State of New South Wales v Zerafa

………… The activities centre is a square building that has a long corridor within the centre of it with means of entrance and egress at either end. At one end, which I shall call the northern end, (that appears to be the orientation as shown in the aerial photograph) adjacent to the exit, are two toilet cubicles which form an adjunct to the building. The office is located at the southern end of the building. At the northern exit there is a concrete landing or pathway which splays out to the entrance to (the) two toilet cubicles (that are mentioned). Beyond the concrete pathway is a grassy area." 11 Whilst the respondent was working with weights in the activities centre he was approached by another inmate who said: "Can I have a talk to you for a second, come for a walk". When the respondent did so and was outside near the toilet area he was stabbed in the back of the neck and suffered serious injuries to which I shall come later.

The Primary Judgment 12 After noting the general circumstances and describing the Oval and its surrounds Acting Judge Murray referred to the respondent's evidence as follows: "The Plaintiff said that the Oval and activities block was used by two units being units 1B and 1D. He said that as such there would be 35-45 inmates occupying the area of the oval and amenities block at any one time." 13 The judgment then refers to "a number of points about the supervision in place at the time of his assault" which clearly enough reflect the respondent's (plaintiff's) evidence. The passages also contain observations and findings by the Judge and it is convenient to set them out: "Firstly, he says that there were only two officers present to supervise, he says, 35-40 inmates. He says that those two officers were usually in the office and not patrolling the general area and in particular were never seen in the area near the toilets where the assault occurred. Secondly, he says that observation tower number 6 was a watchtower on the northern perimeter of the wall separating the oval and amenities complex from the rest of the facility was unmanned. This watchtower placed as it was at the northern perimeter, if occupied, would afford a clear view of any activity occurring in the vicinity of the exit where the assault occurred. The Defendant conceded that this watchtower was unmanned at the time and had been unmanned since 1995. Thirdly, the Plaintiff says towers numbered 7 and 8 which were manned with personnel did not afford a view of the area where the assault occurred. In particular, watchtower number 7 certainly would not afford a view of the area and watchtower number 8 would only afford a view of persons on the grassy area and not if they were on the concrete or close to the toilet facilities. Fourthly, the Plaintiff says there were no surveillance cameras in the oval area nor in the activities area. There was certainly none in the vicinity of the toilet area where the assault occurred. Fifthly, the Plaintiff says that when prisoners went from their unit to the yard and from the yard to the amenities area they were never searched. In particular there were no facilities such as metal detectors or screening devices through which they were obliged to pass that would reveal any dangerous implements on the person of any inmates. Sixthly, the Plaintiff says that "sweepers" were allowed to be in the Oval area, and they had the ability to come and go within the complex with greater freedom than other inmates, and could be a source of introducing dangerous objects such as were used in his assault. His assailant was in all probability, Ekermawi, a sweeper, as was Moussa who lured him out. Seventhly, there was within the activities building, a barbers facility for the use of inmates, operated by sweepers and freelance amateur (inmates) barbers who had as part of their equipment, scissors, which could be used in an attack such as he experienced." 14 The Judge then dealt with the evidence of the respondent as to a number of changes that had occurred after he returned to the jail following his discharge from hospital. The respondent had given evidence that:

(a) The number of officers in the activities area had increased from two to four patrolling the activities building and Oval as well as two officers in the office of the activities block. This had occurred although the number of inmates, 34-45, had remained the same.

(b) Tower No 6 remained unmanned but there were surveillance cameras in place that would be capable of recording activities taking place in the area of the assault.

(c) The prisoners were "patted down" on entering and leaving the Oval area. 15 The judgment noted that after the respondent was admitted to Westmead Hospital with a serious injury to his cervical spine he was interviewed by then Detective Senior Constable Allesi in the presence of the respondent's father and girlfriend. 16 An entry in the Detective's notebook reads: "About 1.00pm this afternoon I was in the activity oval when I found out that another inmate known to me as Fred was going to attack me. At that time one of Fred's friends called, Moussa came up to me and said, "come outside I want to talk to you". I walked outside the activity centre with Moussa and started talking to him. I saw someone jump out and stab me in the back of the neck. I fell down and saw Fred running away. I laid (sic) on the ground and some other came. Then the ambulance arrived and took me to the hospital. I know Fred by face and name nut I don't know his surname. I know Moussa only by his surname and face. Moussa didn't actually attack me, he lured me out." 17 Acting Judge Murray said: "Because of the Plaintiff's then condition, Detective Allesi then had the statement read by his father who signed it on his behalf after making the following declaration "I have read this statement on behalf of Shane and it is a correct record of the conversation. A similar endorsement by the Plaintiff's then girlfriend, Vanessa Price, also appeared on the document." 18 The judgment refers to the respondent's denial when cross-examined that he knew that there was going to be an attack or fight on that day. The respondent maintained that the attack was completely unprovoked and he denied that he knew that "Fred" was going to attack him or that he identified "Fred" as his attacker. 19 In cross-examination the respondent had denied that at the time of the attack there were only 22-26 inmates in the area and that on his return the numbers had increased to about 36 with the consequence that there were two officers outside and two inside as before. 20 A number of reports and statements from the Department of Corrective Services were tendered in the respondent's case. Acting Judge Murray considered that the report of Deputy Governor Porter contained a useful summary. That summary provided: "At approximately 1.10pm today, an incident occurred on the Oval which resulted in two (2) shots being fired from 8 tower and a number of inmates injured. From information gathered it appears that an inmate by the name of Zerafa, Shane (305513) was lured outside the activities building on the Oval by inmate Moussa, Essam (260412) and then was stabbed by a third inmate, this resulted in immediate reprisals by other inmates on the Oval to the point where two (2) inmates by the name of El Masri, Alia (299403) and Ekermawi, Fouad (270445) were chased to the activities office and were protected by the two (2) officers that were on duty on the Oval, the inmates attempted to break their way into the activities office to get to the two (2) aforementioned inmates. Due to this melay (sic) the officer in 8 tower, Mr S. Achmad fired two (2) shots directed into the ground in the vicinity of 6 tower (report submitted), this to protect the officers in the activities office area. A large number of officers responded to the area, all inmates in the area were escorted to their wings, inmate Zerafa was laying on the ground at the rear of the activities building with what appeared to be a stab wound to his right back neck area. Inmate Moussa was taken to the clinic with injuries to his face and head region. I spoke to inmate Zerafa while he was laying on the ground with nurses in attendance, the inmate requested that his parents not be informed, he also informed that the "dogs in there did it". I questioned him as to who this was and he identified the inmate as "the bald one called Fred". From the information now received it is believed that this was inmate Ekermawi (270445). 21 The report also noted that an initial search had found no weapon but that later two weapons were found in the activities area. 22 Statements by the two officers on duty in the activities area Officer McCauley, the senior, and Officer Rao were tendered. 23 Apart from an account of the events following the assault to which it is unnecessary to go Officer McCauley's statements made a number of points which the Judge summarised as follows: "a) At the time there was only two officers allocated to supervise the area;

