The GEO Group Australia Pty Limited v O'Connor

Court of Appeal (NSW)|2019-08-27|Before: Gleeson JA, White JA, Brereton JA, Lonergan J

Background

Mr O'Connor was arrested on 19 February 2011 on charges that included attempt to choke with intent to intimidate and aggravated sexual assault. He was received at the Metropolitan Remand and Reception Centre at Silverwater on 21 February 2011. After completing an Intake Screening Questionnaire he was classified as being able to be placed in any correctional centre with beds designated for inmates on remand. There were no special management or placement directions recorded on the classification.
On 6 March 2012 he was transferred to Parklea. Ms Downes, an expert witness engaged by Mr O'Connor's solicitors with extensive experience in the management of correctional centres and whose evidence was accepted by the primary judge, said that although Mr O'Connor was remanded in custody for a sexual offence, it was not an offence that would normally require placement in any form of protective custody.
On 14 May 2012 after a trial before a jury, Mr O'Connor was found guilty of offences, including attempting to choke the victim with intent to intimidate and sexual intercourse with the victim causing actual bodily harm in circumstances of aggravation. He was returned to Parklea to await sentence.
At about 1.20 pm on 17 May 2012 the Nursing Unit Manager at Parklea, a Ms Bidart, was approached by a different inmate ("AB") who said he wanted to discuss a conversation he had overheard, but did not want to discuss with officers in the unit in which he was housed. AB said that he could not talk to the officers because he did not want other inmates to know that he had handed over information on them. AB said to Ms Bidart words to the effect of: "I overheard a group of inmates planning to bash another inmate as they had found out that he was currently on trial for rape. The other inmates had thought he was in custody on other charges and not rape."

