Allen v The State of Western Australia - [1999] WADC 52

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CIVIL

LOCATION: PERTH

CITATION: ALLEN -v- THE STATE OF WESTERN AUSTRALIA [1999] WADC 52

CORAM: KENNEDY DCJ

HEARD: 24, 25, 27, 28 AND 31 MAY 1999

DELIVERED : 3 SEPTEMBER 1999

FILE NO/S: CIV 11 of 1998

BETWEEN: PAUL ALBERT ALLEN
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Negligence - Employer/Employee - Prison Officer with pre-existing post traumatic stress disorder claim conditions exacerbated by employer's failure to provide appropriate or providing inappropriate alternative work.

Legislation:

Nil

Result:

Plaintiff's claim dismissed.

Representation:

Counsel:

Plaintiff: Mr D Clyne
Defendant: Ms C Thatcher

Solicitors:

Plaintiff: Kott Gunning
Defendant: Crown Solicitor's Office

Case(s) referred to in judgment(s):

Bankstown Foundry Pty Ltd v Braistina (1986) A Tort Rep 800‑012

Case(s) also cited:

Croate v GIO (1995) 36 NSWLR 1
Crombie v Uniting Church in Australia (1997) 17 WAR 291
Gillespie v Commonwealth of Australia (1991) 104 ACTR 1
Jaensch v Coffey (1984) 155 CLR 549
Jarvis v Australasian Correctional Management Pty Ltd, unreported; Qld DCt; 5 July 1996
Malee v Hutton (1990) 169 CLR 638
March v Stramare (1991) 171 CLR 506
Miller v The Royal Derwent Hospital Board of Management & Anor; Miller v Her Majesty's Attorney-General for the State of Tasmania; (1992) A Tort Rep 81-175
Mt Isa Mines v Pusey (1970) 125 CLR 383
Neill v New South Wales Fresh Food & Ice Co Pty Ltd (1962) 108 CLR 262
Pham v Lawson (1997) 68 SASR 124
Queensland Corrective Services Commission v Gallagher, unreported; Qld SCt (Ct of App); 18 December 1998
The Council of the Shire of Wyong v Shirt & Ors (1979-80) 146 CLR 40
Woodrow v The Commonwealth (1993) A Tort Rep 81-260
Zammit v Queensland Corrective Services Commission, unreported; Qld SCt; 11 September 1998.

INDEX

Witnesses Page No
Plaintiff............................................................................. 4
Mrs Janette Margaret Allen.............................................. 13
Mr Turlough Connolly..................................................... 14
Mr Frederick James Dunstan............................................ 16
Mr Robert Shuard............................................................ 17
Mr Robert William Stacey................................................ 19
Mr David Arnold............................................................. 23
Mr Peter Moore............................................................... 28
Mr Kevin Payne............................................................... 34
Mr Trevor Scorer............................................................. 36
Ms Deborah Ann van Hammersveld................................. 39
Medical Evidence
Dr Gary Spurge............................................................... 40
Mr Graham Taylor........................................................... 41
Dr Oleh Kay.................................................................... 43
Dr Robert Finlay-Jones.................................................... 45
Dr Ross S Goodheart....................................................... 45
Conclusions
Liability........................................................................... 46
Damages......................................................................... 55

