New South Wales v Bujdoso

New South Wales v Bujdoso - [2005] HCA 76 - HCA 2005 case summary — Zoe

[8]

On 16 February 1990, the respondent was convicted in the District Court of New South Wales, on his own plea of guilty, of three counts of sexual assaults on male persons under the age of 18 years. He was sentenced to a minimum term of two years and six months' imprisonment, and an additional term of ten months' imprisonment. The minimum term was due to expire on 15 August 1992.
By September 1991, the respondent had been admitted to a prison Work Release Programme ("the Programme"). He accordingly left the prison each working day to undertake paid employment. On his return, he occupied a room in one of a group of buildings known as "the Units" located within a fenced area in the grounds of the prison.
On the evening of 21 September 1991, two or more assailants wearing balaclavas, who also were prisoners, entered the respondent's room, and attacked him with iron bars. He suffered serious injuries.
In 1991, there were relevantly three main classifications of prisoners[1]: A, B and C. Category C, which was the "lowest" category, was divided into further sub-categories. Prisoners classified as C1 were kept behind a secured fence with minimal supervision. Prisoners classified as C2 were kept in an open institutional environment with minimum security, and prisoners with a C3 classification were permitted to leave the prison on work release, and could be granted weekend, day and education leave. These last were prisoners who in the opinion of the Director-General did not need to be confined by a physical barrier at all times and who did not require close supervision.
The respondent was first imprisoned in Parramatta Gaol, and then, after July 1990, in Bathurst Gaol. By 26 July 1990 he had been classified as Level B. He was soon granted a C1 classification. In November 1990 he was given a C2 classification and was transferred to the Oberon prison farm. There he was taunted by other prisoners and called a "rock spider". The Deputy Superintendent recommended that the respondent be transferred from Oberon to the Kirkconnell Afforestation Camp for his own safety.
The respondent made several applications to be included in the Programme which was conducted from Silverwater. In the meantime, at Kirkconnell, he had been assaulted but had not complained. He did not wish to be branded a "dog". In May 1991, he was transferred to Silverwater, and two months later a psychologist, Mr Edwards, recommended that he be accepted for the Programme.
In late July 1991 the respondent received an obscene and threatening letter of which the prison officers became aware.
At Silverwater the respondent was at first placed in the dormitories. At meal times, he was taunted by being called a "rock spider".
The Deputy Superintendent of Silverwater made a note in his journal on 8 August 1991:

[22]

The accommodation for prisoners on the Programme comprised four demountable units with two on one side of a walkway, and two on the other. Adjacent to one set of two was the administration block which accommodated the prison officer on duty. Each of the four accommodation units had a central corridor and approximately nine rooms for prisoners on each side. At each end of the corridor was a door which was left open. The units were fenced off from the balance of the Silverwater complex by means of a chain wire fence, the gate to which was locked at night. Within that fence was Silverwater House which also contained prisoners who were participating in the Programme. There were between 80 and 100 such work release prisoners in the area at the time.
The respondent was allocated a room at the end of a unit furthest from the walkway. It was also furthest from the administration block. The shower and lavatories were adjacent to it. Each prisoner's room was entered by a door in which there was a small window. Each was fitted with a night latch lock which could be opened from the inside by turning a knob, but from the outside only by a key. Each inmate was given a key to his room which would open only that room. The prison officer on duty had a master key which could open all of the rooms.
On 21 September 1991, the respondent returned from work. At about 11.00 pm he saw a face looking through the window in his door. He arose from his bed to see that the door was being pushed open. He went to it and put his shoulder against it but it was forced open. Two to four, he could not be sure of the number, balaclava-clad men burst into the room and immediately began to strike him with iron bars. The respondent huddled in a corner so that only one or two of them could get to him at a time. He was being hit hard on the head. He said that his brain felt like jelly: he was "swimming around in his head" and he lost consciousness. He was also struck on his arm and thumb as he tried to protect his head. His right knee and back were struck as well but most blows were to his head. His next recollection is of waking up and crossing to a room on the other side of the corridor to ask its occupant to call the prison officer. His injuries included a fracture of the skull.
On about 2 October 1991, after receiving remedial treatment, the respondent wrote an application for return to Silverwater so that he could continue with his work. In that letter he said:

[26]