Primary judge's reasons

The primary judge summarised the authorities in relation to the duty of care owed by a prison authority to take reasonable care for the safety of prisoners against the risk of harm being inflicted by other prisoners (New South Wales v Bujdoso (2005) 227 CLR 1; [2005] HCA 76 at [32] and [45]-[46]; Price v State of New South Wales [2011] NSWCA 341 at [35]; Proprietors of Strata Plan 17226 v Drakulic (2002) 55 NSWLR 659; [2002] NSWCA 381 at [85]). The primary judge correctly observed that Mr O'Connor's pleading did not accurately characterise the duty of care owed by a prison authority for the safety of an inmate and said "[t]here is no duty to ensure the safety of an inmate, only to take reasonable steps or precautions" (at [16]).
It is common ground that the primary judge accurately stated the nature of the duty of care. GEO stressed that there was no absolute duty to safeguard a prisoner, but that the duty of care required what was reasonable in the circumstances. The primary judge acknowledged this and reasoned accordingly.
The primary judge referred to the evidence of Ms Bidart's report to Mr Halliwell and GEO's responses to that report as described above. Her Honour referred to evidence given by Mr Ma'a observing, correctly, that Mr Ma'a's evidence (referred to below at [88]-[93]) dealt in generalities and did not address why he did not respond to Mr Halliwell's note in his report of 17 May 2012 that the offences with which Mr O'Connor was charged increased the risk of his being targeted by other inmates. Her Honour found that when Mr Halliwell and Mr Deal spoke with Mr O'Connor, neither understood accurately the source of the information that had been conveyed to Mr Halliwell by Ms Bidart, that is, not that she had overheard a conversation between inmates, but she had been told by AB of what he had heard (Judgment [58]). The primary judge also observed that Mr Halliwell and Mr Deal proceeded on an assumption that the attack would only take place in Industries on that day, rather than really examining the nature of and reason for the threat (Judgment [58]).
The primary judge observed, correctly, that Mr O'Connor was not told the reason for the concern that he might be assaulted (Judgment [59]), namely, that other inmates had become aware of the nature of his charges for which he had been convicted on 14 May 2012.
The primary judge found that the evidence given by Mr Halliwell and Mr Deal was frank and truthful. Mr Halliwell gave evidence that he believed that he would have told Mr O'Connor that the reason behind the overheard planned assault was that other inmates had become aware of his crimes. However, the primary judge noted that Mr Halliwell conceded that he could not confirm that he did so tell Mr O'Connor, and there was nothing in his report or his statement recording that he had done so (Judgment [64]-[65]). Mr Deal in cross-examination said that all that he told Mr O'Connor was that he could possibly be at risk. The primary judge found that neither Mr Halliwell, nor Mr Deal, nor any other employee or agent of GEO, told Mr O'Connor of the reasons stated to be behind the overheard planned assault (Judgment [67]).
The primary judge summarised the expert evidence given by Ms Downes, retained by Mr O'Connor and Mr Colin Kelaher, retained by GEO. The primary judge summarised the reports and oral evidence of both experts. For reasons she articulated the primary judge preferred the evidence of Ms Downes. Critically, Ms Downes was of the opinion that Mr O'Connor should have been segregated and transferred for his own protection. Moving Mr O'Connor into segregated custody would not have any stigma attached since he was a remand prisoner and could easily be shifted. It would be different if he were placed in protective custody to which stigma attaches (Judgment [75]).
Ms Downes was also of the opinion that the decision not to segregate Mr O'Connor was contrary to GEO's own operating manuals (OP061 and OP085). Section 5.5.1 of OP061 stated that an inmate who is under threat because he was considered to be under threat from another inmate or inmates was to be separated from possible contact with other inmates. Clause 6.3 of OP085 stated that any inmate identified as vulnerable or at risk from other inmates must be separated immediately and housed in the Segregation Unit on a Non-Association order until a suitable placement and management option could be formulated and actioned (Judgment [77]-[79]). Ms Downes was critical of the responses of Mr Halliwell and of Mr Deal in that they were distracted by what in her view was a false distinction between information received being classified as "information" as opposed to "intelligence" (Judgment [84] and [85]).
The primary judge referred to the main points made by Mr Kelaher in his reports. Her Honour recorded that he placed emphasis on problems associated with being placed on protection and that it would be unfair to Mr O'Connor, whose sexual offending did not involve a child and who was not an informer, to be placed in protective custody (Judgment [92]). (Ms Downes did not suggest that he should be.)
The primary judge noted that Mr Kelaher placed great emphasis on concerns that unsubstantiated information and misinformation can be unreliable and cause management issues if all of it is acted upon. The primary judge noted that Mr Kelaher stated that the intelligence manager (in this case Mr Deal) had a responsibility to investigate and interview the relevant people. Mr Deal only interviewed Mr O'Connor and did so at a time when AB had not been interviewed by Mr Halliwell.
Mr Kelaher rejected an opinion of Ms Downes that unnecessary attention was drawn to Mr O'Connor by his being interviewed in the Industry manager's office which may have led other inmates to consider that he was informing. Mr Kelaher said that Mr O'Connor was not placed at increased risk because the physical layout of the gaol was such that the interview could not be seen by other inmates. The fact that his name was called over the loudspeaker would not draw negative attention to him as that was something done when inmates were required for legal visits and for other similar matters. The primary judge accepted Mr Kelaher's opinion on this point (Judgment [74] and [99]).
The primary judge referred to some incorrect assumptions that Mr Kelaher had made, including that it was Mr O'Connor who said that the threat of assault was "just pigeon yard talk". From that, it appeared that Mr Kelaher believed that Mr O'Connor had been made aware of the asserted reason for assault (Judgment [102]). Ms Downes and Mr Kelaher produced a joint report in which they agreed that Mr O'Connor should have been advised of "the nature of the threat and the basis on which it was made" (Judgment [104]). Mr Kelaher agreed in joint evidence that a reasonable correctional facility should have informed Mr O'Connor about the reasons stated to be behind the overheard threat to bash him, being information about his crimes (Judgment [105]). The primary judge noted the difference of opinion as to whether it was reasonable to "force" protective custody, segregation or transfer on Mr O'Connor. This question was largely academic given that Mr O'Connor was not given the information as to the reason for the threat of assault.
As to Parklea's operating manual OP085, the primary judge found: "115 Mr Kelaher said that in his view OP085 did not apply to the plaintiff: 'Because the information was very scant, it was second hand and given his history in the facility and his history in detention, some 16 month without any other threat to his well-being, and his adamant rejection of any need for protection, we considered the inmates request, or they considered the inmates request, and let him continue in the present custody arrangements.' (T176.13-18) 116 In my view, there are a number of problems with this answer apart from the infelicitous use of the pronoun 'we'. The information was not 'very scant', it was indeed quite specific. It may have been second hand, but it was overheard by someone trustworthy who quickly and responsibly reported it. The fact that the plaintiff had been in custody without incident and thought he did not need protection is irrelevant where the basis for the planned assault was made so clear - i.e. it had been found out what he was in custody for and it was different to what the inmates had previously thought. A sensible analysis of the situation should have worked this into the plan of action given the timing of the threat (three days his after conviction), and the nature of the risk. 117 Ms Downes is of the view that OP085 mandated further action and that action should have been looking for a change in the placement of the prisoner. I accept her opinion and the reasoning for it. Regardless of whether OP085 mandated the action, reasonable care in the circumstances required it."
The primary judge observed that on the second day of concurrent evidence Mr Kelaher adopted views put forward by counsel for GEO that OP061 and OP085 had a restricted interpretation such that they did not apply to Mr O'Connor's circumstances. Mr Kelaher adopted the view that OP061 was only directed to prisoners who were already in protective custody and that OP085 only applied to inmates at the time of their reception into Parklea. The primary judge rejected both of these interpretations and, necessarily, Mr Kelaher's adoption of them.
The primary judge concluded: "136 Clearly here the risk was foreseeable as a generality, and known because there was information provided that it had been overheard that inmates were planning to bash an inmate identified as the plaintiff. The risk was not insignificant and precautions needed to be taken. It was widely known that assaults occur in prison and that they can cause serious injury or be fatal. 137 The main area for debate, particularly on the expert evidence, is whether the steps taken by the defendant were sufficient precautions to take against the risk of harm (s 58(2) Civil Liability Act). In analysing this question, I am required to consider the probability that the harm would occur if care were not taken, the likely seriousness of the harm, and the burden of taking precautions to avoid the risk of harm. The fourth matter addressed in s 58(2)( d), the social utility of the activity that created the risk of harm, is not relevant to my determination here. 138 I prefer the opinion of Ms Downes over that of Mr Kelaher on the issue of segregation and transfer. I accept the submission of counsel for the defendant that it is not the case that the defendant did "little or nothing" in response to the information provided by AB via Ms Bidart. On the contrary, a number of steps were taken that indicated that the information was taken seriously, including briefing senior, weekend and intelligence team staff, K9 staff, heighted surveillance, a report to the General Manager on 17 May 2012, and discussion after the weekend as to what had been observed. All of this makes it clear that the threat actually was being taken seriously and was not being treated as a mere rumour. However, in my view the steps that were taken were simply inadequate and showed a lack of insight into the immediacy of the threat and obvious reasonable precautions that could have been taken to avoid the risk. Nor was adequate consideration and analysis given to why it was unlikely that there would be 'substantiation' or other threats in the past, when the information included that the inmates had just found out the true nature of the plaintiff's crimes in the context of a jury trial and verdict only three days before the overheard threat. 139 I reject entirely the submission of counsel for the defendant that it would be 'wholly unreasonable' and 'in blatant breach of the plaintiff's human rights' to have segregated and moved the plaintiff to a different prison to keep him safe. Not only is there express statutory power to do so (and, significantly, no evidence at all that the person who could do it, Mr Ma'a, ever turned his mind to doing it here), but there was information that supported the validity of such steps. 140 The defendant could then make application for transfer of the plaintiff for the good order of the prison. ... 141 I accept Ms Downes' evidence that inmates are not routinely polled on transfer issues, and that there were persuasive and cogent reasons why segregation and transfer was the proper course. 142 Counsel for the defendant placed great reliance on Mr Ma'a's and Mr Kelaher's concerns that there can be self-serving rumours about potential assaults to create a diversion or attempt to achieve a collateral outcome. That may well be the case, but there is an obligation on the part of the intelligence staff to examine the circumstances of the information and its timing. Mr Halliwell obviously thought it was important and noted in his report his own objectively expressed view that there was an increased risk to the plaintiff of being targeted by other inmates given his crimes. 143 The terms of s 5B(2)(a), assessing the probability that harm would occur, I consider is well-satisfied on both the lay and expert evidence. Assaults in prison are a known part of prison life. The defendant's own protocols draw attention to the obligation of GEO to protect inmates and staff from assaults. Assaults in prison can be fatal and serious. Mr Kelaher acknowledged that. Mr Halliwell wrote in his report that in his professional view there was increased risk for the plaintiff to be targeted given the nature of his crimes. 144 The burden of taking precautions to avoid the risk was in my view, minor. The segregation and transfer of a remand prisoner is easily accomplished. I accept entirely Ms Downes evidence in that regard. The arguments raised about any segregation and transfer being 'unilateral' are irrelevant and a distraction, particularly when the plaintiff was not given adequate information. The arguments raised by Mr Kelaher and Mr Ma'a that there would be a lot of transfers given there can be a lot of misinformation I find to be unpersuasive. 145 Much was made by counsel for the defendant in written submissions about the complexities of the 'weighing' task Mr Ma'a had to do in deciding whether the plaintiff should have been placed into segregation and transferred or, if necessary, placed on protection, but there is simply no evidence any such weighing or consideration was ever done regarding the plaintiff. ... 148 I am of the view however that what should have been done, and was required as part of a reasonable response to the risk to the plaintiff, was that after separation of the plaintiff as was initially and swiftly done on the day the information was given, he should have remained segregated and then been transferred. If those steps were taken, he would have avoided the bashing at Parklea the following week at the hands of the three assailants."

