New South Wales Court of Appeal CITATION: Zreika v State of New South Wales [2006] NSWCA 272 HEARING DATE(S): 29/09/06 JUDGMENT DATE: 29 September 2006 JUDGMENT OF: Beazley JA at 23 & 25; Ipp JA at 1; Bryson JA at 24 EX TEMPORE JUDGMENT DATE: 09/29/2006 DECISION: (1) Leave to appeal is granted (2) The appeal is allowed (3) Set aside the verdict entered for the opponent by Judge Ashford (4) Enter judgment for the claimant for damages to be assessed (5) Remit the matter to the District Court for the assessment of damages but prior to that remitter make an order under s 26(1) of the Civil Procedure Act 2005 (NSW) that the assessment of damages is referred for mediation to Registrar Schell (6) Direct the parties to attend upon Registrar Schell this afternoon for the appointment of a date for the mediation (7) The opponent/respondent is to pay the claimant/appellant's costs of the summons for leave to appeal and of the appeal and of the trial at first instance. Should the matter be remitted to the District Court for determination on the question of damages then that will follow the event but no order will be made for that matter at this stage (8) The claimant is directed to file a notice of appeal and to pay the filing fees thereon. CATCHWORDS: NEGLIGENCE - assault on inmate in prison yard - whether prison authority breached its duty of care - whether general supervisory measures for inmates in the prison yard were adequate - causation - State of New South Wales v Bujdoso (2005) 80 ALJR 236 applied. - PRACTICE AND PROCEDURE - errors in fact and law by trial judge. ND CASES CITED: State of New South Wales v Bujdoso (2005) 80 ALJR 236 PARTIES: Haysam Zreika (Claimant) State of New South Wales (Opponent) FILE NUMBER(S): CA 40074/06 COUNSEL: D T Kennedy SC/A Porthouse (Claimant) D Campbell SC/S C Finnane (Opponent) SOLICITORS: Kheir & Associates (Claimant) I V Knight, Crown Solicitor (Opponent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 315/02 LOWER COURT JUDICIAL OFFICER: Ashford DCJ LOWER COURT DATE OF DECISION: 29/08/05 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40074/06 DC 315/02 BEAZLEY JA IPP JA BRYSON JA Friday 29 September 2006 HAYSAM ZREIKA v STATE OF NEW SOUTH WALES Judgment 1 IPP JA: On 18 February 2002 the claimant was assaulted while a prisoner at Parramatta Correctional Centre. He brought proceedings in negligence against the opponent for general damages for a personal injury in consequence. The trial judge, Judge Ashford, dismissed his claim. Her Honour made findings as to damages as well as a finding that the opponent was not negligent. The claimant applies for leave to appeal. The appeal was heard concurrently with the leave application. 2 The claimant's case as to breach of duty was put broadly on two bases. 3 The first was that some four months before the assault, while the claimant was a prisoner at another prison, John Moroney 2, the prison authorities were informed that a group of prisoners wished to kill him and had arranged for others to be paid to do this. The claimant had been moved away from John Moroney 2 to another prison for his safety after this information had been passed on to the authorities. It was thought that he would be safe at the other prison. Later the claimant was moved from that other prison to the Parramatta Correctional Centre on a temporary basis. The claimant contended that he should have been warned about the death threats that had been made against him and special security arrangements should have been made for his protection whilst at Parramatta. 4 The second basis on which the claimant relied for his argument was that in any event there were inadequate supervisory measures taken at Parramatta for the protection of prisoners generally. 5 The claimant argued that the opponent owed him a duty of care, that it had breached the duty in the respects I have outlined and that he had suffered damages in consequence. The opponent admitted that it owed the claimant a duty of care but denied a breach of that duty and causation and put damages in issue. 6 The Judge described the relevant procedure at Parramatta as follows: "At Parramatta there are two 'let go' periods when inmates were out of their cells. The first was at 8.30am with an 11.30am muster for lunch and then prisoners were locked in for one hour. About 12.30pm there was another 'let go' period of time until 3.30pm when there was then a 'lock down' until morning." 7 During the let go periods the prisoners went out of their cells and were able to walk around or exercise in various recreation areas. One of these was an exercise yard about the size of a football field. On the day of the assault shortly after 12.30pm the claimant was standing in the yard. He was struck a couple of times from behind and was rendered unconscious after the first blow. He woke up in hospital with a number of injuries. 8 Mr Kennedy SC who, together with Mr Porthouse appeared for the claimant, submitted that the Judge had made several errors of fact and law. During the course of argument the Judge's reasons were referred to as being riddled with errors. This is an accurate description of her Honour's judgment. The more obvious errors made by her Honour, particularly of fact, are the following. 9 Firstly, she said that there was no evidence as to whether any prison officer was present in the yard. There was, however, a deal of evidence from the claimant to this effect. He said that there were no prison officers there. 10 Secondly, she said that there was no evidence that showed that the claimant was any more at risk at Parramatta than at the correctional centre he had been in prior to his transfer to Parramatta. It was not thought that he would be at risk at that centre. It follows that the judge considered that there was no reason to believe that the claimant was more at risk than any other prisoner. There was, however, evidence from an expert called by the claimant who testified: "I am aware that throughout the New South Wales prison system there exists a pervading system of criminal retribution, whereby prisoners may be beaten or even killed as a result of their perceived actions, which some other prisoner or criminal not in custody, believes has harmed them. The majority of such attacks may take place within the same corrections institution where the offence against the other inmate(s) took place, but it [sic] is quite common for retribution to be sought at some new centre to which the inmate has been transferred …" If the expert's testimony were to be accepted the claimant would be at risk from those who had threatened to kill him while he was at John Moroney 2. These persons, as he had testified, had put a contract out for his death. 