KR THOMAS v CORRECTIVE SERVICES COMMISSION OF NEW SOUTH WALES NV THOMAS v_ CORRECTIVE SERVICES COMMISSION OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, PRIESTLEY JJA,and Hope AJA 16,17 November 1989, 20 December 1989 [1989] NSWCA 210 NEGLIGENCE — murder of one prisoner by another in Parramatta Gaol — callous notification of death by authorities to parents death causes nervous shock to parents — proceedings for damages for nervous shock by parents against Corrective Services Commission — whether negligence of Corrective Services Commission causing death proved — no evidence of system by which gaol conducted — negligence not established. Samuels JA I agree with Priestley JA. Priestley JA On 4 January 1982, a prisoner named Peter Thomas ("T") who was serving a term of imprisonment in Parramatta Gaol was killed by another prisoner named Hewitt ("H''). H was later convicted of T's murder. T's parents lived in Orange. The way in which the Corrective Services Commission ("the Commission") caused the parents to be notified of their son's death was later described by Hunt J as having been done in "an extraordinarily callous and uncaring and wholly reprehensible manner". Hunt J said this when awarding each of the parents compensation for injury under s437 of the Crimes Act, following conviction of H. He awarded them $10,000, the maximum possible under the section. That happened on 10 May 1984. Afterwards, Mr and Mrs Thomas began proceedings in the District Court against the Commission. Each claimed to have suffered injury from mental and nervous shock because of negligence by the defendant because of which their son was murdered. Hunt J had indicated when granting the applications under s437 that both Mr and Mrs Thomas had suffered nervous shock in the sense relevant to the claims against the Commission. When those claims were heard before his Honour Judge Hosking, there was ample evidence to show that both parents had been markedly affected by their son's death and that the effect upon them could be rightly classified as injury from nervous shock. Judge Hosking said that clearly both plaintiffs had suffered greatly and would continue to suffer as a result of their son's death. There appears to have been little doubt about the damages aspects of the claims of the parents. On the question of the Commission's liability, Judge Hosking was not satisfied that the facts proved supported a finding that it was the Commission's negligence which caused the plaintiffs' damage. He dismissed the proceedings. The plaintiffs appealed to this Court. The cases for the plaintiffs were heard together both at first instance and upon appeal. So far as liability is concerned they were identical. The fifth ground of the amended notice of appeal raised a matter essential for the plaintiffs' success. If they failed on ground 5 the appeal would have to be dismissed. Ground 5 said the trial judge "erred in not holding that the Respondent had a duty of care to the Appellant and that it breached that duty". Both at the trial, and on appeal, the plaintiffs' primary cases were put in a very simple way: (i) the Commission had 2 UNREPORTED JUDGMENTS a duty to take reasonable care for the safety of prisoners, and therefore of T (ii) H was known to be violent and to attack other prisoners (iii) therefore the Commission was in breach of duty in not either keeping H separate from other prisoners, including T, or keeping such supervision over H when not separated from other prisoners as to be able to prevent him attacking any of them; (iv) T was killed by H; and (v) the breach of duty caused T's death and the nervous shock suffered by his parents. At first sight this approach has some force; perhaps because the plaintiffs' legal advisers felt this or felt that such an approach raised a prima facie case against the Commission, the case was conducted in a way that resulted in there being very little evidence before the Court of the way in which Parramatta Gaol was run. For example, Prisons Regulations made under the Prisons Act 1952, and in force at the time of T's death, made detailed provision for, among many other things, the classification of prisoners and their separation according to classification. No reliance was placed upon any of these regulations at the trial, nor was there any evidence before the Court showing how the regulations operated in practice. Whether or not the case for the plaintiffs may have been improved by putting fuller materials in evidence is impossible for this Court to know. However, on the evidence as it was left at the trial, it seems to me that the trial judge was right in the conclusion he reached. This is because, in my opinion, the case for the plaintiffs did not establish step (ii) in the chain of reasoning upon which the plaintiffs relied in such a way as to justify acceptance of step (iii). These steps were essential to proof of liability. From parts of Exhibit M (not reproduced in the appeal books, but available to the Court) details of H's criminal record appear. He was born in 1953. The first entry is in 1965, showing a number of offences of breaking, entering and stealing. From then until June 1970 many more offences of the same type are recorded. In November 1970 he was sentenced for burglary as well as for breaking, entering and stealing. From then until July 1971 similar offences were recorded. These offences happened in Western Australia. In September 1972 he was convicted in New South Wales for a number of offences including some of physical violence. In April 1976 he was convicted of arson and malicious injury. In June 1978 he was convicted of escaping from lawful custody, breaking, entering and stealing, larceny of a motor vehicle and assaulting a constable in the execution of his duty. In October 1981 