c) There were about 16-18 inmates in the area at the time;

d) Observation towers 7 and 8 provide overall supervision of the Oval and activities area but not supervision of the area near the toilet block;

f) Inmates were not searched as they entered the Oval area but their ID cards were taken;

h) Pat down of inmates was not carried out."" 24 The judgment then turned to the evidence presented by the appellant. 25 Detective Allesi gave evidence as to the interview referred to earlier. Officers Rao and McCauley gave evidence. 26 Officer Rao gave evidence that the arrangements were that generally one officer would remain in the office of the activities centre performing administrative tasks whilst the other patrolled the open area. He said that on the Oval on 13 October 2000 there were 22 to 25 inmates. A unit consisted of 22 persons and if there were sweepers there might be 25. He had not been aware of any "major assault" or assault using a weapon during the 12 months he had been an activities officer in the area. 27 There was an issue as to whether Officer Rao had been outside or inside the activities building when the assault occurred. Mr McCauley was inside. Acting Judge Murray found that Officer Rao was also inside. It is convenient to observe that it was open to him to so find. The Judge accepted that it was part of Officer Rao's duty to patrol the area where the assault had occurred but that the assault occurred before he had the opportunity to do so. 28 Mr Golledge was the Area Manager of the Oval area at the relevant time. He, the judgment accepts, was not aware of any assaults having occurred in the vicinity of the toilets and notes that "he said that there had not been many assaults in the area generally during the time of his administration."