11 Thirdly, her Honour said that there was no evidence which could lead her to believe the presence of an officer on the square would have prevented the assault. It is not entirely clear what her Honour meant by this but it does seem to be likely that she intended to say that there was no evidence before her that the presence of an officer would have prevented the assault. Whether her Honour intended thereby to indicate the appropriate test for causation is not clear, but if she did so, that too was wrong. There was, moreover, evidence from the expert to this effect: "In a prison scenario where the risk of assault was extremely high by inmates, and substantially higher risk than being subjected to such an attack outside of the gaol, proper supervision is crucial where that supervision is obvious to all of the inmates and therefore becomes a substantive deterrent to inappropriate behaviour by all but the most desperate criminal. This should have been achieved by both live manpower resources in good surveillance positions such as watchtowers, as well as the use of appropriate CCTV coverage." The expert concluded: "It is my belief that if this [opponent] had had in place a proper security and safety system for the safe custody of inmates, then it was likely that this [claimant] would not have been injured in the way that he was." 12 Fourthly, the Judge's findings as to damages were incomplete and findings as to necessary elements of the heads of damage were not made. 13 Mr Campbell SC, who together with Mr Finnane appeared for the opponent, rightly accepted that these errors meant that the judgment could not stand. He submitted that the matter should be remitted for retrial on three grounds. Firstly, no factual finding had been made that there were no guards in the yard. Secondly, insufficient findings had been made to enable this Court to make any decision as regards causation. Thirdly, the assessment of damages depended to a degree on the credibility of the claimant and no express findings had been made in this respect. 14 Mr Campbell did not suggest that it was not open to this Court to find that there were no guards in the yard. In my view that finding should be made. The claimant's evidence in this respect was clear and unequivocal and, importantly, the opponent called no evidence to rebut it. While the claimant may have attempted to "maximise his disability" as the Judge put it, he was not found to have given any false evidence. Thus the claimant is to be regarded as having established that there were no guards in the yard. 15 There was also no closed circuit television. There were about 150 prisoners in the yard. 16 In State of New South Wales v Bujdoso (2005) 80 ALJR 236 at 244, [44] the High Court said: "In a prison, the prison authority is charged with the custody and care of persons involuntarily held there. Violence is, to a lesser or a greater degree, often on the cards. No one except the authority can protect a target from the violence of other inmates. Many of the people in prisons are there precisely because they present a danger, often a physical danger, to the community. It is also notorious that without close supervision some of the prisoners would do grave physical injury to other prisoners." 17 By allowing some 150 prisoners to congregate in a yard the size of a football field the opponent, not to put too fine a point on it, was asking for trouble. In my view it was guilty of negligence and to a serious degree. 18 As to the causation, I think this Court is well able to come to a firm conclusion. The failure to supervise the prisoners in any way meant that violent conduct was not likely to be detected. It would be very difficult to ascertain who was responsible for any violent act, as occurred in fact in this case. No-one knows who assaulted the claimant. The absence of supervision was in effect a licence for violence. 19 It is a matter of commonsense that the presence of sufficient guards (the claimant contended for two) and closed circuit television would mean that any prisoner intending to commit a violent act would hesitate seriously before doing so because he might be seen and punished. The omission to provide any kind of deterrence against violence, in my view, materially contributed to the assault. 20 The opponent did not prove or contend that measures to ensure close supervision of prisoners were costly or so much more costly as not reasonably to be affordable; see Bujdoso at 245 to 246, [49]. 21 As to damages, I accept Mr Campbell's submissions that this Court is not in a position to decide them. 22 I would agree with the orders to be proposed by Beazley JA. 23 BEAZLEY JA: I agree with the reasons of Justice Ipp. In a moment I will pronounce the orders of the Court. 24 BRYSON JA: I agree with Justice Ipp. 25 BEAZLEY JA: 1 Leave to appeal is granted. 2. The appeal is allowed. 3. Set aside the verdict entered for the opponent by Judge Ashford. 4. Enter judgment for the claimant for damages to be assessed. 5. Remit the matter to the District Court for the assessment of damages but prior to that remitter make an order under section 26 (1) of the Civil Procedure Act 2005 (NSW) that the assessment of damages is referred for mediation to Registrar Schell. 6. Direct the parties to attend upon Registrar Schell this afternoon for the appointment of a date for the mediation. 7. The opponent/respondent is to pay the claimant/appellant's costs of the summons for leave to appeal and of the appeal and of the trial at first instance. Should the matter be remitted to the District Court for determination on the question of damages then that will follow the event but we will make no order for that matter at this stage. 8. The claimant is directed to file a notice of appeal and to pay the filing fees thereon. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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