Grounds of appeal

Grounds 1-4 of the notice of appeal challenged the primary judge's finding that GEO was in breach of its duty of care by not imposing segregated custody on Mr O'Connor and transferring him to another correctional institution because, so it was said, the General Manager of Parklea, Mr Ma'a, had no power under the Crimes (Administration of Sentences) Act 1999 (NSW) ("the Act") either to order segregation or transfer.
Ground 5 asserted that the primary judge failed to deal with or provide reasons as to why GEO was obliged to segregate and/or transfer Mr O'Connor in circumstances where he had clearly expressed his opposition to any such suggestion. That ground is manifestly untenable. Her Honour provided detailed reasons for her conclusion.
Grounds 6 and 7 asserted that the primary judge "erred in conflating what had occurred in relation to the respondent's conviction of sexual offences with what was known to the appellant of those matters at the time", specifically, she erred in concluding that the fact of his conviction was known to other prisoners prior to his assault and erred in concluding that other inmates had just learnt of the true nature of his crimes. GEO submitted that there was no reliable basis for such a conclusion.
As explained in GEO's written submissions, ground 8 was in substance that it was not put to Mr Ma'a in cross-examination that Mr Ma'a should have formed the opinion to exercise his discretion to segregate Mr O'Connor or to effect his transfer from Parklea, assuming (contrary to GEO's submission) that Mr Ma'a had such a power.
Ground 9 was that: "The Primary Judge erred in failing to have any or any adequate regard to Section 5C Civil Liability Act 2002 (NSW) ('CLA') and in particular, to Section 5C(b) insofar as her Honour failed to engage at all with the principle that the burden of taking precautions to avoid a risk of harm included the burden of taking precautions to avoid a similar risk of harm."
Ground 10 was not pressed.
It was not a ground of appeal that the primary judge erred in preferring the opinion of Ms Downes to that of Mr Kelaher. Nor was there any challenge to the admissibility of Ms Downes' opinions.