he was sentenced on another charge of escaping from lawful custody, two charges of assault and robbery, a charge of abduction and a charge of possessing a shortened firearm. It was following these latest convictions that he was sent to Parramatta Gaol. In addition to H's record of convictions, there were in evidence further documents relating to H's behaviour while in prison. These show that during H's almost continual imprisonment from 1972 onwards in different prisons in New South Wales, he was frequently examined by psychiatrists, that from time to time he was violent towards other prisoners and on at least one occasion (December 1975) wounded himself by cutting deeply into his left heel. In January 1976 he was refused parole at the expiration of his then current non-parole period. According to a report by Mr K Jones, Psychologist, to the Department of Corrective Services, this was "because of a long record of misconduct in prison" during which he had shown "persistent abusive and aggressive behaviour'. Mr Jones stated his opinion that H was "an extremely unstable, disorganised and restless young man". To this time however, so far as I can see from the available evidence, his aggressive and violent behaviour had not caused physical damage WARJTHOMAS v CORRECTIVE SERVICES COMMISSION OF NEW SOUTH WALES NB THOMAS v CORRECTIVE SERVICES COMMISSION OF NEW SOUTH WALES (Priestley JA) to other persons. In February 1976 Mr Barr, a consultant psychiatrist, made a report to the Department of Corrective Services following an interview with H. In his report he said that H had told him that he had cut his achilles tendons at Maitland Gaol on several occasions, because he found it difficult to tolerate being in a cell alone and hoped that by injuring himself he would bring about a transfer to shared accommodation. He also reported that H seemed to have difficulty in controlling impulsive behaviour and that in the past he had sometimes behaved violently towards others and that more recently his violence seemed to have been turned upon himself. It seems that it was pursuant to this report that in June 1976 H was transferred to Grafton Gaol, to be held in protective custody. While in Grafton Gaol, he attacked another prisoner (it appears from some of the material that he did this on the ground the other prisoner was a child molester), knocked him down with a sizeable piece of wood, jumped on his head and then kicked him in the head and face until prison officers dragged him away. The prison officer who saw this, said in his report that he thought H would kill the other prisoner. This seems to have been the worst episode of violence by H of which there is any record. There is no evidence that any report of an attack by H upon any person inside gaol was made to any of the gaol authorities between the date of the very violent incident of 7 February 1977 and the date of his murdering T. The crimes committed while at large after escaping from custody involved violence, but do not appear to have caused physical injury. Thus, when H went to Parramatta Gaol in October 1981, the Commission, which was accepted at the trial and in the appeal as being in charge of the gaol, knew that H was an unstable and violent prisoner, who on one occasion had attacked another prisoner so violently that a watching prison officer thought that H would have killed the person he was attacking, unless prevented. For the plaintiffs it seems to have been submitted at the trial, as it was in the appeal, that this state of affairs necessarily meant that the Commission then knew that H was likely to attack other prisoners and therefore was in breach of duty in not either keeping him completely separate from other prisoners or so supervising him when in the company of other prisoners as to be able to prevent him attacking any of them. I do not think that on the facts which were proved to be known to the Commission it can be said that by not taking either of these steps the Commission was in breach of duty. Bearing in mind that the last in prison attack known to the Commission was that of 7 February 1977, the submission for the plaintiffs amounts to saying that after that attack H either had to be kept in solitary confinement or supervised in the way suggested, for the rest of his time in prison. When he was sentenced in October 1981 ten years had been added to the sentences he was then serving. His non-parole period was to expire on 31 January 1986. Whether he would be released immediately his non-parole period expired must have been doubtful. To supervise him in the way suggested could only be done by ensuring that at any time when he was near another prisoner, a prison officer was sufficiently close to him to prevent him attacking the other prisoner. The suggestion of constant supervision does not seem to be practical. It brings back thoughts of Bentham's Panopticon, a scheme of arranging the layout of prisons which has not been adopted in Australia, at least so far as the evidence goes. The alternative proposition, of solitary confinement ending only upon H's release, had no support in the evidence. I say this because it seems to me there were three principal ways in which the Commission could have been shown to be in breach of duty as alleged by the plaintiffs. One would be by showing that good prison practice required that one or other of the suggested measures should 4 UNREPORTED JUDGMENTS be taken in circumstances such as those proved in regard to H. The second would be by showing that the Commission itself adopted such practices, but had neglected to carry them out in a particular case. The third would be if the facts concerning H were so compelling that it was or should have been obvious without more that steps had to be taken to ensure he could not