State of New South Wales v Bujdoso [2005] HCATrans 794 (5 October 2005)

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State of New South Wales v Bujdoso [2005] HCATrans 794 (5 October 2005)

Last Updated: 5 October 2005

[2005] HCATrans 794

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S289 of 2005

B e t w e e n -

STATE OF NEW SOUTH WALES

Appellant

and

PETER ANDREW BUJDOSO

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 OCTOBER 2005, AT 10.19 AM

Copyright in the High Court of Australia

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR P.R. STERNBERG, for the appellant. (instructed by Crown Solicitor for New South Wales)

MR J.J. GRAVES, SC: May it please the Court, I appear with my learned friend, MR R.J. DE MEYRICK, for the respondent. (instructed by T.D. Kelly & Co)

GLEESON CJ: Yes, Mr Sexton.

MR SEXTON: If the Court pleases. Your Honours, Mr Bujdoso was assaulted quite seriously in his room at Silverwater Prison late in the evening of 21 September 1991 or perhaps in the early hours of the morning of 22 September 1991. At that time he was serving a sentence of three years and four months on three counts of sexual assault on male persons under the age of 18. The minimum term, which was two years and six months, was due to expire on 15 August 1992.

His room – it was not a cell – was in the units that housed prisoners taking part in the work release program and he had been in this accommodation for approximately two weeks. If I could take your Honours to the aerial photograph of the prison complex, which is in the appeal book at 264, your Honours will see there on the right-hand side of the page - - -

KIRBY J: This looks like a photo on a bleak day.

MR SEXTON: I think it might say more about the photo than about the day, your Honour. On the left-hand side of the right-hand side of the page, if I can put it that way, your Honours will see five buildings in silver and there is a circle around them. The four buildings closest to the right-hand side of the page are the units in which the prisoners on work release were housed and the building slightly on the left of those is an administration block. Going across the page, there is a building with a red roof right on the edge of the page which is Silverwater House.

GLEESON CJ: It has “SH” written on it?

MR SEXTON: Yes, that is right, your Honour. Some of the work release prisoners were also accommodated in Silverwater House. Normally that is where they started. This was not true for Mr Bujdoso, but normally they started there and then went to one of the four blocks of units. I will say something more about how they were set out later, but at this stage it is sufficient perhaps to note that your Honours will see that there is a fence that separates that zone of the prison from the rest of the complex.

KIRBY J: I cannot see the fence, but maybe it does not matter.

MR SEXTON: You will see, your Honour, that it runs not quite diagonally across the page behind the top two unit blocks and then not quite as visible along at the bottom of the units and down towards Silverwater House.

KIRBY J: That white line is a fence, not a path, is it?

MR SEXTON: That is a path. The fence is above and below the units. So that this particular part of the prison was to that extent separated from the rest.

KIRBY J: Where was the solitary guard, reduced from two to one, maintained during the night?

MR SEXTON: He was based in that administration block which is the - - -

KIRBY J: That is the further one?

MR SEXTON: The building furthest from the right. That was an administration block.

GLEESON CJ: Sorry, I have not followed that. If you go to the left, there is a prison area surrounded by prison walls, you see on the left of the photograph?

MR SEXTON: Yes, your Honour.

GLEESON CJ: That is the women’s prison, is it?

MR SEXTON: I am not sure, your Honour.

GLEESON CJ: Then if you move to the right across the page, where do you come to the administration block?

MR SEXTON: Your Honour sees the five silver buildings in a group in the middle of the left-hand side of the right-hand page?

GLEESON CJ: Yes.

MR SEXTON: It is the furthest left of those. That is the administration block. They all look the same pretty much, but the four closest to the right were the blocks of units where the prisoners were housed on work release and the one on the left was the administration block.

KIRBY J: In my copy it has a round circle in blue.

MR SEXTON: Yes, that is right, your Honour. I will come back to that perhaps.

GLEESON CJ: In which building was the respondent at the time of the assault?

MR SEXTON: I think he was in the one at the bottom right. There is a little blue mark there, just a small star which indicates the approximate location of his room I think.

KIRBY J: He had asked to be in the one which is to the left of that and closer to the administration block where the solitary guard was stationed.

MR SEXTON: Your Honour, he had been transferred to Silverwater in May 1991 after applying to be considered for the work release program. This was the only place in New South Wales where it was available. In July he was recommended, I think by the prison psychologist, for inclusion in that program. That normally followed a period of 12 weeks observation by prison officers to assess the applicant’s suitability for the work release scheme and then inmates who were considered suitable at the end of that 12-week period normally moved into Silverwater House where they were tested with two or three separate day leaves and then, if they were completed successfully, they formally started the work release program.

So say in the case of Mr Bujdoso, he seems to have bypassed Silverwater House and gone directly into that block of units that is indicated. Normally, as I say, those on the work release program started in Silverwater House and when a room became vacant in the units then they moved out of Silverwater House and into the units. So it really, in the case of the units, simply depended on vacancies occurring as to when and where a person finished up in one of those four blocks.

Your Honours, in order to be part of the work release program it was necessary to be classified under the classification system as C3, and I will come to the system in a moment, but it is be noted that, in fact, all of the prisoners at Silverwater, if they were not C3, which was the lowest classification, because they were on the work release program, were C2, the second-lowest classification, because the only persons accepted at Silverwater were those who were either going to be on work release or there were some short-term inmates who were not in that category but, nevertheless, were required to have the C2 classification. Your Honours, I think, have a copy of the regulation in force at the time which contains the list of classifications.

KIRBY J: Is that the additional document you have sent in?

MR SEXTON: Yes, your Honour.

KIRBY J: That is objected to by the respondent who says it was not in evidence.

MR SEXTON: It is in the statutory material, your Honour. It does not need to be in evidence, in our submission.

KIRBY J: Perhaps it explains some of the terms used. Is this the document that explains the C2 and C3 categories?

MR SEXTON: Well, it lists the categories. It is the Prisons (General) Regulation 1989 and if your Honour looks at page 4, clause 8(1), you will see there a list of classifications from A1 down to C3. Your Honours do not have the later regulations, but the system still basically is in this form, except that there is a AA category.

KIRBY J: Terrorism has come in. They are AA.

MR SEXTON: The AA category came in I think, your Honour, in 2001 or perhaps it may have come in in 1995. There are two categories of prisoners who have been convicted of escaping or attempting to escape – E1 and E2 – but otherwise these categories survive. Your Honours will see that category C3 is:

those who, in the opinion of the [Director-General], need not be confined by a physical barrier at all times and who need not be supervised.

KIRBY J: You have read out Director-General. In my copy, in regulation 8 it talks of the Commissioner.

MR SEXTON: My copy has the Director-General.

KIRBY J: I am referring to page 12:

those who, in the opinion of the Commissioner, need not be confined –

Has the name and designation of the head of Corrective Services been altered, has it?

MR SEXTON: It has. It is the Commissioner now, your Honour, yes, but I thought it was the Director-General in - - -

KIRBY J: I am just reading what is in my copy.

MR SEXTON: Is your Honour looking at clause 8?

KIRBY J: Clause 8. It refers to the Commissioner. What was it at the relevant time, Mr Solicitor?

MR SEXTON: I think it was the Director-General.

GUMMOW J: It had better be checked. We have a document which says at the bottom of the page “Amended to: 14 August 1995”.

MR SEXTON: My copy, which talks about the Director-General - - -

KIRBY J: Well, you are one up on us.

MR SEXTON: - - - published in the Gazette of 15 September 1989. I suspect it is the Director-General. We will check that, your Honours. The AA category was included in 2004, your Honour Justice Kirby. Now, the four blocks of units which are shown in the photograph each had a corridor running down the centre of the block and there were approximately nine rooms on each side, one person to each room. Each of these rooms had a lock that could be snibbed from the inside and required a key to be opened from the outside. The administration had a master key. There was considerable evidence about the lock at the trial of these proceedings and it figures in the judgment of the Court of Appeal.

In our submission, the lock is really a false issue in this case. The rooms were not cells and the lock was not designed, obviously, to keep anyone in or, if they were in any way determined, to keep persons out.

KIRBY J: That might be correct, but as I understand it the respondent contends that he had been warned of the risks and had threats and therefore, although the lock was not so important from a cell point of view, it was important from a protection point of view. If he could lock it, he was safe at night from those who were threatening him.

MR SEXTON: Well, your Honour, we would say the evidence is that the lock was not designed and was certainly not capable of keeping out a person who was determined to enter the room. It simply was not that kind of lock. What actually happened to it is, on the evidence, uncertain. Mr Bujdoso gave evidence that the lock was smashed to pieces but the police officer who investigated the assault gave evidence that he did not see any signs of damage to the lock and the locksmith who gave evidence looked at the photos and said that they did not show that the lock had been smashed.

It is possible that Mr Bujdoso opened the door, although the trial judge considered that this was highly improbable or – but the alternative assumes that the lock was not snibbed from the inside, the alternative being that the tongue of the lock was forced back by the insertion of a flat piece of some kind of stiff material, metal or plastic, where the tongue goes into the lock, the door jam. The door, it would seem, could have never the less been smashed in even if the lock was snibbed, but that would had to have caused some damage to the lock and the evidence is that there was not any.

So it seems on the evidence that perhaps the explanation is that the lock was opened from outside but not forcibly – it was not smashed but done by the use of a piece of material and that, therefore, it was not snibbed from the inside at that time, but the evidence about that is unsatisfactory.

GLEESON CJ: What finding did Judge Cooper make about how the people got in?

MR SEXTON: He did not make, we would say, a finding in terms, your Honour. There was some suggestion that the door had been opened by Mr Bujdoso. He said that was highly improbable, so that can be perhaps taken as a finding that in his view that did not occur, but after that he noted the evidence about the way in which the lock could be opened from outside by the insertion of a piece of metal or plastic, but there is really no formal finding on that question.

KIRBY J: The respondent said that suddenly two or three persons entered the room. That was his version.

MR SEXTON: Yes, and he said the lock was smashed, but apart from the fact that there was an obvious entry the evidence - - -

GLEESON CJ: Judge Cooper made a finding on page 364 that the lock was not there for the purpose of keeping people out. It was just there for the purpose of privacy.

MR SEXTON: That is right, your Honour, yes. As I said, the evidence is uncertain but we would say really, in line with that finding of Judge Cooper, that it is a false issue, that however entry was gained that someone determined to do it would have been able to deal with this lock, because its purpose was not to keep persons out, as it was not to keep prisoners in.

KIRBY J: That begs the question of what the Court of Appeal said, which was that there ought to have been a lock, at least for some facilities, for people who were under threat. These are, to some extent, dangerous people who have been convicted of offences and these were people who were threatening him and he was frightened.

MR SEXTON: But that presupposes, your Honour, in effect that the prisoners would be in cells. In other words, that - - -

KIRBY J: Not really. It presupposes that there be a facility for protecting people who cannot otherwise protect themselves whilst they are in your custody.

MR SEXTON: Your Honour, we would say that the real issue is one of supervision and how that fits in with the classification system. Why I say the lock is a false issue is because short of having persons in what would normally be described as cells with the sort of locks that would keep them in and keep other persons out, as they are normally so in the prison system, that it would not be possible to avoid a determined person breaking in in some form. So it really depends on the view that is taken of this particular part of the prison and the work release program because that kind of system was incompatible with what was happening in this part of the prison. So it really depends on what the risk is of this kind of system.

KIRBY J: When I moved to Canberra, in my apartment there was a lock, which was common to all the apartments, but being a rather cautious type I thought there should be another one and I put it in. It did not cost very much. It gives me greater security. The question that the Court of Appeal poses is whether you should have paid the relatively small amount of having some facility for people who were under threat, as this man was, whilst he is in your safety and whilst he cannot protect himself except through you.

MR SEXTON: Your Honour, of course there is a duty to protect, but it is not to be achieved in this situation, we would say for the reasons that Judge Cooper said, by the lock. The protection lies, we would say, in the classification system – and I will come to that – what it meant for the persons in this program.

GLEESON CJ: I just do not know one way or the other, but is it part of any prison system that prisoners should not be able to lock themselves in in a way that would prevent entry by the prison authorities.

MR SEXTON: I imagine that is so, your Honour. The doors here had a small glass panel at about eye-height so that it was possible to look in and I suppose to look out, but, as I say, the lock could be snibbed from inside. We would say it was not, seemingly, but - - -

GLEESON CJ: The only reason I ask that is that hotel rooms commonly have devices attached to the doors that enable people inside the room to prevent people outside from gaining entry. They are not very elaborate or high tech or expensive devices, but then I wonder whether prisoners are supposed to be able to do that.

MR SEXTON: I think the evidence is there was a master key, but if the snib is down I presume the key does not turn the lock.

KIRBY J: I think what the Court of Appeal was suggesting in answer to the Chief Justice’s question was that there were more modern locks, not very expensive, that would have been accessible to the prison authorities but not to fellow prisoners. That is it, is it not, that is what they were suggesting? What is wrong with that? It seems a very simple solution to a problem of great peril for people. People in prison are sometimes surrounded by people who might enter into a bureaucratic classification but who have danger in their hearts.

MR SEXTON: If you look at the nature of the attack, really it would require a different locking and a different cell type of system, in our submission. Apart from that, there are times when the inmates would be outside of their rooms attending the bathroom, showers, et cetera. There are obviously times when they would be vulnerable to persons who were determined to attack.

KIRBY J: Curfew was at 10.30 pm and the event occurred at 11.00 pm, is that correct?

MR SEXTON: There is some evidence about it being in the early hours of the morning. I do not think the time is really identified, your Honour, but presumably late – 11, 12, 1 – one could perhaps draw that inference from the evidence.

GLEESON CJ: You may be right or you may be wrong, but a point of departure between the primary judge and the Court of Appeal is to be found, is it not, in the first complete sentence on page 364?

MR SEXTON: Yes, your Honour. We would certainly agree that that was the nature of the lock, but I think it is implicit in what Judge Cooper said earlier in his judgment that a more substantial lock would not have been effective against these intruders, that it would require a different system and one that was not compatible with the work release program where these persons were coming and going and were considered, and historically – I will take your Honours to that – generally accurately, to not create a risk for their fellow prisoners.