Grounds 1-4: power to segregate or transfer

Ground 1 was: "The learned Primary Judge erred in finding that the appellant was in breach of its duty of care to the respondent by failing to unilaterally impose segregated custody upon him and/or to transfer him to another correctional institution."
This ground of appeal did not identify any specific error. As explained in GEO's written submissions, this ground of appeal invoked grounds 2, 3 and 4. Those grounds were: "2. Her Honour erred at law in finding, contrary to Section 23 of the Crimes (Administration of Sentences) Act 1999 NSW that the appellant possessed the delegated authority to order the transfer of the respondent from Parklea Correctional Centre to another correctional institution. 3. Her Honour erred in failing to properly construe and apply the terms of Section 10 of the Crimes (Administration of Sentences) Act 1999 NSW which prescribes the limited circumstances in which a General Manager is permitted to exercise his or her discretion to order segregation of an inmate. 4. Her Honour erred in failing to conclude that the circumstances of the present case fell outside the scope of Section 10(1)(a)-(c) of the Crimes (Administration of Sentences) Act 1999 NSW."
GEO submitted that had it taken the steps that the primary judge found it was required to take in discharge of its duty of care, it would have been acting contrary to statute by exercising powers it did not have.
Although not specifically raised in its grounds of appeal, in its written and oral submissions GEO also emphasised the hearsay and imprecise nature of the information it received and emphasised the steps it did take in response to that information, and submitted that no reasonable person in its position would have taken any additional precaution.
Section 10 of the Act, as in force in May 2012, provided: "10 Segregated custody of inmates (1) The Commissioner may direct that an inmate be held in segregated custody if of the opinion that the association of the inmate with other inmates constitutes or is likely to constitute a threat to: (a) the personal safety of any other person, or (b) the security of a correctional centre, or (c) good order and discipline within a correctional centre. (2) The general manager of a correctional centre may exercise the Commissioner's functions under this section in relation to the correctional centre and, on each occasion he or she does so, must notify the Commissioner of that fact and of the grounds on which the segregated custody direction was given. (3) A segregated custody direction given by the general manager of a correctional centre does not apply in relation to any other correctional centre. (4) Subsection (3) is subject to section 15."
Section 10(2) empowered the general manager, Mr Ma'a, to exercise the Commissioner's functions under subs (1) to direct that an inmate be held in segregated custody. He could do so if he were of the opinion that the association of Mr O'Connor with other inmates constituted or was likely to constitute a threat to good order and discipline within Parklea (s 10(1)(c)). The formation of such an opinion did not depend upon Mr Ma'a's being of the opinion that Mr O'Connor was likely to be assaulted. It was enough to trigger the power to segregate Mr O'Connor from other inmates if he were of the opinion that Mr O'Connor's association with other inmates constituted or was likely to constitute a threat to good order and discipline.
GEO submitted that because the only suggested threat was against a single inmate the good order and discipline of Parklea was not threatened. That submission is untenable. An assault by one or more inmates against another inmate is plainly contrary to good order and discipline within a prison. Those administering prisons are required to exercise reasonable care to prevent such assaults. Such an assault is inimical to the maintenance of good order and discipline.
Plainly, there was a power to segregate.
Section 15 dealt with the consequences of transferring an inmate held in either segregated or protective custody to another correctional centre. In substance, the general manager of the receiving correctional centre was required to review the segregated or protective custody direction and either revoke it, confirm it, or amend its terms (within 72 hours).
Section 11 dealt with protective custody. It relevantly provided: "11 Protective custody of inmates (1) The Commissioner may direct that an inmate be held in protective custody if of the opinion that the association of the inmate with other inmates constitutes or is likely to constitute a threat to the personal safety of the inmate. (2) The Commissioner may also direct that an inmate be held in protective custody if the inmate requests the Commissioner in writing to do so. (3) The general manager of a correctional centre may exercise the Commissioner's functions under this section in relation to the correctional centre and, on each occasion he or she does so, must notify the Commissioner of that fact and of the grounds on which the protective custody direction was given."
Section 12 provided: "12 Effect of segregated or protective custody direction (1) An inmate subject to a segregated or protective custody direction is to be detained: (a) in isolation from all other inmates, or (b) in association only with such other inmates as the Commissioner (or the general manager of the correctional centre in the exercise of the Commissioner's functions under section 10 or 11) may determine. (2) An inmate who is held in segregated or protective custody: (a) is not to suffer any reduction of diet, and (b) is not to be deprived of any rights or privileges other than those determined by the Commissioner (or the general manager in the exercise of the Commissioner's functions under section 10 or 11), either generally or in a particular case, and other than those the deprivation of which is necessarily incidental to the holding of the inmate in segregated or protective custody."
An inmate who was placed in segregated or protective custody for more than 14 days could apply to the Serious Offenders Review Council for review of the segregated or protective custody direction (s 19).
Section 232 relevantly provided: "232 Commissioner (1) The Commissioner: (a) has the care, direction, control and management of all correctional complexes, correctional centres and residential facilities, and (a1) has the care, control and management of all offenders who are held in custody in accordance with Part 2, 3 or 4, and (b) has all other functions conferred or imposed on the Commissioner by or under this or any other Act or law. ... (3) The Commissioner may delegate to any person any of the Commissioner's functions, other than this power of delegation. (4) Sections 10 (2), 11 (3), 12 and 17 (4) do not limit the power of the Commissioner to delegate functions under those sections."
Section 233 provided: "233 General managers of correctional centres (1) The general manager of a correctional centre: (a) has the care, direction, control and management of the correctional centre, and (b) has all other functions conferred or imposed on the general manager by or under this or any other Act or law. (2) In the exercise of the functions referred to in subsection (1) (a) and (b), the general manager is subject to the direction and control of the Commissioner. (3) The general manager of a correctional centre may delegate to any person any of the general manager's functions, other than this power of delegation and other than any function delegated to the general manager by the Commissioner."
Section 23(1) provided: "23 Transfers from one correctional centre to another (1) The Commissioner may order that an inmate be transferred from one correctional centre to another: (a) because the correctional centre is being or is about to be repaired, altered, enlarged or rebuilt, or (b) because of an outbreak or threatened outbreak in the correctional centre of an infectious disease, or (c) because the correctional centre has ceased or is about to cease to be a correctional centre, or (d) because the correctional centre is overcrowded, or (e) because inmates in the correctional centre need to be separated in compliance with the requirements of the regulations, or (f) because of any other reason specified in the order."
The power to transfer under s 23 is also vested in the Commissioner.
Under s 232(3) the Commissioner could delegate his power of transfer under s 23. GEO submitted that there was no evidence that the Commissioner had delegated that power. The power to transfer could be exercised for any reason stated in the order for transfer.
Contrary to GEO's submission, there was evidence, both as to the practice in relation to the transfer of inmates between prisons and the delegation of the Commissioner's authority to order such transfers. Not surprisingly, the Commissioner does not consider every transfer. Ms Downes and Mr Kelaher gave the following evidence: "WITNESS DOWNES: ... Section 23 is the order used on every occasion to transfer a prisoner from one correctional centre to another and it is covered by that and any other reason specified in the orders. MCCARTHY: That is 23(1 )(f) you are referring to? WITNESS DOWNES: Yes, 23(1)(f). The delegation by section 22 orders is actually included in the Department of- oh sorry, Corrective Services New South Wales Delegations Manual where there are specific delegations made to different roles. So, for example, the manager of prisoner transfers or, actually, manager of prisoner transfers and the deputy managers of prisoner transfers, so that is at the level of general manager and manager of security working in a specific branch, they actually have the delegated authority to sign a section 23 order and to authorise the transfer of a prisoner from one jail to another, one correctional centre to another. WITNESS KELAHER: And I would agree with that. MCCARTHY: You agree with that? WITNESS KELAHER: Yes."
Both Ms Downes and Mr Kelaher assumed that Mr O'Connor could have been transferred had he been placed in segregation. Their assumption was well-based on their experience. Indeed, counsel appearing for the GEO at trial in his questions relating to s 23 of the Act referred to what might be thought to be a notorious fact that it was a common everyday occurrence that inmates would be moved from one correctional centre to another.
I reject grounds 2, 3 and 4 of the notice of appeal, and ground 1 insofar as it is based on those grounds.
Insofar as ground 1 is more widely based, GEO contends that it did not breach its duty of care to Mr O'Connor for the reasons mentioned above at [59], that is, that no reasonable person in GEO's position would have taken steps in addition to those already taken by GEO by way of precaution, given the "hearsay and imprecise" nature of the information received.
The question of what GEO ought to have done in response to the information was the subject of expert opinion from Ms Downes and Mr Kelaher. The primary judge accepted Ms Downes' evidence that GEO's protocols were that Mr O'Connor be moved once he was identified as at risk (see below at [101]). There was no error in the primary judge's acceptance of Ms Downes' evidence that once he was so identified, his segregation or transfer was what was required of GEO.