KENNEDY DCJ: The plaintiff alleges that he was injured at work due to the negligence of the defendant and that negligence is denied. The plaintiff was a prison officer and essentially claims that he was unfit to continue with work that involved prisoner contact; that the defendant was aware of that but nevertheless required him to continue to have prisoner contact and as a result he suffered injury.
The plaintiff was born on 25 March 1951 and is now aged 41. He came to Australia from England as a child and was educated here but left school half way through Year 9. He did a number of jobs and then at the age of 18 commenced working in hotels and did that for the next five years. Then he moved to Albany and worked as a sales assistant. In 1980 he started work with prisons and first worked at Pardelup and then at Albany. In December 1986 he came to Perth, worked at Canning Vale and eventually became a senior prison officer and was then transferred to Fremantle where he remained for 14 months.
While in Albany he was engaged in a traumatic experience in 1984 where a prisoner barricaded himself into a room and it was obvious that he was suicidal. There was considerable discussion with him over a period of time. Eventually he appeared to be stabilised but he slashed his own throat and died.
While at Fremantle prison in 1989 he was assaulted by a prisoner and awoke in hospital 12 to 16 hours later. This had a very traumatic effect on him because until then he believed he could look after himself. His courage and his self esteem were affected as was his view about his ability to defend himself and fellow staff members. As a result he had psychological counselling but felt that he could no longer cope with Fremantle prison and went back to Canning Vale in mid-1990.
In 1995 he worked in the administration side of prisons and then went back to regular duty and then found he could not cope with full-time contact with prisoners. He was at that time officer-in-charge of Unit 2, had six or seven staff and 67 prisoners for whom he was responsible. It involved constant prisoner contact. There were a number of jobs he could have done that involved very little prisoner contact and they were the Senior Officer on the gate, the Senior Officer Courts, the Senior Officer Human Resources, or the Senior Officer Training. In cross-examination he agreed that the Senior Officer Gates job is a rostered job so that everyone gets a chance at doing that job because most people want a break from too much prisoner contact and spend one month on the gate and two months in their own unit and obviously if he has the job full‑time it is not available to be rostered to other people. Senior Officer Escort is the same and is on a three monthly basis. He agreed that Senior Officer Training had not been a full time job since about 1994 and the other job that he had referred to was Assistant Superintendent of Security at Wooroloo which would require him to walk around the prison.
On 7 November 1995 he wrote to the then superintendent of Canning Vale prison, Mr Connolly, who referred the matter to another authority who offered the plaintiff canteen duties but the plaintiff rejected this because it involved constant contact with prisoners. He admitted that in his diary he had written "I was insulted" but said this referred to the fact that he was offered a job with prisoner contact. The plaintiff then saw a Dr Perry Short, who diagnosed him as having stress and gave him two weeks leave and referred him to a psychiatrist, Dr Stampfer, who the plaintiff saw four times over the next six weeks. Dr Stampfer advised him to seek a position out of an environment where he would have contact with prisoners. Dr Short and Dr Stampfer were provided to the plaintiff through "Prime", an organisation paid for by, but not answerable to, the Ministry of Justice.
During this period the plaintiff was working occasional days but was having more time off than on work.
On 30 November 1995 the plaintiff saw the Director of Prison Operations, a Mr Moore, in Mr Moore's office and told Mr Moore that he was having treatment and of the medical advice he had. He repeated to Mr Moore his previous request that he should not have to work 12 hour shifts, which is what he was doing. Mr Moore said to him that the only reason that the plaintiff did not want to work the 12 hour shifts was because he had a part-time business and he wished to involve himself in that, but the plaintiff denied that. Mr Moore further said if the plaintiff "could not do the fucking job he should get out of the service". At the same time Mr Moore referred to what is called the "Carter assault incident". This was an incident which occurred in November 1994 in which there was an allegation that the plaintiff had used undue force on a prisoner but according to the plaintiff there had already been two investigations and he had been cleared of that. The other incident that Mr Moore referred to was a complaint by the plaintiff that his signature had been forged on an envelope containing contraband seized in the prison ("the forgery incident"). According to the plaintiff Mr Moore appeared to be suggesting that one incident should be set off against the other, that is to say he should forget the forging incident if the department forgot the "Carter assault incident". In his grievance letter of 7 February 1996 (Exhibit 5) he said:
"On Thursday November 30 1995 I went to Westralia Square and was interviewed by Mr Moore, I felt intimidated and stressed by Mr Moore's responses to my situation. During the interview he stated, 'Your enemies at Canning Vale have told me that you are only doing this to get off 12 hours shifts', he then brought up an incident that had been previously dealt with and made mention of an incident that I was currently involved with, I perceived his comments regarding these incidents to be a veiled threat."
Later in that letter he uses the expression:
"I was shattered by Mr Moore's reply and felt as though he was deliberately playing with my emotions."
On 5 December 1995 he wrote to Superintendent Connolly at Canning Vale seeking work with minimal prisoner contact:
"I find myself in the position of being unable to meet the demands of 12 hour shifts, particularly with prisoner contact. I am requesting to be placed in a position with minimal prisoner contact that is commensurate with my experience and salary."
In evidence he said that the reason he said he was having trouble with the 12 hour shifts was because it increased his prisoner contact. The prison officers had had eight hour shifts until September/October 1995 when the 12 hours shift was introduced and he worked on the 12 hour shifts for only a few weeks.
Prior to writing this letter on 1 December he again discussed his situation with Superintendent Connolly and was advised by Connolly to telephone Mr Moore as Mr Moore had suggested to Connolly the possibility of placing the plaintiff at Wooroloo Prison in the Security Office. The plaintiff was unable to contact Mr Moore but eventually the position was advertised and the plaintiff made application for the position but several weeks later received a letter saying that he had been unsuccessful.
Because he was unable to speak to Mr Moore he made several attempts to speak to him again without success and eventually Moore telephoned him one evening and informed him that there was no position for him at Wooroloo and in reality there was no position for him in the State. The plaintiff was devastated by this and broke down with a severe anxiety attack because he did not know how to help himself or what the Department would do. He then saw Dr Spurge, his general practitioner, and got his first medical certificate giving him leave from 11 December 1995 to 8 January 1996.
Toward the end of that four weeks Superintendent Connolly telephoned him and said that he felt that he could fit the plaintiff in as Senior Officer Standards. The plaintiff was anxious to return to work and went to Dr Spurge on 9 January 1996 and obtained a report which says:
"The plaintiff is suffering from the following:
.... Stress disorder. I would suggest that Mr Allen work in a minimum prisoner contact position for the next six to eight weeks."
When he returned to work on 9 January 1996 he worked for two weeks as Senior Officer Training and then started as Senior Officer Standards on 24 January 1996, and this did involve some prisoner contact and as a result he found the job stressful. The interaction with prisoners is different because there is no control over their day to day living conditions and there is less scope for threatening encounters.