Your Honours, as to the question of the system itself and Mr Bujdoso’s interest in being on work release, he himself in his evidence considered that he would be in the safest position on that program and in this part of the prison. The evidence of the prison officers was that the incidence of violence in the units was very low, lower than in other sections of the prison and Silverwater lower than in other institutions because of the nature of the prison that it was at that time.

KIRBY J: He was in a bit of a cleft stick, was he not? He was concerned about losing the mortgage on his home and that was important to him. His parents were retired and they were standing in for him and he wanted to get out to see his de facto and, more especially, his son and he therefore wanted to have the benefits of this, but without, one would think, the risks. He was conscious of the risks because of the threats.

MR SEXTON: But that would have been true anywhere in the system, your Honour, and not only in his case. There seems to be agreement that because of the offences for which he had been convicted that he was particularly at risk but, of course, almost any prisoner in the prison system generally is at risk from his or her other - - -

KIRBY J: But especially “dogs” and “rock spiders”. The “dog” got it, and that warned you, but the “rock spiders” were equally at risk.

MR SEXTON: But unfortunately, your Honour, it is a risk of all prison systems, assault by other prisoners.

KIRBY J: If it is, then arguably you have to do something about it.

MR SEXTON: Well, that is the question we say the Court of Appeal did not ask, what should be done about it? It would be possible to have everyone in isolation cells in those sort of secure environments. It is not practical and we would say it is not desirable either from the point of view of prison administration. The point about the work release program was that it was a final staging of these inmates back into the community and an important aspect of rehabilitation, so that that is a responsibility of prison authorities as well as the protection of prisoners. It is a question of balancing all of those things. That is really what goes to the question of whether the duty of care, which obviously existed, has been breached and that is where we take issue with the judgment of the Court of Appeal.

KIRBY J: Are the threats relevant to the duty that you owed to this particular plaintiff?

MR SEXTON: Not, we would say, to this breach, your Honour. There were threats – when Mr Bujdoso was at his previous prison, there was an incident which he quite naturally perhaps did not report, nothing like this, nothing of this nature. Then when he was initially in Silverwater he was moved into the drug and alcohol unit and there was a suggestion of a threat, but that did not eventuate, and then he moved into the work release program. As I say, he thought that was where he would be safest. He appreciated that there was no entirely safe environment in the prison system.

I had said, your Honours, that a number of the prisoner officers gave evidence, Mr Edwards, that the incidence of violence was extremely low in the units, lower than in the rest of the prison and that was lower than in the prisoner system generally, and Mr Lehn, who was another prison officer at that time, said that the incidence of assaults in the units prior to September 1991 was virtually nil. Mr Mercer, who was the assistant superintendent, said there had been one serious assault in the units prior to this one. There does not seem to be a date as to when that occurred, whether it was slightly earlier or considerably earlier, which was committed against a prisoner who had supplied information to prison authorities, I think in another prison, and had been the subject of a contract for $20,000 which had been put on his head in the prison system.

GLEESON CJ: I do not want to take us into possibly controversial areas about the usefulness of expert evidence, but was there evidence of standards of prison safety against which the conduct of the authorities in this case were capable of being measured?

MR SEXTON: I do not think so, your Honour.

GLEESON CJ: I hesitate to use the words “best practice”, but it is surprising perhaps that there are not objective measures of conduct on the part of prison authorities by way of taking care of prisoners.

MR SEXTON: I suspect that in part, your Honour, the answer to that is that differences between prisons and between groups of prisoners have some common characteristics but a lot of differences, hence the notion of the classification system which indicates varying degrees of – or the notion of varying degrees of supervision.

GLEESON CJ: But if there were no litigation on foot – forget about court cases. Suppose somebody said, “I am in charge of the New South Wales prison system and I would like to design a secure, safe and healthy environment so far as it’s reasonably practicable”, are there no standards or prescriptions to which one can look, no recognised standards of practice in this regard?

MR SEXTON: Not that I am aware of, your Honour. This may be one area that standards has not invaded in common - - -

GLEESON CJ: Certainly there is no evidence of it in this case.

MR SEXTON: No.

KIRBY J: It is not entirely true to say standards have not invaded these cases. I remember in Cekan, which was a case in the New South Wales Court of Appeal, there was very considerable evidence called in that case from the United States about best practice and standards for police lock-ups. That claim was rejected. It was a case of a man who was heavily intoxicated in the Sydney Police lock-up who suddenly took it on himself to get up on the bench and dive at the floor as if he were diving into a pool. It was rejected because there was no real warning that he would do that and to modify the Sydney lock-up would be a major enterprise and it was not thought to be reasonable. But that is not what the Court of Appeal said in this case. There was warning, there was an indication of some danger and the modifications were relatively modest.

MR SEXTON: It really raises two questions, which I will come to, about breach of duty and causation if one is talking about the lock. In our submission, the Court of Appeal - - -

KIRBY J: Not only the lock, also the supervision and the placement of the prisoner, as he asked, close to the guardhouse.

MR SEXTON: In our submission, the Court of Appeal has not really made the assessment that is required in relation to breach of duty. The paragraph of the judgment in which they deal with these issues simply proceeds to find a breach on the basis of a risk having occurred.

GLEESON CJ: Where do we see the error?

MR SEXTON: Your Honour, it is towards the very end of the Court of Appeal’s judgments, at 388 of the appeal book.

GUMMOW J: Does that not have to be measured with the grounds of appeal that they had before them?

MR SEXTON: Yes, your Honour. I will come back to this paragraph but your Honours will see that it deals with the questions of supervision and the question of the lock.

GUMMOW J: You have to start at paragraph 3 on page 374. That was the task which the court was given by the notice of appeal and they resolved it at paragraph 64. You say there was something else they should have done?

MR SEXTON: What we say about paragraph 64 is, your Honour, that it does not, for example – I will come to this – consider what might have been done to deal with this risk and whether that was practical and whether it conflicted with other responsibilities that the prison authorities had.

KIRBY J: The existence of a duty of care was not in contest between the parties?

MR SEXTON: No, your Honour.

KIRBY J: So all of this endeavour on the part of Judge Cooper and the Court of Appeal was necessarily addressed to the issue of breach and causation?

MR SEXTON: Yes, your Honour.

GUMMOW J: Just breach, is it not?

MR SEXTON: In the case of the Court of Appeal, yes, and Justice Gummow is quite right, in the trial as well.

GLEESON CJ: There was no notice of contention in the Court of Appeal seeking to uphold Judge Cooper’s decision on the ground of causation?

MR SEXTON: No.

GLEESON CJ: Or seeking to justify his decision because he dealt with it at the level of breach. If you look at the declaration made in paragraph 65, there is a declaration “that the respondent breached the duty of care” and the matter is then remitted to the District Court. Perhaps a small technical problem, since proof of damage caused by the breach of duty is the gist of the action of negligence, unless you deal with an issue of causation, either expressly or by implication, there is no conclusion on liability, is there?

MR SEXTON: The two questions are separate, although they are certainly closely connected here because in one sense, in relation to breach, one question is what measures might have been taken, practically and reasonably, to alleviate the risk. In the case of causation, it is whether any measures taken would have made a difference in this case.

GLEESON CJ: How do you judge that where the risk is the risk of criminal conduct? In paragraph 64 the Court of Appeal assigned two specific breaches, I would have thought. One is failing to inform the guard of a certain fact and another was failing to provide a more secure lock. Now, that may or may not be persuasive, but they were findings. Where the risk against which you are seeking to guard is violent criminal behaviour, how do you go about deciding whether giving somebody some information or providing a more secure lock would have prevented that behaviour?

MR SEXTON: Well, that is an assessment that has to be made in this as in any particular case.

GLEESON CJ: How do you do it?

MR SEXTON: It really requires looking at the nature perhaps of the attack in this case as to what would have deterred it and what sort of system could have prevented it.

HAYNE J: Well, as to that, what was the status at trial of the report of Mr Ryan which commences at 222 and following, Mr Ryan giving as his curriculum vitae that he had been a general manager of detention services for a private organisation and had held a number of senior positions in the Victorian Government Service concerning matters of corrections. In particular, what was the status of what appears at pages 228 to 229, where he describes his conclusions?

MR SEXTON: The report was submitted. As your Honour sees, there were objections and there are some passages that have simply been taken out. The trial judge did not accept Mr Ryan’s conclusions.

HAYNE J: Is the position the same about the report from the locksmith, Mr McCaskill, page 234 and following, in particular, Mr McCaskill’s evidence that the lock, an early generation lock, could have been manually deadlocked by the person inside the room? That was before the judge?

MR SEXTON: Yes, your Honour.

HAYNE J: What did the judge do with it?

MR SEXTON: He does not seem to have made a finding on that question, your Honour. As I say, if one accepts that the lock was not smashed, which was the evidence of the police officer and the locksmith who looked a photograph, then that suggests strongly that it was not locked from the inside.

KIRBY J: I did not hear your last words. It suggests strongly what?

MR SEXTON: That it was not locked or snibbed from the inside.

KIRBY J: Well, either that or it was very easy to open. This was a man who was frightened. He had a window that he could see who was coming in. The people coming in were wearing beanies as balaclavas. He was not likely to open the door and bow and welcome them.

MR SEXTON: Perhaps not, your Honour, but the evidence was that the lock could have been opened possibly from outside by the insertion of a piece of plastic or metal but not if it were snibbed from the inside. If it was snibbed from the inside, it would have to be kicked or knocked in, and that does not seemed to have happened on the evidence.

GUMMOW J: What do you want us to do? I am just looking at 395.

GLEESON CJ: Concerning the disposition of this case.

MR SEXTON: The appeal allowed, your Honours, and the - - -

GUMMOW J: What, action dismissed?

MR SEXTON: In accordance with the trial judge’s judgment.

GUMMOW J: Because ground 2.2 on page 395?

MR SEXTON: Amongst others.

GUMMOW J: The Court of Appeal was not asked to deal with the question of causation. Why should we deal with it?

MR SEXTON: Because it is part of the same exercise, your Honour. We would say they do not have to be specifically asked to deal with that.

GUMMOW J: Anyhow, are you saying we should deal with it?

MR SEXTON: We say your Honours are able to deal with it, that all the material is here but, as I said, it is closely allied, in this case, to the question of breach of duty. It really involves essentially the same facts and to some extent not entirely the same inquiry.

GLEESON CJ: Is what Judge Cooper said on the top of page 364 a finding about, amongst other things, causation?

MR SEXTON: It is in part, your Honour, yes, because one question is whether a different form of lock but along the same lines or an additional degree of supervision but not constant supervision would have or could have prevented an assault of this kind. We would say within the context of the work release accommodation the answer is no.

GLEESON CJ: Did the evidence show that it is the fact that you can have a lock that could be locked from the inside by an inmate in such a way as to make it difficult for other inmates to get in but that would not make it difficult for prison officers to get in who are in possession of a key?

MR SEXTON: As I understand it, your Honour, if the lock is snibbed from the inside, that would mean that for anyone trying to gain entry it would have to be smashed in or kicked in, that it could not be done by the insertion of a piece of plastic or metal. Assuming that that could be done here – the evidence is perhaps not entirely certain about that because it was not based on the actual lock. The prison officers had a key but it is my understanding that no key would work from the outside, the prisoners or the prison officers, if the lock was snibbed from the inside.

GLEESON CJ: That just at the moment seems to me to be fairly important because I can understand why you would not permit prisoners to exclude prison officers. I can think of a dozen reasons offhand why you would not permit that, including reasons relating to personal safety. But did the Court of Appeal contemplate that the more secure lock to which they were referring on page 388 would be a lock that would be more secure against other prisoners, even though it would not exclude prison officials with a key, for example?

MR SEXTON: I am not sure that they analysed it in that way, your Honour.

KIRBY J: But is this not common knowledge? I mean, the added deadlock I have on my door, I cannot lock out a person who has a key from the outside, but I can lock out anybody else and do lock out anybody else who does not have a key and wants to get in. That is just a standard deadlock.

GUMMOW J: We had a patent case about this called Doric v Lockwood.

KIRBY J: I suppose you can have, and some hotels have, as the Chief Justice has said, sort of chains and things that go across doors and that presents an extra obstacle, but no one is suggesting that. What the Court of Appeal, as I understand it, is suggesting is just another lock, the more modern kind that is not easily removable. That is why some people put an extra lock in, a deadlock. These locks I think are readily available.

MR SEXTON: There is no suggestion that the intruders had a key, your Honours.

GLEESON CJ: No. I am very conscious of the possibility of bringing to bear misinformation or misunderstanding on my own part on this, but as a matter of common sense it seems to be the case, does it not, that there is some virtue in having a lock, provided it would not exclude prison officials, which is of such a kind that if somebody wanted to break in they would have to make a big noise about it which is likely to attract attention? In other words, in terms of protecting an inmate against other prisoners, it may be that you cannot prevent them breaking the door down, but if you can put them in a position where they have to break the door down or kick it in to get in you are going to reduce substantially the prospect of them entering.

MR SEXTON: There is two points about that in this case, your Honour. One is that, as I have said, it seems, if the evidence be accepted about the lock not being damaged, that it was not locked from the inside, so that it may have been opened from the outside in a way that did not require the door to be knocked in. However, having said that, these units were premised really on the fact that because of the classification that these prisoners had and the incentives they had to be on this program and to get through this program that there was not going to be this kind of incident in these units. In fact, subject to one exception, there had not been and that was a very unusual case. So that is why Judge Cooper said that the lock was a question of privacy. It was not designed to withstand a forced entry.

GUMMOW J: Yes, but maybe it should have been, that is the problem.

MR SEXTON: Well, your Honour, in other parts of the prison that would be so, but that is why I say that it really depends on the view that is taken of this part of the prison and of this classification and of the significance of the work release program.

GLEESON CJ: Yes, Judge Cooper, whether he was right or wrong, seems to have thought that it was all right to have a lock that was merely designed for purposes of privacy.

MR SEXTON: In effect, because these were not cells, they were rooms, there was not any real security about them – I have to accept that. That is why I say that even the sort of lock that Justice Kirby is talking about would certainly respond to a serious assault, and in fact very quickly, so that people would gain entry to the room. Now, as your Honour the Chief Justice points out, that would perhaps attract more attention but - - -

GLEESON CJ: Was there any evidence of what they have on the locks now, what they have on the doors now?

MR SEXTON: I do not think there is - - -

KIRBY J: I think they have pulled the facility down, have they not, or they have removed the - - -

MR SEXTON: Well, it is a different – the prison complex has been - - -

GLEESON CJ: Yes, but they must have some device for keeping the doors shut, that is all I meant.

MR SEXTON: Yes.

GLEESON CJ: Is there any evidence of what kind of devices they now use for keeping the doors shut?

MR SEXTON: No, there is not, your Honour. Not in this case, no.

GUMMOW J: All this assumes a perfect operation of the classification system, which the facts indicate is imperfect.

MR SEXTON: But had seemingly worked quite well. The system may not have been perfect but there had been these two incidents, and one - - -

GLEESON CJ: But the people that are being classified are criminals. They are not nice people in many cases, and that is part and parcel of the classification system.

MR SEXTON: But these were the lowest classification in the system and they were at this stage coming and going to an external working environment during the course of the day.

KIRBY J: They all clammed up after the incident, did they not, I think? In any case, there was no criminal proceeding brought, notwithstanding the very serious assault on the prisoner in your care. So there was no criminal redress, and according to you there is no civil redress; we just have to cop it.

MR SEXTON: Well, it is obviously, in terms of the appellant, it is a very serious event but the question is whether or not it would mean that this classification system in effect could not operate, that it is not possible to have some prisoners or perhaps any prisoners on the work release program. It happens that Mr Bujdoso was a - - -

KIRBY J: I do not think anybody is suggesting that, and I do not read the respondent’s submissions to suggest that. Can I explain to you something about the classification system so that you can respond to it? It is not only, as Justice Gummow said, that your submission assumes a perfect and highly filigreed classification system instead of the categories which are very broad, but (a) you know of the culture of danger in relation to people convicted of offences such as the respondent; (b) you knew of the specific threats to the respondent; (c) you knew of his concern about those threats and request that was related to those threats; (d) the classification, whilst relevant, cannot override your continuing duty to him in the light of the knowledge that you had and the foreseeability of a possible injury to him, and (e) what you are asked to do is relatively modest and seems prudent, (f) especially because you knew that a prisoner, admittedly for a different type of offence to the prison culture, had been seriously bashed and the subject of a contract in the so-called low security environment.

MR SEXTON: That was the only recorded incident on the evidence. But, the question is whether - perhaps I should start by saying that every prisoner in the prison system is at risk – almost every prisoner – of assault unless they are in some form of isolation or protection. Mr Bujdoso did not want to go on protection. That does not absolve the prison authorities of their responsibilities, of course, but short of that kind of isolation there is going to be some risk. The question is the magnitude of the risk and what should be done to address it.

In the context of the work release program, which we would say is an important rehabilitative exercise and a way of staging prisoners back into the community the classification system is designed to minimise the risk in relation to prisoners who were on that program and by and large it seemed to have worked. It did not work in this particular instance and the question is what might have been done that would have and is practically reasonable in relation to Mr Bujdoso.

In our submission, the steps that would have to be taken would be inconsistent with the work release system that it is not possible to run this program in a way where prisoners are confined in the way that they are in the rest of the prison system. Because of the program that persons had to go through to get on to this work release scheme and because of the incentives they had to complete it, it would seem, on the face of it, that this kind of conduct was unlikely and so it had proved in the past, except in one case.

HAYNE J: The core of the conclusion reached in the Court of Appeal must be, I suggest, that the reasonable prison authority should have taken more steps than it did to prevent wrongful intrusion into the plaintiff’s accommodation when lodged in the unit of the kind he was lodged in the circumstances that prevailed in that unit. What are the steps that the Court of Appeal take in reasoning to the conclusion that the reasonable prison authority should have done that?

MR SEXTON: Your Honour, in our submission, that is the deficiency in the judgment, that if one looks at the matters that are mentioned in the quotation from Justice Mason in Shirt – we have set it out in our written submissions.

HAYNE J: Just before you go to Shirt, does the Court of Appeal interfere with the findings made at trial that lodging the plaintiff in this unit was itself a step that was not wanting in reasonable care? I think that that is a step that the trial judge took, is it not?

MR SEXTON: No, your Honour, that is one of the complaints that we make about the judgment, that the Court of Appeal does not say that the system itself of work release and prisoners being on the lowest classification before they can gain entry into the program - - -

HAYNE J: It was more refined than that, the point I was trying to put to you. I had in mind paragraph 112 of the trial judge’s reasoning at page 361, or his conclusion at paragraph 112.

I am not satisfied on the balance of probabilities that the defendant was in breach of its duty of care in transferring him to works release unit.

Now, does the Court of Appeal address that question?

MR SEXTON: We would say not, your Honour, that it assumes that the work release system is desirable and should stand, but that certain measures should have been taken in relation to this particular prisoner or this particular situation and - - -

KIRBY J: Whereas your submission is everyone is in category C3?

MR SEXTON: Well, that is one part of our submissions, but one of our complaints about the Court of Appeal’s judgment is that once one makes that assumption or starts from that premise that there will be this kind of system, then the real question is how can it operate in a practical sense and what steps could have been taken to deal with the risk, and should have been taken to deal with the risk, in relation to Mr Bujdoso’s case. We say, and I will come to Shirt in a moment, that those are the questions that were not addressed properly in the judgment of the Court of Appeal.

Your Honours, if I can just take the four matters that are referred to by Justice Mason in Shirt in considering the question of breach of duty. He talks about the magnitude of the risk. Well, we would say here that we would have to accept the magnitude of the risk was significant in the sense that an assault could obviously be a serious one, but in relation to the other three we would say that they have not been - - -

KIRBY J: Well, it could - you would have to accept that the magnitude of the risk would extend to death of the prisoner. I mean if people are struck on the head with a bar and where the bar came from and how they could get access to a bar in a prison I do not know, but if they are struck on the head with that many people will die.

MR SEXTON: Some suggest it may have been a shower railing but I do not think the evidence is clear about that, your Honour. Magnitude of the risk, we note that. The second factor is the degree of probability of the occurrence of the risk. We would say that that was slight on the evidence - - -

CALLINAN J: With all the previous taunts? It was not a slight risk at all, was it?

MR SEXTON: In terms of - - -

CALLINAN J: He had been taunted, had he not?

MR SEXTON: Yes, but in terms of this happening in these units - - -

CALLINAN J: By violent people. Some of them had records of violence, did they not?

MR SEXTON: Yes. I am looking at the probability of occurrence of an assault in this part of the prison and the evidence is, we would say, that that probability was slight.

CALLINAN J: Might it not have been different for this respondent having regard to the crimes that he had committed and the attitude of other prisoners to those crimes? I am not talking about the official categories but it put him in a special category, did it not?

MR SEXTON: Seemingly that is so in the prison system, your Honour. There is no evidence of this, but one might assume that he was not the only person in this who had been convicted of such offences who had ever been on the work release program.

CALLINAN J: There do seem to be people who are singled out in prisons.

MR SEXTON: There is evidence of that, your Honour, but again there was evidence that he was not the first person in this category to have been on the program of work release.

KIRBY J: But you did have notice, I think, of some specific threats to him that were brought to your notice before his injury, is that correct?

MR SEXTON: Yes, that is so, your Honour. They were not threats while he was in this part of the prison.

KIRBY J: Is it permissible for me to take into account, in judging this issue, the evidence after his injury where you put him back into the area and a prisoner got in touch with you and said, “What on earth are you doing? I’m a Christian man, I’ve heard in the toilets talk that they’re going to do him over again. Remove him.” Is that a permissible thing to take into account, an ex post development?

MR SEXTON: We would say not, your Honour. It does not, as I have said, determine the responsibilities for the prison authorities but he wanted to go back but then the prison authorities did remove him on that occasion, but there had been other persons in this category who had been on the work release program earlier. As I say, dealing with those items in order, the magnitude of the risk, the degree of probability of the occurrence of the risk we would say was slight on the evidence.

The third matter that was mentioned by Justice Mason was the expense, difficulty and inconvenience of taking alleviating action. We would say that the only real system, of course, that would completely protect a prisoner is an impractical one of isolation. It is, of course, pursued with some high-security risk prisoners but the answer to that question really depends, again, on the value that is attached to the work release scheme and whether - the evidence is I think there were 80 or 90 prisoners on the work release scheme at any given time here – that the measures that would deal totally with this kind of risk would cut completely across that kind of scheme so, to that extent, the difficulty and inconvenience of alleviating action is, we would say, quite considerable. One would lose the value of that scheme.

GLEESON CJ: This is a conceptual problem, as it seems to me, in evaluating negligence or causation in a situation where you accept that a person has a duty to take reasonable care to protect somebody from criminal behaviour. That is common ground here. Once you get into that area there are certain types of criminals and certain types of behaviour against whom only extreme measures will constitute some form of protection. On the other hand, there are some types of criminal who could be put off by relatively modest measures of protection. You can put airport security at the front door of a court and that will keep out a certain kind of nuisance, but it is certainly not going to keep out a determined terrorist. How do you then make a judgment about issues of breach and causation?

MR SEXTON: Your Honour, the judgment here was made, rightly or wrongly, by the prison authorities about the prisoners who went into this particular classification and into this scheme, the judgment being that they would not want to take the risk of conduct that would get them out of the scheme and back into the general prison system. Now, on the evidence by and large those judgments seem to have been right, but we would say that you cannot have that system without some scope for, on occasions, perhaps making a misjudgment about – there are 80 or 90 persons who were on the program at any given time and in this case seemingly two or three of them – not clear about the numbers – were prepared to take the risk that prison authorities had assessed them as not being prepared to take.

Now, the classification system we would say is important to the general system of prison administration. The work release program is important for a range of reasons. If in fact some prisoners cannot be put on that program, for example, someone in Mr Bujdoso’s situation, then that would have an effect on it. But the reality is that the risk exists in the whole of the prison system, even in much more secure parts of it, and that is why we say that the question is – that the Court of Appeal did not address – as to what was a practical response to – and a practical response within the context of the work release program which the Court of Appeal seemed to accept – they did not find people should not be put on this program. What they found was that in this particular case seemingly that there could have been other steps taken, although, in our submission, those steps, both from a point of view of breach and a point of view of causation, would not have dealt with the problem.

Now, it is important for the administration of prisons, we would say, that these programs be available and that there is a real difficulty about having these sorts of programs if, in fact, the duty that is placed upon prison authorities is at such a high level that in a practical sense that they are unable to at least continue them. On the evidence in this case, this was a largely isolated incident, which is why I talk about the degree of probability and the difficulties of doing something about it.

The other matter that Justice Mason mentioned was the other conflicting responsibilities of the defendant. We would say here that the prison authorities have a responsibility to provide for rehabilitation whenever it is practical, in the case of everyone in the prison population, to stage persons back towards the community and that work release is an important part of that. So that if one analyses those elements Justice Mason refers to in assessing whether there has been a breach of duty, we would say here that one would come to the same conclusion as the trial judge.

HAYNE J: That seems to place the chief weight of your argument upon the proposition that the risk was minimal. Is that right?

MR SEXTON: No, we look at the difficulties of dealing with the risk, the degree of probability of its occurrence and the other responsibilities that the prison authorities had.

KIRBY J: If there was some evidence that your client had gone through a procedure of the kind that Justice Mason suggested is to be taken into account, one would perhaps feel more comfortable, but I get an impression – maybe you can respond to this – that your client took the view that is hinted at in your submissions, there is a classification. The classification is the end of the matter. If they are classified as C3 there is nothing extra we need to do, but in this case there were additional facts about this person, and arguably about people in his class, that meant that though in C3 he was requiring, under the common law duty of care, of some extra attention and that the classification was not the end of the issue.

MR SEXTON: Your Honour, the classification was not in a sense just a formal exercise. Everyone who came to Silverwater was C2, the second lowest classification. Then they had the 12-week program; a number of separate day leaves before they were accepted, and they became C3 on the work release program. It was quite a rigorous assessment of the risk of these prisoners.

Now, we know that that assessment is not completely free of error, but the question is whether the system in a sense should be overturned because of those isolated events. Now, your Honour raises the particular situation of Mr Bujdoso. That raises the question in turn of whether certain categories of prisoners should be excluded from the work release program, and in his case someone who was very anxious to be involved in it. I know that does not, as I have said, answer the question entirely but it is relevant that some prisoners would be excluded.

It is true that he may have been at a somewhat greater risk because of the offences for which he had been convicted, but it is true that for various personal reasons, interaction between prisoners, someone else might be also at risk in a less supervised environment. As I say, the important aspect we would say about here is that once one accepts that the environment – because there is going to be a less supervised environment – then there is a risk of this kind of incident but – it makes it much more difficult to deal with this kind of incident. The risk is lowered, we would say, but if it transpires then of course there would be perhaps different consequences from if it had been in another part of the prison system, although there is a general risk in the whole of the prison system, except in the most secure parts. So these are all matters that the prison authorities have to balance.

Your Honours, can I just say something about the actual system of supervision that existed in the work release area. The inmates went to work during the day at different hours. When they came back their bags would be checked, they would be breathalysed and required to empty their pockets and be patted down. After 9.30 they were only to leave their rooms to go to the bathroom complex and, as your Honours know, there was a 10.30 curfew. There was a prison officer who patrolled Silverwater House and the units on a watch that started at 10.30 and ended at 6 o’clock the following morning. Obviously, he could not be in all of those places at the same time but he was moving around.

GUMMOW J: What was he watching for?

MR SEXTON: He conducted checks to see that the prisoners were in their rooms, amongst other things, your Honour, and I suppose he was just simply doing a watch for anything that might be out of the ordinary.

KIRBY J: There had been two such officers but that had been reduced some time before the injuries to the respondent, is that correct?

MR SEXTON: Your Honour, as I say, whether it was one or two officers, they could not occupy the whole landscape. It is simply a question of whether that - - -

KIRBY J: No, but it halves the occupation of the landscape, as you put it, that can occur.

MR SEXTON: Whether it would make a difference or would have made a difference we would say that that is unlikely, your Honour. It, obviously, again is a question of personnel. In prison administration it might be desirable to have many more personnel but there is a question of logistics and means that are involved there.

KIRBY J: There was no evidence about security cameras. I suppose in 1991 that was something still in the future, was it?

MR SEXTON: There is no evidence that there was anything in that way, your Honours.

KIRBY J: Because, they, as we have seen in the London bombings, can be very useful and can be a deterrent.

MR SEXTON: Your Honours, can I just say one final thing about causation. We would say that even if one were to have posited removing Mr Bujdoso from the work release environment, from denying him a C3 classification, that it is not a guarantee of safety within the prison system. You only achieve that by, as I say, putting someone on protection or in isolation.

The two factors mentioned by the Court of Appeal, a different kind of lock and a somewhat increased system of – or another person doing the inspections, we would say on the evidence, and the trial judge’s finding of the determination of the assailants that it does not address that question of causation as we would say it does not address the question of breach so that to that extent we would say that the Court of Appeal has not made the assessment in either of those areas that was required in this case.

KIRBY J: That is equivalent to saying that though the existence of the duty of care was conceded and though the matter was determined by Judge Cooper on the basis of breach and though the Court of Appeal in paragraph 3 said that the issue was whether your client had breached the duty of care and though in paragraph 64 Justice Ipp listed a number of specific matters which might be interpreted as a breach, the Court of Appeal failed to examine the issue of breach. It is not very persuasive to me.

MR SEXTON: Your Honour, because it did not make the sort of assessment that Justice Mason refers to in Shirt. It might have taken one of those factors into account but it simply did not address them, in our submission. They were very real factors here, the responsibilities of the prison authorities and the practicality and the likely effectiveness of any measures that might have been taken.

KIRBY J: Yes, but Justice Ipp’s point is, at paragraph 64 on the last line, “Nothing was done.”

MR SEXTON: But that is said in the context of - - -

KIRBY J: Despite the fact that you had specific warnings in relation to this particular person in your care.

MR SEXTON: Well, it was known that there was a risk involved with the prisoner. He thought, and the prison authorities thought, that he would be in the safest position on this program.

KIRBY J: Because he was C3.

MR SEXTON: No, because the other persons were C3 who were on the program.

KIRBY J: Though they had been taunting him and threatened him.

MR SEXTON: Well, it was not those persons. He was in the general prison system when that occurred, in the rest of Silverwater. Unless there are any other matters at this time, those are our submissions, your Honours.

GLEESON CJ: Yes, thank you, Mr Sexton. Yes, Mr Graves.

MR GRAVES: Thank you, your Honour. Your Honours, what I would like to do firstly is to provide your Honours with some assistance as to where the critical findings lie and then go to some of them in some little detail with some references to the reasons in the courts below and some of the evidence.

Firstly, your Honours have heard mentioned and read a portion of a document annexed to the appellant’s submissions, namely some regulations made under the Prisons Act, the Prisons (General) Regulation 1989. The respondent’s opposition, as indicated in its written submissions, is maintained. It is maintained for this reason, your Honours, that, in our submission, there is a real risk that if your Honours take account of the regulations, reasons for judgment may be written in this Court that have a determining emphasis on an outcome which was never before the trial judge or before the Court of Appeal. If I can illustrate the point in one way, by reference to the definition of a C3 classification on page 12, I think we found it, regulation 8(1). Your Honours will see there that the C3 classification is described as:

those who, in the opinion of the Commissioner, need not be confined by a physical barrier at all times and who need not be supervised.

It is the last words, your Honours, in which there is a sting so far as the respondent is concerned. Replete through the trial judge’s reasons, the trial record and the Court of Appeal is the notion that prisoners of the C3 category once admitted to work release and specifically in the units were able to be and were justified as being only minimally supervised. The question is what your Honours may make of the C3 actual classification that asserts that prisoners in C3 need not be supervised.

Your Honours know from the recitation of the evidence thus far and from the reasons of the trial judge and the Court of Appeal that the prisoners in the units were supervised. The respondent comes here, of course, and makes complaint about the extent of that supervision but, nevertheless, there was supervision. There was also supervision - - -

HAYNE J: Well, let us deal with it by reference to the transcript shall we? If we go to appeal book 109, line 5 we get the evidence of Mr Lehn describing the classifications:

C3s would usually go out on the works release, weekend leave, day leave and education leave.

MR GRAVES: Yes.

HAYNE J: Is it a fair inference from that that they went on those leaves unsupervised?

MR GRAVES: It is a fair inference, Justice Hayne, that after passing the 12-week probation or assessment period, out of the prison the prisoners on C3 work release were unsupervised out of the prison. My frame of reference, however, was inside the prison.

KIRBY J: Is your point simply that one cannot take from the regulations on face value that they were not supervised ever?

MR GRAVES: And as a measure of the response of the reasonable prison authority to the common ground duty of care, your Honours cannot work from the proposition of no supervision at all.

KIRBY J: Yes, but it does not seem a very strong basis for you to begin your arguments because throughout the transcript, as Justice Hayne has pointed out, and, indeed, throughout Judge Cooper’s reasons and also the Court of Appeal, there is reference to these classifications. They are provided in a statutory instrument and statutory instruments help to explain what is going on here. If it is simply that we should not take them at face value that there is no supervision, I understand that point, but to say that we cannot receive them and look at them for what they are worth seems a trifle pedantic.

MR GRAVES: Your Honour, I have made the point of substance I wish to make. A line-by-line examination of the document for any other mischief like the mischief I have pointed out I have not made. I will move on.

KIRBY J: I would not want to stop you if it is important to your case, but it just does not seem to me to be a critical - - -

MR GRAVES: I have made the point that - - -

KIRBY J: It is true to say that Mr Solicitor laid a lot of emphasis on the regulations, or more particularly on the classification, but the classification is in broad terms and there remains a duty to each individual and it is not determined by the terms of the classification, as it seems to me.

MR GRAVES: Your Honours, on that topic may I say at this point, it having been raised by Justice Kirby, if there is explicit or implicit in the appellant’s submissions that by reason of the existence of the classifications the common ground duty of care to protect the respondent is in some way cut down or reduced from what it might otherwise be, that is an argument never put to the trial judge or in the Court of Appeal and ought not to be entertained here.

Your Honours, the question for the Court is whether there exists error in the decision of the Court of Appeal to set aside the decision of the District Court trial judge to finding it is the respondent plaintiff at trial in an action for damages for negligence. I will in the course of this address say something of the reasons and reasoning of the Court of Appeal, however, the respondent is here to defend the decision of the Court of Appeal, not its reasons, that decision including, as the Chief Justice has observed, a remitter for the assessment of damages to the trial court.

The question this Court has to answer resolves itself, as we see it, into two issues – and I am sure this is common ground – firstly, whether the appellant breached its duty of care and, secondly, if so, whether the damage the respondent suffered has a causal nexus with that breach. The frame of reference is this common ground duty of care.

At trial and in the Court of Appeal, your Honours, it was common ground that the relevant duty owed by the prison authorities at Silverwater gaol to the respondent was one that arose out of the control of prisoners vested in a prison authority that gave rise to a special relationship which extends to a duty to take reasonable care to prevent harm to a person stemming from the unlawful activities of fellow prisoners. That is an important frame of reference to the discussion of breach and causation. That is the common ground duty of care. One finds it, your Honours, in the trial judge’s reasons at page 338 of the book between lines 30 and 35 – I do not need your Honours to go there for the moment – and in the Court of Appeal the reasons of Justice Ipp at page 375 of the book, lines 20 to 25.

KIRBY J: Has this Court ever considered the duty owed to persons in lockups or prisons? Is Howard v Jarvis such a case?

MR GRAVES: Yes, Howard’s Case is a case of a prison lock-up. There is no case of which we are aware, on this side of the Bar table, where this Court has considered the duty owed to a prisoner in a correctional centre as opposed to the lock-up which was the Jarvis Case.

KIRBY J: That is reported in [1958] HCA 19; (1958) 98 CLR 177.

MR GRAVES: Yes, your Honour, that is right. Your Honours, the trial judge’s finding that came under direct attack from the respondent in the Court of Appeal is the one to be found at 362 of the appeal book at lines 22 to 32, and I will come back to it and read it to your Honours. However, that finding should be, in fairness to the appellant, read and understood in the context of an associated or related finding at page 364, lines 12 to 25.

Could I say at this point, your Honours, that there is reference in the trial judge’s reasons to the plaintiff’s case at trial, including a particular of breach, namely that the respondent should not have been placed in the C3 classification and in turn into the work release units, that that was an inappropriate classification of the respondent.

As your Honours will see, both by express reference by Justice Ipp as to the nature of the contest in the Court of Appeal and the omission of any reference to that topic, that was not pursued in the Court of Appeal.

GLEESON CJ: But the importance of your challenge to the finding at line 30 on page 362 is apparent, is not it? If that finding stood, that would be the end of any criticisms of the kind that the Court of Appeal made about the system.

MR GRAVES: It may be, your Honour. I will just turn it up.

GLEESON CJ: If it is reasonable to trust these people not to assault others, then you do not need to pass on the warning to the prison guard and you do not need to have a better lock.

MR GRAVES: Your Honours, that is a question of timing. In our submission, it is a two-stage investigation. The evidentiary record does not allow the respondent to point to any negligence in relation to the common ground duty of care in permitting those men who became the respondent’s assailants into the work release program. That is one stage, one temporal stage, your Honours. There is no investigation of that. There is no working backwards from the fact that two, or perhaps more, prisoners in fact attacked the respondent in the units. How could that be consistent with this trust?

GLEESON CJ: Well, there does seem to an element of incongruity between the finding at line 30 at page 362 and the findings on the bottom of 363 and the top of 364. These people who were so desperate to get at your client that a lock would not have stood in their way were the people who could be trusted not to assault anybody.

MR GRAVES: Your Honours, it may have been, and it has not been the respondent’s case, that some error of classification was made of a prisoner with a propensity to violence with convictions for violent crimes into the work release program, but the burden of the respondent’s argument and position, your Honours, is this. Firstly, it does appear from the evidence – and this has fallen from one or more of your Honours this morning to the Solicitor-General – that it does appear that once the classification work has been done, once the prisoner is housed in a room in the units, there appears to be a pervading thought process amongst the authorities that there can be no trouble from this point on, which, in our submission, merely to say it in the context of the place we are talking about is, with respect to the authorities, ridiculous. There is a dynamic. We are talking about human beings in physical contact and proximity with each other in these units and into that mix of criminals is introduced a criminal of special or greater vulnerability to personal vilification, abuse and attack by prisoners of any classification, including C3.

It is the failure of the appellant by its Correctional Services officers at Silverwater gaol to provide this hybrid prisoner, like the hybrid prisoner M before him who was firebombed in his room, the prison informer, to provide a reasonable level of protection, a level consonant with the ever present continuing common ground duty of care.

KIRBY J: Did Mr M survive or not?

MR GRAVES: I do not know. That attack occurred before the respondent’s attack but in the same calendar year, 1991. We have a circumstance where, whilst the respondent must concede the possibility of prisoners other than these hybrid or special prisoners falling out with each other and there being some violence occur between them, it is surely heightened – and the trial judge recognises this as does the Court of Appeal – when you place amongst these criminals a person of the offence type of Mr M, the informer, in the argot of the prison a “dog”, or Mr Bujdoso, a child sex offender, in the argot of the prison a child sex offender or “rock spider”.

The failure on the part of the appellant, we say, was to reflect upon two realities, in short, your Honours. The first is the one I have mentioned, the special nature of the prisoner Bujdoso. The second was to realise as a matter of common sense that if you place a prisoner vulnerable to attack in a place where he is most vulnerable because there are no cells, there is no close supervision, then unless the possible perpetrators of that attack know that they have something to lose if they attack the child sex offender prisoner the attack will happen. Under this system which has been explained to you by the Solicitor-General, your Honours, there was in fact no controlling mechanism on a mean-spirited or violent convicted criminal.

KIRBY J: You say an attack will happen, but one of the points made by the Solicitor was that despite all those features that you have mentioned, the argot and the culture of prisons, there had never previously been an attack and these are low security people and they are about to be released into the entire community and therefore that if you are looking at it prospectively it is put there is not such a big risk, or there was not at the time.

MR GRAVES: Your Honour, one has a situation where it is common ground, and it is reflected in the judgments, there was a real risk of a prisoner of Mr Bujdoso’s conviction history, if that history is known, to be liable to be attacked. If the prison authorities do not place some mechanism of supervision or control or safety between a person such as Mr Bujdoso and any prisoner for the time being having those violent propensities and anger against a prisoner such as Mr Bujdoso, it is plainly foreseeable that the special risk prisoner is at risk.

The risk is not farfetched or fanciful. When your Honours read the judgments, there is no brake on this criminal behaviour by reason of the fact that there was no prison officer in any of the units for periods of time of at least two hours known to the prisoners.

KIRBY J: I notice that Mr Ryan, the expert with experience in Victoria, in the summary of his issues at 227 says that:

Mr Bujdoso, by the very nature of his offences was the lowest of the low in the prison pecking order and a natural target for ill disposed fellow prisoners.

This report got into evidence, did it, with the omissions that are shown on the transcript?

MR GRAVES: Yes, that is correct. Your Honours, we can speak. We know we can and one has to be careful of speaking from the benefit of hindsight, but hindsight is not always a false indicator of what may have been foreseen by the prison authorities. What happened has been described to your Honours in relation to the attack. The prisoners, two or more, got away scot-free. Why did they get away scot-free? Because they were able to attack a special risk prisoner in the knowledge of the movements of the prison guard in the privacy of the victim’s room and return to the proximate rooms or Silverwater House in which they were housed. What was the likelihood even if identified by some other prisoner who may have come out of his room and, one asks rhetorically, why would a prisoner hearing any noise or scuffle like must have occurred in Mr Bujdoso’s room come out at all? If there was scuttlebutt, who is the prisoner, one asks, who is going to go to the authorities and identify prisoners who have done this to a prisoner like Mr Bujdoso, put their hand up for a beating like he received?