Ground 5

It is simply untrue that the primary judge failed to deal with or provide reasons to explain why GEO was obliged to segregate and/or transfer Mr O'Connor in circumstances where he had clearly expressed his opposition to any such suggestion.
The primary judge provided clear reasons for her conclusion. Essentially, there were two such reasons.
The first, was that Mr O'Connor's resistance to being moved was not based upon being given the information that had been provided to Mr Halliwell, namely, that other inmates had learned of the nature of his charges that increased the risk of his being targeted. The primary judge said: "67 I do not accept that Mr Halliwell or Mr Deal or any other employee or agent of GEO told the plaintiff of the reasons stated to be behind the overheard planned assault. I conclude that he was not informed that the reason for the planned assault was the nature of his crimes becoming known by other inmates, and so he was deprived of the opportunity of understanding this change in his circumstances, and the effect this could, and according to what had been overhead by AB, did, have on other inmates' attitudes to him. Despite Mr Halliwell noting in his report of 17 May 2012 that 'it is acknowledged the offences O'Connor is charged with increases the risk of being targeted by other inmates ... ', that increased risk seems not to have been properly taken into account in the steps taken, and the increased risk was not conveyed to the plaintiff to assist him in making a decision as to whether he ought to agree to or request to be segregated or transferred to another correctional facility for his safety."
A second reason was the primary judge's acceptance of Ms Downes' opinion that irrespective of Mr O'Connor's position, he needed to be protected from the threat by being segregated and then transferred for his own protection. The primary judge preferred the opinion of Ms Downes over that of Mr Kelaher on the issue of segregation and transfer (Judgment [138]). Her Honour accepted Ms Downes' evidence that inmates are not routinely polled on transfer issues and that there were "persuasive and cogent reasons why segregation and transfer was the proper course." In this paragraph the primary judge accepted Ms Downes' reasons for the opinion that she expressed.

