Allen v The State of Western Australia
[2000] WASCA 221
•23 AUGUST 2000
ALLEN -v- THE STATE OF WESTERN AUSTRALIA [2000] WASCA 221
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 221 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:144/1999 | 22 MARCH 2000 | |
| Coram: | KENNEDY J PIDGEON J MURRAY J | 23/08/00 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | PAUL ALBERT ALLEN THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Torts Negligence Employer and employee Employee suffering from post-traumatic stress disorder Prison officer Whether employer in breach of duty of care Whether employer unreasonably failed to take measures reasonably open to it to protect employee Turns on own facts |
Legislation: | Nil |
Case References: | Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Bresatz v Przbilla (1962) 108 CLR 541 Coulton v Holcombe (1986) 162 CLR 1 De Sales v Ingrilli, unreported; DCt of WA (Commissioner Reynolds); No D970258; 22 August 1997 Doonan v Beacham (1953) 87 CLR 346 Ingrilli v De Sales, unreported; FCt SCt of WA; Library No 980596; 14 October 1998 Mikaric v Oshton Pty Ltd, unreported; FCt SCt of WA; Library No 970104; 26 March 1997 O'Brien v Komesaroff (1982) 150 CLR 310 Paltara Pty Ltd v Dempster (1991) 6 WAR 85 Tame v Morgan (1998) Aust Torts Rep 81-483 University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481 Wade v Allsopp (1976) 50 ALJR 643 Western Australia v Watson [1990] WAR 248 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : ALLEN -v- THE STATE OF WESTERN AUSTRALIA [2000] WASCA 221 CORAM : KENNEDY J
- PIDGEON J
MURRAY J
- Appellant (Plaintiff)
AND
THE STATE OF WESTERN AUSTRALIA
Respondent (Defendant)
Catchwords:
Torts - Negligence - Employer and employee - Employee suffering from post-traumatic stress disorder - Prison officer - Whether employer in breach of duty of care - Whether employer unreasonably failed to take measures reasonably open to it to protect employee - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
(Page 2)
Representation:
Counsel:
Appellant (Plaintiff) : Mr B L Nugawela
Respondent (Defendant) : Mr G T W Tannin
Solicitors:
Appellant (Plaintiff) : Kott Gunning
Respondent (Defendant) : State Crown Solicitor
Case(s) referred to in judgment(s):
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Case(s) also cited:
Bresatz v Przbilla (1962) 108 CLR 541
Coulton v Holcombe (1986) 162 CLR 1
De Sales v Ingrilli, unreported; DCt of WA (Commissioner Reynolds); No D970258; 22 August 1997
Doonan v Beacham (1953) 87 CLR 346
Ingrilli v De Sales, unreported; FCt SCt of WA; Library No 980596; 14 October 1998
Mikaric v Oshton Pty Ltd, unreported; FCt SCt of WA; Library No 970104; 26 March 1997
O'Brien v Komesaroff (1982) 150 CLR 310
Paltara Pty Ltd v Dempster (1991) 6 WAR 85
Tame v Morgan (1998) Aust Torts Rep 81-483
University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481
Wade v Allsopp (1976) 50 ALJR 643
Western Australia v Watson [1990] WAR 248
(Page 3)
1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Pidgeon J. I am in agreement with those reasons and I would therefore dismiss this appeal.
2 PIDGEON J: The appellant was a prison officer who sustained severe psychological trauma during the course of his employment. He has been diagnosed as suffering from a significant post-traumatic stress disorder as well as ongoing anxiety and depression. He brought action against his employer claiming that the injury was caused solely by the negligence of his employer. The claim was dismissed by her Honour Judge Kennedy.
3 The facts surrounding the claim are that the plaintiff was born on 25 March 1951. He commenced work with the Prisons Department in 1980 and some time prior to 1989 became a senior prison officer. As can be expected, he was faced with a number of difficult situations. Her Honour referred to a matter whilst he was employed at the Albany Prison when 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. The appellant had considerable discussion with this prisoner over a period of time. It was thought that the prisoner became stabilised, but he slashed his own throat and died. The next incident referred to by her Honour was when the appellant was at the Fremantle Prison in 1989. He was assaulted by a prisoner and awoke in hospital 12 to 16 hours later. Her Honour found this had a very traumatic effect on him because until then he believed he could look after himself. Her Honour said, "His courage and his self-esteem were affected as his view about his ability to defend himself and fellow staff members." Her Honour said that as a result he had psychological counselling, but he felt he could no longer cope with Fremantle Prison and went back to Canning Vale in mid-1990.
4 In 1995 he worked in the administration side of prisons and then went back to regular duty. He then found he could not cope with full time contact with prisoners. On 7 November 1995 he wrote to the Superintendent of the Canning Vale Prison, who referred the matter to another authority and who offered the appellant canteen duties. The appellant said he rejected this because it involved constant contact with prisoners. The plaintiff then saw Dr Perry Short, who diagnosed him as having stress and gave him two weeks leave and referred him to a psychiatrist, Dr Stampfer. Dr Stampfer advised him to seek a position out of an environment where he would have contact with prisoners.
5 It was against this background that the appellant saw the Director of Prison Operations on 30 November 1995. He repeated a request that he
(Page 4)
- should not have to work 12 hour shifts. The Director indicated to the appellant that if he could not do the job he should get out of the service. The Director also spoke to him about some disciplinary matters, one of which was an allegation that in November 1994 he used undue force on a prisoner.
6 I shall now summarise what the appellant alleged, in his statement of claim, occurred after this. He said he was diagnosed as suffering from a work related stress disorder as a direct consequence of prolonged prisoner contact and exposure to various violent incidents within the prison system. He said that he was eventually placed in the position of senior officer staff trainer, which involved very limited prisoner contact. On 5 February 1996 he was required to attend a cell where a prisoner had attempted to hang himself and the appellant was the only administrative person available. He said this incident caused him a great deal of stress and anxiety. He said that on 10 February 1996 he was requested by the senior officer to assist with a particularly violent and dangerous prisoner who may have been armed with a firearm. He said he was required to personally carry out close monitoring and negotiations with this prisoner and he feared for his own life. He said this occurred when his employers were in possession of a progress medical certificate stating that he should have minimal contact with prisoners. He then pleaded that on 1 April 1996, a date that is described as "the material date", that he suffered a traumatic physical breakdown when he received a letter from the Superintendent stating that he was not to work in any position higher than the rank of senior prison officer. He said he was significantly traumatised by this letter as it meant that he would have to work in direct contact with potentially violent prisoners. He said he was certified unfit for a period of six weeks and received workers' compensation. He said that on 15 May 1996 he returned to work in an administrative position, "Co-ordinator Standards". He said that there was a proviso that he was to have minimal prisoner contact only. He claims, nevertheless, that he was involved in two further incidents with prisoners who became aggressive and abusive towards him and threatened violence to him. He said that he experienced great difficulty in coping with the degree of prisoner contact his new position required.
7 He claimed that he made further requests to the Superintendent in an endeavour to secure a position outside the prisoner environment and he claims he was "ultimately refused permission to commence work on a special project which was to last him from one to two years." He said this refusal devastated him. He was subsequently informed that his position
(Page 5)
- was to be made redundant and he suffered further stress arising from this and from the uncertainty of his future employment.
8 He claims that on or about 8 November 1996 he suffered a further severe anxiety attack and a physical breakdown. On 12 November 1996 the Superintendent informed him that he was "a liability to the prison" and was told that he would be transferred to commence work at the head office in the employee welfare section commencing Monday, 18 November 1996. He commenced in this work, but was told if he was unable to rehabilitate himself over the next three months he would face "Medical Board dismissal". On 19 November 1996 he was informed by the Superintendent that two charges against him arising from the incident that occurred two years previously would be investigated and he was suspended without pay. He said the incident had been investigated on two previous occasions, when it was found that he had nothing to answer. Her Honour found this not to be the position. He said eventually he was able to get his pay reinstated but remained on suspension.