The respondent sued the appellant for damages for personal injuries in negligence in the District Court of New South Wales. The action was heard by Cooper DCJ, sitting without a jury.
Mr Mercer, who became the Governor of the Mid North Coast Correctional Centre, and was an Assistant Superintendent at Silverwater between 1989 and 1992, gave evidence. He explained that until 1990, there had been two officers working on the B watch, one at Silverwater House and one in the Units. In late 1990, the number of officers in those sections was reduced to one. The main role of the officer on duty on the B watch was "accountability", that is apparently ensuring that all prisoners were present on random checking. Because the majority of the inmates there were out in the community for most of the day, and some for most of the night, Mr Mercer believed that there were no "custodial issues" with them. If one did arise with a particular inmate he would have been removed from the work release area.
Mr Edwards, the prison psychologist, had worked at the Silverwater complex for four years by 1991. It was one of his duties to assist in the assessment of the suitability of an inmate for the Programme. He also provided psychological services as required, not only in preparation for an inmate's inclusion in the Programme but also in preparation for his release into the community.
Mr Edwards could recall the respondent for two reasons. The first was his willingness to confront and deal with his criminal tendencies. The second was the fact of the assault itself.
Mr Edwards said that the incidence of violence within the Units was very low, lower than in other sections within the Silverwater complex which itself had a lower incidence of violence than other institutions. He did concede however that if there were a risk to a particular prisoner it could be reduced if he were given a room next to the warder's station.
Mr Mercer explained that not all inmates who came to the Silverwater complex were considered suitable for a C3 classification. If unsuitable, they were returned to the gaol from which they had been sent. An inmate who fought, or failed to follow instructions, would be unlikely to be allowed to undertake the Programme.
Mr Mercer's evidence was that inmates who had been convicted of sexual offences against children were at times placed in mainstream prisons in association with other inmates who had not committed offences of those kinds. They would be counselled to redress the cause of their imprisonment. Inmates convicted of sexual offences against children generally preferred not to be housed with other such inmates. In the case of the respondent, a plan would have been made to deal with his offending behaviour, part of which was his release to work.
Mr Mercer could recall only one other serious assault upon an inmate on the Programme and in the Units. The victim had been fire bombed, not because he was a sexual offender against children, but because he had given information at Long Bay Prison about the presence of a hand gun at the Central Industrial Prison. There was one other significant piece of evidence given by Mr Mercer. He said that it had been the practice of some prisoners to absent themselves from the Units at night in order to visit the nearby Silverwater Speedboat Club where they drank alcohol and generally behaved as if they were not prisoners. Better surveillance in the form of random checks had instantly stopped these abscondings.
The primary judge said that it was clear from the evidence that the prison authorities believed that those within the fence that housed the work release inmates could be trusted, and had proved themselves worthy of that trust. Accordingly, no special measures were necessary to ensure their safety.
In dismissing the respondent's action, the trial judge was critical of some of the expert evidence called by the respondent:

[54]

The appellant's principal submission in this Court is in substance that it had implemented at Silverwater Prison a reasonable system of incarceration which balanced two, sometimes competing objects, an enlightened approach to rehabilitation, and the security of the institution as a prison. The appellant argued that the means chosen of achieving these objects, the classification of prisoners, and the supervision of them according to that classification were reasonable, and had in practice operated satisfactorily. In particular, it was said, experience had shown that prisoners such as the respondent and those surrounding him in Silverwater, required little supervision and had not previously been responsible for assaults.
The appellant pointed out that prisoners who were classified as C3 were permitted to take weekend, day and education leave. They could also work in the general community during the daytime. Silverwater was the only prison in New South Wales where Work Release Programmes were available. Such a programme was especially important to the respondent because he had mortgage payments to meet. And as he was keen to obtain treatment for paedophilia as soon as possible, the Programme offered him a further opportunity to obtain this.
This last matter, and the references by the appellant to the documents that the respondent signed expressing his wish to stay at Silverwater and to participate in the Programme, carried an implication that in some way the respondent, rather than the appellant, was responsible for the injuries caused to him. Such submissions are not to be accepted. This is not a case to which the maxim of volenti non fit injuria is applicable. The respondent's apparently sincere desire for rehabilitation, and his application to be imprisoned at the only place where that desire could be achieved, could not relieve the appellant of the duty of care it owed to him. The respondent was not required to make a choice between rehabilitation and personal safety. It was the duty of the appellant to take reasonable care for the respondent whether he was participating in the Programme or was a differently classified prisoner.
As to the minimal nature of the supervision of inmates housed in the Units at Silverwater, the appellant submitted that it was appropriate having regard to the C3 classification of all those living there. It had, the appellant submitted, been well established that they were persons who could be trusted. The appellant accepted, indeed contended, that enlightened modern penology requires that emphasis be placed upon rehabilitation and that it should not be, as a decision against it here would, penalized for seeking to achieve that end.
The appellant submitted that Ipp JA in the Court of Appeal misused the existence, or knowledge, of risk as the basis for a finding that the appellant had a positive duty to take "additional steps" to alleviate it. In doing so, it was argued, his Honour did not indicate what additional steps should have been taken by the appellant, or evaluate whether any such additional steps were reasonably required in the circumstances. In so doing, the appellant contended, Ipp JA fell into an error of the kind which Gummow and Hayne JJ identified in Graham Barclay Oysters Pty Ltd v Ryan[10], of formulating a duty of care retrospectively as an obligation purely to avoid the particular act or omission said to have caused loss[11]. Reliance was also placed upon what Gaudron J said in Bennett v Minister of Community Welfare[12] that "a precaution is not classified as 'reasonable' unless it can be said that its performance would, in the ordinary course of events, avert the risk that called it into existence."[13]
The appellant then sought to emphasize that the primary judge had held at first instance that the assailants were "desperate" to make an attack upon the respondent. They carefully planned and executed it, without warning, concealing their identity in doing so, having earlier secreted iron and steel bars, and contravened the conditions of their curfew, all of which constituted breaches of prison rules. Each of the assailants therefore risked losing his own classification. Accordingly, it was argued, the measures in respect of which the appellant was found to be deficient by Ipp JA, of increased supervision and a secure lock on the respondent's door, would not, in any event, have prevented the attack on the respondent. Even the presence of more prison officers in the Units would not have been effective. There would still have been periods when the respondent was left unsupervised. Furthermore, the appellant submitted, even if the measures might have been effective, it would not have been reasonable to impose them upon it, having regard to the evidence of Mr Edwards, who had said this:

[66]

As the respondent was a known likely target of other prisoners, the appellant was under a duty to adopt measures to reduce the risk of harm to the respondent.
What measures did the appellant in fact adopt? Towards or for the protection of the respondent, the answer is, effectively, none. It simply relied on its system of classification, effectively treating it as a virtually infallible solution to such problems as might arise, and a somewhat perfunctory personal oversight effectively by one warder, only, during the night, of all of the prisoners in the Units. That the appellant solicited from the respondent a signed document in the nature of, but not effectual as, a release, or an acceptance of responsibility for his own safety and welfare at Silverwater, cannot avail the appellant. The contrary is the case. The fact that the appellant invited the respondent to sign such a document shows that the appellant must have been aware that the respondent was, despite the classification of the other prisoners as relatively trustworthy, at greater risk than the others.
This was not a case in which it was proved, or even contended that measures to ensure closer supervision of prisoners, were costly or so much more costly as not reasonably to be affordable[28]. Nor was it suggested that secure doors and locks could not have been provided. No reason was advanced why the respondent was allocated a room furthest away from the prison officer's station, an allocation which self-evidently, and as a matter of actual evidence from the psychologist Mr Edwards, increased the risk which the respondent ran. It is of relevance also that although the respondent had specifically requested a room close to the warder's station, no explanation was offered by the appellant as to how the request was dealt with and why such a room was not provided. And again, the appellant did not say how it was that the assailants were able to obtain, conceal and use the iron bars that they used to injure the respondent. It is clear that the appellant did truly place almost all of its trust in the system of classification, and what it hoped would flow from that.
The Court of Appeal was right to hold that the appellant failed in its duty to the respondent. There was more than a mere foreseeable risk of injury to the respondent. There was a risk that had actually been expressly threatened. The risk, if it were to be, as it was, realized, was of considerable physical injury to the respondent. Such a risk, once known, called for the adoption of measures to prevent it. All of this is well established[29]. No effective measures were adopted.
The respondent did actually point to measures which could reasonably have been undertaken but were not: closer and more frequent checking of prisoners; better and stronger locks and doors; checking for weapons; and, relocation of the respondent within the Units. The case was not one therefore of the kind which the appellant submitted it to be, of the recognition, but only retrospectively, of dangers not reasonably foreseeable and not capable of avoidance at the time. Nor was it a case in which the Court of Appeal failed to identify the measures which could and should have been taken to minimize the risk to the respondent. Indeed, one of the appellant's witnesses had effectively identified one of the measures available, the one which had stopped the visits to the Silverwater Speedboat Club, that is, of better surveillance. That and the other measures identified by the Court of Appeal would have been likely in fact to obviate the risk to the respondent. There was no obligation upon the respondent to prove, as the appellant contended he should, that they would have guaranteed his safety. Reasonable care was enough. And that was missing, as the Court of Appeal rightly found.
We would dismiss the appeal with costs.

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