Grounds 6 and 7

Grounds 6 and 7 are not easy to understand, but they were explained in GEO's written submissions as follows: "61. Within the judgement, her Honour placed heavy emphasis on her finding that neither Mr Halliwell nor Mr Deal informed the respondent that the information concerning the alleged threatened assault to the respondent was related to the nature of his offending [J[3] Red 34 - P]. At [J [25] Red 32 - T] her Honour stated that the inmates formerly believed the respondent 'was in custody for other charges'. At [J[138] Red 60 - F] her Honour further stated that the information 'included that the inmates had just found out the true nature of the respondent's crimes in the context of a jury trial and verdict only three days before the overheard threat'. The latter finding was made within the very heart of the dispositive section of the judgment. However, there was no proper basis on the evidence for her Honour to have reached this conclusion. 62. Her Honour's conclusion must turn on the fundamental premise that the respondent had, prior to the time he was assaulted, actively misled the other inmates as to the nature of his charges/convictions. If that were the case, it would have been very easy for the respondent to establish this when he gave evidence in the case. However, the respondent said nothing about this. As such, no occasion arose for the underlying premise to be assumed by the Court. It was quite simply a false premise."
As I understand the submission, it is that the relevant question was not what information was provided to GEO about the risk to Mr O'Connor, but whether Mr O'Connor had established on the balance of probabilities that in fact other inmates had previously been ignorant of the charges that Mr O'Connor faced and of which he was convicted, but had learned of those charges.
These grounds are misconceived. It is possible that Mr O'Connor was assaulted for reasons unrelated to what AB overheard and conveyed to Ms Bidart. It is possible that no other inmate knew of the nature of the charges that Mr O'Connor faced and of which he had been convicted. That is irrelevant to what, in the exercise of reasonable care, GEO should have done in response to the threat of which it was informed.