9 He claims that on 9 July 1997 he was informed by the Superintendent that he could obtain a position on a special project and that his suspension would be lifted. He was not offered any permanency on the project and upon completion of the project, it was suggested that he would have to be placed back on operational duties at Bandyup Women's Prison. He said for this reason he declined the offer.
10 It was on these facts that he based his claim in negligence. It was pleaded in the following way: (AB62)
"4. The incident on the material date, as well as the events both prior to and subsequent to the material date, were caused solely by the negligence of the Defendant, its servants or agents (hereinafter 'the Defendant' shall be construed to mean the Defendant, its servants or agents).
PARTICULARS
- 4.1 Failing to follow medical certification of the Plaintiff's General Practitioner who had certified the Plaintiff as fit as from 1 April 1996 for administrative/clerical duties only, with a minimum of prisoner contact;
4.2 Failing to heed the Plaintiff's repeated requests to ensure that he was either placed in a position
(Page 6)
- outside the prison environment, or alternatively, that he be placed in an administrative/clerical position within the prison environment but with minimal prisoner contact;
- 4.3 Permitting the Plaintiff to become involved in numerous confrontations and dangerous situations involving violent prisoners, whilst being fully aware of the Plaintiff's stress related disorder and the certification from the General Practitioner that the Plaintiff was to have minimal prisoner contact;
4.4 Failing to ensure that the Plaintiff was placed in a safe work environment of minimum prisoner contact, free from the threat of violent physical assault."
11 Her Honour dealt exhaustively with the evidence. She said that the focus of the appellant's complaints tended to shift as the trial hearing progressed. She said that initially it was that he had too much prisoner contact, that as further witnesses were called, there developed an emphasis into an allegation that there was an active programme against him to destabilise him, or at least to prevent him getting into a job with minimal prisoner contact. Her Honour said that while it was conceded that his post-traumatic stress disorder had developed prior to the employer being aware of it, and by the usual difficulties of the job of a prison officer, it was said that the condition had been exacerbated by negligent or deliberate behaviour of the employer. Her Honour then set out the four particulars of negligence which I have set out and contained in par 4.1 - par 4.4.
12 Her Honour referred to the principles of law she was applying by setting out the following extract from Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 307: (AB49)
"… What must be asserted is that the law has not changed. It is as accurate today as it was 30 years ago to say that the duty:
'is that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury'. Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18, per Dixon CJ and Kitto J at p 25.'
(Page 7)
- We digress to remark upon the formulation preferred by Windeyer J with whom McTiernan, Kitto, Taylor and Owen JJ agreed, in Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319, namely:
'For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.'
This passage has been repeated more than once in recent decisions of the Court: Raimondo v South Australia (1979) 23 ALR 513 at p 518; McLeans Roylen Cruises Pty Ltd at p 68068 of A Tort Rep; at p 425 of ALJR; p 7 of ALR. It seems right to us to caution the reader against interpreting the concluding phrase in the citation, that is, 'without unduly impeding its accomplishment', as furnishing an additional qualification to an employer's liability independently of the question of what is reasonable in the circumstances. If protective measures are reasonably open to an employer then ordinarily they will not unduly impede the accomplishment of the task. The extent to which the proposed measures would unduly impede that accomplishment will bear directly on the question whether it was reasonable to expect them to be undertaken."
13 Her Honour then considered the issues raised in the trial before her and said in her reasons: (AB50)
"What the plaintiff asks of the employer was impossible for the employer to achieve. Not helped by the fact that the plaintiff was apparently so sensitive as a result of his post-traumatic stress disorder that he interpreted everything that happened as part of an active programme against him. Furthermore, there seems to be a suggestion in the plaintiff's case that the plaintiff's future in the prison system should have been put ahead of every other policy concern that the Department had, and I must reject that.
