not challenged.
44 The respondent launched a significant assault on the appellant's credibility having regard to his evidence as to where he was immediately prior to the main assault. Whereas the appellant's counsel had submitted that the assault the appellant described could hardly have escaped the attention of the officer on the door of the POD, the respondent's counsel submitted that the appellant's evidence about the main assault was a fabrication. He drew attention to the fact that there was a surveillance camera facing in the general direction of the appellant's doorway and that the officers monitoring that camera saw nothing amiss and recorded nothing. In his cross-examination, despite agreeing that it was not possible to see the door to the exercise yard from the doorway to his cell, the appellant had continued to assert he saw the inmates coming through the door. The respondent's submission, which the primary judge appeared to accept (primary judgment, at 10), was that if the appellant had seen the inmates coming through the door, he had failed to explain why he did not close his cell door and press the "knock-up button" just inside.
45 The primary judge (primary judgment, at 10) rejected the appellant's account that inmates ran past an officer on the door and assaulted him, as well as the further submission that they came from POD 14. This finding is not directly challenged, although it might be inferred that the appellant's counsel are of the view that this is an ultimate finding which will fall away if the grounds of appeal are upheld.
46 As I have said, the primary judge found (primary judgment, at 20) that during the appellant's induction interview Ms Mumford explained to him what was involved in protection and that, on her asking if he wanted protection, he declined. His Honour also found (primary judgment, at 20) that even if the appellant had divulged his past employment in the security industry during induction, it would not have been sufficient to put the respondent on notice that he required protection. In making that finding he accepted (primary judgment, at 18) Ms Mumford's evidence that former employment as a security guard in itself was "not deemed … as a major threat unless they have worked in a situation where they are going to have an association problem", for example, an association problem "with someone they'd had an altercation with in their job as a security guard". Ms Mumford's opinion was corroborated by Mr Chesney who gave evidence that while an obligation to protect an inmate may arise if the inmate had been recognised as a security guard and threatened, "being a security guard doesn't necessarily always indicate that he's going to need protection" (primary judgment, at 15). These findings are not challenged.
47 The primary judge's conclusions on the question of prior requests for protection were (primary judgment, at 20 - 21):
"The Plaintiff of course says that on three separate occasions he approached the Pod desk for help saying amongst other things 'I'm in fear of my life. Get me out of here. I've been threatened…'
I am not satisfied that the Plaintiff ever did so. Such words would have constituted a clear request for protection and the Plaintiff was forced to admit that he never asked for protection until after he had been taken out of the Pod by Mr Katieli . …
There was absolutely no reason why such a request should have been ignored and not recorded. On the occasion when Mr Barber's attention was drawn to him, the steps to remove him were taken swiftly. Why, if he was ignored three times did he not say to Mr Chesney that he had asked for assistance and had not received it…." (emphasis added)
48 The primary judge found the appellant's "account of sitting in the doorway of his cell and seeing prisoners let in from the exercise yard" to be "comprehensively discredited". He said (primary judgment, at 21):