Ground 8

Ground 8 was: "The Primary Judge erred in finding that the appellant's General Manager, Mr Ma'a negligently failed to exercise his statutory powers when there was no challenge to that exercise of the delegated statutory power vested in him."
As explained in GEO's written and oral submissions, this ground was not that there could be no claim that Mr Ma'a negligently failed to exercise his statutory powers if there had been no administrative law challenge to the exercise of his delegated statutory power. Rather, it was said that counsel for Mr O'Connor did not cross-examine Mr Ma'a to challenge him on his failure to order the segregation and arrange for the transfer of Mr O'Connor.
The primary judge said: "38 Mr Ma'a was the person with authority to change the categorisation of the plaintiff's accommodation. His statement dated September 2016 and tendered as his evidence in chief, is expressed in generalities rather than what his decision making was in relation to the plaintiff. Although Mr Ma'a gave evidence and was cross-examined, he did not address at all whether or when he saw Mr Halliwell's report of 17 May 2012 although the report is addressed to him, or what action was discussed with him or he personally took or recommended should be taken in response, if any. There was nothing addressing this issue in his statement, which was confined to generalities about staffing, wing activities and timetabling, the role of segregation and protection and his understanding of usual practice based on his 30 years' experience, including 12 years as a General Manager or its equivalent. ... 40 He was of the view that the nature of the plaintiff's charges would not "of itself single the plaintiff out as a likely automatic target for inmate on inmate violence", but he does not address why he did not respond to Mr Halliwell's note in his report to Mr Ma'a that Mr Halliwell felt that the offences the plaintiff was charged with increased his risk of being targeted. ... 42 Mr Ma'a addressed his powers under s 11 of the Crimes (Administration of Sentences) Act 1999 (NSW), to unilaterally mandate the protective custody of an inmate where in his opinion an inmate is perceived to be at risk. Sections 10 and 11 of that Act state: 10 Segregated custody of inmates (1) The Commissioner may direct that an inmate be held in segregated custody if of the opinion that such segregation is necessary to secure: (a) the personal safety of any other person, or (b) the security of a correctional centre, or (c) good order and discipline within a correctional centre. (2) The governor of a correctional centre may exercise the Commissioner's functions under this section in relation to the correctional centre and, on each occasion he or she does so, must notify the Commissioner of that fact and of the grounds on which the segregated custody direction was given. (3) A segregated custody direction given by the governor of a correctional centre does not apply in relation to any other correctional centre. (4) Subsection (3) is subject to section 15. 11 Protective custody of inmates (1) The Commissioner may direct that an inmate be held in protective custody if of the opinion that the association of the inmate with other inmates constitutes or is likely to constitute a threat to the personal safety of the inmate. (2) The Commissioner may also direct that an inmate be held in protective custody if the inmate requests the Commissioner in writing to do so. (3) The governor of a correctional centre may exercise the Commissioner's functions under this section in relation to the correctional centre and, on each occasion he or she does so, must notify the Commissioner of that fact and of the grounds on which the protective custody direction was given. (4) A protective custody direction given by the governor of a correctional centre does not apply in relation to any other correctional centre. (5) Subsection (4) is subject to section 15. 43 Mr Ma'a says that the relevant policy covering these matters is OP061 paras 5.1 and 5.3, and that he is required, when he has occasion to consider this type of action, to have regard to whether the inmate's continued association with other inmates is likely to constitute a threat by reference to the personal safety of any other person, the security of Parklea as a whole or the good order and discipline of Parklea. As I have already observed there is no evidence at all that he went through these considerations regarding the plaintiff's position and the information set out in Mr Halliwell's report. 44 Mr Ma'a confirmed in cross-examination that nothing had been disseminated back to the officers on the wing about the plaintiff between the report on 17 May 2012 and the time he was assaulted. He, like Mr Deal and Mr Halliwell, seemed to place a large degree of reliance on the absence of any incidents in the past whilst in custody and the absence of any threats at other facilities prior to the plaintiff's transfer to Parklea. 45 Unfortunately, like Mr Deal and Mr Halliwell, Mr Ma'a seemed distracted about the distinction between 'information' and 'intelligence' and so the categorisation of this in the intelligence system, rather than focusing on the context and content of the information. The context was that the threat came to light only three days after the plaintiff's conviction for violent sexual offending after·a jury trial. The content was that an overheard conversation that stated the reason for the attack was, in effect, the new knowledge, that the plaintiff's crimes were different from what the inmates had initially thought, the clear inference being that the inmates now viewed the plaintiff as a target. 46 It is in my view largely immaterial that Mr Ma'a was of the view that usually this type of disapproval or targeting is reserved for sexual offending towards children. The point is the information available had the reasoning behind it that the nature of the plaintiff's offending was thought by inmates to be an issue. The operations manager Mr Halliwell acknowledged in writing that the offences the plaintiff was charged with increased the risk of him being targeted. Also relevant to this consideration is the opening paragraphs of the report where Mr Halliwell says that when he received the information he: 'Reviewed the industries work sheet for Thursday 17 May which identified the possible person of interest ... whose charges included Agg SA (sexual assault) - inflict ABH on victim'. (Emphasis added)."
Mr Ma'a provided a statement that was primarily in response to Ms Downes' first report. In her first report Ms Downes had expressed the opinion (at [66]-[70]) that: "66. Given the information provided by NUM Bidart and Mr Halliwell's assessment of increased risk of targeting by other Inmates, due to Mr O'Conner's charges, it is my view, based on my experience, that one of two possible responses should have been taken to ensure Mr O'Conner's ongoing safety- placement Into protective or segregated custody, pending transfer to another correctional centre or placement Into protective custody. This Is consistent with the directions in Policy OP085. It is my view that segregated custody would be a preferable option If Mr O'Conner was going to be transferred to another correctional centre as a normal discipline inmate. This would prevent the stigma that attaches to prisoners in protective custody. 67. It does not matter that Mr O'Conner stated in writing on Prisoner Request Form 229/12 that he did not have any concerns about his safety and did not want to move. It was the responsibility of the staff at Parklea Correctional Centre to ensure Mr O'Conner's safety and take action In response to threats to his safety: They also had a responsibility to explain this to Mr O'Conner. 68. Further, Sections 11(1) and (3) of the CAS Act provide that the General Manager of a correctional centre may direct an Inmate to be held in protective custody if of the opinion that the association of the inmate with other inmates constitutes or is likely to constitute a threat to the personal safety of the inmate. A protective .custody order at the direction of the General Manager, is dealt with administratively In the same manner as a segregated custody direction, with provision for the inmate to seek a review of the direction If it extends past 14 days. 69. It Is my view that Mr Halliwell's recommendation to Mr Ma'a regarding the ongoing management of Mr O'Conner, and its adoption, contravened Policies OP061 ·and OP08S. 70. As none of the actions specified in Policies OP061 and OPOSS were implemented, It is my view that no real action was taken In relation to the information regarding the threat to Mr O'Conner's safety, and Mr Halliwell's assessment of his risk for targeting by other inmates. Mr O'Conner accordingly remained at risk from other Inmates."
In response Mr Ma'a, in his statement said: "Paragraph 68 For the reasons already discussed in my statement, given the imprecise nature of the rumoured threat and the lack of any corroboration through intelligence, this weighed against the likely adverse consequences of mandating protection. Based on my knowledge and experience and given the matters recorded above, I do not believe the circumstances of this case warranted me in unilaterally placing the plaintiff in protection over his express opposition to this course. I was aware of the fact that the plaintiff had already spent 16 months in custody and on the objective evidence of the OIMS records, the plaintiff seemed to be functioning satisfactorily in a custodial environment. Further, I was aware that the plaintiff had been housed in Unit 2B for 2 months and had entertained no fears in relation to the other inmates housed there and he and correctional staff had not noticed any difference in the manner that other inmates interrelated with the plaintiff."
Mr Ma'a did not otherwise respond to Ms Downes' opinion.
Mr Ma'a did not address her opinion that the circumstances warranted Mr O'Connor being placed in segregated (as opposed to protective) custody.
As noted above, the primary judge was critical of Mr Ma'a's evidence in that Mr Ma'a did not address why he did not respond to Mr Halliwell's report that Mr Halliwell felt that the offences Mr O'Connor was charged with increased his risk of being targeted (Judgment [40]). There was no evidence that he went through the considerations in OP061, which he regarded as the only relevant policy, contrary to the unchallenged finding of the primary judge that OP085 was also relevant and more relevant. The primary judge said that there was no evidence that he went through the considerations in OP061 paras 5.1 and 5.3 in considering Mr O'Connor's position, having regard to the information given to him in Mr Halliwell's report (Judgment [43]).
The only other matter put forward by Mr Ma'a in his report dealing specifically with the position of Mr O'Connor was in response to paragraph 68 of Ms Downes' report (quoted above at [88]).
Paragraph 68 of Ms Downes' report dealt with whether Mr O'Connor should have been placed in protective custody, rather than segregated custody. Mr Ma'a did not respond to Ms Downes' opinion about his being placed in segregated custody. His response to paragraph 68 of her report is quoted at [89] above.
Mr Ma'a rejected the notion that Mr O'Connor should have been placed in protective custody, but that was not the basis upon which there was a finding of negligence.
Mr Ma'a's failure to address the claim that Mr O'Connor should have been placed in segregated custody pending transfer raised a Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 inference against GEO that no additional evidence Mr Ma'a could give would support GEO's case (Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419 per Handley JA).
Counsel for Mr O'Connor was not required to cross-examine Mr Ma'a about evidence that Mr Ma'a did not give, but which he could be expected to have given if it would have advanced GEO's case.

