New South Wales v Bujdoso [2005] HCA 76

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

STATE OF NEW SOUTH WALES APPELLANT

AND

PETER ANDREW BUJDOSO RESPONDENT

New South Wales v Bujdoso [2005] HCA 76

8 December 2005

S289/2005

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

M G Sexton SC, Solicitor-General for the State of New South Wales with P R Sternberg for the appellant (instructed by Crown Solicitor for New South Wales)

J J Graves SC with R J de Meyrick for the respondent (instructed by T D Kelly & Co)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

New South Wales v Bujdoso

Negligence – Breach of duty of care – Prison authorities – Respondent was a prisoner admitted to minimal supervision Work Release Programme – Respondent had been threatened by other prisoners – Appellant knew of threats – Respondent assaulted by a group of prisoners – Scope of duty of prison authorities to protect the safety of prisoners under its control – Whether the appellant breached its duty of care to the respondent – Whether effective measures were adopted to prevent a foreseeable risk of injury to the respondent.

GLEESON CJ, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ.

The issue

1. Silverwater Prison is a prison in and conducted by the State of New South Wales. The issue in the appeal is whether the State was in breach of its duty of care to the respondent when he was assaulted during his imprisonment there.

The facts

1. On 16 February 1990, the respondent was convicted in the District Court of New South Wales, on his own plea of guilty, of three counts of sexual assaults on male persons under the age of 18 years. He was sentenced to a minimum term of two years and six months' imprisonment, and an additional term of ten months' imprisonment. The minimum term was due to expire on 15 August 1992. 2. By September 1991, the respondent had been admitted to a prison Work Release Programme ("the Programme"). He accordingly left the prison each working day to undertake paid employment. On his return, he occupied a room in one of a group of buildings known as "the Units" located within a fenced area in the grounds of the prison. 3. On the evening of 21 September 1991, two or more assailants wearing balaclavas, who also were prisoners, entered the respondent's room, and attacked him with iron bars. He suffered serious injuries. 4. In 1991, there were relevantly three main classifications of prisoners[1]: A, B and C. Category C, which was the "lowest" category, was divided into further sub-categories. Prisoners classified as C1 were kept behind a secured fence with minimal supervision. Prisoners classified as C2 were kept in an open institutional environment with minimum security, and prisoners with a C3 classification were permitted to leave the prison on work release, and could be granted weekend, day and education leave. These last were prisoners who in the opinion of the Director-General did not need to be confined by a physical barrier at all times and who did not require close supervision. 5. The respondent was first imprisoned in Parramatta Gaol, and then, after July 1990, in Bathurst Gaol. By 26 July 1990 he had been classified as Level B. He was soon granted a C1 classification. In November 1990 he was given a C2 classification and was transferred to the Oberon prison farm. There he was taunted by other prisoners and called a "rock spider". The Deputy Superintendent recommended that the respondent be transferred from Oberon to the Kirkconnell Afforestation Camp for his own safety. 6. The respondent made several applications to be included in the Programme which was conducted from Silverwater. In the meantime, at Kirkconnell, he had been assaulted but had not complained. He did not wish to be branded a "dog". In May 1991, he was transferred to Silverwater, and two months later a psychologist, Mr Edwards, recommended that he be accepted for the Programme. 7. In late July 1991 the respondent received an obscene and threatening letter of which the prison officers became aware. 8. At Silverwater the respondent was at first placed in the dormitories. At meal times, he was taunted by being called a "rock spider". 9. The Deputy Superintendent of Silverwater made a note in his journal on 8 August 1991: