Reported Decision : 151 A Crim R 235 New South Wales Court of Appeal CITATION : Bujdoso v State of New South Wales [2004] NSWCA 307 HEARING DATE(S) : 30/08/04 JUDGMENT DATE : 10 September 2004 JUDGMENT OF : Sheller JA at 1; Ipp JA at 2; McColl JA at 66 DECISION : (1) Appeal upheld with costs (2) Orders made by the trial judge set aside (3) Declare that the respondent breached the duty of care that it owed the appellant (4) Remit the matter to the District Court for a trial as to damages. CATCHWORDS : TORT - Negligence - Scope of duty of prison authority to protect the safety of prisoners under its control - Prisoner assaulted by a group of other prisoners - Where prison authority knew that the prisoner was particularly vulnerable to such incidents - Prisoner in low security area - Prison authority relied on trust in work release prisoners and incentives for good behaviour as means of control - Whether degree of supervision of prisoners and protection of the individual prisoner were inadequate. D Ashrafi Persian Trading Co Pty Ltd v Ashrafinia [2002] Aust Torts Reports 81-636 Ellis v Home Office [1953] 2 All ER 149 Howard v Jarvis (1958) 98 CLR 177 CASES CITED : L v Commonwealth of Australia (1976) 10 ALR 269 Ralph v Strutton (1969) 62 Qd R 348 State of New South Wales v Godfrey & Godfrey [2004] NSWCA 113 State of New South Wales v Napier [2002] NSWCA 402 PARTIES : Peter Andrew Bujdoso (Appellant) State of New South Wales (Respondent) FILE NUMBER(S) : CA 41200/03 COUNSEL : J Graves SC/R de Meyrick (Appellant) J E Maconachie QC/P Sternberg (Respondent) SOLICITORS : T D Kelly & Co (Appellant) I V Knight, Crown Solicitor (Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT DC 6023/02 FILE NUMBER(S) : LOWER COURT Cooper DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41200/03 DC 6023/02 SHELLER JA IPP JA McCOLL JA Friday 10 September 2004 PETER ANDREW BUJDOSO v STATE OF NEW SOUTH WALES Judgment 1 SHELLER JA: I agree with Ipp JA. 2 IPP JA: The principal issue on appeal 3 This appeal turns on whether the respondent, as the authority in charge of the Silverwater Prison, breached the duty of care it owed to the appellant while he was a prisoner there. 4 On 16 February 1990 the appellant was convicted in the District Court, on his own plea of guilty, of three counts involving 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. 5 By September 1991 the appellant had been admitted to the prison work release programme. Under that programme the appellant left the gaol each working day to undertake paid employment. He returned to the gaol each evening. He had a room to himself in a group of buildings known as "the Units" which were located within a fenced off area in the Silverwater complex. 6 On the night of 21 September 1991 two or more assailants wearing balaclavas forced the lock of the appellant's room, entered, and assaulted him with iron bars. He suffered serious injuries. 7 The appellant sued the respondent for damages for negligence. It was not in dispute that the respondent owed the appellant the duty of care described in the following terms by Mason P in State of New South Wales v Napier [2002] NSWCA 402 (at [75]) namely: "The control vested in a prison authority is the basis of a special relationship which extends to a duty to take reasonable care to prevent harm stemming from the unlawful activities of third parties". The main question before the trial judge, Cooper DCJ, was whether the respondent had breached that duty of care. The appellant's arguments did not find favour with his Honour and his claim was dismissed. 8 The critical passage in his Honour's judgment that was subject to challenge on appeal was the following: "The defendant concedes that the supervision was minimal but says that it was appropriate in the light of the fact that the inmates in the units and Silverwater House had all passed through various tests and observations to the extent that they were trusted to go out into the community on works release and/or day leave. Accordingly they could be trusted not to inflict an assault upon a fellow inmate. In my view this is a reasonable conclusion for the authorities in charge of that prison to have reached." 9 The appellant argues that his Honour should have held that, by providing only minimal supervision of the inmates in the Units, the respondent breached the duty of care it owed the appellant and, thereby, caused the appellant to suffer the injuries that were inflicted upon him. A brief history of the appellant's imprisonment 10 Prisoners convicted of sexual assaults on minors are known in prison as "rock spiders". They are regarded with contempt by other prisoners and are often subjected to verbal and physical abuse by them. For this reason sexual offenders are sometimes placed in protective custody. The appellant did not wish to be placed under protection and attempted, while in gaol, to stay away from other paedophiles. He also attempted to keep secret the offences of which he had been convicted. He was, however, unsuccessful. 11 In 1991 there were three main categories of prisoner classification, A, B and C. Category C was the "lowest" category. There were sub-categories within Category C. Prisoners classified as C1 were kept behind a secured fence with minimal supervision. Prisoners with a C2 classification were kept in an open institutional environment with minimum security. Prisoners with a C3 classification could be permitted to leave the prison on work release and to obtain weekend leave, day leave and education leave. 12 After being sentenced, the appellant sought, from the start, to obtain a C3 classification and to be admitted to a work release programme. 13 He was first incarcerated at Parramatta Gaol. In July 1990 he was moved to 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. 14 In January 1991 the appellant was transferred from Oberon to the Kirkconnell Afforestation Camp. On 12 January 1991 the deputy superintendent of Oberon wrote to the superintendent of Kirkconnell in the following terms: "The above inmate has been transferred to your institution for his own safety. This matter was discussed between yourself and me approximately two weeks ago. Since that time pressure has been put on Bujdoso to prove to the inmates at Oberon as to what he is in gaol for. He has been able to withstand their demands until now and he was given deadline until tonight. Bujdoso has never been on protection and does not wish to go on protection. …" 15 The appellant experienced problems at Kirkconnell about three months after he had been taken there. He explained: "[T]here wasn't much mingling between Oberon camp and Kirkconnell camp so it took a fair while before the word came through." 16 In March 1991, at Kirkconnell, a prisoner entered the appellant's room and assaulted him. The appellant told a prison officer about the assault but said that he did not want the matter taken any further. He did not report the incident formally because he thought that he would thereby break the code of gaol ethics and would be branded as a "dog". Also, he did not want to jeopardise his movements through the prison system to his hoped for C3 category at Silverwater Prison. 17 In May 1991 the appellant was transferred to Silverwater. About three or four weeks after his arrival the other prisoners began to comment that he was a rock spider. 18 The appellant began to fear for his safety and spoke to Mr Edwards, the prison psychologist, about this. He also spoke to the officer in charge of the gardens, who gave him work near the main central administration building. This was a safer position than the more remote gardens. 19 In late July 1991 the appellant received an anonymous letter dated 26 July that concluded "What's a rock spider like you doing at Silverwater? You asshole! Love from 'the boys' at Oberon". The letter was implicitly threatening. The appellant showed it to the prison psychologist, Mr Edwards, and discussed it with him. 20 On 9 August 1991 the acting superintendent at Silverwater sent a memorandum to the superintendent in the following terms: "Today 9/8/91, I was approached by the Welfare Officer Mrs Torda, in relation to prisoner Peter Andrew Bujdoso. I then spoke to Bujdoso in company with Mrs Torda. Bujdoso told me that prisoner Craig Young was moved into [his] cell last night, and since that time was causing trouble by turning other prisoners against him. He requested that I move him to another section of the gaol. The SAU being fully occupied, I arranged for him to be accommodated in Unicom House. S P O R Brown at 2.15 pm informed me that he has been told by a prisoner that Bujdoso would not be safe in Unicom House. I have instructed Mr Brown to immediately submit a report on this matter." 21 Unicom House was an area within the Silverwater complex where drug and alcohol rehabilitation treatment was provided. It was known as the "D & A" Unit. On 9 August 1991 Mr Brown reported to the superintendent as follows: "On commencing duties as SPO in the D & A unit I was informed by Mr Lehn that inmate Bujdoso 186369 was moved into the unit on Mr Lewis' instructions. I have also been informed that the inmate was moved into the D & A because his cell mate had threatened him. I was also told that Bujdoso was a rock spider and that some of the inmates were going to flog him if he is not moved out of the D & A Unit. I have conveyed this message to Mr Lewis who has stated that Bujdoso is 'there and is stopping there'. I wish it known that the onus is now on Mr Lewis should anything happen to this inmate. Furthermore Bujdoso is here even though he has not got a drug or alcohol problem so he will not be attending the classes which is part of the criteria to be moved into the D & A unit." 22 Shortly after the appellant arrived at Unicom House he met with the deputy superintendent, Mr Rochford, and Mr Lewis. They asked him if he wanted to go back to Kirkconnell or stay at Silverwater. He replied that he felt that he would be safer on work release at Silverwater. He reasoned that if he obtained work he would be out of the gaol at about 5.30 am and would not return until 6.30 to 7.00 pm. He told the prison authorities that Mr Edwards, the prison psychologist, had informed him that at Silverwater he would be in much less danger in the work release section because the inmates there had all worked so hard to reach the work release stage and would not wish to jeopardise their position. 23 Mr Rochford and Mr Lewis asked the appellant to write out a statement recording what he had informed them, whereupon he wrote the following words: "I Peter Bujdoso, feel that I am in no danger. I feel that other inmates will throw verbal abuse at me but I am firmly convinced that it is as far as it will go, I wish to remain at Silverwater." The appellant testified that these words reflected his own wishes. He wished to stay at Silverwater on work release and did not want to go into protective custody. 24 Eventually, in early September 1991, the appellant was transferred to the work release unit. Work was found for him outside the prison and he commenced that job on 12 September 1991. Prisoner accommodation at Silverwater House and the Units 25 In 1991 the Silverwater prison complex housed only C category inmates, that is, categories C1, C2 and C3. When prisoners first came into Silverwater they were put in a dormitory area. When a vacancy occurred they were moved into another building known as Irwin House. Once prisoners were classified as C3 they were moved to another building, Silverwater House. When they obtained work release they moved to the Units. 26 The Units comprised four demountable units with two on one side of a walkway and two on the other side. Adjacent to one set of two was the administration block that accommodated the prison officer on duty. Each of the four accommodation units had a corridor down its centre with approximately nine rooms for the prisoners on each side. At each end of the corridor was a door that was kept open. 27 The Units involved single accommodation whereas the inmates at Silverwater House largely had to share rooms. The appellant was allocated a room at the end of a unit furthest from the walkway. That unit was the furthest unit from the administration block where the prison officer was stationed when he was on duty. The shower and toilet rooms were adjacent to his room. 28 Each of the rooms allocated to prisoners within the Units had a door in which was a small window and which was fitted with a night latch type lock. The lock could be opened from the inside by turning a knob. From the outside, it was designed to be opened only with a key. Each inmate was given a key that would open only his room. The prison officer on duty had a master key that could open all of the rooms. A curfew from 9.30 pm was imposed on prisoners and after this time they were only allowed to leave their rooms to go to the toilet or the bathroom. 29 There were about 50 inmates in Silverwater House. About 72 people lived in the Units. There was free access between Silverwater House and the Units. The Units and Silverwater House were, however, fenced off from the remainder of the Silverwater complex by means of a chain wire fence. The gate to that fence was locked at night. 30 Over a period of some months there was fairly regular movement of prisoners into Silverwater and out of it as prisoners were released. The population in Silverwater House and the Units changed from time to time. Prisoners from Unicom House were possibly accommodated in Silverwater House or the Units. This was likely to have been the cause of the appellant being recognised as a sex offender. The system of supervision and security in the Units 31 Until towards the latter part of 1990, two officers worked on what was referred to as the "B watch" at Silverwater House and the Units. The B watch commenced at 10.30 pm and ended at 6.00 am the next morning. The watch involved a system of what was described as random checks undertaken "every couple of hours" at the Units. 32 One officer was stationed at Silverwater House and one at the Units. The officer on the B watch stationed at the Units would, when he first commenced duty, check the fence line separating the Units and Silverwater House from the rest of the complex. This involved walking around the inside of the perimeter of the fence for some 10 to 15 minutes. Thereafter, the officer stationed at Silverwater House would join the officer at the Units and together they would do a head count of prisoners. They would shine a torch through the window in the door of each room and satisfy themselves that each room was occupied and that the number of persons they counted coincided with the number that should have been present. Having completed this head count at one unit, the two officers would walk to the next unit and undertake a head count there. When all head counts had been completed at the Units the two officers would walk to Silverwater House where they would conduct a similar head count. 33 In late 1990, the system was changed by reducing the number of officers in Silverwater House and the Units to one. The second officer was moved to a different section of the Silverwater complex. Mr Mercer, who at the relevant time was an assistant superintendent at Silverwater, testified that the officers were reduced from two to one "because of the lack of custodial issues and the administrative and accountability role that they played". It is apparent from other evidence given by Mr Mercer that, by "custodial issues" he meant issues involving the potential escape of the prisoners. "Accountability" involved head counting. It does not seem from Mr Mercer's testimony that any thought was given to the personal safety of the prisoners residing in the Units. 34 The effect of the reduction in officers meant that for substantial periods within every two hours there was no officer at the Units and the prisoners were left entirely alone there. 35 The lock on the appellant's room door was flimsy and out of date. It could be forced open fairly easily. Its purpose was merely to give privacy to the inmates. As the trial judge found, "it was never intended to keep out a person or persons who might be striving to enter the room with felonious intent". The assault and its aftermath 36 On the night of 21 September 1991, the appellant came home from work and locked the door to his room. At about 11.00 pm he saw a face looking through the window in the door. He got out of bed, saw the door being pushed, and put his shoulder against it. The door was forced open, however, and three or four men burst into the room. They were wearing balaclavas. They severely assaulted him with iron bars. He suffered a fractured skull, broken left thumb, his left arm was put in a cast and his back, arm and leg were painful. 37 When the assault was investigated, those prepared to make a statement testified that they heard scuffles, noises and screaming. 38 At the time of the assault, an officer named Mr Lehn was the person undertaking the B watch. While he checked the perimeter of the fence, there was no one in the guard station in the Units. When he went to Silverwater House to do the head count there, there was again no officer present at the Units. 39 After the assault the appellant was moved from the Units. Mr Lehn thought that the appellant would not be safe in the Units. The appellant was returned, against his wishes, to Kirkconnell where he spent the remainder of his sentence. The respondent's reasons for providing minimal supervision at the Units 40 Before an inmate achieved a C3 classification he had to meet specified criteria and complete a trial period. The C3 candidate would then go to Silverwater House where he would be given pre-work release weekend leaves. If he completed two or three separate day leaves successfully, he would be allowed to go on work release. He would then progress from Silverwater House to the Units. Overall, the assessment process took 12 weeks. 41 The respondent contended that the prisoners who had reached the Units with a C3 classification and were on work release had established that they were persons who could be trusted. The appellant agreed with this. 42 Because of the trust that the prison authorities placed in the work release inmates, they considered that no special steps were considered necessary to ensure the inmates' safety from each other. 43 The evidence was that the incidence of assaults in the Units prior to September 1991 was very low. According to the respondent, this was because the inmates had too much to lose if found to be involved in that kind of conduct. They would lose their work release and weekend leave entitlements and could be sent back to another prison. 44 For these reasons the respondent took the view that, once prisoners had moved into the works release units, it was in order for supervision and surveillance by prison staff to be minimal. As Cooper DCJ put it: "This was because the inmates had passed through every possible check that the classification officers could come up with to determine that they were about as low a risk of committing further offences in or out of gaol as could be estimated." Did the respondent take reasonable steps for the safety of the appellant? 45 Prison authorities owe a duty to exercise reasonable care for the safety of prisoners during their detention in custody: Howard v Jarvis (1958) 98 CLR 177. This duty includes taking reasonable care to prevent harm stemming from the unlawful activities of other prisoners: State of New South Wales v Napier (see cases cited by Mason P at [75]), Ashrafi Persian Trading Co Pty Ltd v Ashrafinia [2002] Aust Torts Reports 81-636 (see cases cited by Heydon JA at 68,335). 46 This duty arises from the control exercised by the prison authorities over prisoners and the vulnerability of the prisoners over whom they have control: State of New South Wales v Godfrey & Godfrey [2004] NSWCA 113. 47 Lack of proper supervision of prisoners can readily constitute a breach of the duty of care. In Ellis v Home Office [1953] 2 All ER 149, Singleton LJ said (at 154): "The duty on those responsible for one of Her Majesty's prisons is to take reasonable care for the safety of those who are within, and that includes those who are within against their wish or will, of whom the plaintiff was one. If it is proved that supervision is lacking, and that accused persons have access to instruments, and that an incident occurs of a kind such as might be anticipated, I think it might well be said that those who are responsible for the good government of the prison have failed to take reasonable care for the safety of those under their care." 48 In considering whether a prison authority has complied with the duty of care imposed upon it, it is self-evidently relevant to determine whether it knew or should have known of the risk that a prisoner might be assaulted by other prisoners, and the extent of that risk: see Ellis v Home Office (at 161), Ralph v Strutton (1969) 62 Qd R 348 (at 356-358) and L v Commonwealth of Australia (1976) 10 ALR 269 (at 273-274). 49 In the present case the trial judge held that the approach of the respondent was reasonable; he found that it was reasonable for the prison authorities to rely on the trust they placed in the C3 prisoners and the incentive for good behaviour established by the work release system. As I have mentioned, this is the principal finding that is challenged in the appeal. 50 The first point to take into account is that, despite the trust placed by the respondent in C3 prisoners in the Units, that trust had not always been honoured. 51 There was one known incident where that trust was seriously abused. An inmate of the Units, while at Long Bay, had given information to the authorities regarding the location of a handgun in the Central Industrial Prison. As a result, he was moved to Silverwater and placed in the Units. A $20,000 contract was placed on his life. Two other inmates in the Units took up that contract. The informer was fire bombed while in the Units. This occurred prior to the assault on the appellant. 