On the first day he was in this job it was necessary for him to deliver a letter from the Ombudsman. A prisoner, one Gorham, requested to speak to him. He hesitated but agreed and the prisoner informed him that he was under a contract to kill someone which he did not want to do. The plaintiff reported this to the relevant officer and while the officers were sceptical that the prisoner did have a gun, as he had said, they wanted the plaintiff to continue negotiating with Gorham. Then the following day the prison psychologist told the plaintiff that he, the psychologist, was going on holidays and asked if he would mentor this prisoner. A few days later the prisoner wished to see him and told the plaintiff various gruesome stories about his past, and in fact, he eventually spoke to this prisoner for periods in excess of an hour on not only 21, but 31 January, 7 February and 9 February. During one of these meetings the prisoner gave the plaintiff a diagram of the gun. He continued to see the prisoner at the request of management until the psychologist returned some time after 10 February. During that period of time he had to negotiate with the prisoner and on the last occasion that he was called in to do that he was in fact off duty and got a call to come in and the prisoner told him he was going to be given a gun in the next few days. When he left the prison on that occasion the plaintiff was traumatised, shaking and suffering night sweats.
On the next occasion he was called to see the prisoner he was on duty. He thought at that stage the prisoner was going to give him the gun that the prisoner alleged he had and the plaintiff feared for his life. However, the prisoner said that the gun had been removed from the prison but handed over a home made weapon. The plaintiff said that he was stressed to the maximum and could not control his emotions.
On 7 February 1996 the plaintiff wrote to the Director General of the Ministry of Justice with a grievance concerning Mr Moore and his letter is Exhibit 5, to which he never received a reply.
He did what he could to follow the matter up. He eventually made contact with a Mr Northcote, who was then Acting Executive Director of the prison section of the Ministry of Justice, and he saw him for two hours on 21 March 1996 and discussed his problems with him. He asked Mr Northcote to intervene regarding the matters he had been threatened with by Mr Moore following his grievance letter. He further asked about other jobs and explained why he was on sick leave. He never received any further response from Mr Northcote.
On 28 March 1996 he was advised that the Carter assault investigation had been re-opened and on 1 April he received a letter from the Superintendent Administration that Mr Moore had directed that the investigation regarding the forged signature was closed. The forgery incident related to an occasion when he had handed over at one shift to another prison officer and some cannabis was found in an envelope with his signature on it, that cannabis should have been passed on to analysis, and that had not happened. He alleged that it was not his signature on the envelope. The letter that he received on 1 April 1996 said:
"The Director Prison Operations has considered the report and directed that no further action is to be taken, accordingly the matter is closed."
As a result of receiving this letter he went to the then Acting Superintendent, Mr Dunstan's office, to discuss it with him. Not only did he discuss the letter but Dunstan said he also had a letter from Moore saying that the plaintiff was not to act in higher duties again without counselling. In cross-examination he said that in his time of stress he did not hear the last part of it nor did he remember Mr Dunstan saying to him that he was not going to take the job as Co-ordinator Standards away from him, however, he agrees that was said.
The plaintiff interpreted this as a letter sending him back to front line duties and putting a cap on his career. By the time he left Dunstan's office he was shaky, sweating and crying. The plaintiff describes this as his first major break down. He called his wife over to his office and with her help got out of the prison with some dignity.
On the same day he went to Dr Spurge who issued a certificate saying that he had an anxiety state and was totally unfit for work for two weeks and was being referred to a psychologist. He was then referred to Mr Taylor, a clinical psychologist. He was extremely stressed for six weeks and apart from attending on Mr Taylor, he virtually sat in the front room of his house alone. Taylor told him that he had post traumatic stress disorder and treated him with hypnosis and counselling. The plaintiff said that during that six weeks he did have supportive phone calls from the prisons from Superintendents Connolly and Dunstan.
On 23 April 1996 he received a telephone call from the Employee Welfare Section and a Ms Debbie van Hammersveld introduced herself as his case manager and advised him that his worker's compensation had been approved but she did not offer him any rehabilitation. He accepted in cross-examination that she contacted him several times in early May, that in August 1996 he sent her his resumé and then applied without success for various jobs of which she sent him notice.
He obtained subsequent certificates from Dr Spurge and then after six weeks Mr Connolly contacted him and offered him a job as a Co-ordinator, Standards. He went back on a Thursday for the hand‑over and started the next day, Friday, 17 May.
It was while he was doing this that Mr Dunstan asked him to organise an addiction course and told him it was to start within a few days and it was necessary to contact all of the prisoners to let them know about it. He reminded Dunstan that he was to have minimal prisoner contact and Dunstan said, "My arse is on the line". The plaintiff felt it was difficult to say no and over the next few days he had to "sell" the course to the prisoners. He found this very distressful. He had contact with every prisoner, either individually or in groups. In actual fact the course went ahead over a period of about three weeks and was very successful.
On 30 May he had an altercation with a prisoner over cleanliness and he completely lost his temper and one of the senior officers had to calm him down. That night he suffered from night sweats and on 31 May he sent in his second grievance letter to Mr Payne, who by then was Executive Director Offender Management, and never received a response.
On 11 June 1996 he had a discussion with Superintendent Connolly and was advised that he would be staying in the position as Co-ordinator Standards. He advised Connolly that he wanted to take all of his leave to see if that would assist him, but Connolly told him that they were very short staffed and he could not take his leave.
The next incident occurred on 9 July when he was required to do a tour of the prison with a Mr Scorer, the Manager, Employee Welfare, and two visitors. Mr Scorer asked to see a security log. The plaintiff was hesitant and indicated he was reluctant, but Mr Scorer insisted and this log contained explicit pictures of the result of assaults and prisoner injuries. The plaintiff became extremely distressed; he reported the matter to his Supervisor and left early.
On 19 July Mr Payne, who was then Executive Director, Offender Management, came to the prison and he spoke to him regarding his grievance letter and asked why he had had no response on the matter of the forged signature. He discussed his medical condition and asked if a job could be found for him with no prisoner contact. He never heard from Mr Payne again.
The 19th July was also Mr Connolly's last day as superintendent, and a Mr Shuard commenced as Acting Superintendent. Shuard spoke to the plaintiff and asked him for details of his situation and said that the position of the plaintiff acting as Co-ordinator Standards would be maintained while he was in the prison. He further told Shuard that he was having trouble with some senior officers who had complained to the Union that he was getting special treatment and he was assured of Shuard's support. The problem was that Co-ordinator Standards was regarded as a developmental job and could lead to promotion.

