Corbin v State of Queensland - [2019] QSC 110

SUPREME COURT OF QUEENSLAND

CITATION:

Corbin v State of Queensland [2019] QSC 110

PARTIES:

KERRY CORBIN

(plaintiff)

v
STATE OF QUEENSLAND (QUEENSLAND CORRECTIVE SERVICES)

(defendant)

FILE NO:

BS3127 of 2016

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

3 May 2019

DELIVERED AT:

Brisbane

HEARING DATE:

16 – 20 April 2018 and 26 November 2018

JUDGE:

Ryan J

ORDER:

1.     Judgment for the defendant.

2.     The parties are to be heard on the question of costs.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – GENERALLY – Where the plaintiff was employed by the defendant as a corrective services officer – where the plaintiff was assaulted by a prisoner – whether the assault to the plaintiff was reasonably foreseeable – whether the defendant failed to take measures to protect the plaintiff from foreseeable harm – whether the defendant’s breach caused the harm to the plaintiff

COUNSEL:

J Wiltshire for the plaintiff

B Charrington for the defendant

SOLICITORS:

Shine Lawyers for the plaintiff

Cooper Grace Ward for the defendant

ISSUES AT TRIAL

THE PLAINTIFF, WOLSTON CORRECTIONAL CENTRE, PRISONER X AND THE ASSAULT

The plaintiff

The plaintiff’s training as a corrective services officer

Wolston Correctional Centre

The plaintiff’s employment at Wolston Correctional Centre and his on-the-job training

The plaintiff’s experience of the prisoners at WolCC

Prisoner X

The assault

Mr Mandic’s evidence about the assault

The plaintiff’s injuries

The plaintiff’s assessment of Prisoner X and his perception of the risk of an assault

PRISONER X’s CRIMINAL AND CUSTODIAL HISTORY

Material about Prisoner X’s behaviour prior to his placement at WolCC in April 2013

WolCC IOMS entries about Prisoner X (from April until October 2013)

Mr Corbin’s IOMS entries about Prisoner X

IOMS entries by other CSOs about Prisoner X

Observation about IOMS entries

LIABILITY

The Workers Compensation and Rehabilitation Act (Qld) 2003

THE DUTY OF CARE AND ITS CONTENT

FORESEEABILITY

Was Prisoner X a “remarkable” prisoner?

Evidence from those who worked with Mr Corbin or knew Prisoner X

Evidence of General Managers of WolCC

The evidence of the experts about Prisoner X

Prisoner X was not a remarkable prisoner

Should Prisoner X have been managed by way of an IMP?

Evidence of those with operational experience in Queensland of IMPs

Evidence of the experts about IMPs

Discussion of evidence about IMPs

BREACH OF DUTY

Would a reasonable employer have managed Prisoner X by way of an IMP?

Were the defendant’s policies inadequate?

Did the defendant breach the duty it owed to the plaintiff?

CAUSATION

The IMP precaution

Defendant’s submissions

Plaintiff’s submissions

Did failing to manage Prisoner X by way of an IMP cause the plaintiff’s injury?

The two-officer precaution

Would the assault not have occurred but for the failure to take two-officer precautions?

QUANTUM

The plaintiff’s health prior to the assault

After the assault

The surveillance footage

Inference to be drawn from the surveillance

General damages

Past economic loss

Past loss of superannuation

Future economic loss

Past special damages (including interest)