29 The judgment continued: "He gave evidence of the review of procedures following the incident and agreed that unit numbers then increased to approximately 36 when there would be four officers in control being two unit officers and two activities officers. He gave evidence that cameras were introduced and procedures of searching by metal detectors and pat down searches were carried out." 30 The judgment did not refer specifically to evidence given by Mr Childs, the Manager of Security and Communications for the Department. It also did not so refer to a report of Mr Corcoran an expert witness which was tendered by Mr Sternberg. The absence of reference to the report is relevant to the appellant's Grounds of Appeal. 31 Under the heading "The Plaintiff's Case" the judgment dealt with the way in which the plaintiff's case was put. 32 The basis upon which the respondent contended that the appellant owed him a duty of care was examined. It does not raise any issue on this Appeal. 33 The judgment goes on: "The Plaintiff maintains that the defendant through its agents failed in its duty of care to the Plaintiff in the following respects: i) Knowing the risk created by a blind spot after the decommissioning of tower 6 the Defendant took no, or inadequate, steps to eliminate the risk, it being available to install, without difficulty, a video surveillance camera focused on the blind spot. ii) Failing to ensure adequate and additional patrolling of the blind spot, the risk being known to the Defendant. iii) Failing to implement adequate search procedures. iv) Providing a dangerous implement, namely, a narrow, pointy sharp blade type object, probably being barber scissors to an inmate." 34 Under the heading "The Defendant's Case" the judgment first notes a concession by the appellant that a number of matters were common ground. They are: "a) The rear of the activities building where the assault took place was visible to tower 6. b) Tower 6 was unmanned at the date of the assault and had been for a number of years. It has remained unmanned to date. c) No CCTV camera was present to cover the rear of the building as at 13th October 2000. d) There were two activities officers (Rao and McCauley) on duty at the relevant time. e) As at 13th October 2000 no "pat down" and/or metal detector searches were conducted of inmates as they entered the oval area. f) Following the assault (but details as to dates are not known) i) Inmates were searched by metal detector and "pat down" as they entered the oval. ii) A CCTV was installed on the perimeter fence behind the activities building." 35 The judgment goes on: "The Defendant rightly points out that the issue for determination is whether the Defendant took reasonable steps to avoid acts or omissions which might reasonably have be(en) foreseen were likely to cause harm to the Plaintiff. 36 It is necessary to set out the remainder of this section in order to deal with some of the ground of appeal. The judgment paragraph numbers are retained for ease of reference: 80. The Defendant maintains: Based on the statement the Plaintiff made to Detective Allesi the Plaintiff knew that he was to be attacked and failed to alert the Prison staff of this. The Defendant maintains that the Plaintiff therefore in accompanying one of the sweepers to the rear of the building brought about his own injuries by his knowledge of the impending assault and his failure to alert the authorities of it. 81. The Defendant further maintains that the area where the assault took place is not a known area where any prior assaults had occurred. 82. The Defendant further maintains that the provision of manning tower 6 and the installation of CCTV cameras would not have prevented the assault on the Plaintiff as the attack occurred so quickly any manning of the Tower or provision of cameras would have been futile. All they would do is perhaps identify the perpetrator after the assault had occurred. 83. The Defendant maintains that searching inmates on entering the oval would be futile as by its very nature the activities centre was equipped with weapons such as cricket bats and cricket stumps, billiard balls and cues and the like which could be used as weapons if intended. A search of inmates would not prevent their use. Furthermore weapons could be secreted in the oval area on a prior occasion and no searching technique would have discovered them. 84. The Defendant further maintains that the provision of two activities officers supervising a maximum of 25 inmates was adequate as it represented a ratio of approximately one to every 12 or 13 prisoners." 37 The judgment continued with the following findings and observations: 87. I find that the areas of the amenities block in the vicinity of the toilets was indeed a "blind spot". 88. It is conceded that the area could not be observed from tower 7 and only imperfectly observed from tower 8. 89. No good reason has been advanced as to why tower number 6, which would afford supervision of the area, was unmanned. 90. The manning of tower 6 or in the absence of its manning, the provision of a CCTV camera, would, in my opinion, have operated as a deterrent to prisoners wishing to inflict injury in the area of the northern end of the amenities centre. 91. It was known to the authorities that that area was out of the view of the surveillance towers. 92. I recognise that there is force in the argument that an officer placed in tower 6 could not prevent an assault of the type that occurred nor would a monitor viewing surveillance camera focused on the area be able to prevent such an occurrence. However, the provision of a person in the tower or the provision of surveillance cameras would, din my opinion, have operated as a deterrent to the type of activity that occurred. 93. I find also that the provision of two activities officers for the control of 25 prisoners was inadequate. 94. I am satisfied that Mr McCauley regarded his role as one carried out generally within the confines of the office within the activities centre. 95. Mr McCauley's role was to issue and retrieve items of equipment to persons using the activities building which housed the gymnasium. In that position he would be reasonably busy and would also be involved in the supervision of prisoners working out within the gymnasium area. 96. It is surprising that an item such as scissors would be made available to prisoners. 97. The evidence is that the inmates of Unit D were all young offenders but there is no classification of those offenders within the unit. 98. The evidence does not permit me to find that it was the scissors that were used in the attack on the Plaintiff although the fact that they were later thrown into the office and indeed penetrated the skin of one of the prisoner (sic) within the office lends considerable support to the Plaintiff's submission that the scissors were probably used in the attack. 99. The fact that two knives were later found in the oval area provides weight to the Plaintiff's submission that the search regime was inadequate. 100. True it is that once weapons are brought on to the oval area they could be secreted away for use on a later occasion. That submission begs the question as adequate search by metal detecting devices would prevent the introduction of such weapons into the oval in the first place. 101. I find also that the general supervision of the oval was inadequate. The design of the complex as shown in Exhibit A indicates that there is an oval within the Oval where prisoners would be expected to recreate outside the activities building. It would be natural for the remaining officer (in the Mr Rao) to supervise the prisoners in that general area. 102 I think the area in the vicinity of the toilet facilities, where the attack occurred, although controlled generally was not the focus of Mr Rao's particular attention. 103. Although the number of inmates using the area increased after the incident, personnel increased to provide two officers in the amenities area and two unit officers patrolling the oval generally. 104. I find that the introduction of search of prisoners entering the area by "patting down" and metal detectors may have prevented the introduction of weapons into the area and therefore minimise the risk of the event, which occurred to the Plaintiff, occurring. 105. Accordingly, it is my opinion that there was a breach of the Defendant's duty of care to the Plaintiff. Thus there will be a verdict for the Plaintiff." 38 The Judge then dealt with the contributory negligence to which I shall come later. However, I should note now that the Judge rejected the contention that the respondent knew that he was to be assaulted and that he was the author of his own misfortune.

Grounds of Appeal 2 to 7. 39 Grounds 2 to 7 of the 7 Grounds of Appeal dealing with liability found upon the claimed failure of the Judge to consider and apply the report of Mr Corcoran. Mr Corcoran did not give oral evidence. 40 Mr Corcoran is the Managing Director of a consulting company which specialises in advice to corrections and detention agencies. His qualifications and experience clearly qualify him to give opinions and evidence on the custodial issues in the trial. He prepared a lengthy and detailed report into the respondent's allegations at the request of the appellant's solicitors. 41 Although arguably not the subject of a Ground of Appeal the way in which the report was dealt with during the trial was the subject of submissions on the Appeal. 42 At the trial, after some debate as to Mr Corcoran's qualifications and acceptance that certain annexed material be treated as "simply material on which the report is based" and not evidence in the case, the report, which is dated 17 June 2003, was admitted as Exhibit 8. 43 It is convenient to note that Mr Kelly of Senior Counsel appeared for the respondent at the trial and that he appeared for him, with Mr Farmer of Counsel, on appeal. 44 Mr Kelly having indicated that he wished to deal with objections to portions of the report "point by point" Acting Judge Murray said: "….I can tell you, Mr Kelly, for your own guidance, and yours, Mr Sternberg, that the approach I sometimes take is to receive the document and, when considering it, admit those parts of such a document as seem to me to fall within the area of the witness's expertise and exclude the comment which is outside the area of expertise. That's my custom. Now if you want to go through it line by line, I am prepared to do that. The other way is to leave to my own judgment and experience in viewing these documents. What do you want to do? 45 Mr Sternberg indicated that he was content with the course proposed by the Judge, however, Mr Kelly preferred to deal with the issues that he considered it appropriate to raise in detail. That course was followed for some time; a good deal of material was not pressed, and then the Judge said: "HIS HONOUR: As to the remainder, Mr Sternberg, are you content for me to read it in such a way that, where the witness transgresses on my function, I will exclude consideration of it unless the opinion he expresses coincides with my own? STERNBERG: Yes. I indicated that I was content with that at the outset, your Honour." 46 Mr Kelly continued with detailed submissions and the Judge then said: 'HIS HONOUR: I thought I invited you to allow me to treat the thing with some intelligence. You're not content to do that? KELLY: Your Honour, I accept the general proposition but, when material blatantly appears in this report of which there is just no evidence to support the proposition, it's clearly something that this witness has had regard to. HIS HONOUR: I direct you to send a note to Mr Sternberg as to the remainder of it that you object to, send a copy to my associate, and you might respond if there's any objection. STERNBERG: Yes, your Honour. HIS HONOUR: If you want to press, I mean." 47 Mr Kelly did not make any such submissions. I should note that Mr Corcoran's report did refer to material that was not in evidence and did make assumptions that were in conflict with the case being presented by the respondent and ultimately accepted by the Judge. 48 Whilst the Judge was no doubt much influenced by considerations of time, the procedure was not a satisfactory one and does leave an area of uncertainty as to the evidence that he may have relied upon which should not have occurred. Having said that I do not consider that either side can be heard to complain. Mr Sternberg twice acquiesced and Mr Kelly did not take up the opportunity to submit written objections. The decision was reserved and Counsels' submissions were in writing. 49 I observe that I do not think that, in the final result, anything turned upon the adoption of this approach. 50 Grounds 2 to 7 relied upon the alleged failure of the Judge to consider Mr Corcoran's views upon each of five findings set out in Grounds 3 to 7. It was not put that the "findings" were not a reasonable summary of those made to the Judge. 51 Ground 3 refers to the finding: "The manning of Tower 6 would have operated as a deterrent to the assault". 52 Mr Corcoran's report said: "In my experience, having staff in watchtowers is of limited value in the prevention of incidents. Either the inmates will situate themselves as far as possible away from the towers if they wish to engage in illegal activities or they will place themselves in an area where some obstruction to view from as many areas as possible exists."

53 He also observed that if the assault took place in view of Tower 6 and the Tower had been staffed the inmates would have been able to time the assault when the officer was not looking in their direction. He said that the inmates would have been able to see into the Tower.

54 Mr Sternberg also relied in respect of this finding upon the following paragraphs of the report:

"The design of the Activities Oval compound means that there are a number of potential blind spots. The means by which the defendant supervises this area is consistent with correctional practice in NSW and other Australian jurisdictions. The fact that there are staff members in the compound supervising the inmates involved in the exercise is best practice and preferable to having officers sitting in towers or having a brace of cameras installed to monitor the area.

Officers in towers generally have other duties that they must perform and would not be totally concentrating on observing every activity that occurs in a recreation yard. Towers are generally regarded as an anachronism in most jurisdictions and their staffing has been removed. The NSW Corrective Services is one of the few remaining Australian jurisdictions with armed towers still in operation.

The primary focus of armed towers is to prevent inmates from escaping over solid walls. With the move in a number of jurisdictions away from solid walls to transparent fences the response to perimeter breaches has moved from towers to armed officers in perimeter vehicles, coupled with multiple CCTV installations and pan tilt zoom cameras that can identify activity on both sides of the perimeter fences. The use of this type of technology is a problem when solid walls form the outer perimeter."

55 However, the substance of much of what Mr Corcoran said was dealt with in the recital of the points made by the appellant set out in para [82] of the judgment. Further, he expressed his views on the points made in [90] and [92]. There is, in my view, no proper basis for concluding that the Judge did not have Mr Corcoran's report in mind. A judge is not obliged to refer to each piece of evidence or indeed to every point made. 56 Ground 4 refers to the finding: "The provision of a CCTV would have operated as a deterrent to the assault." 57 Mr Corcoran's report said: "In my opinion, CCTV systems are of limited value in preventing assaults of inmates by other inmates. In the case of Parklea Correctional Centre the site visit included a tour of the main control room. While I would agree that the Centre does not have a significant capability in terms of CCTV coverage compared with facilities constructed more recently, the value of electronic security is greatest in the area of maintaining perimeter security. This appears to be the main use of CCTV systems in Parklea Correctional Centre." 58 Mr Sternberg also relied in respect of this finding upon the following passages of the report:

"In my experience CCTV is of limited value in preventing assaults of inmates by other inmates. The most effective monitoring of any area is to have a staff presence on the ground so that effective dynamic security and interaction can occur with the inmates. This was happening in the Activity Oval compound at Parklea Correctional Centre. The other key issue to consider is that the plaintiff was allegedly intending to go to an area where he would not be observed for the purpose of engaging in a fistfight." The design of the Activities Oval compound means that there are a number of potential blind spots. The means by which the defendant supervises this area is consistent with correctional practice in NSW and other Australian jurisdictions. The fact that there are staff members in the compound supervising the inmates involved in the exercise is best practice and preferable to having officers sitting in towers or having a brace of cameras installed to monitor the area." "The use of multiple CCTV installations as a means of surveillance of internal areas is problematic as the main control room operators in most modern facilities are extremely busy with telephones, radios, opening of electronic doors and the monitoring of perimeter alarms and complex security management and building management systems. The opportunities to sit and look at monitors that scroll through a large number of cameras are limited. When one takes into account the fact that the view from a particular camera may only appear once a minute for a few seconds, it becomes apparent that the use of cameras to assist in observation of areas is not particularly useful." 59 However, the substance of much of what was said was dealt with in the recital of the points made by the appellant set out in paras [82] and [92].