KIRBY J: You make a good point but, on the other hand, there is in the record the evidence of a prisoner ex post – I will not mention his name – who did go to the prison authorities and did report what was said in the toilet and the threat of yet another assault on your client, so prisoners are human beings too and there are people with integrity.

MR GRAVES: It depends who is in that section of the prison at the time of course. It depends what that prisoner, whose name we will not use, heard or knew of this at the time rather than after the event, Justice Kirby. The fact is that the prisoners who perpetrated this attack were not identified and therefore there were no charges brought against them. It is an advocate’s flourish, I know, and I trust that you will forgive me, but the perpetrators of this crime, your Honours, remained in the work release units. They are the ones who should have been out. They are the ones, if reasonable care had been shown by way of lock on door and better security and closer placement to the guardhouse and a change of the guardhouse to guard arrangements, who would not have done this, in our submission, or, if they had attempted it, would have been detected and would have been punished.

In Silverwater prison the authorities appear to have had a mindset, your Honours, that Mr Bujdoso was the problem. Mr Bujdoso was the model prisoner. The problem was the prisoners who saw it as their role to take action against him because they regarded him as a person who should not be in work release.

I have mentioned M. I put M, your Honours, the informer who came from the Long Bay gaol – and however this is done the evidence does not tell us, but there was a communication, the evidence informs us, some form of communication between Long Bay and Silverwater gaols such that a contract of $20,000 was let on Mr M’s head and it was taken up by a prisoner or prisoners in the very units in which Mr Bujdoso was housed and they were successful on that occasion in 1991 prior to 21 September.

The respondent puts a prison informer, your Honours, in the same category of risk and the same considerations of foresight of his safety against the common ground duty of care as the child sex offender. My learned friend says there is evidence of a child sex offender being housed safely, uneventfully, in the units prior to Mr Bujdoso.

The evidence, your Honours, I will take you to it, is from Mr Mercer, the assistant superintendent at the time. It is weak in the extreme and your Honours would not act upon it. It is to the effect that, having made the assertion that a child sex offender had previously been in the units, Mr Mercer had to concede that he would not know at the relevant time of the nature of the crime of the prisoners because he only held a middle management position. So that is entirely equivocal, this idea, that to the knowledge of the authorities a child sex offender safely had passed through the Silverwater work release units.

Can I come then, just to perhaps confirm what I have already said in relation to the trial judge’s findings under attack, to the appeal book at 362 and the reference I gave your Honours dealing with this supervision question. Can I, at the risk of your Honours hearing it another time, read actually what his Honour said about the nature of the supervision and his Honour’s view about the matter. At page 362, about line 22:

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.

May I pause there? That sums up on the evidence the nature of the assessment that was made, namely, how would these prisoners interact with others? Could they be trusted out of the prison to get on with the job that they get? Obviously, would they commit outside the gaol criminal offences whilst on work release? The leap we say, your Honours, that the trial judge took is in the next sentence:

Accordingly they could be trusted not to inflict an assault upon a fellow inmate.

In our submission, the logic is false in the extreme. Of course it is unlikely that a prisoner on a work release program is going to commit an armed robbery or a robbery or assault a civilian in the street because work release is a prize, because the prisoners are by definition when on work release in the last 12 months of their minimum prison term.

The risk of losing that cherished right, freedom, the ability to earn money and to be out of gaol, would be forfeited, one would think, very smartly if one committed offences out of the gaol and what I ask, rhetorically, is the likelihood of detection. In our submission, one would have thought, high, at least much higher than when we come to talk about questions of physical attacks upon prisoners inside the units for the reason that I have described.

Can I then go to what I have described as the associated finding, which is over the page at 364 from line 12 to line 25 and the Chief Justice has taken me here earlier. May I just read that paragraph to your Honours:

It may well be that the door lock was old fashioned and not at the cutting edge of modern technology but it was nonetheless adequate for the purpose for which it was intended, namely to give to the plaintiff privacy. It was never intended to keep out a person or persons who might be striving to enter the room with felonious intent. As mentioned earlier I regard the risk of such persons wanting to force that door so as to enter the room with felonious intent as so remote in all the circumstances that the defendant was not in breach of its duty of care to the plaintiff in having a more up to date dead lock type latch fixed to it.

May I say, by homing in on, or concentrating upon his Honour’s use of the word “remote”, a risk “so remote in all the circumstances”, the following. Firstly, it is trite that although the risk may be remote if it is nevertheless present and can be removed, prevented from coming to pass by some simple and inexpensive expedient, then the defendant who does not do that is at real risk of a finding of negligence.

GLEESON CJ: Do you say that is “trite” because of the Wagon Mound?

MR GRAVES: Yes, and what Sir Harry Gibbs said in Turner in South Australia, the person acts at his peril, if there were a risk, even if remote, does nothing to abate it where it can be abated or avoided by a small measure in terms of cost, time and the like.

GLEESON CJ: I am just wondering if Judge Cooper, rightly or wrongly, decided this case on an issue of foreseeability. When you put together the two passages you have just referred us to, page 362, line 30 and page 364, line 20.

MR GRAVES: In my respectful submission, no, having directed himself earlier in his judgment about the nature of the contest. In our submission, how his Honour’s reasons ought to be read is as going and only going to this question of the reasonableness of the response to the - - -

HAYNE J: Is that right, given what he says in his conclusion, particularly at paragraphs 127, 130 and 131?

MR GRAVES: Justice Hayne, for example, paragraph 130 of his judgment, page 365 is dealing with a head of negligence, a particular of negligence that, as I said as I began today and as I dealt with the matter in the Court of Appeal, was removed from the investigation and decision of the Court of Appeal as it is removed from your Honours’ investigation and decision. There he is dealing with this question of the reasonableness of placing the respondent into the C3 category and works program. That is no part of this appeal nor was it in the Court of Appeal.

HAYNE J: No, see what is said in the third line of paragraph 130:

the works release program with its minimal supervision -

as to be understood against what is said in paragraph 127 in the last sentence.

MR GRAVES: Again, with respect, Justice Hayne, if one takes the whole of paragraph 130 in its entirety, his Honour, it is plain in my submission, is addressing the question of the appropriateness of admitting inmate Bujdoso to the work release program. We have no truck, although it is not relevant - - -

HAYNE J: A program in which the inmates were, in his Honour’s words:

virtually unguarded by physical means and, instead reliance was placed upon what has been referred to as the “social” protection.

Now, again, right or wrong, but do we not have to understand what the trial judge has done before we assess whether it is right or wrong?

MR GRAVES: Yes, of course and I have attempted to assist that process. In my submission, your Honour, the verb “to admit” controls everything else in that paragraph, to admit him to the Works Release program. The complaint that was being made at trial, one of them, was this prisoner, the respondent, should not have been admitted to this program. The judges dealt with questions of supervision and lock previously. Here he is dealing with admission into the program. That is the way it, in our respectful submission, only can be read. May I say that his Honours reasoning in paragraph 130 of his judgment, page 365, lines 10 to 17, is from the respondent’s standpoint unexceptionable.

GLEESON CJ: This may not be against you, Mr Graves, but where is the passage where he identifies the duty of care which you say is common ground?

MR GRAVES: The passage, your Honour, is at page 338 of the appeal book, start at line 27.

The duty of care which the defendant owed to the plaintiff in these circumstances is described by Justice - - -

GLEESON CJ: Now, I have that. The question is this. If it is common ground that there is a duty to take reasonable care to prevent harm stemming from the unlawful activities of third parties, how do you relate that to a finding that it was reasonable to assume that there would be no such activities? If the duty of care is the duty to take reasonable care to prevent an inmate being bashed by other inmates and yet you conclude that in the circumstances it is reasonable to assume that the other inmates will not bash anybody and there is a contest about your judgment, is it a contest about the duty of care, or a contest about foreseeability or a contest about breach?

MR GRAVES: In our submission, it is breach, it is the latter. That is the way his Honour directed himself, it is the way the matter was conducted in the Court of Appeal.

GLEESON CJ: If his Honour were right, in saying as he said on page 362, line 30:

they could be trusted not to inflict an assault upon a fellow inmate -

how does that stand with his finding that the prison authorities had a duty to take care to protect the other inmates against being assaulted by them.

MR GRAVES: I would answer the trial judge in this way, your Honour, that what he is saying at page 362 is simply his opinion. Having heard the evidence and read the documentary evidence he finds in this particular way no breach of the duty that was common ground between the parties.

GLEESON CJ: But be has denied the risk, has he not? Does not his finding on page 362, line 30, if correct, negate the risk or the foreseeability of the risk?

MR GRAVES: No, your Honour, not when one reads on, line 30 and following. He is posing the appellant’s position, and then finds:

In my view this is a reasonable conclusion for the authorities in charge of that prison to have reached.

That is, there was a risk. They missed it. But, for the reasons offered here which we criticise, with respect, it was reasonable for them to approach the question of the discharge of their duty from the standpoint that injury or damage in some way to the respondent would not come from his presence in the units.

GLEESON CJ: I am not suggesting this is necessarily adverse to your conclusion but I do want to understand where we are going, conceptually.

MR GRAVES: I understand that, your Honour.

GLEESON CJ: As at present advised, as I read Judge Cooper’s reasons, he seems to say that if the risk that we are talking about is a risk of physical assault, no steps were taken to guard against that risk in the work release units because it was reasonable to trust the other inmates not to perpetrate assaults.

MR GRAVES: Because they had passed through the assessment of which his Honour describes before entering into the program, including the testing by a prison officer going out and checking on them surreptitiously when they are out.

GLEESON CJ: Is not that to deny the foreseeability – the reasonable foreseeability of the risk?

MR GRAVES: Again, in my submission, that is not what his Honour is doing there or should be understood as what he is doing there. He is simply saying that although the risk came to pass it was reasonable against the duty for the authority to have conducted itself in the way it did, namely, it was not negligent, notwithstanding the risk came to pass. That is as I read it.

KIRBY J: It would be pretty hard in this case to conclude that Judge Cooper had dealt with the matter on the basis of the so-called undemanding test of foreseeability given that there was foreseen the risk of injury to your client in the sense that they were on notice that he had received threats and that he was concerned about them.

MR GRAVES: Yes, your Honour. If I may just respond to matters that are put to me, it may advance the argument in a sensibly structured way. It was submitted by the appellant that the respondent had not received threats or that there was no evidence so far as the authorities were concerned of the respondent being threatened whilst a two week or so member of the fraternity in the units. That is not correct. Your Honours, could I take you to pages 288 and 289 of the appeal book and say something about it firstly before I take you to some passages.

HAYNE J: This is in aid of what proposition, that he had been threatened once he was put into the work release program units?

MR GRAVES: And, Justice Hayne, that the authorities knew it. The document was a report by a prison officer, Brian Neville - - -

KIRBY J: It might be prudent not to read the names of the alleged offenders.

MR GRAVES: Thank you, your Honour – dated 22 September 1991, the day after the attack. May I come down to line 40 on page 288 and read from there, omitting relevant names:

2. That since his arrival at Silverwater Gaol 15 weeks ago (7-5-1991) he had been constantly threatened and intimidated by –

a person identified by name. That person had:

constantly said things to him like, “With such a pretty face he needed a broken nose.” BUJDOSO also stated that he had been threatened by –

another prisoner by name –

and of late –

by a third prisoner named.

He also stated that –

a fourth prisoner named –

had also threatened him, but not verbally. BUJDOSO was concerned for his Personal safety, and had a number of times told his Mother that one day she would receive a telephone call from a Hospital. He was also too frightened to tell any Officer that he was being threatened due to probable repercussions.

3. About four weeks ago, he had seen a Psychologist, Mick EDWARDS and told him of the threats that he had been receiving. He showed Mr EDWARDS a cartoon which he (BUJDOSO) had anonymously received implying that he was a “Dog.” He also stated that the cartoon was in the possession of Mick EDWARDS –

that is the psychologist –

and that Mick had told him to ignore the torment from other Inmates. About a week ago, BUJDOSO had walked into his room and found a second note on the floor of his room. The note had said, “Go back to the Dorms.” The Prisoner was concerned about this note and hid it in the cupboard below his television set, where it is currently located.

I will not read on. Edwards gave evidence, that is the prison psychologist at Silverwater at the time, that corroborates that account given to Neville on the day after the events in question.

KIRBY J: But did he pass that on to the prison authorities?

MR GRAVES: That is also the evidence, that he, as a member of the classification group and a member of the management of the prison, passed it on and that that sort of material, your Honours, was material that in a confidential patient/psychologist or counsellor relationship was expressly outside that relationship and had to be passed on.

GUMMOW J: Where do we see that?

MR GRAVES: I will take your Honours to those references. I will do that now. Could I take your Honours to 156 of the appeal book commencing at line 38. It is the psychologist, Mr Edwards, being cross-examined by the respondent’s counsel at trial and that should have – I will go to perhaps line 34:

Q. Let me put it another way, whether the authority knew or not, those prisoners could well have moved up with him?

That is the question of prisoners moving from other places into the work release area:

Q. Let me put it another way, whether the authority knew or not, those prisoners could well have moved up with him?
A. They may have, some, but only some of the people resident at that time in Unicom House would have progressed to work release.

Q. And that should have been of grave concern in terms of recommending that he be placed in this low security . . .
A. I think I am out of my area of speciality –

That is not the passage I had in mind. I will find it, your Honours, and give you the - - -

GUMMOW J: It is line 15, is it not?

MR GRAVES: I am told 156 and 157. This relates to a letter the plaintiff received. At line 50, your Honours, on 156:

Q. Just finally sir, I read you that paragraph of your report shortly after the assault dated 26 September –

that is the date of the report –

where you said that Mr Bujdoso had often “often reported incidents in which he had been threatened, vilified or humiliated”. Did you relate those reports to the general prison staff so they could consider them in terms of handling him and the security risks to him?
A. Those issues came up in ongoing discussions about whether or not Peter Bujdoso could be maintained safely at Silverwater. I didn’t have direct information from other inmates that he had been threatened. The main source of my information was from Peter Bujdoso and, yes, that was related to other staff in case discussions, direct discussions of how well he could be managed.

