High Court of Australia
Foll a ACrimR 207
Foll Wirooa.y MIMIA (e008, Hastaue
WE | | (ea
98 C.L.R.] OF AUSTRALIA.
[HIGH COURT OF AUSTRALIA.]
HOWARD '6 a : is S 5 : APPELLANT ;
DEFENDANT,
AND
JARVIS. . . : 3 2 : : ResPoNDENT.
PLAINTIFF,
ON APPEAL FROM THE SUPREME COURT OF TASMANIA.
arresting constable to exercise reasonable care for safety of person of offender during detention.
HL, a constable of police, in company with another constable 8. arrested J. on a charge of assault and took him to a police station manned solely by H. At the station H., in the presence of S., searched J. who had just lighted a cigarette. "H. gave evidence that he took from J. inter alia matches, cigarettes and tobacco and that as he was taking J. to a cell S. asked J. to extinguish the cigarette and put his thumb and fingers around the end of it to see that J. had done so. J. then placed the cigarette in his coat pocket. It was 10.45 p.m. when J. was locked by H. in the cell. At 11.30 p.m., S. having returned to his own station, H. observed the cell in which J. had been placed and saw nothing untoward. At 2 morning H. found the cell on fire and J. perished in the flames. J.'s widow brought an action under the Fatal Accidents Act 1934 (Tas.) for the benefit of herself and her four young children against inter alios H. and in such action
5 a.m. on the following
the jury found that H. was negligent in that he failed thoroughly to search the prisoner before locking him up and to take adequate precautions in respect of the inspection of J. at reasonable intervals throughout the night. Damages were assessed at £7,550. Notwithstanding the jury's verdict the trial judge entered judgment for H., which judgment was reversed on appeal by the Full Court of the Supreme Court of Tasmania. From this decision H. appealed to the High Court.
Held: (1) that H. was subject at common law to a duty to exercise reason- able care for the safety of J. during his detention in custody ; (2) that it was not open to the jury to find that a failure on the part of H. in searching J. VoL. xcvm1—12
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