The employer is in the prison business: without prisoners there is no business. It is almost impossible to provide work with no prisoner contact. Furthermore, those jobs with minimal
(Page 8)
- prisoner contact are highly sought after as 'time out' positions by all prison officers. Plainly, prison officers doing shifts with prisoners would fairly expect not to be excluded from such positions and indeed, it is obviously essential for their good health that they have time out and that is the arrangement which has been made with the relevant union.
The other jobs the plaintiff earmarked for himself were developmental or promotional jobs. If there was resentment from officers of the same rank, that because the plaintiff could no longer do their type of work due to ill health that he should get a developmental job, it is hardly surprising.
It would be most unjust and it would not be possible to run an organisation of the size of this one allowing people to advance in that way.
When the plaintiff asked for minimal contact work he was actually given a developmental position which meant that he was no longer in uniform and he was working predominantly in the administration area. It has far less prisoner contact than as a Prison Officer Shift, and does not involve situation with prisoners where prisoners are in conflict with each other. It is undoubtedly the case that when he was Co-ordinator Standards the plaintiff had contact with prisoners as he says, and I accept his evidence in that regard. I also accept the evidence of Messrs Connolly and Dunstan, who could be said to be supporters of the plaintiff, that he did not complain to them that he was having problems in that position. They had no reason to assume that he was, because the position he was given was one of those considered to be a minimal prisoner contact position for the reasons already stated. An overview of the evidence shows that the plaintiff's problems came about when there were industrial difficulties and when it appeared that he may not get a promotional position that he wanted. This may be either because he wanted a promotion or it may be that he interpreted that as meaning that he would eventually have more prisoner contact, but either way he could not be given these positions over other people simply because he was unwell."
14 Her Honour then went on to deal with the suggestion that the Superintendent had been involved in a conspiracy against the appellant. She analysed the evidence and rejected this.
(Page 9)
15 Her Honour made the following specific findings in respect those things which led to the incident which occurred on 1 April 1996 described as "the material date". Her Honour said: (AB52)
"The next matter about which the plaintiff complains is the fact that his complaint about the forgery was dismissed. I have heard Mr Arnold's evidence about this matter; he made a recommendation that a charge of forgery should not proceed and that was accepted by the Administration. The proper procedures were used. I am unable to comment further on that. The plaintiff's deeper concern was about the letters advising the results, and it is at this point that it can be seen just how ill perhaps, the plaintiff was; he went to Mr Dunstan's office to discuss this letter and was told also of the letter that Mr Dunstan had received; he misinterpreted that letter and then did not hear Mr Dunstan say that Mr Dunstan was not going to take the job as Co-ordinator Standards away from him and did not hear that the end of what was said in Mr Moore's letter was that the plaintiff was not to do higher duties 'without counselling'. In evidence he readily accepted that he had been told these things. In actual fact of course, the letter does not say that but:
'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.' (Exhibit M(1))
It is not negligent of the employer to give that direction if the employer believes that that direction is needed and I accept Mr Moore's evidence in that regard. Furthermore, the letter itself and Mr Dunstan's personal conversation with the plaintiff made it clear that there was nothing in this that was going to cause him to have to 'go back to the front line'. It is very regrettable if the plaintiff interpreted it in that way, but that is not the employer's fault.
It is this incident that precipitated the plaintiff's problem on 1 April and it can be seen that it has nothing to do with prisoner contact. Furthermore, even if the plaintiff thought it meant he had to go back to 'the front line', that was his mistake."
16 Her Honour's conclusions on the four particulars of negligence were: (AB56)
(Page 10)
- "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 Scorer is concerned, this was simply a position arranged to facilitate redeployment and to help Mr Scorer. 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."
17 This shows that to date her Honour has dealt with the allegation of negligence as raised by the plea before her and in my view has dealt with
(Page 11)
- it by applying the correct principles of law. The grounds of appeal make no allegation to the contrary. The first and principal ground refers to a matter not raised by the pleadings and reads:
"1. Having correctly found that the manner in which the Respondent (Defendant) handled or managed the investigation into the alleged prisoner assault incident was 'clumsy', the learned Judge ought to have concluded that this amounted to a breach of the duty of care owed to the Appellant (Plaintiff) which had resulted in identifiable and compensable loss."