Shuard advised him that he (Shuard) was going to be involved in a project for a period of approximately two years and asked him if he was interested in joining Shuard in the project; it meant no prisoner contact at all. He said that he was interested and for the next five or six weeks he worked on preparation of the project brief, and agreed with Shuard to be the project manager. This project was due to start in September 1996, but Mr Shuard came to him on 6 September and said that Mr Payne had said that the plaintiff could not work on the project. He felt disappointed, saddened and traumatised by these events.
In September 1996 the new Superintendent was Mr Stacey. He asked for an interview with him and asked him whether he was going to get the co-ordinator's job and Mr Stacey told him that he was secure. He also asked the plaintiff to do more work in assisting in Stacey's job in an administrative way. Mr Stacey spent most of his time at other prisons or engaged in other activities outside the main prison and during that time the plaintiff made a lot of prison decisions. Mr Stacey did not keep him informed of what was happening and while Stacey may have had briefings the plaintiff was not invited to them, however, he agreed he went to debriefing meetings with Stacey but could not talk to him privately.
He agreed that in a telephone conversation with Ms van Hammersveld in October he probably did tell her he was coping.
On 7 November he had an argument with a senior officer who told him that he had no authority in the prison. The plaintiff tried to see Mr Stacey on 8 November to have this matter sorted out but was unable to get an appointment. He suffered what he described as another breakdown on this day, contacted his wife and she helped him to regain his composure and get out of the prison with some dignity.
On 11 November 1996 he wrote to Mr Stacey and complained about the difficulty he had having officers accepting his authority and in effect asking for some confirmation of his authority. He further confirmed that he wanted the opportunity to continue with the line of work that he had been doing and "anxiously await your reply". At this time he was worried that the position would be extinguished.
He had a meeting with Stacey on 12 November who told him that he was becoming a liability and should do a rehabilitation course. He subsequently received a letter of 18 November 1996 from Mr Stacey confirming an offer of a three month secondment to the Occupational Health and Safety section which was to start on 18 November 1996. This was Mr Scorer's Department; in the meantime he had telephoned Mr Scorer and spoken to him, and Mr Scorer said if there was no rehabilitation in three months, application would be made to the Medical Board for him to be medically discharged.
He started in Mr Scorer's department on 18 November 1996. On 19 November 1996 he was requested to attend at Canning Vale Remand Prison. When he did, Messrs Stacey and Simpson laid charges against him regarding the Carter assault matter and suspended him without pay. Exhibits 1 and 2 are copies of the disciplinary charge against the plaintiff alleging that he applied undue force to a prisoner, Carter, and that afterwards had provided a report containing false allegations regarding another prison officer. The date of these incidents was said to be 23 November 1994 (that is two years earlier). These were internal disciplinary charges.
Eventually his pay was reinstated and coincidentally, on 20 November 1996 he received an invitation to Government House to receive a medal for 15 years service. He has received commendations from the Department over a number of years and Exhibit 12 is a bundle of those commendations.
He was eventually medically boarded out, but there was a delay because he needed to see a psychiatrist and he a saw a psychiatrist, Dr Kay, and eventually retired in September 1997.
He actually has skills in that he is conversant with the Indonesian language and in August 1997 he commenced as a casual lecturer with TAFE doing two and a half hours per week from which he nets $84 per fortnight. Since then he has managed to pick up an extra three hours work with TAFE plus two hours at a primary school. He has been guaranteed five hours work but at the present time is getting seven hours work and earns $300 net per fortnight.
This year he is finishing a BA in Asian Studies and next year intends to do a Graduate Diploma in Education and hopes to teach. He understands that a Level 1 teacher earns $32,000 gross per year and as a prison officer he was earning $50,000 gross per year and he intended to stay with the Ministry until he was 60 years of age.
So far as his treatment since 1995 is concerned, he attended upon Mr Taylor for a number of treatments; he saw Dr Spurge about once every six to eight weeks and started with Dr Kay in April 1997, and sees him about every eight weeks. He is now on an anti-depressant; he started on 20mls, went up to 80 and is now back to 20mls.
The whole matter has had a very bad effect on him: he did not want to socialise; the stress placed upon his wife was enormous; in April 1996 he was suicidal and he could not even cope with going to see a film in which there was violence.
He has now been diagnosed with Parkinson's Disease. It is not suggested that this has anything to do with the stress. He first saw a Dr Goodheart in August 1997 and in September 1997 Dr Goodheart started him on medication and finally diagnosed him in April 1998 as having Parkinson's Disease. He is on medication for the tremor at this stage and it is totally under control. He believes that there is another drug that can slow down the Parkinson's Disease but it cannot be taken with the anti-depressant medication.
Janette Margaret Allen is the wife of the plaintiff. In 1988 she commenced work as a prison officer and continues in that work. She has worked in the same prisons as the plaintiff but rarely on the same shift.
The first change she noticed about the plaintiff is that he seemed to be physically sick a lot of the time and then became withdrawn and did not want to go near crowds and gradually he became worse and was having trouble going to work. She could not remember the date but in 1996 he told her that he had been to the doctor and was to have minimal prisoner contact.
The next incident she remembers is that in April 1996 she was at work, the plaintiff telephoned her and said, "Come over now". He was in another part of the prison and it was there that he was asking her to come to. This was most unusual and it was most unusual for them to have contact at work. She immediately went to his office where she found him sitting, crying and sweating. He asked her to get him out of the prison in a way in which he could save face, without the prison officers knowing the state that he was in, and she did that.
The plaintiff continued to believe he had a career as a prison officer but not at "the coal face", because it was becoming increasingly more difficult for him.
The next occasion that something similar happened was toward the end of the year in November when again, he called her to his office and again she found him in the same state. On this occasion she was so desperate that she decided she had to do something. At this time Mr Stacey was the superintendent. She knew that he was in a meeting and she waited in the corridor and when he came out stood in front of him and said, "I must speak to you now about Paul". She went on to tell him that the plaintiff was in his office in a terrible state and had a breakdown and asked Mr Stacey to go to speak to the plaintiff at that time. Mr Stacey agreed but added the words, "but he is becoming a liability".
Mrs Allen went back to the plaintiff and they waited together for three-quarters of an hour, however, Mr Stacey did not come and by that time the plaintiff had calmed down enough to be able to be taken home.
The next occasion on which she saw Mr Stacey was at the very end of the plaintiff's career as a prison officer when he was told to report to the Canning Vale Remand Centre. She went with him and the plaintiff was charged with an internal disciplinary charge.
Mrs Allen was aware of her husband's contact with Ms van Hammersveld and recalled meeting with her at Canning Vale prison in August and was aware that the plaintiff should provide a resumé to assist in applying for various work. Once he was charged with a prison offence, it was very difficult for him to apply for work.
When he was going to start the final job at head office she went with him on the first day and they spoke to Mr Scorer together and she confirmed that "medical boarding" was mentioned then, however, she has no memory of it being mentioned earlier than that by anyone else.
Mr Turlough Connolly was called by the defence. He has been the designated superintendent of Casuarina Prison for three years. He was the designated superintendent of Canning Vale for three years ending in July 1996. He has been a prison administrator since 1986. In November 1995 his deputy was Mr James Dunstan.
He could recall the plaintiff and was aware that during the period that the witness was superintendent the plaintiff's substantive position was as Senior Officer. However, he was aware that from some time in late 1995 or 1996 he worked as Co-ordinator Standards. He recalled the plaintiff discussing with him on a number of occasions problems that he was having in the units and that there was a need for him to have minimal prisoner contact. He believed that this was supported by medical advice. Because of this the plaintiff was given the opportunity to work as Co‑ordinator Standards because this was a position within the prison that had limited prisoner contact when compared to a Shift Senior Officer's position.
The person who acts as the Shift Senior Officer is the Unit Manager. He is in charge of a unit. He has a team of prison officers and at that time there were approximately 63 prisoners in each unit. The Senior Prison Officer is in charge of the day to day running of the unit and makes decisions which are appropriate to ensure the safety of staff and the well-being and safe custody of prisoners.