52 Although Mr Mercer described the general incidence of assaults at Silverwater as "very low", other minor incidents of breach of trust appear to have been well-known. Mr Mercer described these as "indiscretions". These involved prisoners in the Units returning drunk and "trying to smuggle drugs or booze". A problem that, by the time of the assault, had not been resolved was that at times, at night, certain unknown inmates would go over the perimeter fence and walk to the Silverwater Speedboat Club. There they consumed alcohol and indulged in other activities. The authorities were trying to stop this practice. By the time of the assault they had been unsuccessful. 53 In addition, from time to time objects were found in the Units that, by their nature, suggested that they had been acquired and retained by inmates for some unlawful purpose. These included, for example, knuckledusters, balaclavas made out of beanies and metal bars, such as those with which the appellant was struck. 54 In order to prevent the importation of potentially dangerous metal objects into the Units, the respondent had implemented a system of searching inmates when they returned from work. According to Mr Mercer, "we had metal detectors at the time, hand-held wands, and inmates that came back from work were all searched, mainly body searched, if we believed that there was an issue they were stripped searched, but, as I said, we didn't perceive at the time a risk …". 55 Nevertheless, there were other means by which prisoners could, undetected, bring pieces of metal such as metal bars into the Units. Nearby the Units (and part of the Silverwater prison complex) was a factory known as the Silverwater Light Engineering Factory (SLEF). Mr Mercer said that it was relatively easy to get pieces of metal out of the SLEF. When asked whether prisoners could get metal bars into the Units, Mr Mercer replied: "That area was open during the day and I believe that's, yes, a fair response. If an inmate actually wanted to walk up there with a piece of metal and an officer wasn't in the area at the time, sure". 56 Mr Lehn confirmed that, from time to time, metal objects, coming from SLEF, had been found in the Units. These were confiscated and reports on them were submitted to the Governor. He presumed that bars, such as those used in the assault on the appellant had been found in the past in the Units. 57 Thus, the persuasive force of inmates having a lot to lose if they were involved in unlawful conduct was by no means foolproof. 58 I now turn to the knowledge that the respondent had that the appellant was at risk of being assaulted while in the Units. 59 The starting point is that the appellant had been convicted of sexual assaults on minors and for that reason alone was, to the respondent's knowledge, potentially at risk of being attacked by other prisoners. 60 To the knowledge of the respondent, the appellant had been threatened at Oberon and threatened and in fact assaulted at Kirkconnell. He had to leave these places for his own safety. 61 At Silverwater he had received the anonymous threatening letter and had been called a rock spider. In a report dated 26 September 1991, Mr Edwards stated that the appellant had "often reported incidents in which he had been threatened, vilified or humiliated". Mr Edwards testified: "Those issues came up in ongoing discussions about whether or not [the appellant] could be maintained safely at Silverwater". He said that that information "was related to other staff in case discussions, direct discussions of how well he could be managed". 62 The fact that the appellant signed a document stating that he did not fear for his safety does not detract from the actual knowledge of those in control of the Units that his safety was at risk. Indeed, the fact that Mr Rochford and Mr Lewis asked him to make a statement to that effect indicates that they appreciated that he was at risk and did not want to be blamed should the risk materialise. 63 The trial judge rightly found that the history of the appellant, as known to the prison authorities, "was one where there was a potential that the [appellant] could be subjected to physical violence". 64 In these circumstances, I consider that the respondent did breach the duty of care it owed the appellant and the judge erred in finding to the contrary. The system of trusting the C3 prisoners had not always worked, there had been a serious assault in the past and virtually continuous minor infractions. The respondent had reduced to one the number of guards on duty at the Units for reasons unrelated to prisoner safety. Importantly, the respondent had actual knowledge that the appellant was at risk. Nevertheless, it took no additional steps to protect him. Those in control and who knew that the appellant had been threatened did not even inform the guard at the Units (Mr Lehn) of this fact, and did not even provide the appellant with a more secure lock on his door. Nothing was done. In my view that was negligent. Conclusion 65 I would uphold the appeal with costs, set aside the orders made by the trial judge, declare that the respondent breached the duty of care that it owed the appellant and remit the matter to the District Court for a trial as to damages. 66 McCOLL JA: I agree with Ipp JA. ********** Last Modified: 09/13/2004 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. 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