attack other prisoners. The facts as they appear in the evidence do not seem to me to show that H, unstable and aggressive as he was, fell into the last category. On the facts as known to the Commission immediately prior to the murder, to have subjected H to solitary confinement or to have embarked upon the expense of seeing that he was continually closely guarded, could very well be seen as inhumane or unreasonable. It seems to me it was necessary for the plaintiffs in the circumstances to attempt to prove by one or other of the methods I have mentioned (although there may be other methods as well) that the way in which H was being allowed to take his place amongst the other prisoners in the gaol was contrary to reasonably prudent and skilful management of prisoners. There does not seem to me to have been any evidence which would support such a conclusion by the Court. Approaching the appeal in a more general way, the plaintiffs were really asserting either that the Commission's system of management of prisoners was not reasonably safe, or, if it was, that there had been a defect in its operation in regard to T. Neither of these claims could be made out in the absence of proving what the system was. The fact that T's death occurred while in the system does not provide a prima facie case either of an unsafe system, or negligent operation of a safe one. The absence of proof of the system which was or ought to have been in useis a material distinction between this case and L v Commonwealth of Australia (1976) 10 ALR 269, upon which the plaintiffs relied. Some of the evidence in these appeals has shown that for prisoners in some of the State's gaols life is very rough and tough indeed and occasionally very violent. No doubt it is reasonable to expect that the Commission will take every possible step within the limits of its resources to control such violence, and to prevent such things happening as caused grief and nervous shock to Mr and Mrs Thomas. In legal terms however that is to say no more than that the Commission is bound to run its prisons according to sound principles. I do not think that it was proved in the present case that it did not. I have dealt with what was the principal basis upon which the plaintiffs' cases were put. There were two other lines of submission which should also be recorded. The first relied on the fact that about seven weeks before he was killed, T had reported that he had been threatened by another prisoner that unless he paid a debt of $40 within two days he would be killed inside the gaol. The welfare officer to whom he made this report advised him that he should go on protection, but T refused to do this. It was argued for the plaintiffs that in these circumstances, the Commission was in breach of duty in not either compelling T to go "on protection" (a prison phrase whose meaning can be roughly guessed at, but which I do not think was explained in evidence) or taking the safety measures I have earlier dealt with. There are at least two problems with this submission. One is that it is not known how long T would have been on protection or what that would have involved. The other is that the authorities only knew what T told them of the threat. On what he told them, his own judgment, that he would not go on protection may have seemed quite justified. To say that he should have WRRUITHOMAS v CORRECTIVE SERVICES COMMISSION OF NEW SOUTH WALES NS THOMAS v CORRECTIVE SERVICES COMMISSION OF NEW SOUTH WALES (Hope AJA) been compelled to go on protection in the circumstances seems to me far fetched. Lesser considerations are that no connection whatsoever was shown between the threats reported by T, and H; later in November, both T and H applied to the Commission to he permitted to share a cell; there is no apparent relation between the threats reported on 13 November 1981 and the death on 4 January 1982. The other submission has some similarities to the one just dealt with. Whereas what I have called the principal submission asserted that the Commission was in breach of duty in not taking precautions in light of H's behaviour, the present submission asserted that the Commission was in breach in not taking precautions to safeguard T. It was submitted that because of the danger he had reported, he should have been placed with non violent prisoners, or transferred to some safe gaol or placed in protective custody. The most obvious difficulty with this submission is the factual one that T did not want to be placed in protective custody and was himself serving a sentence for armed robbery; that is, it may be that he was where he was because of the Commission's classification system. I have already mentioned what seemed to me to be the difficulties in the plaintiffs' way through lack of proof of what systems either were or ought to have been in operation in Parramatta Gaol at the time of T's death. The absence of any such evidence makes it impossible to uphold any of the submissions advanced on behalf of the plaintiffs. There simply was not enough evidence to permit the trial judge to draw the conclusion for which the plaintiffs contended. No-one could dispute the general proposition that deaths in gaol such as that of T, should not happen. That however is a long way from saying that in the present case the plaintiffs showed that it was because of the Commission's negligence that T's death happened. The evidence in the case did not in my opinion bridge the gap. In my opinion the appeals should be dismissed with costs. Hope AJA I agree with Priestley JA. Appeals dismissed with costs. Counsel for Appellant: A McInnes QC with N Carney Solicitors for Appellant: JB Wilson Fardell and Moore Counsel for Respondent: B Donovan QC with Miss S Norton Solicitor for Respondent: HK Roberts, State Crown Solicitor