Future special damages

Kerry Corbin, a prison officer, approached a prisoner who had defied him and continued to smoke in breach of prison rules. The prisoner assaulted Mr Corbin, leaving him with physical and psychiatric injuries. Mr Corbin sues the State of Queensland for damages for personal injuries. He claims that the State, as Queensland Corrective Services, negligently managed the prisoner. His primary claim is that the prisoner ought to have been the subject of an “Intensive Management Plan” and that, had he been the subject of such a plan, it was probable that the prisoner would not have assaulted Mr Corbin.
The State of Queensland submits that the plaintiff has failed to establish a breach of duty on its part, or causation and that it is not therefore liable in negligence.
For the reasons which follow, I agree.
Accordingly, I order judgment for the defendant.
ISSUES AT TRIAL
I will refer to the prisoner who assaulted Mr Corbin as Prisoner X.
At the conclusion of the trial, the issues in dispute were:
(a)whether Prisoner X’s assault upon Mr Corbin was reasonably foreseeable;
(b)whether the defendant failed to take reasonable measures to protect Mr Corbin from the foreseeable risk of harm posed by the Prisoner X – that is, by managing Prisoner X under an Intensive Management Plan (IMP) or by ensuring that two prison officers were present for any dealings with him;
(c)whether the assault would not have occurred but for the defendant’s failure to manage Prisoner X by way of an IMP or by way of ensuring that two prison officers were present for any dealings with him;
(d)the veracity of Mr Corbin’s report to experts about the extent of his movement symptoms; and
(e)the quantum of Mr Corbin’s damages.
THE PLAINTIFF, WOLSTON CORRECTIONAL CENTRE, PRISONER X AND THE ASSAULT
The plaintiff
The plaintiff, Mr Corbin, turned 50 in March 2019. After working for many years as a chef and a truck driver, he entered the “academy” to train to be a prison officer in 2008. The training course ran for 10 weeks.
At the time of the trial, he was separated from his wife, and his mother was living with him. He has one adult son.
The plaintiff’s training as a corrective services officer
Mr Corbin accepted that part of his prison officer training concerned officer safety. He did not agree that that was a large part of it. He agreed that he was taught to be vigilant at all times when dealing with prisoners and agreed, in effect, that a prisoner’s temperament might vary from day to day.
He did not agree that he was trained in a “buddy system” to work as a pair with another corrective services officer (CSO). He did not agree that he had been taught to keep his co-worker in his line of sight. He said he was taught to know where his co-worker was – for example, having a smoke or going to the toilet.
After short periods in the relief pool and at the Supreme Court, Mr Corbin was employed at Wolston Correctional Centre as a CSO.
Wolston Correctional Centre
Wolston Correctional Centre (WolCC) is a protection prison – not a mainstream prison. It houses prisoners who are afforded protection status for a variety of reasons including that they are at risk of assault by other prisoners or that they have a particular vulnerability such as advanced age or mental illness.
Sharon Clark, the General Manager of WolCC from 2009 until February 2013, gave evidence about the variety of prisoners at WolCC in 2012. She said that 60 per cent of the prisoners at WolCC were “open mental health cases”; 50 per cent were child sex offenders and 20 per cent were “young offenders” who indicated “incompatibility” elsewhere and “would come to Wolston to do their time a little easier”.[1] She said those young prisoners would stand over the older prisoners, keep food from them and did “a number of things” which “threatened the safety and security of the facility”.
[1] Transcript 2 – 85. I am aware that the sum of those percentages is more than 100 per cent.
The prisoner who assaulted Mr Corbin was a young offender.
The plaintiff’s employment at Wolston Correctional Centre and his on-the-job training
At WolCC, Mr Corbin worked on a roster, rotating through areas of the jail, including in the secure units. “His” secure unit was S5.
Mr Corbin was questioned about the training he received in the 12 months after completing the academy course. His answers were to the effect that while it was expected that senior officers would continue to teach or train new CSOs on the job – that did not happen. He expressly disagreed that he had been trained at WolCC to maintain a line of sight with his co-worker.
The plaintiff’s experience of the prisoners at WolCC
Mr Corbin had some experience of mainstream prisoners at the Townsville Correctional Centre. He found the prisoners at WolCC “a lot more quiet and compliant”. He did not agree that prisoners were “volatile people … as a general rule”. He said “not in a protection prison”.
In terms of their interaction with prison staff, Mr Corbin found that the prisoners at WolCC “were very engaging and [would] approach officers very, very freely, and basically, just have a general banter with them”. The mainstream prisoners whom he had encountered elsewhere “basically, wanted nothing to do with an officer at all”.
In terms of the way in which prison officers dealt with mainstream prisoners, he said “you’re a lot more aware of the dangers … some of them would have IMPs; some of them would have intel notes … warning not to approach without two or three officers or a supervisor present”.[2]
