Morrissey, Neil --- "The duty of care owed to prisoners by prison authorities" [2018] PrecedentAULA 47; (2018) 147 Precedent 39

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THE DUTY OF CARE OWED TO PRISONERS BY PRISON AUTHORITIES

By Neil Morrissey

It is not uncommon for a practitioner to be asked to assess whether a prison authority could be liable in negligence for actions or omissions involving the care and supervision of prisoners. While it is generally accepted that such authorities will owe a duty of care, the application of the law of negligence in Australia is subject to various statutes which can alter the application of common law principles. The most prominent example are the Civil Liability Acts which have been in force since the early 2000s. This article assesses when and how a duty of care is owed to prisoners in Australia and the statutory considerations in applying that duty, with a particular focus on the Western Australian experience.

NATURE AND SCOPE OF DUTY OF CARE OWED TO PRISONERS

It is not surprising that the question of the nature and scope of a duty being owed to prisoners is a subject that elicits contrasting views. On one hand, the modern law of negligence is understood to enshrine the ‘neighbour principle’ as stated by Lord Atkin in Donoghue v Stevenson^[1] and, as a direct result of the circumstances of detention, prisoners are vulnerable members of the community. The accepted criterion for imposing a duty of care are clearly met^[2] and, accordingly, there would appear to be no basis for excluding prisoners from claiming a remedy when harm is suffered. However, imposing a stringent duty on a prison authority to protect prisoners could open the floodgates to claims which would often be difficult to defend and expensive on the public purse. Further, extending the duty to require reasonable care with respect to the welfare of a prisoner could be problematic, given that prisons can be inherently tough and unforgiving environments.

Independently of a duty imposed by statute, a superintendent of a prison does owe a common law duty to exercise reasonable care for the safety of a detainee while in detention.^[3] In New South Wales v Bujdoso,^[4] at [46] the High Court (per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ) cited with apparent approval a passage in Halsbury’s Laws of England, which stated:

‘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, including the prisoners. Actions will lie, for example, where a prisoner sustains injury as a result of the negligence of prison staff; or at the hands of another prisoner in consequence of the negligent supervision of the prison authorities, with greater care and supervision, to the extent that is reasonable and practicable, being required of a prisoner known to be potentially at greater risk than other prisoners; or if negligently put to work in conditions damaging to health; or if inadequately instructed in the use of machinery; or if injured as a result of defective premises.’

This statement has been consistently applied by appellate courts in Australia since 2005 and was most recently cited by White J in the Federal Court in refusing an application for summary judgment in Campbell v Northern Territory of Australia.^[5]

It is also widely accepted that a prison authority’s duty of care is non-delegable.^[6] In Kondis v State Transport Authority,^[7] Mason J stated the general principles on non-delegable duties at [32]-[33]:

‘The principal objection to the concept of personal duty is that it departs from the basic principles of liability in negligence by substituting for the duty to take reasonable care a more stringent duty, a duty to ensure that reasonable care is taken...when we look to the classes of case in which the existence of a non-delegable duty has been recognised, it appears that there is some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed. As I said in Introvigne (at p.755):

"... the law has, for various reasons imposed a

special duty on persons in certain situations to

take particular precautions for the safety of

others ..."

The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care. If the invitor be subject to a special duty, it is because he assumes a particular responsibility in relation to the safety of his premises and the safety of his invitee by inviting him to enter them...In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised.’

The ‘special duty’ to which Mason J referred in Kondis was recognised by the High Court in Bujdoso as being applicable to prison authorities.

THE LEGISLATION

The enquiry on content and breach of duty requires reference to the power and duties imposed on the state. In Western Australia, for example, the Prisons Act 1981 (WA) (Prisons Act) and the Civil Liability Act 2002 (WA) (WA CLA) apply. Relevant to the scope of any duty of care, s7 of the Prisons Act gives a very broad power to the chief executive officer of the prison authority to conduct the business of a prison. Section 8 allows the CEO to delegate powers and duties^[8] and s12 sets out the duties of officers.

Section 5B of the WA CLA addresses the general principles on when a person will be liable for failing to take precautions against a risk of harm. In summary, a person is not liable for harm caused by their fault in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable; (b) the risk was not insignificant; and (c) a reasonable person would have taken those precautions in the same circumstances.^[9] Section 5B of the Civil Liability Act 2002 (NSW) (NSW CLA) sets out the general principles in identical terms.

Part 1C of the WA CLA is of particular importance because it establishes principles relating to public function.^[10] The Western Australian Prison Authority is a public body as defined in s5U.

Section 5W states that in determining whether a public body or officer has a duty of care or has breached a duty of care, the public body may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions.

Section 5Y states that in proceedings against a public body or officer based on a breach of statutory duty, ‘the public body or officer cannot be liable for damages for harm caused by fault in the exercise of, or a failure to exercise, the statutory duty unless the provisions and policy of the enactment in which the duty is created are compatible with the existence of that liability.’