60 It is convenient to refer to the observations of Mr Corcoran dealing with CCTV cameras after the first passage referred to in [54]. He said:

"The defendant appears to abide by the philosophy of active supervision rather than passive observation by camera as a means of maintenance of safety and security, as there are very few CCTV cameras that are used to observe the Activities Oval." 61 At the least this supports the importance of an adequate number of officers being present which the Judge found was not the position. 62 Ground 5 refers to the finding: "That the provision of two prison officers for the control of twenty-five inmates was inadequate."

63 Mr Corcoran's report said: "In my experience, the number of staff allocated to the Activities Oval by the defendant is regarded as meeting the requirements for effective supervision of groups of around 20 prisoners, as was present in the area on 13 October 2000. This would be my view of the situation even if the other staff in towers and in the movement control area were not present."

"There were two activities staff that were rostered on duty in the Activities Oval compound and as previously stated, it is likely that their duties would have included patrolling of the gym and the oval. In my experience this is a satisfactory situation in relation to the supervision of twenty-two prisoners in a recreation area."

"In my view, if there was a known danger, the presence of the two officers in the compound supervising twenty-two inmates must be regarded as good correctional practice. The fact that there were blind spots is a problem that correctional administrators must face in many prisons around Australia."

64 However, the substance of much of what was said was dealt with in the recital of the points made by the appellant set out in para [84]. I think it clear that the Judge was addressing the points made by Mr Corcoran in relation to the to officers in paras [93], [94] and [95]. He described Officer McCauley's role in a way which effectively removed him from outside patrolling or supervision. 65 Mr Corcoran did not deal with this aspect of Officer McCauley's work in practice nor did he deal with the escalation in number after the assault which the Judge found to have occurred. 66 It is convenient to refer to Mr Corcoran's comment "The most effective monitoring of any area is to have a staff presence on the ground so that effective dynamic security and interaction can occur with inmates". 67 Ground 6 refers to the finding: "That the general supervision of the Oval was inadequate." 68 The Corcoran report sets out in some detail Mr Corcoran's understanding, not always in accordance with the facts found, of the features of the Oval and its manning which bear upon the question of supervision of the area. He expresses the view that it was adequate 69 The references in the judgment as to the case addressed by the appellant shows that the Judge had taken these considerations into account. 70 Ground 7 refers to the finding: "That the introduction of searching prisoners entering the prison oval area would have minimised the risk of assault."

71 The Corcoran report said: "The defendant had in place adequate searching procedures in Parklea Correctional Centre. As the plaintiff's expert states in his report "It is not now, nor never was, very difficult for a prisoner to obtain homemade weapons". The only protection that the defendant has in relation to reducing the levels of weapons in a correctional centre is a rigorous searching program. While on the site visit to Parklea Correctional Centre, the searching records of Unit 1 were examined. The evidence was clear that extensive searches had been undertaken in that unit in the weeks preceding the assault. While there was only a requirement for six cells to be searched on a daily basis, there were many days where all cells were searched and some contraband was located. This indicates that at least at around the time of the assault there was stringent search program in place in parts of Parklea Correctional Centre. The records of the cell searching of the unit from which the alleged assailants were accommodated were not examined." 72 The Corcoran report did not address the issue of searching on the way to the Oval, a measure which was introduced after the assault. 73 Whilst the judgment did not refer by name to the Corcoran report it is, I consider, apparent from the considerations dealt with in the judgment that the Judge had regard to the report and did consider the views expressed in it. Grounds of Appeal 2 to 7 are not made out.

The Notice of Contention 74 The respondent had by Notice of Contention put that the Judge "ought to have found, on the balance of probabilities, that the respondent was stabbed with a blade from a pair of scissors issued to prisoners by prison officers." 75 No error of law was alleged. In my opinion it was reasonably open to the Judge to find as he did on this issue. Accordingly, the ground raised in the Notice of Contention is not made out.

Alternative Ground of Appeal 7.1 76 No submissions were put in support of an additional ground of appeal which provided: "7.1 Alternatively, given his Honour's findings at [96] and [98] of the judgment that the failure to search prisoners as they entered the oval area was not causally related to the assault." 77 The references appear in [34] of this judgment. The Judge did not find that the scissors were used in the attack. Subject to possible issues as to onus, which were not raised in argument, the foundation of this ground is not made out and it fails.

Ground of Appeal 1 78 The first ground of appeal contended that Acting Judge Murray erred in finding that the appellant was in breach of its duty of care owed to the respondent. 79 Mr Sternberg submitted in his written and oral submissions that the risk of injury to the respondent was not reasonably foreseeable. He made the submission but did not develop it further in oral submissions and indicated that the thrust of the appellant's submissions related to whether or not there was a breach. 80 I think it sufficient in dealing with the foreseeability issue to note a comment in address by Mr Sternberg in the following terms:

"Assaults probably take place everywhere within the confines of the prison. Assaults were known to take place on the oval in the form of punch-ups but certainly not in this area where the plaintiff was attacked and it is that particular area."