"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."
19 Her Honour had found as a fact that this last allegation was not established on the evidence. The appellant claimed the charges had been considered earlier and he had been cleared. Her Honour said there had been no occasion on which the appellant was cleared. She said that in fact it was quite the opposite(AB55). Her Honour dealt with the evidence relating to the appellant being informed of the charges in November 1996 and said: (AB56, par 222)
(Page 12)
- "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."
20 The ground of appeal claims that her Honour should have gone further and concluded that this amounted to negligence for which the respondent was liable in damage.
21 It was never part of the allegation of negligence or particulars of negligence that the way the charges were handled amounted to a breach of duty of care owed to the appellant by his employer. Paragraph 3 of the statement of claim set out the circumstances of the claim and contained 15 paragraphs as to what occurred from 7 November 1995 until 9 July 1997. Paragraphs 3.13 and 3.14 read:
"3.13 On 18 November 1996 the Plaintiff commenced work at Head Office, having been told that if he was unable to rehabilitate himself over the next 3 months he would face Medical Board dismissal.
3.14 On 19 November 1996 the Plaintiff was informed by the Superintendent that two charges against him arising from an incident that occurred 2 years previously would be investigated and he was suspended from duty without pay. This incident had been investigated on two previous occasions, when it was found that the Plaintiff had
(Page 13)
- nothing to answer for. Eventually the Plaintiff was able to get his pay reinstated but remained on suspension."
22 The particulars of negligence contained in par 4.1 - par 4.4 make no reference to, and do not suggest that, there was a breach of duty of care by the bringing of the charges or by a failure to bring them at an earlier time.
23 I would see it of importance that matters of this type are specifically pleaded as it would be expected that there would be a defence based on public policy arising from the fact that a superior would be under a public duty to inform a prison officer of and to investigate charges if he had a reasonable belief that there was evidence to support them. Such superior would be subject to the tort of malicious prosecution if he or she acted with malice. It would be a novel proposition to say that a superior had a duty of care, a breach of which would give rise to damages to bring charges promptly, and such a proposition would have to be examined against the background of public policy and against the background that such charges must be dealt with without fear or favour.
24 It was submitted that although the matter was not pleaded, it was nevertheless litigated and was an important issue in the trial. The matter was referred to in addresses by counsel. Counsel for the respondent, Ms Thatcher, said in respect of the charges: (Extra TS490)
"Getting back to the laying of the charges, the statement of claim does not at any point assert a conspiracy or that there is anybody within the service who is out to get the plaintiff.
There has been considerable cross-examination developing that sort of theme. I haven't objected to it, ma'am. I don't want your Honour to think that we're trying to cover anything up or hide anything. The charges were investigated. As you heard from Mr Arnold a report was done in relation to them. Your Honour has that report. It seems despite there being a recommendation that the plaintiff be charged, he wasn't. The matter was pursued again by Mr Arnold because he was asked to look into it.
There had been a complaint to the ombudsman. Your Honour will see in the reports that there is a letter with the ombudsman's stamp on it - prisoner Carter's complaint to the ombudsman. It really doesn't matter how much time has elapsed. Your Honour may reasonably think that if the ombudsman has got involved, even if you think it's unfair to take steps 2 years down the track,
(Page 14)
- you can't just sweep it under the carpet if the prisoner has made a complaint to the ombudsman. You have to follow through with it.
HER HONOUR: I don't know how significant this is. If it's of any significance and I find against you, it may only sound in damages if he is entitled to damages. One of the points of this is that the ombudsman wasn't asking about the assault. He was asking about collusion between two other prison officers. The end result is that the plaintiff is charged with assault and with making a false statement, and all that happened with the collusion is that the report says, 'I spoke to the prison officer involved. He said he didn't collude - - -'
COUNSEL: And he offered an explanation, ma'am.