Part 2A of the NSW CLA establishes special provisions for offenders in custody. Of particular note is s26C which stipulates that ‘no damages may be awarded unless the injury results in the death of the offender or in a degree of permanent impairment of the offender which is at least 15 per cent’.^[11]

There is a tension between statements of the High Court on duty and Part 1C of the WA CLA. In Bujdoso, the High Court cited with approval Mason P’s statement in State of New South Wales v Napier^[12] where he said:

‘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 joint reasons in Bujdoso went on at [44]:

‘It is true that a prison authority, as with any other authority, is under no greater duty than to take reasonable care. But the content of the duty in relation to a prison and its inmates is obviously different from what it is in the general law-abiding community...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.’

On the one hand, the High Court recognises prisoners as people living in a high risk setting and needing protection from the illegal acts of third parties. On the other hand, the Western Australian legislature has directed that, when determining the question of breach, a court is required to take into account that: (a) the general allocation of resources by the prison authority is not open to challenge;^[13] and (b) the functions of the prison authority are limited by financial resources. Further, pursuant to s5X of the WA CLA, if a decision made by the prison authority is based substantially on financial, economic, or political factors it cannot be used to support a finding of breach unless it was so unreasonable that no reasonable decision-maker could have made it.^[14]

Part 1C of the WA CLA can be a significant barrier for a plaintiff to overcome. It is not difficult for a prison authority to establish that it has limited funding and that those limits have affected its ability to perform to the standard that a plaintiff alleges is required by reasonable care.^[15] Given that the respective state governments are unlikely to alter their legislation with respect to their civil liability towards prisoners, it is likely that the application of common law principles will continue to be significantly restrained by statute in the foreseeable future.

CONCLUDING OBSERVATIONS

1. Prison authorities will generally owe a prisoner a non-delegable duty of care.

2. The duties conferred on prison authorities by statute need to be exercised with reasonable care.

3. The provisions of the Civil Liability Acts are not a bar to prisoners pursuing claims against the state. However, Part 1C of the WA CLA, as an example, imposes more onerous requirements in establishing a breach of duty than the common law.

4. Part 2A of the NSW CLA limits the recovery of damages by prisoners only to those who are either dead or have suffered a permanent impairment of at least 15 per cent.^[16]

Neil Morrissey is a barrister at Albert Wolff Chambers, Perth. PHONE [phone] EMAIL [e-mail].

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^[1] [1932] UKHL 100.

^[2] See, for example, Dorset Yacht Co Ltd v Home Office [1970] UKHL 2; [1970] AC 1004; and Hill v Van Erp (1997) 188 CLR 159, 216.

^[3] As recognised by the High Court in Howard v Jarvis [1958] HCA 19; (1958) 98 CLR 177, 183. See also CAL No. 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390, [38]; Price v State of New South Wales [2011] NSWCA 341, [35]; Juric v State of Victoria [2011] VSCA 419; (2011) 34 VR 347, [40]; Traljesic v Bosnia [2016] FCA 383; (2016) 338 ALR 637, [96]; and Mastronardi v State of New South Wales [2007] NSWCA 54, [3].

^[4] [2005] HCA 76; (2005) 227 CLR 1.

^[5] [2018] FCA 85, [64]. This was a case involving an Aboriginal man who had been incarcerated in youth detention centres in the Northern Territory and who alleged that, during the periods of detention, he suffered batteries and assaults, unlawful imprisonment and harm as a result of breaches by the Territory of a common law duty of care. The Territory had applied for summary judgment pursuant to s31A of the Federal Court of Australia Act 1976 (Cth), asserting that Mr Campbell’s claims had no reasonable prospects of success.

^[6] Establishing that a non-delegable duty is owed, rendering the state liable for the negligence of its staff towards inmates, will be pivotal in most cases. In Western Australia, for example, s111 of the Prisons Act excludes personal liability of prison staff and therefore vicarious liability on the part of the defendant. See, for example, Barreto v McMullan [2014] WASCA 152; Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79, [91]-[93] per McLure P; Leichardt Municipal Council v Montgomery [2007] HCA 6; (2007) 230 CLR 22, [10] per Gleeson CJ; New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511; Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, [29] and [32]-[33] per Mason J.

^[7] [1984] HCA 61; (1984) 154 CLR 672.

^[8] Prisons Act 1981 (WA), s8.

^[9] Civil Liability Act 2002 (WA), s5B.

^[10] See Part 5 of the NSW CLA and Part 3 of the Queensland CLA for provisions relating to public authorities in those states.

^[11] Civil Liability Act 2002 (NSW), s26C. As many reading this article will know, establishing a permanent impairment of 15 per cent or greater requires a significant injury.

^[12] [2002] NSWCA 402, [75].

^[13] Civil Liability Act 2002 (WA), s5W.

^[14] Ibid, s5X.

^[15] Equivalent provisions to Part 1C of the WA CLA are found in Part 5 of the Civil Liability Act 2002 (NSW), Part 3 of the Civil Liability Act 2003 (Qld), Part XII of the Wrongs Act 1958 (Vic) and Part 9 of the Civil Liability Act 2002 (Tas).

^[16] Meaning that many who are negligently injured cannot recover damages solely because they cannot meet the statutory impairment criteria.