81 There was abundant evidence before the Judge to support the proposition that assaults of varying degrees of seriousness occur throughout the prison. There was also evidence as to the relatively common manufacture of makeshift weapons. The fact that it was not shown that an assault had occurred before in the area behind the toilets before said nothing as to foreseeability in the absence of some evidence to show that for some specific reason this was an area where an assault was unlikely to occur. 82 The submission as the absence of foreseeability is not made out. 83 Although not so expressed the appeal as to breach of duty was put on two bases. First, the commission of an error of law in that the Judge did not conform to the Shirt Calculus. And second, the Judge's findings and ultimate conclusion were not reasonably open to him on the evidence. 84 I deal with these seriatim:

The Shirt Calculus 85 Mr Sternberg submitted that the Judge had fallen into the error identified by McHugh J in Tame v State of New South Wales [2002] 211 CLR 317 at 353. McHugh J said: "Given the undemanding nature of the current foreseeability standard, an affirmative answer to the question whether damage was reasonably foreseeable is usually a near certainty. And a plaintiff usually has little trouble in showing that the risk was reasonably preventable and receiving an affirmative answer to the second question. This is especially so since Lord Reid said that a reasonable person would only neglect a very small risk of injury if there was "some valid reason" for disregarding it, a proposition that effectively puts the onus on the defendant to show why the risk could not have been avoided. Once these two questions are answered favourably to the plaintiff, there is a slide - virtually automatic - into a finding of negligence. Sometimes, courts do not even ask the decisive question in a negligence case: did the defendant's failure to eliminate this risk show a want of reasonable care for the safety of the plaintiff? They overlook that it does not follow that the failure to eliminate a risk that was reasonably foreseeable and preventable is not necessarily negligence. As Mason J pointed out in Wyong Shire Council v Shirt [1980] 146 CLR 40 at 47-48 in a passage that is too often overlooked: "The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position ." (emphasis added) "

(Some references have been omitted.) 86 However, before determining whether this error has occurred it is first necessary to consider the issues upon which the case was in fact contested. 87 Those issues appear from the submissions of Counsel. The matter was adjourned after the conclusion of the evidence and submissions were later delivered in writing. 88 There were in the submissions no references to Shirt, the Shirt Calculus or the balancing of considerations. 89 I should go to the written submissions; particularly those of the appellant. 90 After referring to the background facts and making the concessions as to common ground which are set out in the judgment, the submissions continued: "The issue for determination is whether the defendant took reasonable steps to avoid acts or omissions which might reasonably have been foreseen would be likely to cause harm to the plaintiff. (See Cekan v Haines (1990) 21 NSWLR 296 at 316)." 91 The submissions assert that the respondent had not established that the appellant had failed to take the steps which a reasonable man would have taken in response to the risk of injury. This passage standing alone might be considered to suggest a Shirt Calculus, however, the important feature is the reasons thereafter advanced as to why there had not been a breach. 92 The submissions argued that the respondent knew that he was going to be attacked by "Fred" and developed reasons for that contention. It was then put: "If the plaintiff knew he was going to be assaulted but failed to alert prison staff and accompanied one of "sweepers" to the rear of the building, then his own actions are the cause of his injuries and not the failure of the defendant to prevent it." 93 In the event the Judge did not accept that the respondent knew that he was to be attacked by "Fred". It is to be observed that if he did, the statement in Detective Allesi's notebook would not support him having been so aware for other than a very short time. 94 The submission continued: "The defendant had no prior knowledge that the assault would occur. It was unprovoked and spontaneous. The area near the toilets was not known as a trouble spot. Rao, McCauley and Golledge could not recall any prior assaults occurring at that location. Neither officer could recall an attack within the oval area by the use of a weapon. The oval was not known generally as a place where fights and assaults occurred." 95 This passage could go to the issue of foreseeability, although that is not stated. It could also go to the questions of magnitude of risk and degree of probability. However, no such use is made of the material in the submissions and these matters are not referred to or developed in any way. 96 Paragraph 10 of the submissions begins: "The plaintiff would submit that the attack could have been prevented if the following precautions had been taken by the defendant: ….. " 97 Thereafter follows a considerable number of sub-paragraphs and sub-sub paragraphs which deal, in the main, with the issue of preventability. 98 One sub-paragraph does refer to the later introduction of searches, warn against reliance on hindsight and advance reasons why the earlier absence of searches did not constitute a breach of the appellant's duty of care. 99 Another sub-paragraph examined the number of officers available and the extent of patrolling and contended, inferentially at least, that it was adequate. 100 The relevant portion of the submissions then concluded: "The only possible means that the defendant could have adopted to prevent the assault was for a prison officer to accompany the plaintiff wherever he went within the oval area. In the absence of the defendant being on notice, then such precautions are unreasonable. Alternatively, had the plaintiff spoken to a prison officer that he was in fear of his safety, then steps could have been taken to transfer him out of the oval area. Accordingly, there should be a verdict for the defendant." 101 No submissions were made, nor had evidence been led, as to undue expense, difficulty or inconvenience in taking the actions suggested by the respondent nor was it suggested that the appellant had any conflicting responsibilities. 102 It is unnecessary to go to the submissions of the respondent beyond noting that they do not deal with any issue relating expressly to the Shirt Calculus. 103 That the submission based upon the Shirt Calculus was an afterthought is demonstrated by the fact that Mr Sternberg's written submissions contain no reference to it. 104 As the case was conducted and presented to the Judge for decision I do not consider that he fell into the error identified by McHugh J or, indeed, any other error of law.