HER HONOUR: - - - 'and there's no substance in this charge.' I mean, I don't know whether I would have enough to say that - it looks to me as though if it got that far that may be a matter that only sounds in damages by that stage if, you know, it affects what money a person would get. I don't know. As you say there's no allegation of conspiracy. It may be incompetence or it may be stupidity. Whatever you may feel this assault wasn't of such a high level, even if it happened, that 2 years down the track you would resurrect it and that it's stupid and asking for trouble to resurrect it 2 years down the track.
COUNSEL:There are certainly two points there. In relation to the two charges your Honour is going to form your own assessment as to whether the second charge, which is the details of the false allegations, has got any substance to it at all. In relation to the assault I really from the defence viewpoint would focus on justifying that charge rather than the other. In relation to the assault charge there are numerous statements that give numerous conflicting versions.
HER HONOUR:Yes. I don't think that I'm in a position to make a decision. I mean, I think that I'm probably in a position to make a decision that given the nature of the - I think all assaults on prisoners are serious - but given the nature of this assault to resurrect this 2 years down the track was just absurd. Other than that I couldn't make a decision as to whether he in fact assaulted the prisoner."
(Page 15)
25 Counsel for the appellant, in his final address, also made reference to it in the following way (Extra T/S 505):
"Now, where the inquiry aspect becomes negligent is that it was Mr Moore who saw the plaintiff in head office on 18 November at a fire drill, called Mr Scorer up. 'What on earth's he doing here?' No charges had been laid at that time. Picks up the phone and says to Mr Stacey, 'Charge him.' That's corroborated by Mr Stacey. The evidence is given by Mr Scorer, Mr Scorer had told the plaintiff and the plaintiff gave you that evidence. Mr Moore at that time is the defendant. He is aware of the plaintiff's problems with stress. He is aware of the plaintiff's problems with prisoner contact. He is aware that the plaintiff was started that day in a non-prisoner contact job but what does he do? He decides to resurrect a very, very old 2-year-old charge and to lay another one without foundation.
What that had the effect of doing was taking away the non-prisoner contact job. That is more than negligence. He had full knowledge of what the plaintiff's condition was. That act certainly is an act of negligence and the consequences that actually occurred are entirely foreseeable. This is why looking at that report becomes so important. If it was a reasonable act for Mr Moore to have done they may be excused but it was not a reasonable act and you judge that, firstly, by looking at the trumped up charge, and I mean that when I say it, and then by the balance of the report the charge, the assault one, as your Honour has said was sitting out there for 2 years. Even if there was a need to do something about it you don't do it the way that it was done on that day, on the man's first day in a non-prisoner contact job. He had been looking for a non-prisoner contact job for nearly a year. On day one Mr Moore decides to resurrect a 2-year-old charge and to trump up another one."
26 Counsel then referred to letters dealing with the charge.
27 The matter was not raised in the pleadings. Counsel for the defendant in her address to her Honour made it clear that she was not seeing it as an issue. In these circumstances it could not be created into an issue by counsel for the plaintiff making reference to it in his final address. I consider in any event the address was going to the question of whether there was a conspiracy against the plaintiff and whether the aim was to make his life impossible through bringing unfounded charges
(Page 16)
- against him. Her Honour rejected any suggestion or implication that the Superintendent was involved in a conspiracy or was the centre of a conspiracy against the plaintiff (par 205). Her Honour also did not find that they were unfounded charges. They were charges required to be dealt with.
28 In my view it would not have been proper for her Honour to have made the type of finding mentioned in the grounds, as to do so would be to have made a finding on a matter not pleaded. I would go further and express the view that the matter was not considered by counsel for the defendant in her address as she saw it was not in issue.
29 I consider in these circumstances it would not be open to the Court to consider the ground.
30 The second and remaining ground that her Honour misconstrued the evidence of Dr Ross Goodheart. He did not give evidence, but submitted a report. This ground, if made out, could only go to the question of damages and it would not affect liability and there is no need to consider it.
31 I would dismiss the appeal.
32 MURRAY J: I have had the advantage of reading in draft the reasons for decision published by Pidgeon J. I respectfully agree with them and have nothing to add. The appeal should be dismissed.
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