[2] Transcript 1 – 24, l 35 – 42.
He said he showed prisoners “the same respect as what they gave me … the way they spoke to me is the way I spoke back”. He felt he engaged with the prisoners at WolCC very well.
Prisoner X
Prisoner X was 29 years old when he was afforded protection prisoner status and transferred from Brisbane Correctional Centre to WolCC. He had previous convictions for mostly drug and property offences, which had been dealt with in the Magistrates Court. He arrived at WolCC on 12 April 2013. He was placed in unit S5. He assaulted Mr Corbin on 10 October 2013, within six months of his arrival.
The assault
The assault occurred in the common area of S5. Mr Corbin and CSO Stan Mandic were on duty. Just before the assault, they were both sitting at the officers’ workstation.
Mr Corbin was not too sure of the number of prisoners in the common area at the time. A few had gone to “industries” (work) but there were probably more than 20.
Prisoner X was with seven other prisoners at the table closest to the officers’ desk. They were playing cards. Prisoner X was smoking, which was not permitted inside. It was conduct for which Prisoner X could be “breached”.[3] From his desk, Mr Corbin said to Prisoner X; “For fuck’s sake X, put it out”. Mr Corbin thought Prisoner X put the cigarette out. A little later, he saw Prisoner X leaning back in his chair and blowing cigarette smoke up to the ceiling. Mr Corbin took that as “a big F you”. Mr Corbin kept his eyes on Prisoner X as he manoeuvred his way around the workstation and into the common area itself. He did not look behind him to see if CSO Mandic was still at the workstation.
[3] In the sense of a breach of discipline which, if proved, attracted punishment.
He walked to Prisoner X’s table and said: “For fuck’s sake, these cameras are apparently recording 24 hours a day now because they are on hard drive. You’ve just been caught. Pack this up and get outside”.
Prisoner X looked Mr Corbin in the eye and said, “No you can’t do that”. Mr Corbin raised his voice, said he “could” and told Prisoner X again to “pack this up and get outside”.
Prisoner X assaulted Mr Corbin by hitting him repeatedly on the left side of the head and face. He was knocked to the ground and may have briefly blacked out. There was a lot of blood. As Mr Corbin explained: [4]
He basically jumped up out of his head (sic) and then moved away. Was huffing and puffing. I was concerned because my back was to the other prisoners sitting at the table. I was looking at them, trying to get them to pack the stuff up, plus the other ones behind me. Notice he had taken his shirt off, huffing and puffing. He had apparently walked around and then basically charged at me and blindsided me and punched me. I remember three punches … he had backed away after that, and I went to secure him so I didn’t sustain any more injuries … I had wrapped my arms around him to secure him so I wouldn’t get hit any more … I had profusely (sic) amount of blood pouring from my face, and I lost traction. He just basically pushed me backwards on my blood and smashed me into … just outside the kitchen door … the corner of the door. The concrete part … Next fell to the floor. I think it was a plastic box that I got slammed onto … Apparently we got up and wrestled again, and then I got slammed onto a table ... Hit the chairs as well on the way down … And then I remember Stan running through the exercise door …
[4] Transcript 1 – 32 – 1 – 33.
Mr Corbin thought CSO Mandic had been at the desk at the workstation when he walked over to Prisoner X and the other prisoners. He did not hear CSO Mandic tell him he was leaving the unit. CSO Mandic had in fact left the unit to take the bins out.
Mr Corbin said that had he known he was the only prisoner officer in the unit he would not have confronted Prisoner X without backup or “having eyes on me”. He would have called for extra assistance by “calling a code” and having Prisoner X removed from the unit.[5]
[5] Transcript 1 – 34.
Mr Mandic’s evidence about the assault
CSO Stanko Mandic explained that he usually worked in S3, but was working in S5 on 10 October 2013. He knew some but not all of the prisoners in S5. He did not know Prisoner X. He had worked with Mr Corbin before.
He recalled “banter … remarks and stuff” between Mr Corbin and Prisoner X. He said it was “needling” but not aggressive. It was not friendly, jovial or joking. It was “standoffish” talk from the prisoner including comments about looks and behaviour. He was “not really” concerned about any aspect of Prisoner X’s behaviour, apart from those comments.
Before Prisoner X assaulted Mr Corbin, CSO Mandic had just left the officers’ station to go outside to secure the bins by chaining them to a wall.[6] When he came back inside, he noticed that Mr Corbin “wasn’t there” and he saw him wrestling and struggling on the table which was about two metres away. He had been away for “a couple of minutes” he guessed.
[6] So that the prisoners could not play with them or throw them around.
He instigated a “Code Yellow” on his radio, and went to assist Mr Corbin. He grabbed Prisoner X and struggled with him until he was restrained. Other officers who responded to the Code Yellow took Prisoner X away.
He said that, before he went outside, he said to Mr Corbin “just going to lock up the bins mate”. He believed Mr Corbin acknowledged him.