The Factual Basis 105 Mr Sternberg's submissions on the facts, the tenor of which appears sufficiently from the judgment below and what I have thus far set out, make out a basis for a decision by the primary judge in favour of the appellant. However, that is not the relevant issue on appeal. I am far from persuaded that the findings and conclusions reached by Acting Judge Murray were not reasonably open to him. 106 Whilst I do not think it necessary to go over the material again there are two aspects which I think it appropriate to mention specifically. 107 First, in reaching his ultimate conclusion the Judge was entitled to have regard to the combined effect of each of the steps that he had found had not been taken. 108 Second, I consider the respondent's case, in so far as it rested upon the appellant's failure to have "sufficient bodies on the ground" was particularly convincing. 109 Mr Corcoran had emphasised the importance of this aspect. It can clearly be inferred that he would not have considered one officer enough on the Oval, yet, on Acting Judge Murray's findings, that was the effective situation. The additional officers added later lend support to the view that there were not enough, whatever the precise ratio. Further, as was pointed out during argument, quite apart from the ratio of officers to prisoners, the more officers that were on the Oval the greater the opportunity for observation and, an aspect Mr Corcoran thought important, interaction with inmates. 110 In my view Acting Judge Murray made all necessary findings to found a verdict for the respondent. There is evidence to support each such finding and he did not fall into error of law. Ground of Appeal 1 is not made out. 111 I should add that even if, contrary to my view, Acting Judge Murray fell into error in his approach, I agree with his ultimate conclusion. Were it to become a matter for this Court to consider the facts for itself, I would propose that the respondent retain his verdict. Contributory Negligence 112 The appellant puts that the respondent was guilty of contributory negligence because he knew that he was to be attacked, knowingly walked into the attack and also failed to express fears for his safety to a prison officer. 113 Acting Judge Murray found that he was not satisfied that the respondent knew that he was going to be attacked. That is the end of that ground of appeal unless that finding can be displaced. 114 To that end Mr Sternberg relied upon the document prepared by the then Detective Senior Constable Allesi set out at [16] above.

115 The respondent in evidence denied that he knew he was going to be the subject of what he claimed was an unprovoked attack. He also said that he did not identify "Fred" as his attacker although that puts him in conflict with another prison officer. 116 Acting Judge Murray had the advantage of seeing and hearing both the respondent and Detective Allesi. In those circumstances I do not consider that I should depart from his finding although there is material to suggest that it may be erroneous. (See Abalos v Australian Postal Commission (1990) 171 CLR 167; Davies v Australian National Railways Commission (1993) 177 CLR 472). 117 In any event, even if the statement were made in the terms alleged, it does not establish contributory negligence. Having been told in some unspecified way immediately prior to the attack that he was, at some unspecified time, to be attacked by Fred does not, in my opinion, establish that the respondent was not taking reasonable care for his own safety in speaking to Moussa or in leaving the activities centre to do so. It is one thing to conclude after the event that he had been lured out, another altogether to conclude that he should have, exercising reasonable care, foreseen that that was what was occurring. There was certainly no time for him to approach a prison officer even if, in the prison context, that would have been a safe thing to do. 118 The ground of appeal based on the absence of a finding of contributory negligence is not made out. Appeal as to Damages 119 In the event that it failed in respect of its appeal on liability the appellant appealed as to damages to the limited extent that it challenged the amount of $150,000 for future economic loss. 120 The respondent's verdict was $243,500 made up of $88,500 for non-economic loss, $150,000 for future economic loss and $5,000 for future medical expenses. There was no claim for past economic loss or medical expenses. 121 Judge Murray summarised the respondent's injury, course of treatment and present state as follows:- "The plaintiff suffered a stab wound to the right side of the back of the neck. MRI examination suggested penetration of the spinal canal between the C2 and C3 laminae corresponding to the junction of the third and fourth segments of the cervical spinal cord. It is thought that the level of damage was at the C4 spinal segment. Fortunately, the Plaintiff did not suffer damage to the vertebral artery but suffered damage to the right half of the spinal cord with impairment of the pyramidal tract on the right which accounts for his weakness on that side. He suffers from what is called as (sic) Brown Sequard Syndrome. This results in weakness on the right side of the body and decreased pain and temperature sensations on the left side of the body. When reviewed by Dr Bowers in February 2003 the Plaintiff also stated that he had decreased expansion of the right side of his chest. The Plaintiff had some continuing vowel and bladder dysfunction and some loss of sexual function. He complained of some postural dizziness manifesting itself as fainting episodes but that this was gradually improving with time. He also suffered some aches and pains in the lumbar sacral region as a consequence of weakness of the muscles in the right side of the body. On examination power was grade 4/5 in muscles on the right side of the body and 5/5 in muscles on the left side. Reflexes were increased on the right side of the body and pain and temperature sensation was slightly decreased on the left side of the body. Tests of co-ordination demonstrated minor problems with fine movements affecting the right hand. It was concluded that the Plaintiff had undergone a relatively good recovery from what could have been a catastrophic injury. All the medicos who examined the Plaintiff were of the view that his condition was static with limitations on his work capacity to exclude heavy manual labour." 122 Emphasising the circumstance that the respondent was "still very young" the Judge found that, in terms of non-economic loss, he represented 30% of a most extreme case. 123 The Judge stated that the respondent worked as a concreter in the building industry, that his work history was poor and poorly documented. He referred to some tax returns which showed an earning capacity of about $350 per week in 1999. This was against the background that the respondent had spent some time in jail from November 1999. 124 Acting Judge Murray accepted that there was a significant diminution in the respondent's earning capacity and quoted a passage from the report of Dr Powers of 5 February 2003 as follows:- "At the present time I would expect Mr Zerafa to be able to perform full time sedentary, semi-sedentary or light physical work and this would continue until retirement age. Because of problems with co-ordination and muscle fatigue on the right side of the body he would be best advised not to return to any type of heavy physical work. As such he would be best advised not to return to his previous work as a Concreter or Builders Labourer." 125 The Judge said: "I think this represents a fair summary of the Plaintiff's work capacity and is in accord with the opinions of the specialists qualified. I do not think it is the case where, on the evidence, I am permitted to assess a precise weekly sum as representing the Plaintiff's loss of earning capacity." 126 After observing that he thought it appropriate to proceed by determining a global figure as representing the respondent's future economic loss he went on: "I think a fair representation of the Plaintiff's future economic loss is $150,000. I arrive at this figure taking into account the Plaintiff's pre-accident work history, the usual vicissitudes and provisions for loss of any superannuation benefit. In regard to the latter, I do not think it is appropriate to make a separate award because of the Plaintiff's pre-accident work history and the many imponderables surrounding his background and future employment prospects."