Ground 9

In its submissions on ground 9 GEO contended that there was a volume of information that comes into GEO's possession in its management of Parklea in terms of intelligence or information that needs to be considered. Much of that intelligence or information cannot be verified. Some of it is conveyed mischievously in an attempt to achieve a prisoner's own wishes, such as to arrange for himself to be transferred or to arrange for another prisoner to be transferred. Mr Deal said that prisoners could be unreliable and invent a range of reasons, including mischievous and malevolent reasons. Mr Deal said: "In my experience, there would be a very real danger to the good order and management of prisons if all Information covering potential threats were to be immediately escalated and treated as 'intelligence'. This is because inmates will periodically generate self-serving rumours regarding potential assaults to either create a diversion or to attempt to achieve a collateral outcome."
He said that he received "numerous tip-offs everyday" although not all related to the risk of assault. Both Mr Ma'a and Mr Kelaher referred to there being a high volume of unsubstantiated information or rumours deliberately spread for mischievous purposes.
GEO submitted that the primary judge failed to have regard to s 5C(a) of the Civil Liability Act 2002 (NSW). Section 5C provides: "5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible. (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."
GEO stressed that the scope of the duty of care had to be assessed not exclusively by reference to the circumstances of Mr O'Connor's assault, but against the background of the whole multitude of risks that might or might not crystallise in respect of responses to rumours and overheard conversations.
GEO is correct that s 5C required the primary judge to consider whether the burden of taking the precaution of segregation and transfer, if required to be taken in the case of Mr O'Connor, would mean that similar steps would be required in the case of other overheard threats that would place an unreasonable burden on the management of Parklea and other correctional centres.
But as Ms Downes opined, and as the primary judge found, the operating manuals for Parklea required in the circumstances of this case that once Mr O'Connor was identified as being at risk from other inmates, he needed to be separated.
The contention suggested by counsel for GEO that was accepted by Mr Kelaher at trial that OP085 applied only to inmates from their reception into Parklea was untenable. The primary judge correctly found (Judgment [129]) that although the focus of the policy was on turning minds to the issue of reception of a new inmate, it defied common sense to have the operation of preventative measures stop as soon as the reception process was completed.
No s 5C issue arose. Mr O'Connor's complaint was not that prison systems were at fault, but rather that the system laid down in the protocols was not complied with.
In oral submissions it was faintly argued that s 5B could not require the taking of the additional precaution of segregation and transfer over and above the steps that were taken because it could not be concluded that it was probable that harm would occur if care were not taken (s 5B(2)(a)). That construction is untenable. If the risk of harm is insignificant then a defendant is not negligent in failing to take precautions against the risk (s 5B(1)(b)). But if the risk is not insignificant, then subs (2) is engaged in determining whether a reasonable person in the defendant's position would take precautions against the risk. In making that assessment, the court is to consider how probable it is that harm would occur if care were not taken. That may require taking precautions against a risk that is unlikely, particularly where, if the risk eventuates, the harm would be severe, and the burden of taking precautions is not great. The primary judge held that that was the case here. Her Honour's conclusion was correct.
For these reasons I propose the following orders: 1. Grant the applicant leave to appeal from the orders of the Common Law Division made on 5 March 2019. 2. Appeal dismissed with costs.
BRERETON JA: I have had the benefit of reading, in draft, the judgment to be delivered by White JA, with which I agree.
GEO was provided with credible information about a specific risk to Mr O'Connor, a prisoner - that he would be assaulted by other inmates - which eventuated and caused harm. Although it must always be borne in mind that the fact that a known risk eventuates and causes harm does not necessarily bespeak negligence, this was a striking case. The credibility of the information provided was supported by the nature of its source and origin (a trusted prisoner relaying information through a nursing unit manager), the detail of the information (in describing the target, the location, the timing, and the rationale for the threat - being the recent discovery of the true nature of his offence), and the internal corroboration obtained (through identifying Mr O'Connor by correlation of his characteristics with those described by the source, and that he had recently been convicted of an offence within the class that, if known, might expose him to risk of assault). The consequences of the risk eventuating could be grave: serious injury, or even death. Neither the risk, nor its consequences, were reduced by the circumstances (invoked by GEO) that the potential aggressors had not been identified, or that this was classified as "information" rather than "intelligence".
In those circumstances, reasonable care - consistent with GEO's own policies - required that, for his own protection, Mr O'Connor be segregated from the threat, by one or other of the means lawfully available to GEO for that purpose, namely segregated or protective custody, whether or not with a view to transfer. Proceeding on the basis (as GEO did) that the threat was diminished once the day to which it related had passed, overlooked the obvious, namely that if its implementation was prevented by segregation on that day, it was likely to re-present at the next available opportunity. Reliance on Mr O'Connor not himself being concerned was fraught: he would be the last to discover that others intended to assault him. And his "request" not to be moved was obtained in circumstances where he was not informed of the most significant information, that the threat was associated with recent discovery of the nature of his offence.
I agree with the orders proposed by White JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 December 2019

Solicitors: Sparke Helmore Lawyers (Appellant) Shine Lawyers (Respondent) File Number(s): 2019/73624 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2019] NSWSC 202 Date of Decision: 5 March 2019 Before: Lonergan J File Number(s): 2015/142422

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (9 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (10)