The Co-ordinator Standards wore civilian clothing, whereas the Senior Officer wore uniform and the Co-ordinator Standards position tended to have a more administrative focus. There was prisoner contact insofar as the Co-ordinator Standards was conducting business on behalf of the Superintendent and on behalf of the Ombudsman but he was not required to interview prisoners.
Mr Connolly certainly knew that the plaintiff was having trouble with the Shift Senior Officer's position but he did not recall the plaintiff expressing a view regarding the Co-ordinator Standards position. He said that there are very few positions within a prison where all prisoner contact can be avoided; that's why the salary is so much higher than for clerical work. There are some senior positions such as assistant superintendent and positions such as Senior Officer Gate, Key Control or Night Shift with less contact, but these positions are rostered. It is a rotating roster so officers roll through a unit and then they will roll out of it for a period of time. People prefer a bit of time out from time to time and generally look forward to a bit of a break from continual prisoner contact. Nevertheless, in a prison the industry is prisoner management so the opportunities for non-prisoner contact are fairly limited.
The only way to give a prison officer a permanent spot in a minimum contact position, such as those to which he had just referred, would be with the co‑operation of the union and if that cannot be obtained then it is necessary to look at an alternative placement, either outside the Ministry or within the Ministry, or look at a medical boarding out.
The Co‑ordinator Standards position is a promotional position that comes under the Public Service and to get that position it would firstly have to be vacant then it would be necessary to apply for the vacancy and to be given the position.
Mr Connolly was happy with the plaintiff's work as Co‑ordinator Standards but he had no power or control over the filling of positions outside of Canning Vale Prison.
In an endeavour to assist the plaintiff he did speak to Mr Peter Moore on the plaintiff's behalf and sought for the plaintiff to have an interview with Mr Moore. He advised Mr Moore that the plaintiff was having difficulties and it was necessary to look at something long-term and Mr Connolly was aware that there was some job becoming available at Wooroloo and he discussed that with Mr Moore.
So far as the forgery incident is concerned, the plaintiff reported to him an allegation that his signature had been forged on an envelope and as was Mr Connolly's duty he reported the matter to the Director of Prison Operations, Mr Moore and an officer came out and investigated the matter.
So far as the plaintiff having contact with prisoner Gorham, Mr Connolly said that prisoner was one with an acute imagination. While it is quite true that enquiries of this nature are usually done by security the Co‑ordinator Standards could get involved. If the plaintiff was having problems he would have pointed it out to Mr Connolly and Mr Connolly said, "He was fairly forthright in his relationship with me".
So far as the Carter investigation is concerned, that is the investigation in relation to the assault, he was aware that it was re‑opened and there was a discussion with the plaintiff about that. Mr Connolly thought it was unusual that it had not been completed in the first place and that it had been re‑opened.
Mr Connolly agreed that at the time that he left Canning Vale Prison the whole process of appointments was in a state of flux and any position could have been terminated.
Mr Frederick James Dunstan was called by the defence. He is a Prison Superintendent but at the present time he is working in Head Office as Assistant Director Operational Management and has been with the prison service for 26 years.
In 1996 he was Assistant Superintendent Prisoner Management at Canning Vale Prison and he did act as superintendent of the prison for about a five week period in March/April.
He has known the plaintiff for some years and his professional opinion was that the plaintiff was an exceptionally good and honest officer.
He was aware that the plaintiff was Co‑ordinator Standards at the time that we are concerned with and he had frequent contact with the plaintiff. He would have been aware of the plaintiff's circumstances in relation to minimum prisoner contact but the plaintiff always presented to him as a person who was in control. There was no position with absolutely no contact with prisoners at the plaintiff's rank. However, in Administration prisoner contact is a lot less in time and intensity than as a prison officer and Co‑ordinator Standards not only has contact limited in time but the type of contact is also circumscribed. He did not recall the plaintiff complaining to him about his job as Co‑ordinator Standards and he was not aware that the plaintiff was not coping with that job.
He did recall asking the plaintiff for assistance in setting up a drug programme. He certainly did not recall insisting on the plaintiff's help but he certainly told him that it was important. He could not recall his exact instructions to the plaintiff but certainly there was a lot of work to be done which included seeking out prisoner participation. He recalls that the plaintiff did the job and that it was very successful.
Exhibits M1, 2 and 3 are letters of 27 March 1996 which he received in his role as Acting Superintendent. The first letter advises that no further action was to be taken in the forgery matter and the second letter said relevantly:
"1.Before Senior Officer Paul Allen is permitted to act as Assistant Superintendent Security, or any other higher position, it is essential that he be made fully conversant with the duties of the position.
2.The manner in which the shift officers handle the suspected substance was inefficient and requires addressing, by means of an instruction to staff on the appropriate handling procedures, pursuant to Prisons Regulation 26."
Mr Dunstan said he was surprised at the contents of the letters and he asked the plaintiff to see him. He informed the plaintiff that he was not going to act upon this instruction and that he intended to seek clarification. What appeared to concern him is paragraph 1 which related to "higher position" which he took to mean any higher position. He did not believe that Mr Moore normally dealt with such matters and that the then Executive Director, Mr Northcott did. The plaintiff was the complainant and he did not understand why the complainant in the matter had to be counselled. He thought it was unreasonable and without foundation. He wrote to Mr Northcott but got no response. The other officer who was involved in this and who it was alleged had forged his signature, was Mr Swalwell, who co-incidentally, was the person who got the job at Wooroloo for which the plaintiff had applied.
Mr Robert Shuard was called by the plaintiff. He is an Assistant Director of Prison Operations and has been with the Department for 28 years. He first met the plaintiff in 1986 at Canning Vale prison and Shuard was there for two years at that time. It was his opinion that the plaintiff was a very competent officer, professional and honest.
In July 1996 Mr Shuard returned to Canning Vale as superintendent and remained there until September 1996. When he first went there the plaintiff told him that he was on light duties and that was to involve minimal prisoner contact and that as a result the plaintiff was working as Acting Co-ordinator Standards. He knew this was an acting position and that the substantive position belonged to another employee who was then acting in a higher position. During the period that Mr Shuard was there the plaintiff gave him administrative support and was doing very well, however, he did say he felt stressed in the position, but Mr Shuard did not recall specific complaints regarding prisoner contact.
Over the six weeks that he was there he told the plaintiff that he had been given a job reviewing the Special Operations Unit, and for which he needed an Operations Manager. This job was going to take well over 12 months to do and would have no prisoner contact. He decided the plaintiff had all of the skills needed in that he was familiar with the prisons, he was professional, intelligent and had computer skills and experience.
He offered the job as Operations Manager to the plaintiff and by that he meant that if the plaintiff accepted he would recommend the plaintiff to the Executive Director of Prisons and the Director of Prison Operations. He confidently expected that as was the normal procedure, his recommendation would be accepted.
The plaintiff then prepared the project brief and did a good deal of work on the matter and then by Exhibit 17, a letter of 4 September 1996, he wrote to the Executive Director of Prisons, who was then a Mr Payne, and the Director of Operations, Mr Moore, and recommended the plaintiff for the position. Then, on 6 September 1996 he spoke to Mr Payne regarding resources. Mr Payne refused to allow him to have the plaintiff and said that Mr Shuard did not need to be seen "with the likes of Paul Allen". Mr Shuard was very surprised and Mr Payne suggested the name of another prison officer.
Then, instead of being sent any prison officer, Mr Shuard was sent a typist who had been assigned to Mr Moore. He telephoned Mr Moore and asked why he was given a typist and not the plaintiff, whereupon Mr Moore swore at him and told him he (Mr Shuard) was going to keep the typist and he would consider sending him another officer. Subsequently, he met with Mr Moore, told him he needed other help and gave him a list of officers that he wanted, and Mr Allen was on top of the list. Approximately two weeks after the project commenced another officer was assigned to assist him.

He agreed that this project that he was involved in was going to be met with opposition from the Special Operations Unit, the unions and some people in the prisons.
So far as the general work force is concerned, he explained that some jobs are prison officer jobs and then when it gets to the higher level, they become public service jobs. On occasions prison officers do get to act in public service jobs, however, to get a public service job it is necessary to apply and be awarded the job.
A person who attended work with a certificate specifying no prisoner contact was given a minimum prisoner contact position if it was available. The position of Acting Co‑ordinator Standards is a minimum contact job, however, the plaintiff did come to him on a couple of occasions and say that he was having difficulties.
He saw the plaintiff again in July 1997 and again discussed the plaintiff working with him on this special project but the plaintiff wanted some sort of permanency and he could not give the plaintiff any guarantee. He was aware that at that time the plaintiff was suspended but he believed that he could get that suspension lifted, however, he did not know that consideration was being given to the plaintiff being "medically boarded".
Mr Robert William Stacey was called by the defence and is the Principal Project Officer with the Wooroloo South project for the Ministry of Justice. He commenced with the Department in 1977 as a prison officer, became a welfare officer, assistant superintendent and a superintendent. From August to December 1996 he was superintendent of Canning Vale prison. He was sent to do that job to amalgamate the prison and the remand centre into one business.
When he commenced the plaintiff saw him at some time and informed him that the plaintiff was on light duties, that is, he was to have lesser contact with prisoners and that he was acting as Co-ordinator Standards. He had frequent contact with the plaintiff and the plaintiff was performing the job in a satisfactory way. Part of the restructuring involved some jobs being abolished. A decision as to whether the Co‑ordinator Standards position would remain at first depended on whether the holder of the position intended to take redundancy. By the holder of the position is meant the person who had the permanent position, not the person acting in it. If he takes redundancy that would mean under normal circumstances that job would be abolished, however, there can be exceptions and some other job may be abolished in its place.
As part of Mr Stacey's review, he targeted this position as not being essential and that it should be abolished.
He had regular staff briefings at which any senior staff could attend and he believes that the plaintiff attended some of these staff briefings. At these staff briefings he kept the staff informed as to the direction in which the restructuring was going. He agreed that he spent most of his time at the remand centre but said that he was easily contactable.
He did recall speaking to Mrs Allen but no particular occasion stood out. He did not remember her telling him that the plaintiff had broken down. He had no recollection of saying the plaintiff was a liability to the prison and in any event does not speak like that.
He was aware that the plaintiff occasionally was not at work but he does not remember the plaintiff discussing with him any difficulty with prisoners in his role as Co‑ordinator Standards.
So far as Exhibit 10(1) and 10(2) are concerned, the first is a letter to the witness of 11 November 1996 from the plaintiff complaining about difficulties with other staff members in which he says:
"I enjoy working at Canning Vale and I am proud to be able to refer to the majority of the staff as my work-mates, however, there are always a few that like to make things difficult. In particular there are two staff members who have waged a war of harassment and discrimination against me for almost two years, and this was acknowledged by the two previous superintendents.
This week I found myself in a stressful situation because these two staff members were in the positions of Senior Officer Key Control and Senior Officer Gate. For most of the time I was the only person in Administration and was called upon to make decisions, decisions that were obstructed by the Senior Officer Key Control whenever he could. The Senior Officer Key Control made it quite clear that, because the position of Co‑ordinator Standards was a redundant position, he would not accept any instructions or decisions made by me.
...
I guess my disillusion stems from the fact that, after Bernie Dillon left, no effort was made to clarify the position of Co-ordinator Standards to staff at Canning Vale. Yet I frequently found myself in a position where it was necessary for me to make decisions about the day to day running of the prison and issue instructions to these staff. This situation allowed the confrontationist staff to apply pressure in an attempt to force my hand.
I am fully aware that my situation with the worker's compensation claim makes it difficult to place me in a position, but I have worked ten years of my 17 year career at Canning Vale Prison and would very much like to continue working there. The feed back that I have received indicates that I am skilled in my work and all I ask is the opportunity to continue working in a job that I enjoy and have dedicated 17 years of my life to.
I have no difficulty dealing with the confrontationist staff, provided I don't have one hand tied behind my back. I would like the opportunity to continue with the line of work that I have been doing and anxiously await your reply."
In Mr Stacey's response of 18 November 1996 he says:
"As you have stated, the previous superintendent provided duties to you to assist in your recovery back into the workforce. The duties provided were those which the Co‑ordinator, Standards, would normally perform. The position of Co‑ordinator, Standards, is a position which traditionally has been used as a developmental position while the substantive occupant has been acting in other positions. As such, the position would normally be advertised for expressions of interest among the senior officers at Canning Vale prison. As you are aware, this did not happen, because it was seen as an opportunity to assist you in your rehabilitation programme.
You would be aware of the recent voluntary retirement of Mr Dillon from the position of Co‑ordinator, Standards, and accordingly it is a condition that his position be made redundant. You indicate in your letter that I have made no effort to clarify the position of Co‑ordinator, Standards, to staff at Canning Vale prison. This is not correct as I recall on a number of occasions having indicated that the FTE will be used to engage a person to undertake a comprehensive review of the financial and administrative functions at Canning Vale prison. This has been stated by myself at several briefing sessions to staff relating to future proposals for the Canning Vale prison complex."
In evidence he said that the Co‑ordinator, Standards did have authority; there was a specific head office policy in relation to that and he would have reinforced that if he had been asked about it.
The rest of the letter indicates that Mr Stacey is under the impression that at the time he wrote that letter the plaintiff was starting a three month secondment with Mr Scorer.
In cross-examination he agreed that the position in fact was never abolished. He intended to abolish the position but he left the job that he was doing; it had not been abolished at that time and has not been abolished up to the present time.
So far as the plaintiff being charged in November 1996 is concerned, Mr Stacey said he was contacted by Mr Moore and told that charges against the plaintiff were being sent to him and the plaintiff was advised he was being charged. Mr Stacey arranged for the plaintiff to come to the remand centre rather than to the prison to ensure that he did not encounter prison officers he had worked with. So far as the charges are concerned, Mr Stacey said that any assault on a prisoner is serious. It is his job to validate the charges and he does that by examining the prepared form and satisfying himself that the charge is in accordance with the Prisons Act. The charge was laid by Mr Simpson at Mr Stacey's direction because Mr Simpson had authority over the plaintiff at that time.
It is not his practice to test the validity of the evidence but to test the validity of the charge, that is to say that it is in accordance with the Act. The plaintiff was suspended because the charge of an assault on a prisoner is a serious matter and suspension follows. Suspension can be lifted within a few hours with the involvement of the union and that is frequently what happens and the plaintiff could have applied to have the suspension lifted but instead asked to be retired on the ground of unfitness.
Exhibit S is part of a letter of 22 November 1996 written to the Insurance Commission from the plaintiff's lawyer which says:
"We therefore ask that arrangements be made for Mr Allen to be put before the medical board to be forcibly retired from the Ministry on the ground of medical unfitness."
That part of the letter was admitted by consent and on the basis that the plaintiff had already been suspended and it was on the advice of his solicitor that he pursued this course.
Mr David Arnold was called by the defence. He is the bail co-ordinator at the C W Campbell Remand Centre. In 1994 he was acting as Manager of the Internal Investigations Branch at Westralia Square. This department investigates any matter put to them by the Director General or the directors of the various branches of the Ministry and he joined that branch in 1989.
He started as a uniformed officer then moved into the Investigation Branch; he has also worked as Assistant Superintendent Operations Support, Assistant Superintendent Programmes & Resources, Superintendent of Administration in the Prison Operations, Human Resources and Prisoner Management and Industries.
A Mr McNaughton took Mr Arnold's place in the Investigations Department in about August/September 1996 and by November 1996 Mr Arnold was Assistant Superintendent Operations Support at Canning Vale Remand Prison.
So far as the various investigations are concerned the witness could do no more than refer to the various reports which are now exhibited and it may be preferable to refer to those exhibits.
The exhibits are 23, 25 and P.
So far as the alleged assault is concerned Exhibit 25 is a report of 17 January 1995 by a Mr Gittos in which he recommends that both the plaintiff and Mr John be charged. Subsequently, on 27 January 1995 the matter is referred by the then Director General to Mr Moore and he also says that both the plaintiff and Mr John should be charged. His report is contained within the body of Exhibit 23. Also within exhibit 23 is a memorandum of 29 March 1995 by a Ms Hass, who was then the legal consultant to the Department and has since left, in which she says that in his recommendations Mr Gittos may be suggesting a possible collusion between two other officers when they submitted reports of what they had witnessed about the assault. In particular Mr Gittos said at p13 of Exhibit 25:
"It became apparent during the investigation that there is a fair amount of animosity directed towards Senior Officer Paul Allen generated by prison staff through rumour and innuendo. It is felt that Senior Office Allen attempted to shift the focus of any investigation away from himself onto Prison Officer John.
The animosity has arisen through the belief that Senior Office Allen submitted a report to Canning Vale Prison administration on Prison Officer John's action during this incident involving Prisoner Carter. It is believed that as a result of Senior Officer Allen's report prison administration considered Prison Officer John not fit for duty and he was placed on worker's compensation.
There is possible collusion between Industrial Officer Owen Gardiner and Senior Officer Markham in the submitting of incident reports in that when interviewing Officer Gardiner on Wednesday January 4 1995 he did mention that he had written a report of the incident. On Friday January 6 1995 whilst interviewing S O Markham, he questioned Investigation Unit staff if they had received a report from Officer Gardiner and when informed that they had not received a written report S O Markham produced one although he would not hand it over or agree to supplying a copy. Senior Office Markham stated to Investigation Unit staff if they wanted a copy of the report they should ask Officer Gardiner.
Officer Gardiner was requested to supply Investigation Unit staff with a copy of the report of the incident involving Prisoner Carter that Senior Officer Terry Markham had produced. Officer Gardiner replied 'I am not able to do that at the moment, I'll have to get a copy off Terry's (Markham) computer.' A copy of the report was faxed to the Investigation Unit from officer Gardiner at 2.33 pm on Friday January 6 1995.
The general feeling amongst officers at Canning Vale Prison is that Senior Officer Markham is using Prison Officer John's involvement in the incident and the subsequent report from Senior Officer Allen to stir up resentment towards Senior Officer Allen as a payback over a previous incident in which Senior Officer Allen submitted a report to Canning Vale Prison Administration on Senior Officer Markham's conduct and attitude."
Returning then to Ms Hass, she said that she believed that that aspect of the matter should be further investigated before charges were recommended.
Her memorandum was sent to Mr Gittos who was the then Investigating Officer; he has not been called to give evidence but for some reason nothing further happened until the following January, 1996. At some stage there was an Ombudsman enquiry and in January 1996 a Mr Ron Jones, who was the Operational Review Officer, was preparing a response for the Ombudsman and discovered that the requested follow-up investigation had not been conducted.
Mr Arnold was then appointed to do this investigation and he said in evidence that he pointed out to the Director General that the initial investigation was not complete, that further information was available and the Director General told him to re-open the matter and conduct a second investigation. He interviewed all of the people involved again. Exhibit 23 is the result of his investigation.
So far as the alleged collusion is concerned he found no evidence of collusion and the two officers involved had an explanation which related to the fact that the document was on the word processor and Markham typed Gardiner's hand-written report out for him and when it came time to hand it over Gardiner could not get into Markham's computer and that is what caused the delay. So far as the question of an assault by Officer John is concerned, there was conflicting evidence and in fact the prisoner was not even aware that it was Officer John who had dealt with him. The incident with Officer John and the prisoner certainly took place during the attempt to subdue the prisoner whereas the opinion appears to be that what the plaintiff did occurred after the prisoner was subdued. As a result Mr Arnold advised that the plaintiff but not Officer John be charged.
Mr Arnold also took it upon himself to investigate what happened to Officer John after this incident, that is to say, he was refused admission to the prison and was required to undergo psychological counselling and psychiatric assessment prior to returning to duty. Apparently as a result of matters drawn to the then Superintendent Dunstan's attention by the plaintiff there was a meeting in which Officer John was discussed The meeting involved several people and in his final report in Exhibit 23 Mr Arnold said, "All who attended the meeting have left themselves and the Ministry open for possible civil action to be taken by Officer John regarding his management by the Ministry of Justice".
Interestingly in this report it also indicates that Superintendent Dunstan may have made an arrangement with the prisoner to withdraw the prisoner's complaints against the officers and in exchange the charges against the prisoner would not proceed. In fact, the charges against the prisoner did not proceed and he did not lose any contact visits. When Mr Arnold did this investigation Superintendent Dunstan refused to speak to him. As a result, not only did Mr Arnold advise that the plaintiff be charged with using excessive force but that Superintendent Dunstan be charged because he would not speak to the investigating officer.
Mr Dunstan then consulted a solicitor and the investigator who took over from Mr Arnold, that is, a Mr McNaughton, then interviewed Mr Dunstan in the presence of Mr Dunstan's lawyer and Mr McNaughton reports:
"The evidence supplied by Mr Dunstan causes me concern regarding the conduct of Senior Officer Allen. It would appear from the evidence that Senior Officer Allen provided Mr Dunstan with an oral report shortly after the 'Carter' incident concluded whereby such report contained false allegations concerning Prison Officer P J John."
As a result McNaughton then recommended that the plaintiff, in addition to his charge of using excessive force, be charged with making false allegations to Acting Superintendent Dunstan.
Within Exhibit 23 there is a letter from a prison officer dated 6 December 1994 which is not paginated but it is from an Officer Fender and I refer to it simply because it appears to be an objective assessment of the feeling of members of the staff, and their feeling was one of anger and frustration that Officer John had been put off duty as a result of this incident without them being asked about this behaviour and this officer approached Mr Dunstan and complained about the matter. He was subsequently informed by the Superintendent that the prisoner had not wanted to do anything further about the matter but as a result of the complaint of Fender and others the Superintendent had handed the matter over to the Investigations Department.
In conclusion Mr Arnold said in evidence that he believed on the information he had that he had made the proper recommendations.
Exhibit P is a report in relation to a separate matter which report was made between the first and second investigations in relation to the assault but does not appear to me in any way to be related to that and the report is dated 27 March 1996.
Some time in late 1995 a small quantity of cannabis was taken from a prisoner by a prison officer and handed to Senior Officer Security Swalwell and it was placed in the safe. Subsequently the plaintiff, who was then Assistant Superintendent Security, found an envelope in which the green leafy substance was contained and alleged that the signature on the envelope which purported to be his was not written by him and he was supported in this by the actual Assistant Superintendent Security, who said that it did not appear to him to be signed by the plaintiff. As a result a complaint was made and an investigation conducted by Mr Arnold.
Mr Arnold reported that Mr Swalwell had denied forging the signature and that since it was his word against the plaintiff's, no further action could be taken in relation to the matter. It is not in the report, but in evidence Mr Arnold said that the envelope had been sent to police forensic but they were not even prepared to do any work on it because the envelope was in such a state that no conclusive evidence could be obtained as to whose signature it was.
Nevertheless, in the course of his investigation Mr Arnold decided that the procedures surrounding the taking of substances from prisoners after visits were vague and the staff were unsure of the correct procedures and recommended that procedures relating to substances be reviewed and be brought into line with the regulations. Concerns were expressed about the way in which substances were dealt with by a number of people and that included the plaintiff. Mr Arnold said in his report at p4 that something the plaintiff had done indicated that he was not conversant with the duties required of the incumbent of Assistant Superintendent Security.

We now come to the final charges and it should be said that there are two matters for me to deal with here. During the course of evidence I queried plaintiff's counsel about the relevance of this matter and one of the things he said is that at the end of the day he was expecting to face evidence from someone, or at least a submission by the defence, that the plaintiff "didn't continue in the job at the Ministry of Justice Occupational Health and Safety because he was validly suspended" and therefore this was a matter that may affect damages. The other aspect of course, is that it is part of the over all allegation that no proper attempt was made to find the plaintiff work with minimal prisoner contact and part of the evidence which demonstrates that Mr Moore had deliberately set out from the beginning of the year to make the plaintiff's life impossible.
Reading of Exhibit 23 and Exhibit 25, which are the various reports in relation to the Carter assault incident, makes it clear that the plaintiff is not correct when he says that there had been two investigations and he had been cleared. There had been no occasion on which the plaintiff was cleared, in fact, quite the opposite. Mr Gittos recommended that he be charged and Mr Moore also recommended that he be charged. I have no idea whether he is guilty of this matter but I would expect the prison authorities to treat any allegation of an assault by a prison officer on a prisoner as extremely serious.
A review of the various documents makes it clear that this was not part of any programme against the plaintiff and the reason that in the end Officer John was not charged along with the plaintiff was obviously because there was some fear that Officer John would take legal action because of the way he was treated. But the excuse given was fresh evidence indicating that there was no undue force by John, and that John's force was used during the course of the incident. Furthermore, once the Ombudsman required explanations and the only earlier reports had recommended charges, it was very likely that eventually that would happen. As to the false evidence, during the course of the hearing counsel for the plaintiff, and indeed at that time I agreed with him, suggested to Mr Arnold that not only was there no evidence about a false complaint being made by the plaintiff to Mr Dunstan, but that the evidence was to the contrary. A closer reading of Exhibit 23 makes it clear that that is not so. I hasten to say that I am not for one minute suggesting that the plaintiff is guilty of this, but it is quite clear that while Mr Dunstan was not prepared to give a written statement, in the presence of a lawyer he did give certain information which led the investigator to adopt the view that, there was evidence that false information was given to Dunstan.
As to plaintiff counsel's other point about these charges, I agree with him. While it is obviously appropriate to take action against someone for an alleged assault on a prisoner, particular circumstances must be considered. When, for some reason to suit the senior administration of the prison, no action is taken for two years, to simply take action without any prior warning to the person who is to be accused and without considering the delay, is at the very least incompetent. If I had found the defendant to be negligent then certainly their handling of this matter would not detract from any damages the plaintiff was to receive and would not have assisted the defence. At the very least one would have thought that the sensible procedure would be to advise the plaintiff in advance that the matter had to be disposed of but that he could continue to work until it was disposed of and deal with it in that way rather than in the usual way. Furthermore, it is not appropriate for Mr Moore and Mr Stacey to simply wash their hands of the clumsy way in which this was dealt with and to say that as long as procedures are followed that is all that is required of them.
The final matter was the suggestion that somehow or other Mr Moore did not want the plaintiff working with Mr Scorer and that he had prevented that. Unfortunately this did not come out until Mr Scorer was giving evidence, by which time Mr Moore had given his evidence was not asked about the matter, had departed and was not recalled. However, during the course of his evidence Mr Moore had said that he preferred people to be on worker's compensation because the money then did not come out of his budget. According to Mr Scorer, when Mr Moore saw the plaintiff with Mr Scorer, he questioned Mr Scorer about the matter, invited Mr Scorer to his office and telephoned Mr Stacey; he did not mention any charges to Mr Stacey; he was talking about the terms and conditions of employment and was irritable with Stacey. Given what he had already said in Court, the fact that Mr Stacey had arranged that the prison budget would pay for this undoubtedly would not have been to Mr Moore's liking. Furthermore, Mr Moore had recommended from the very beginning that the plaintiff be charged. If Mr Moore has an adverse view of the plaintiff, while we may not share his view, it cannot be said to be unreasonable or negligent. In fact, there is nothing to suggest he did have such a view or that if he did it has caused him to act negligently toward the plaintiff.
Returning to the particulars of negligence set out on pp 55 and 56 herein:
As to 4.1, the defendant did follow the medical certificate and did all that was reasonably possible for the plaintiff. I do not find that the plaintiff's problems were caused by continued prisoner contact. The prisoner contact was substantially reduced and the plaintiff did not complain to anyone in authority that this was what was causing continuing problems for him, and on each occasion he was invited back to the same position, he went. The plaintiff has interpreted every difficulty as an indication that the defendant did not want to help him. In actual fact the defendant went out of its way to help the plaintiff and that is what caused difficulty in that the plaintiff was getting special treatment. The defendant is bound by laws and has duties to others which made it impossible to do more for the plaintiff than was done.
As to 4.2, the plaintiff did not make such repeated requests and the evidence is that he was content as Senior Officer Standards. Furthermore, the only jobs available outside the prison were with Mr Shuard and later Mr Scorer. There was very good reason for the administration to give the job with Mr Shuard to someone else and so far as Mr Storer is concerned, this was simply a position arranged to facilitate redeployment and to help Mr Storer. While I have found that the Prisons Department handled this matter badly at the end, this was at the end of a considerable period of time of endeavouring to assist the plaintiff and it was then the plaintiff who asked that he be put before the Medical Board to be forcibly retired from the Ministry on the ground of medical unfitness (see Exhibit S).
As to 4.3, there were not numerous confrontations and dangerous situations, there was one ongoing negotiation with a prisoner Gorham who was described by Superintendent Connolly as a prisoner with "an acute imagination" and at no stage did the plaintiff advise the defendant that he was having any difficulty with this particular type of prisoner contact. The other matter was arranging the drug course and there was nothing in that that involved confrontation or any dangerous situation.
As to 4.4, there was no such failure by the defendant.
It follows from these reasons that the plaintiff's claim is dismissed.
Damages
I have decided not to assess damages in this matter. While I accept that the plaintiff is an honest man who has suffered post-traumatic stress disorder, I do not accept that it was exacerbated by anything the Ministry failed reasonably to do. The Ministry spent almost 12 months seeking to provide the plaintiff with alternative work. During that period of time the plaintiff had access to free medical care, including a psychologist. In truth, all that was left for the defendant was either to give the plaintiff a promotion to which he was not entitled or to have him declared unfit for further duty.
The exacerbations were caused by the fact that he feared that the positions he wanted were going to be closed to him: that is not negligence. Those positions were closed to him on a permanent basis unless he won them in fair competition.
While I accept the plaintiff as an honest witness I do not accept his interpretation of events and I do not accept that his problems in the last 12 months were caused by prisoner contact.