Under cross-examination he said that, although he heard the banter between Prisoner X and Mr Corbin, he “didn’t realise that it could have … ever escalated to that sort of thing”. He estimated that he would have been outside for no longer than a minute to a minute and a half.[7]
[7] It was suggested to him that he had been gone for one minute and 45 seconds.
He said that he did tell Mr Corbin that he was leaving. He said, in effect, that it was his practice to inform whomever he was working with if he was leaving the work area. He denied that he went outside to have a cigarette. He agreed that he would be more cautious about approaching prisoners if he was working alone. He personally would not address a group of prisoners by himself.[8]
[8] Transcript 4 – 92, ll 6 – 10.
He agreed that Prisoner X was in breach of the rules by smoking inside and his conduct required some action. But if the “situation was reversed” he would have waited for Mr Corbin to return to the unit.
The plaintiff’s injuries
Mr Corbin was taken to the Ipswich Hospital bleeding profusely from his mouth. His lip had been lacerated and his teeth were damaged and loose. His lip was sutured and he was referred to a dentist. There were no fractures of the facial or teeth bones. An MRI showed no facial abnormality but a maxillofacial surgeon diagnosed an injury to his infraorbital nerve which caused painful sensations. Abnormal movement symptoms and a stutter developed, which have varied over time, but which persist. Their cause is uncertain, but expert opinion is to the effect that they were precipitated by the assault. Also, Mr Corbin developed, and continues to suffer from, Post Traumatic Stress Disorder (PTSD).
The parties agreed that Mr Corbin’s personal injuries included (i) PTSD; (ii) cranio-facial dystonia; (iii) bruising and lacerations; and (iv) scarring and disfigurement.[9]
[9] List of matters not in dispute.
The plaintiff’s assessment of Prisoner X and his perception of the risk of an assault
Mr Corbin said Prisoner X “did not display protection behaviour”. He was “confronting … arrogant”. “He would not follow any direction without, basically, having to push – push it.”
Mr Corbin described the other prisoners in S5 at the time as very quiet and compliant; causing no issues or concerns. That was not consistent with Mr Corbin’s later evidence about the five “big ringleaders” in the unit. He thought that Prisoner X and Prisoner Y were “pretty much the ringleaders, the heavies”. He was told that Prisoner X and other prisoners stood over the more vulnerable prisoners and took their food or medication. He said that Prisoner X was bashing the paedophiles and older people who could not look after themselves (although there was no suggestion he saw this as an eye-witness).
Before Mr Corbin was assaulted by Prisoner X, he thought their relationship was “all right”. He said, “We sort of have that sort of backwards and forth banter, really. I knew he was a little shit, but there wasn’t a lot I could do about it”. He would not have said there was bad blood or bad feelings between them.[10]
[10] Transcript 1 – 62, ll 29 – 37.
Mr Corbin was cross-examined about Prisoner X’s status (as a “ringleader”) and the consequences of Mr Corbin challenging him, and in that sense diminishing him, in front of his peers. Mr Corbin said that he had no reason to fear an assault from Prisoner X – even though he had reviewed his file “as far back as [he] was able to see”. Nothing put him on notice of an assault upon an officer. Nothing he knew about Prisoner X nor anything in his history caused Mr Corbin to think that he ought to take special precautions in dealing with him.
He said he would have dealt with Prisoner X differently had he known that Prisoner X had a history of violence towards police officers or other prisoners, or known he had a history of threatening or verbally abusing officers. He would not have used “banter” and he would not have approached him “singularly”.
PRISONER X’s CRIMINAL AND CUSTODIAL HISTORY
The inference to be drawn from Prisoner X’s criminal and custodial history by those at WolCC responsible for his management was relevant to the foreseeability of the assault. In particular, as the case was pleaded, the critical issue was whether those responsible for Prisoner X’s management ought to have recognised that he posed such a risk of assault upon a prison officer that he required management by way of an IMP – either upon his placement at WolCC or at some time thereafter.
Material about Prisoner X’s behaviour prior to his placement at WolCC in April 2013
Evidence tendered to the court by agreement provided information about Prisoner X, including information about his criminal history, his custodial behaviour and his prison disciplinary breaches from 2007 until 2013 (that is, the material behind tabs 7 and 8 of the Liability Trial Bundle).
I have proceeded on the assumption that all of the material behind tabs 7 and 8 was available to those making management decisions for Prisoner X upon his placement at WolCC. That might not have been the case,[11] but it is the assumption which is most favourable to Mr Corbin.
[11] For example, it was not clear on the evidence who had access to police QP9 documents.
The tab 7 material revealed that Prisoner X had a New South Wales criminal history which, as at 20 January 2011, consisted of more than 20 convictions, the first dated