The report he is there referring to, your Honours, commences at page 292 and goes over to page 294. It is a report, your Honours, written against the background of the return at some early time or anticipated early time after 26 September and it ended up being 9 October of the respondent to Silverwater gaol and the work release units. It is a report, your Honours will see, to the superintendent of the complex and it is in effect - - -

KIRBY J: It is after the attack on him.

MR GRAVES: It is after the attack, yes, dated 26 September. The attack was the 21^st. It is, in effect, the psychologist’s submission to the superintendent as to options for - - -

KIRBY J: I think Justice Gummow’s question and mine is of reports before the attack. If we are looking at the question of negligent omission, it is relevant to know that the appellant was on notice.

MR GRAVES: No, I am sorry, I have misunderstood your Honour Justice Kirby. The report is dated 26 September but is reporting upon Mr Bujdoso’s management prior to the attack and on options for Mr Bujdoso’s projected management. As at 26 September 1991, your Honours, the respondent had not been in the gaol, of course, since either the very late evening of 21 September or some time on 22 September. I point your Honours specifically in this report to page 293, lines 39 to 43:

He has often reported incidents in which he had been threatened, vilified or humiliated. He was generally optimistic about his ability to survive them.

Your Honours have said something about that and I will not - - -

GUMMOW J: The question is, did this get to the authorities and get to the authorities before the date of the assault? If it did not, we are wasting time.

MR GRAVES: Justice Gummow, the evidence that I read out to you before coming to this document - - -

GUMMOW J: I realise that.

MR GRAVES: - - - shows that it did.

GUMMOW J: That is right. Well, why have you got more?

MR GRAVES: Because in that, your Honour, the report or the document was mentioned – I am bringing you to the document as further confirmation of what had occurred prior to 21 September so far as at least Mr Edwards, the prison psychologist, and the prisoner were concerned, the respondent, and Mr Edwards himself has spoken – I have taken you to that part of the transcript.

GLEESON CJ: Mr Graves, was there any finding about whether or not it was unusual for a child sex offender to be in the work release units?

MR GRAVES: No, there was not. There was the evidence the other way which I am going to take you to, which I have paraphrased, which I have submitted is really no evidence at all that there ever had been a child sex offender in the work release units or, indeed, Silverwater House. But the answer to your Honour’s question is no.

GLEESON CJ: I only asked the question because I have spent a little more of my life than I would have chosen listening to people tell courts of criminal appeal that prison terms for child sex offenders should be modified to take into account that they are going to spend their time on protection.

MR GRAVES: Well, what one does see here is on the score of making an assessment of Mr Bujdoso’s genuineness for rehabilitation and his conduct inside the gaol a prison authority who assisted him in a noble goal with a two and a half year minimum term to get to work release just as soon as he could - - -

KIRBY J: He was assessed as having a very high IQ and had been a teacher and so on but that is not responsive to the Chief Justice’s question. The suggestion is that in most cases a person convicted of these offences has to serve under close confinement and protection for their own safety and, therefore, the question becomes, was he an exception to this, was he being given some special treatment in Silverwater and if so should he have had some special attention particular to his case or was he just one of several child sex offenders who were sent to Silverwater. I do not know.

MR GRAVES: Your Honours, the thrust of the evidence at trial is that the person convicted of a child sex offence is no more disqualified theoretically from entry into the work release program than any other offender. The only qualification I make about that, of course, is that by definition all who got into the work release program were serious offenders because one had to have been sentenced to a minimum period of more than 12 months. But having said that, the evidence, your Honours, is of a prisoner, namely the respondent, moving through the system to the place where it was his goal to get before release, of course, the prison authority, if it is the correct word to use, assisting him in that, responding to threats against him on one occasion when he was at Oberon and moving him, responding to a threat when he is at Silverwater in the dormitories.

If I could direct this remark specifically directly to the Chief Justice, there does not appear to be anything out of the norm or out of the ordinary about the respondent’s progress through the prison system or how he was dealt with by prison authorities on the score of, for some reason peculiar to him he was not placed in protection, for example.

GLEESON CJ: What prompted my question was the statement on page 362 with which the trial judge agreed that “they”, that is the other prisoners, “could be trusted not to inflict an assault upon a fellow inmate”. The question that came into my mind was: not even upon a fellow inmate who was a child sex offender or an informer.

MR GRAVES: Your Honour, we might finish at this point if that is the appropriate thing to do. The vice of the trial judge’s reasoning is having been fully alive to the special risks of a child sex offender or a prison informer, then by his language makes it appear to the reader that he is only taking into account the ordinary type of prisoners. When he uses that language in his reasons, the risk is, having regard to the outcome, that his Honour is not alive to, not directing his mind to, a prisoner who is a child sex offender because of the language he uses.

GLEESON CJ: We will adjourn until 2.15.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

GLEESON CJ: Yes, Mr Graves.

MR GRAVES: Thank you, your Honour. I said before the luncheon adjournment that I would give your Honours the reference your Honour had in mind to the evidence that I characterised as no evidence at all of a child sex offender previously being in the work release program. The evidence that I have in mind your Honours will find at page 199 of the appeal book and if I can take your Honours to line 36, it was Mr Sternberg examining in-chief Mr Mercer, who was an assistant superintendent at Silverwater at the time in question, and this question was asked:

Can I ask you about the presence through the work release system prior to Mr Bujdoso of other sex offenders. Firstly, was Mr Bujdoso the first inmate to go to the work release system who had committed offences against children?
A. No, no. He was not and we had at the time I believe approximately a hundred-plus inmates on the work release program and the offences, all offences. If they fitted the criteria then they were put on the program and, yeah, I can’t off the top of my head name other offenders there. At the time I was what would be classed as a middle manager and really there was no need for me at the time to know what the offence was or my subordinates. We had the inmate there for 12 weeks. We had assessed the inmate’s performance and if we believed that performance was appropriate the inmate was placed on the program.

That was the evidence I had in mind for the submission that I made. May I then, in relation to the question of whether the Court of Appeal was correct to reverse the trial judge on the question of breach of the duty, take your Honours to some evidence of Mr Edwards, the psychologist. The reason I take your Honours here is to demonstrate what I would call, respectfully to him, the wrong-headedness of the approach of the prison authorities at Silverwater in this mind fix that prisoners in the work release program would not commit criminal offences against other inmates, including higher risk category inmates like Mr Bujdoso or the prison informer, M, because they had so much to lose. The point I want to make is that what is forgotten or not taken into account by the authorities, including Mr Edwards, is that in fact there was no practical or realistic chance, as your Honours have heard the evidence and read the reasons, of these men being caught at it, that is assaulting a prisoner in the work units, otherwise of course outside on the street.

The passage I had in mind, your Honours, was at page 147. Perhaps I should take your Honours for completeness to page 146, line 50. This question was asked of Mr Edwards:

Q. Did you consider that in view of the taunts that it was nevertheless beneficial for him to remain on work release?
A. Yes. At that time I did.

Q. Did you consider that Mr Bujdoso would be secure in the units?
A. At that time I thought that he would be more secure in the units than he had been in other forms of accommodation at Silverwater, the dormitories or wings.

This is the question and answer which I want to pay particular attention to:

Q. Could you explain why you thought that way?
A. It’s a calculation I suppose. To be in the units would have meant that the person had actually made it to work release and had a job on the outside world. He then would have been working with other inmates who had similarly achieved that prize or goal, carrot, and that at that stage all of the forces that contained, aggression and violence to each other and threats, would have been at their maximum. There was most to lose from that point and the loss would have been instantaneous as soon as one was detected –

I could read on but I do not need to. The fallacy, in our submission, is in the idea that there was any realistic prospect at all in the units in the dead of night with a prison officer certain to be away for two hours or so of detection and therefore loss of this privilege.

KIRBY J: Yes, but the danger for you of this evidence is what I took the special leave panel to be concerned about. He is there referring to a calculation. This is often what the Shirt analysis is described as, namely, the Shirt calculus, and he is saying, well, all right, there is some risk but when I take into account their maximum motivation, the fact that they have got through the classification, the fact that we have not had previous assaults on child sex offenders in this low-security environment, when you put all that together there may be a risk but it is not really a very big risk. I take that to be what Judge Cooper ultimately concluded.

MR GRAVES: But, your Honour, there is a flaw – two flaws in that, with respect. Firstly, when looking to the general and not the particular, as Mr Edwards does in that passage, there is lost to the listener and to the reader the point that the Chief Justice made to me before lunch as to whether Mr Edwards is there focusing his mind on the interrelationship between fellow inmate, say, armed robber, and fellow inmate, say, some violent offence or, on the other hand, one or other of those categories and a child sex offender.

The second matter is in the words at about line 20:

There was most to lose from that point and the loss would have been instantaneous as soon as one was detected -

Our position, and our submission is, on the evidence and on the findings, there was no realistic chance or prospect of detection. Of course, not only did it come to pass in the case of the prisoner Bujdoso, but it had come to pass, that is the attack, in the case of the prisoner M. The next matter that I want to deal with is the question of causation and whether - - -

HAYNE J: Just before you are past questions of causation, the submissions you have most recently made, are they submissions directed to a proposition that the prison authorities must eliminate risk, minimise risk or take what steps in connection with the risk of violent assault by prisoners?

MR GRAVES: Your Honour, in connection with the presence in a minimum security area, such as the work release units at Silverwater Gaol as at 1991, my submissions are directed to identifying and hopefully establishing the breach by the appellant of the common ground duty of care. It was no more or less than a duty to take reasonable care. The respondent does not elevate it to anything higher than that, that taking reasonable care, Justice Hayne, when one reads what Mr Edwards had to say at 147 to which I have taken you, this question of detection is a flawed premise and, as well as that I repeat, in that incantation of words there is no express direction to the proposition of prisoner and child sex offender.

HAYNE J: The trial judge finds at paragraph 127 “no doubt . . . all inmates are at risk”, child sex offenders are at greater risk than other prisoners, is that right?

MR GRAVES: Yes.

HAYNE J: His Honour finds at 130, 131 that the prison authorities did not act in breach of the standard of care by putting this man in the work release program, is that right?

MR GRAVES: Yes, I agree with that.

HAYNE J: And that is not now challenged?

MR GRAVES: And was not in the Court of Appeal.

HAYNE J: Given that the trial judge found, again at 127, that the work release program into which this man was put was a program “unguarded by physical means” – see line 39 in paragraph 127 – in which “reliance was placed upon . . . ‘social’ protection” – see line 40. Why is it open to the Court of Appeal to conclude, as it seems to have, that although it was not negligent to put him into this program, organised as this program was, the program should have been differently supervised and differently secured?

MR GRAVES: The answer to that, your Honour, is that the so-called social protection was no protection at all for the reasons I have attempted to illustrate to your Honours both before and after the luncheon adjournment. So it would appear the Court of Appeal thought that too. If one accepts the premise that the prisoners in the work release program, even for the opportunity to attack a child sex offender, would stop, would pause and not take that step for fear of detection giving rise to ejection from the scheme and perhaps being charged with some other offence if the action was taken, it is this social protection nonsense that we the respondent attack. There was no real protection.

GUMMOW J: But your argument at the first instance at trial seems to have been what is encapsulated at 128 on page 364:

According to the submissions on behalf of the plaintiff the consequence is that no “rock spider” should be accommodated in the works release units.

Then the judge says at paragraph 130:

I am satisfied . . . it is proper . . . to admit –

So the arguments seem to have turned around this question of classification.

MR GRAVES: Your Honour, yes and no. There were three arguments reflected in three findings that we have looked at in the trial judge’s reasons. The trial judge had to deal with, because it was alive at trial, this question of placing the respondent in the program in the first place.

GUMMOW J: That you now do not rely on?

MR GRAVES: And did not in the Court of Appeal.

GUMMOW J: What else did you have at the trial? That is what I am trying to get at.

MR GRAVES: We had at trial those things that his Honour deals with earlier in his judgment: supervision, absence of proper supervision in the circumstances, and the question of the inadequacy of the lock, the matters that his Honour the trial judge deals with at paragraph 118 of his judgment at page 362 and then at paragraph 126 of his judgment at page 364. The three elements, Justice Gummow, were that the respondent should not have been admitted into the program. Alternatively, if it was not in breach of the duty of care to admit him to the program, the authorities failed to discharge their duty of care to him by properly supervising in context the prisoners in the program and failed to protect him by moving him into a room closer to the guard and failed to place a proper lock in the circumstances on his door, one that afforded more than just privacy.

In the Court of Appeal, and it explains and informs the Court of Appeal reasons, and here, we have taken the position from the step of classification. He is in the classification. We do not criticise that. We did not criticise that in the Court of Appeal. It is how he was looked after, commensurate with the duty, from that point on. Our point simply is he was not conformably with the duty looked after.

The justification the authorities gave was a justification which on the trial judge’s reasons was prisoner and prisoner, not prisoner, prisoner and child sex offender prisoner. Secondly, this business of social protection was no protection whatsoever because there was no real risk of detection, loss of privileges, further time in prison. They could conduct themselves with impunity.

GUMMOW J: The judge at paragraph 106 seems to accept that the case was being put three ways, as you say.

MR GRAVES: Yes.

HAYNE J: The point I seek to have you answer and deal with is, yes, there are three particulars of negligence but are they discrete. I understand you to say they are discrete and that you can give up the claim in the Court of Appeal that should not have put him on the program and the point to which I direct attention is, given what is said at 127 of the trial judge’s reasons, in particular the reference to “virtually unguarded by physical means”, et cetera, those two points I put to you, can you pull them apart as you have? That is the point I seek your submission about.

MR GRAVES: The additional submission I would make, and I thank your Honour for the opportunity to do so, is that from 127 through to 130 all that the trial judge is dealing with there is one of the discrete issues.

GUMMOW J: The trouble is the headings really and the heading at the top of 106 is not very apt and the heading at 119 is okay and then the heading above 127 is likely to distract as well.

MR GRAVES: Like the statute, your Honour, we do not look at the notes and the headings. When one looks at the substance, if I may say so, respectfully, Justice Gummow, as I was, I hope, dealing adequately with Justice Hayne’s questions this morning in relation to 130, there can be no doubt, in our respectful submission, that 130, like 127, 128 and 129, is dealing with this discrete question of admission into the program.