127 The Judge followed that finding with an observation which loomed large in Mr Sternberg's argument on this issue. He said: "As a means of testing the above figure I note that it closely correlates to an amount of $200 per week after allowance for vicissitudes." 128 Before turning to the arguments on appeal it is relevant to note the submissions, which were all in writing, made at the first instance hearing. 129 The respondent's written submissions were based on a loss of $400 per week, although the calculations appear to confuse the multiplier for the respondent's working life with that for his life expectancy. Be that as it may, the figure put was $250,000 with $27,000 in respect of loss of superannuation. It was based on inability to return to full-time physical and manual labour. 130 The appellant's submissions began with the observation: "Counsel for the Plaintiff submitted at the commencement of the case that a cushion is appropriate given the difficulties in calculating an arithmetic loss, given the Plaintiff's poor work history. It is agreed that this is the correct approach." 131 Mr Kelly did not, before this Court, dissent from the proposition that he had advocated a lump sum or cushion approach. 132 The written submissions went on to submit that the respondent was fit for a wide range of work, not including heavy labouring such as concreting. It was put that he was fit to work as a cleaner and that "most likely" there was no wage differential between the wage of a cleaner and a concreter. It was noted that the respondent's pre-injury earnings for the year 2001 were about $20,000 to $25,000 gross. 133 The submissions went on: "An economic cushion would compensate the Plaintiff not for an ongoing wage loss but rather for a period of unemployment if the Plaintiff had difficulties in obtaining suitable work, given his restrictions. A cushion would also take into account the checkered work history because there is a possibility that this would continue in the future. A cushion of $40,000 is equivalent to a loss of $50 per week for forty years x 917.6 (multiplier 5% tables less 15%)." 134 Although he conceded that neither party had raised the application of Part 2 of the Civil Liability Act 2002 at the trial, Mr Sternberg now submitted that the Judge had failed to comply with the requirements of s 13 of that Act. 135 Section 13 provides: " Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted." 136 Mr Sternberg went to the $200 per week figure referred to by Judge Murray and submitted that there was no evidence to support that figure, no assumptions were made let alone recorded. What he submitted had occurred was that the Judge had plucked the $200 per week figure out of the air. 137 Contrary to the tenor of Mr Stenberg's submissions, I do not think the Judge approached the assessment task by arriving at a figure of $200 per week. Rather, he determined upon a figure of $150,000 and as a check observed that that figure would provide $200 per week for the relevant period. Obviously that check did not cause him to alter his assessment, but that circumstance does not make it the primary figure. 138 Such a view still leaves the question as to whether the cushion approach is available having regard to the terms of s 13. 139 In Penrith City Council v Parks [2004] NSWCA 201 Giles JA, dealing with s 13 said at (5): "I consider that it is still open to assess damages by way of a so-called "buffer". The occasion for a buffer is when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. There is still a comparison between the economic benefits, although the difference cannot be determined otherwise than by the broad approach of a buffer. Section 13(1) can be fulfilled, and the assumptions as to exercising earning capacity before injury can be stated. Having determined damages for future economic loss by way of a buffer, because of the broad approach there is no question of percentage adjustment, and so in the application of s 13(2) the percentage adjustment is nil. The trial judge's error was that he did not state that he made a nil adjustment. It is of no significance. The damages at which he arrived were well within the range available to him."

140 Cripps AJA expressly agreed with Giles JA on the point. McClelland AJA adopted a somewhat different approach 141 In Kmart Australia v McCann [2004] NSWCA 283 at [62] Pearlman AJA, with whom Handley and Ipp JJA agreed, followed the view of Giles JA. I should do the same. 142 Understood in the light of that approach, it seems to me that Acting Judge Murray did make assumptions as to the type of work the respondent did and, presumably, was likely to do uninjured. He referred to past wage figures, albeit that they were unsatisfactory, and set out what he thought the respondent would be able to do by reference to the medical opinions.

143 If I be wrong in that, I would, with respect, adopt the view of Giles JA, with whom Ipp and Tobias JJA agreed, as to what follows if s 13 is not complied with by a trial judge. Giles JA said in The Nominal Defendant v Lane [2004] NSWCA 405 at 67: "Section 126 is presumably intended to promote intellectual rigour, but if the result could have been reached failure to comply with it should not bring a new trial or a reassessment."

The judge is speaking of s 126 of the Motor Accidents Compensation Act 1999. However, s 13 is in the same terms. 144 The respondent's likely future employment if uninjured was as a heavy labourer doing work such as concreting. He is clearly unfit for such work. Further, it would seem to me that his balance difficulties, which were accepted, would restrict the type of work he could otherwise do including the work of a cleaner which Mr Sternberg pressed upon us. It seems improbable that he would ever be able to engage in work of a clerical nature having regard to his educational background. Acting Judge Murray considered and took into account the respondent's spasmodic pre-injury employment. 145 I am not persuaded that it was not open to the Judge to approach the assessment on the basis of determining an appropriate buffer; nor that the amount be determined fell outside the range available to him.

Orders 146 I propose that the appeal be dismissed with costs. **********

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