HAYNE J: Let me put the point to you in another way that may or may not help. We are dealing with a public authority. We are dealing with public authorities expending money, making policy choices, all of those issues that the Court from time to time has looked at and the Court of Appeal’s answer is they should have had a better lock, they should have had more men on duty - - -

MR GRAVES: Not necessarily, but you go on, I am sorry, your Honour.

HAYNE J: - - - but if one steps back from the problem, the prison system of New South Wales at this time had these arrangements. They might have been good, bad or indifferent, but these were the arrangements for work release. If once you have taken the step of saying there is no negligence in putting a man into this program, given the arrangements that exist, are the courts then to say, “It wasn’t careless of you to put him into the program but you should have spent more money on the program by re-equipping the cells or by having more staff”?

MR GRAVES: May I answer that question in a couple of ways, firstly dealing with the latter point? A balancing exercise that included the finding and/or the expenditure of scarce financial resources by the Department of Corrective Services was never part and parcel of the appellant’s case at trial. What was simply bowled up to the trial judge were these discrete particulars of negligence, which his Honour was invited to make findings based upon the evidence of the conduct, the act or the omissions and no question arose about the inability or impracticability of the State to bring back say the prison officer who had been released to other duties, who had at one time worked in conjunction with a second officer in the work release area, namely Silverwater House and the units. That just was not a feature of this case, your Honours.

There is, with great respect, when one looks at the classification, the risk of characterising, as I said in a slightly different context this morning, the respondent as the problem. I ask rhetorically, why should the respondent not - if he meets the criteria of the relevant classification, if he has as he did on the evidence moved through the corrective system in New South Wales efficiently, honestly, working tirelessly to his goal, namely to get into the C3 works release program, how can it be that the State by its department can deprive this man of the opportunity to be in that department by setting aside the common ground duty of care and saying “No, no. Within the - and only within the parameters of that duty of care - you are just too hard to manage, not because you are personally too difficult to manage, but because you create too many difficulties for us”.

KIRBY J: Well, you ask a question. I think in this circumstance I will give you the answer that I understand is given and that is, you are suing for negligence and it is not an absolute liability. I would accept, and you urge, that it is a very high duty because he cannot protect himself and he is therefore dependent and as you have said he is vulnerable, which is a salient feature that is relevant, but it is a duty of care by the standard of negligence.

What is said is that when a calculus was done of the Shirt kind before the injury to your client, the appellant was entitled to say, “When we take into account the absence of risk because of the fact that there had not been earlier attacks on so-called “rock spiders”, the fact that he was in a low-security program and the other prisoners had been classified for that purpose, and the merit and value of the work release program, which he wanted and which Judge Cooper was keen to protect for people like him - when you take all of those into consideration the failure to provide him with these additional protections which you urge was not unreasonable. It was not careless. It was not negligent by the standard of reasonable care. That is the answer that is given. You have to grapple with that.

MR GRAVES: The difficulty or flaw, if I may say so, with that approach is to concentrate too much or exclusively at the point that we give away, namely at his entry into this program.

KIRBY J: No, we have got him in the program. It is at the point that he is in the program but has not yet been injured and I still have to be satisfied that the appellant got the complaints that he was making and the concerns. It did go to the psychologist, but I really do need to be satisfied that that passed on to the appellant.

MR GRAVES: I will give you the evidentiary reference again to Mr Edwards again, who said he - - -

KIRBY J: Leave that for one side and assume that is established, what do you say is the carelessness of the State authorities in advance of his injury in failing to take these precautions given that there had never been a previous attack?

MR GRAVES: The carelessness, if one relies on the trial judge to encapsulate the approach taken by the authorities, is the carelessness, your Honours, at 362 in Judge Cooper’s reasons, paragraph 118 to on the one hand say that:

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 the various tests and observations to the extent that they were trusted to go out into the community on work release and/or day leave.

Fine, to that point. Then one assumes, because it has not been disavowed, consistent with the authority’s evidence, accordingly they could be trusted not to inflict an assault upon a fellow inmate. It does not follow, in our respectful submission, for the reasons I have given before lunch, that they keep their noses clean, as it were, out of gaol, that they will behave in such a way inside the prison in this minimum security area.

The second thing is, as the Chief Justice put to me before lunch, that paragraph encapsulates a question of assault on a fellow inmate. It is not at all clear that either his Honour or the authorities saw the real distinction which we trust your Honours see, and Judge Cooper at the end of his judgment saw, between on the one hand, a prisoner in the work release section for car theft and Mr Bujdoso.

Then we come to the question of this rationale, your Honours, of what would protect so far as the authorities are concerned a prisoner like Mr Bujdoso in the work release section once there, and we are told it is the social protection, the social protection of losing so much. Our point that we trust we have made, and we have certainly attempted to make it more than once, is that whatever that means there was no protection in reality because there was no risk of detection in reality for this type of offence. That is not to say that closer supervision in the work release area did not bring about a change in behaviour and bring it about specifically because of the fear of detection.

I want to give your Honours a reference to a passage in the trial judge’s judgment where he deals with incidence, and the Court of Appeal deal with it too, of prisoners from the work release section who can be trusted once back in the gaol and overnight leaving the precincts of the gaol, going off the gaol property, escaping short-term their custody and partaking of drinks and social discourse and whatever at the closely located Silverwater Motorboat Club, this is from the work units.

Now, when the prison authorities came to find out about this conduct is when, in the context of one prison officer being in the units and Silverwater House, the dropping of one prisoner, there began the so-called random but, in fact, two-hourly checks of the units by walking down the dormitories and making the head checks, that the prisoners were in fact in their rooms. The Assistant Superintendent Mercer of the time, Governor Mercer at the time of the trial – and this is reflected in the trial judge’s reasons – gave evidence that once that closer protection – how close is it – but once the certainty that there will be a prison officer by the room and looking in that small square every two hours or so, was sufficient over night to stop this misconduct.

KIRBY J: You had better give us a reference to all that transcript.

MR GRAVES: Yes, your Honour. One asks oneself, “Why?” The answer, with respect, is obvious: because there was in connection with that conduct and being away obviously for longer than two hours the real risk of suffering a penalty, namely, ejection from the work release program. So the authorities were aware that they could mould the same resources and achieve a valuable result in connection with prisoner misbehaviour. The reference in the trial judge’s reasons – if I could take your Honours, to put it in context, to page 351, paragraph 75 of his Honour’s reasons. It is at about line 41 of the appeal book. His Honour is speaking of Mr Mercer’s evidence:

He described the main role of the officer on duty on the B watch as “accountability”.

That is the relevant watch here, your Honour.

This involved checks being done every couple of hours randomly to ensure that there was a person in each room. When asked about custodial duties he explained that the majority of those people in that area were actually out in the community for most of the day and some for most of the night. Consequently it was believed that there were no custodial issues with those inmates. If one did arise with a particular inmate he would have been removed from the works release area.

And over the page to 352:

He explained that at about that time it was found that some inmates were going over the fence to the Silverwater Speedboat Club. The institution of random head checks –

meaning the two-hourly checks –

stopped this over night.

KIRBY J: Yes, but Judge Cooper did not seem to be impressed that that would have stopped a small group of very determined assailants from moving in after one of the intervals of checking had passed and two hours until the next one.

MR GRAVES: Or do we. But I wanted your Honours to see that in response to a pattern of misbehaviour amongst these trusted prisoners once back in the gaol the authorities took an action that related to supervision, was effective for its purposes, so they thought, and in fact it was and it was over night, and it was over night because there was a risk of detection. The question of what should have happened, your Honours, in relation to the respondent is another question. But in relation to that, can I put these matters as they were put at trial.

Your Honour Justice Kirby this morning recounted the evidence of the request of the respondent to be located at a place closer to the guard’s position in the fifth unit. Before even contemplating the return to the situation in 1990 of one guard always placed at that station and able to walk around in the units and the second guard being in Silverwater House, which was the position prior to – some time in 1990 that changed. Before we get to the question of bringing the guard back, on the evidence there was no reason, your Honours, why the guard on the arrangements that were extant on 21 September 1991 could not have made a truly random head check in the units of the prisoners at intervals of less than two hours.

Once one introduces the true notion of randomness into a prison officer walking down the corridor, so the prospect, we submit, just like the Silverwater Motorboat Club escapades, of prisoners donning balaclavas, obtaining iron bars, bashing down a door, however difficult or otherwise that was, and beating a prisoner in his room with all the attendant sound that that must have been in adjoining rooms reduces, in our submission, considerably to the point where, if there were truly random head checks made by the lone prison officer charged with the responsibility of Silverwater House and the units, then it is likely, in our submission, that this huge risk would in fact be a risk. The social protection would be no more. It would be a real risk of detection and these prisoners would not have come out of their room and harmed the respondent as they did.

Secondly, there was no evidence at trial that the other guard when two patrolled the works release area – that is Silverwater House and the units – could not have been reinstated so as to further increase the random checks, one officer in the units. Once there is a real risk of detection, the danger ebbs away.

KIRBY J: Do you rely on the presence of the beanies and the presence of the bar? Is that a feature of the case? I have seen it mentioned in the written submissions but I do not know whether it is part of your case and, if so, how.

MR GRAVES: The attack should not have occurred, Justice Kirby. Where those implements came from the evidence does not - - -

KIRBY J: The beanies were apparently freely distributed.

MR GRAVES: Cut-down beanies. It does not add to the colour of what we say is the nature of the breach and what causally could have been done to remedy - - -

KIRBY J: There was one other aspect and that was the suggested failure to alert the person on guard duty to the particular vulnerability of the respondent.

MR GRAVES: Yes, there is that. I want to come to that. The Prison Officer Lehn gave evidence, and the trial judge refers to this, of being given no intelligence of any particular threat to the respondent. That is the evidence. Prison Officer Lehn was not bereft of intelligence about these matters. Prison Officer Lehn was the prison officer who – when Mr Bujdoso was transferred for his safety from the dormitories at Silverwater into Unicom House as a temporary measure it was Prison Officer Lehn who reported to his peers not only that the respondent was, to quote him “rock spider” but that prisoners in Unicom House were going to give him a flogging.

KIRBY J: Was that after the subject attack?

MR GRAVES: No, that is before the respondent goes into the units. The respondent went into the units, Justice Kirby, from Unicom House. He was in Unicom House because of threats being made to him in the dormitory section of Silverwater gaol while he still was a C2 prisoner. As a temporary measure he was placed in Unicom House – that is the drug and alcohol unit that my learned friend referred to this morning – and there are problems there.

Ultimately, he is not attacked there, as a matter of fact, but Prison Officer Lehn knew from that point, if not earlier, and yet there was no query whether he could change his arrangements but there was no change to this situation where prisoners would not hear his footsteps walk down that corridor where room 63 was, the respondent’s room, inside every two hours.

Finally, can I deal with the lock. Mr McCaskill, the expert who was called, said in his report at 235, where we have already travelled, between lines 30 and 35 when referring firstly to the lock that was on the door, by reference to photographs:

I recognise it as an early generational Lockwood 201 Nighlatch. This model was first developed about fifty years ago. Even in 1991 it would have been very much out of date and a far more superior model would have been freely available and would have been far more generally in use.

The question arises against the background of the known threats and vilification of the respondent about the alternative of making a modification to a room closer to the guardhouse of the lock by installing something less than the garden shed lock that we all know well or have seen.

Neither the door frame nor the lock, based only on the photographs and the 13-year-old memory of a prison officer, were not damaged or extensively damaged. Access to the respondent was made relatively easily. Greater effect or greater force, it would appear, with those bars was done to the plaintiff’s body than had to be done to the door to get in and attack him behind that door, all on the evidence that the assailants had were their hands and these bars. Based upon Mr McCaskill’s evidence to which I have taken you, against the known risk which this model prisoner was facing, the notion that it was unreasonable, in the context of the duty of care it owed him, not to modify the lock on his door is arrant nonsense.

The cost must have been miniscule for the Department of Corrective Services and it would have provided absolute protection to the respondent or yet again another pause for thought by those who thought to do him wrong for if it took longer to get into his room and the check by the guard was being made more randomly and more shortly in terms of space of time or interval then, in our submission, the likelihood of this attack reduces to the point where causally, as the Court of Appeal in our submission held, would have eliminated it as a prospect.

The duty of care would have been discharged. It would have been discharged in ways that are utterly consistent with the notion of the duty owed to a prisoner of a special category, if I can use that expression, by placing him at greater safety in terms of his accommodation and within the context and spirit of the work release program, minimum release, just upping the ante in terms of the walk-through head checks in those premises.

I wanted to finally take Justice Kirby and your Honours back to that evidence I read this morning of Mr Edwards of passing on the information - - -

HEYDON J: Page 157.

MR GRAVES: If I may start at page 156, line 55:

Q. Just finally sir, I read you that paragraph of your report -

that is the report of the 26 September –

where you said that Mr Bujdoso had “often reported incidents in which he had been threatened, vilified or humiliated.”

I pause there. Your Honours remember the attack took place on the 21^st.
He had not been in the gaol after the 21^st or the morning of the 22^nd.

Did you relate those reports to the general prison staff so they could consider them in terms of handling him and the security risks to him?
A. Those issues came up in ongoing discussions about whether or not Peter Bujdoso could be maintained safely at Silverwater. I didn’t have direct information from other inmates that he had been threatened. The main source of my information was from Peter Bujdoso and, yes, that was related to other staff in case discussions, direct discussions of how well he could be managed.

The Chief Justice, in relation to the causation question and how the Court of Appeal dealt with it, this morning raised the matter of the nature of the orders that were made by the Court of Appeal. The respondent concedes that in implicit terms there are no sentences there where Justice Ipp for himself and for the other two members of the court pleads out, as it were, expresses in terms satisfaction with respect to causation. The satisfaction, in our submission, is there in the context of the entire judgment, including the identification of the main issue and the fact, as the Chief Justice observed this morning, that Justice Ipp proposed and the presiding judge, Justice Sheller, and Justice McColl, the third judge, combined with Justice Ipp to set aside the trial judge’s determination, make a finding of breach of duty of care in negligence and left only a remitter, as his Honour called it, to the District Court for a trial of the assessment of damages. In our respectful submission, the appeal should be dismissed with costs.

CALLINAN J: Mr Graves, there is a matter I wanted to ask you about. Can I take you to page 359, paragraph 106. The trial judge there begins to concern himself with the question whether the placing of the plaintiff in the units was a breach of duty of care as if that were an entirely discrete matter. Now, I just do not understand why that is so, because at page 9 in the opening of the case Mr de Meyrick, talking about aspects of negligence at line 40, says:

One [aspect] is simply not dealing with him appropriately or providing appropriate protection or, indeed, placing him in the correct unit, division or prison for the amount of threat that was posed to him.

Now, I read that not as a discrete allegation of negligence of putting him in this particular unit in Silverwater, but putting him in there without proper supervision.

MR GRAVES: Yes.

CALLINAN J: Indeed, that would be consistent with the pleadings, which certainly does not make an allegation of that kind. Then the trial judge seems to have treated that as if it were a separate allegation of negligence and then in paragraph 112 on page 361 he holds that In the light of this body of evidence plus the evidence of the plaintiff’s own desires it was no breach of duty to transfer him to that unit.

Now, I just wonder whether that is a false issue, because it seems to me from what I have read so far that whether he was there or anywhere else does not alter the fact that a duty of care is owed; it may be a question of how it is discharged. It really looks to me like something of a false issue. If it were a discrete issue, his own wishes would be relevant, but if it is an issue that is tied up for a need for supervision in such a unit, as it seems to me it is, then his own wishes are of very, very little relevance. Indeed, I would have thought no relevance at all. The duty is still owed. There may be a question about the way in which you discharge it.

MR GRAVES: Could I – I am sorry, had your Honour finished?

CALLINAN J: Yes.

MR GRAVES: Firstly, may I observe, as I think your Honour did, the starting point and the correct starting point, the statement of claim, does not particularise in terms a discrete particular of negligence that it was negligent in classifying this man C3 and putting him in the units. I am grateful to your Honour for drawing that to my attention. There was not – and counsel who conducted the matter at trial will correct me if I am wrong, he is sitting beside me – any amendment to the statement of claim.

CALLINAN J: No, and he outlines his case, as I say, at page 9 and he certainly mentions your client’s admission to that area, but he seems to me to be dealing with that in the context of saying even there he needs appropriate supervision.

MR GRAVES: Yes.

GUMMOW J: One has to look at his Honour’s interposition at the top of page 10 too. That indicates a train of thought that had been loosed in his Honour’s mind anyway which then later loomed large in the concluding paragraphs of the judgment.

CALLINAN J: On what I have read so far – and I may have missed things – it certainly seems to me that that was not a discrete particular of negligence and to treat it as so being may have been an error.

MR GRAVES: Yes, I thank you for drawing that to our attention, your Honour. It, of course, is the way that the trial judge after that – perhaps another misleading subheading, as Justice Gummow pointed out in relation to others, at paragraph 106 on page 359 sees his Honour making the deception which then is consistent with his Honour’s reasons. But as conducted in the Court of Appeal and here, the case that we have conducted is a case consonant with the statement of claim.

CALLINAN J: Well, it does not seem to me, on what I have read, to have been conducted any differently at the trial.

MR GRAVES: One would need to travel through every page of the transcript, and I have not, and his Honour is a very experienced trial judge, but the point simply is that from the point of view of the respondent it does not matter, although we are grateful to your Honour pointing that out.

CALLINAN J: Well, it might matter. I thought it might matter, because it might be an indication of some error on the part of the trial judge.

MR GRAVES: There may be some error of misunderstanding of the nature of the plaintiff’s case in relation to - - -

CALLINAN J: Well, it is more than that. If you deal with a false issue it can put a judge on the wrong track.

MR GRAVES: We certainly would accept the proposition that in terms of the discharge of the common ground duty of care that was owed to the respondent, his own wishes would play little or no weight in the prison authority having all the control and the respondent having all the vulnerability, as it were.

CALLINAN J: That is part of the point I am trying to make because there are other passages in the trial judge’s reasons in which the trial judge seems to be emphasising the respondent’s desire to get into Silverwater and to get onto the program as if those are matters of particular relevance. I mean,
they only become of particular relevance if there is a discrete particular of negligence which has to be dealt with in that regard.

MR GRAVES: And, if I may say so, your Honours, if there was some suggestion at trial, in the Court of Appeal or here, and I have not heard or read any, that in some way there is some penalty or nullification or dissolving of the duty - - -

CALLINAN J: It starts to look like a volenti case, if you approach it that way.

MR GRAVES: That is certainly not pleaded. In circumstances where the plaintiff had laid out his reasons for wanting to get where he ultimately got to and taking risk, he could. It was for the appellant to protect him, to take reasonable care to protect him from those risks, even against his own wishes. They are the respondent’s submissions, if the Court pleases.

GLEESON CJ: Thank you, Mr Graves. Yes, Mr Solicitor.

MR SEXTON: If the Court pleases. Your Honours, once the proposition be accepted, as my learned friend now does, and the Court of Appeal seemed to do, that the prison authorities were not negligent in placing Mr Bujdoso on the work release program, the arguments that my learned friend makes and the matters that the Court of Appeal relied on would be equally applicable to any other prisoner in the program who had been assaulted and given the relatively unsupervised environment which was inherent in that program that would really mean that there would be a problem for the prison authorities in having such a program at all.

That, we would say, is the problem that lies at the heart of my learned friend’s case. To that extent we would say that it was a matter that although seemingly assumed by the Court of Appeal that the consequences of that assumption were not dealt with when they considered the question of breach of duty and of causation, that the Shirt calculus was not properly engaged in. I took your Honours to that earlier. The same goes for the question of causation. That, we say, is the real problem that my learned friend has. That is a general point, your Honours.

Can I make one specific point – which is why we say, I should perhaps add, that it is not as the Court of Appeal seemed to think therefore a case about marginally more secure locks or marginally greater supervision of that environment, that that is not addressing the question of what reasonably practical measures could have been taken by the prison authorities in the context of the work release program to address the risk that everyone accepts was present although it was not, on the evidence, a risk that was significant.

CALLINAN J: Mr Sexton, how can you say that the purpose of the lock was to afford privacy only when there is a window in the door which enables not only checking to be done but also anybody to look through the window, the glass. The lock must have had a purpose other than the securing of privacy.

MR SEXTON: Only for this, your Honour, that when one talks about privacy perhaps in that situation simply that the door was not, in a sense, continually open so that anyone could come inside without knocking or without any kind of notice. That seems to have been its purpose. We accept that it was not a lock that would keep out a determined intruder.

CALLINAN J: It must have been intended to some extent at least to provide some security against entry.

MR SEXTON: One aspect of that is interesting, as I said earlier today, your Honour, that it is a strong inference, we would say from the evidence, that it was not locked from the inside on this occasion which certainly would have provided some additional security and if it was not locked then one possibility is that it was opened by a piece of plastic or metal from outside but that could be done, of course, without the same sort of noise and perhaps time that would be involved in actually, in effect, breaking through the door and the lock so that it could have provided some additional security but it did not in this case. But, even so, it is obvious that that kind of lock can be broken through.

Your Honours, there are only two housekeeping matters that I will mention in addition. One is that your Honours have terms of the regulation, a consolidated copy as at 1995. We will supply the 1989 regulation and two amendments which are to clause 8 but do not relevantly affect this case, but we will supply those for completeness in the next day or so.

KIRBY J: Do you raise any objection to the point made for the respondent that we cannot take at face value that provision in the definition of category C3, that the prisoners in that category “need not be supervised” because it is clear that they were supervised to some extent.

MR SEXTON: It is a question of the facts in this case, your Honour. There is no real dispute about those. Finally, your Honour the Chief Justice raised the question of standards. There is a document which is the product of the various departments around the country called “Standard Guidelines for Corrections in Australia”. I think your Honour would probably say that they are outcomes and not standards, or desirable outcomes.

GUMMOW J: We have heard enough about outcomes in another setting.

GLEESON CJ: They are not in evidence?

MR SEXTON: They are not in evidence, your Honour.

GLEESON CJ: No, I was only interested in whether there was any evidence about - - -

MR SEXTON: No, there is no evidence on the question.

KIRBY J: We do have Mr Ryan.

GLEESON CJ: - - - best custodial practice.

MR SEXTON: I was going to say they do not go to the sorts of things that your Honour the Chief Justice was raising; your Honour can be confident of that.

KIRBY J: We have Mr Michael Ryan who had some experience in prisons and who was very critical of your management of this prisoner.

CALLINAN J: But he got a lot of the facts wrong, did he not? That is why the trial judge rejected him.

MR SEXTON: I have just put the proposition that if one accepts the program – and I should just quote one on that subject. If your Honours look at page 275 of the appeal book, you will see there the conclusion of the psychologist’s report on 12 July 1991 where he recommends work release for Mr Bujdoso and says:

He is in need of opportunities to establish acceptable grounds for his self-respect and for respect from others. These are highly unlikely to be found within prison confines.

I mean, these are difficult questions and the prison authorities did not make this judgment lightly in terms of this program. They thought the benefits – they were thinking of the prisoner in this case rather than their own interests.

KIRBY J: I think there is a lot of wisdom in Judge Cooper’s dismissal of the complaint of the respondent at trial, that the mistake was to put him in this system anyway because that would not be a good conclusion to make about liberty for people, including people like the respondent. But that does not release you, nor do the categories, from the ongoing duty of reasonable care.

MR SEXTON: It does not, your Honour, but once you accept the system with its relative lack of supervision which is inherent in the system then it follows not only that Mr Bujdoso but that perhaps nobody could be placed on this kind of system if prison authorities were liable for this kind of assault.

GLEESON CJ: Judge Cooper, rightly or wrongly, seems to have said, “The work release system is as it is. Tinkering with some aspects of the system is not going to materially alter the physical safety of people who are within the system so I will treat as the critical issue whether or not he should have been put in that system in the first place”. That seems to have been an approach that he took.

MR SEXTON: We think that is right, your Honour.

KIRBY J: That was inevitable given the fact that the plaintiff was running at trial the complaint that he was put in the system in the first place. The judge had to respond to that and pretty convincingly I think he knocked that on the head and that would have been a very bad conclusion to take that every sex offender, whatever the nature of their offence and so on, was disqualified, eo nomine, from being put in that system but that still then left the other grounds of complaint and they had to be dealt with and the Court of Appeal thought differently to the trial judge. You have to show error.

MR SEXTON: I have been through that, your Honour, but it is important to note that we say that the Court of Appeal – the matter is identified by the Court of Appeal and as your Honour has just said, would not - and the Chief Justice has suggested - would not really address the problem that is inherent in the system that there is an element of risk because of the lack of supervision.

KIRBY J: There is an element of risk but there ought not to be an unreasonable element of risk.

MR SEXTON: That is so.

KIRBY J: That is the question.

MR SEXTON: On the evidence here we say that it was not unreasonable. If the Court pleases, those are - - -

CALLINAN J: Mr Solicitor, I am sorry, there is one matter. In paragraph 106 at page 359 the trial judge says:

As mentioned earlier, the plaintiff’s case is –

Can you tell me where the earlier of what the plaintiff’s case is appears, where it appears?

MR SEXTON: I am told that it is not mentioned earlier.

CALLINAN J: No.

MR SEXTON: I should say, my learned friend has drawn my attention to the fact that the plaintiff says that he locked the door. It is at AB 65 at line 10, but, in our submission, one would not draw that inference given the lack of damage to the lock because there would have been damage required if, in fact, it had been locked from the inside. Mr Sternberg has drawn my attention to an answer to Justice Callinan to paragraph 4 on page 337 where there is an earlier reference to that question.

CALLINAN J: It is not alleged in the statement of claim in that way. I think this could be quite important myself. The particulars of negligence are at page 1.

MR SEXTON: I know it is not in the statement of claim but apparently it is the way the trial was conducted.

CALLINAN J: You say that, but the opening does not suggest that to me. It is touched upon but then it is heavily qualified by the circumstances of the supervision there. The expert report does not seem to – even whether you reject it or not, it might give you some indication of what the issues were thought to be. It does not dwell upon this as a separate head of negligence. I think it may be relevant for the reasons I put to Mr Graves. I think to treat it as a discrete particular of negligence is really to set up a false issue and to cause - - -

GUMMOW J: I think his Honour may have set it up at the top of page 10.

CALLINAN J: Yes, and really, to cause undue weight to be placed upon the plaintiff’s own desires to be rehabilitated and to go into that unit for that purpose.

MR SEXTON: I think the way in which that was used or referred to, your Honour, was to emphasise, in a sense, the importance of the program to rehabilitation and therefore to the plaintiff - - -

CALLINAN J: I have no doubt - - -

MR SEXTON: But we quite accept that the plaintiff’s own wishes cannot determine the issue.

CALLINAN J: You accept it. I am not too sure that it did not play, perhaps, too large a part in the trial judge’s reasons, that is all I am suggesting.

MR SEXTON: We would say that his Honour was pointing to that in that the plaintiff was extremely anxious to go on the program because he thought that it would be beneficial to him. That is all.

CALLINAN J: I assume there is a provision in whatever the Sentencing Act (NSW) that places some emphasis upon rehabilitation. Is that so? It probably is, is it not?

MR SEXTON: Yes, your Honour.

GLEESON CJ: They talk about preparing people for release into the community.

KIRBY J: I am lost now because I took Mr Graves to concede that the trial was conducted by reference to the wrong classification and that it was not run in the Court of Appeal. That was repeated several times, nor was it relied on in this Court. Now, I am not so sure that it was run by the plaintiff at the trial but that the judge seemed to have thought that was a complaint and if it was, very correctly, the judge was going to knock it on the head because it is in the public interest and is part of a law if they are fit for the early release, work release, they are not disqualified by reason of that particular class of offence.

MR SEXTON: As your Honour knows, we say that once one accepts that then it really becomes a question of the measures that can reasonably be taken. Those are our submissions, your Honours.

GLEESON CJ: Thank you, Mr Solicitor. We will reserve our decision in this matter and we will adjourn until 10 o’clock tomorrow morning.

AT 3.28 PM THE MATTER WAS ADJOURNED