15 August 2005. Those convictions were for non-violent property related offences.[12] The material revealed that all of Prisoner X’s Queensland matters were dealt with in the Magistrates Court.
[12] Page 246, Liability Trial Bundle.

The tab 7 material included a detailed report about Prisoner X’s drug use.[13] His drug use commenced with cannabis use when he was 13, and escalated to daily intravenous heroin use. His perception was that he developed a heroin addiction when he was aged about 24 having turned to opiates to deal with his amphetamine use. He was also prescribed an antidepressant for depression.
[13] Page 355, Liability Trial Bundle.
The overall effect of the material behind tab 7 and 8, which was available to the defendant prior to 12 April 2013, was that Prisoner X had abused drugs since his teenage years, including amphetamines and opiates. His offending was related in one way or another to his drug abuse. His most dangerous Queensland offence, involving driving directly at others, was committed while he was under the influence of drugs. At least one episode of assaulting/obstructing police occurred while he was under the influence of drugs. He was unable to stay drug free upon his release into the community. He was using drugs in custody in 2008, diverted his medication in January 2012 and was found in possession of a syringe in October 2012.
His custodial history included his assaulting, or being assaulted or threatened by, other inmates. At times, he demonstrated anti-authoritarian, challenging or defiant behaviour. Generally, he was better behaved while in the detention unit (and deprived of an audience of other prisoners) than he was out of detention. He had threatened prison officers, but had not acted on those threats.
He was most assaultive to other prisoners while he was accommodated at Arthur Gorrie Correctional Centre (AGCC) between May 2012 and February 2013. It was also at AGCC that he was most difficult and threatening towards staff. After his discharge from the AGCC detention unit on 19 December 2012, he was noted to be settled, polite and compliant, more mature and posing no management issues. He was transferred to Brisbane Correctional Centre on 8 February 2013.[14]
[14] Exhibit 13 is Prisoner X’s movement history.
On one occasion at Brisbane Correctional Centre, he taunted staff on the night shift. He was belligerent and non-compliant the next day. He and other prisoners stared at staff. He was found in possession of a string line on 26 February 2013. He was placed in the Brisbane Correction Centre detention unit as a consequence on 27 February 2013. He was settled when he returned to the unit and demonstrated acceptable behaviour until he was released on parole on 5 March 2013. Before his parole release he was described as having a tendency to be “a bit mouthy especially around other prisoners he want[ed] to impress”. He returned to drug use whilst in the community. His parole was suspended and he was returned to custody (on 19 March 2013) at Brisbane Correctional Centre.[15] His behaviour whilst there was satisfactory. He was described as “a bit animated” but also as polite and compliant. He was transferred to WolCC as a protection prisoner on 12 April 2013.
[15] Whilst in custody, he spend a day in hospital for surgery on his knee.
WolCC IOMS entries about Prisoner X (from April until October 2013)
Notes by correctional services officers and other prison staff (like counsellors) about the prisoners at WolCC (and other prisons) are entered into an electronic record keeping or management system known as the IOMS.
The WolCC IOMS entries about Prisoner X are relatively infrequent. IOMS entries had to be made once a fortnight (for a prisoner not housed in a detention unit) and when something occurred which warranted adverse comment. The absence of an IOMS entry for a particular day suggested that the prisoner behaved well that day.[16] Daily IOMS entries were required for prisoners in the detention unit. It follows that care must be taken in comparing the number of positive entries made while Prisoner X was in the detention unit to the fewer positive entries made when Prisoner X was not in the detention unit.
[16] Transcript 6 – 45, ll 3 – 10.
At the time (2013) the IOMS were supposed to be audited monthly, but that did not occur in the case of Prisoner X.
It was suggested by counsel for the plaintiff that the defendant’s review of the IOMS for Prisoner X and, in particular, the notes made by Mr Corbin about Prisoner X, ought to have prompted the defendant’s enquiry of Mr Corbin to explain further his notes. It is Mr Corbin’s case that even if the defendant did not appreciate, at the time of Prisoner X’s placement at WolCC, that he required management by way of an IMP, then the defendant should at least have appreciated it before the assault, having regard to his conduct at WolCC as reported in the IOMS.
Mr Corbin’s IOMS entries about Prisoner X
Mr Corbin made IOMS entries about Prisoner X’s “attitude” or the “issues” that he created or that he “pushed” the CSOs. Entries made by Mr Corbin and his explanation of them follow.
On 29 April 2013, not long after his placement at WolCC on 12 April 2013, Mr Corbin wrote:
Prisoner’s name has been brought to my attention as having major issues within the unit. Apparently he has a major attitude problem. This was confirmed during the interview with this prisoner by CSO P Robinson, he has compatibility issues with a few prisoners in the unit, some of these issues date back to his time at another centre.
Mr Corbin explained that the “major issues” had been brought to his attention by other prisoners in the unit. A major issue was a complaint to Mr Corbin from a prisoner about Prisoner X stealing his milk. Other prisoners told him that Prisoner X was standing over the older, paedophile prisoners.
When asked about the compatibility issues to which he referred, Mr Corbin referred to his assumption that Prisoner X had been transferred from Brisbane Correctional Centre because he had “obviously had a bit of a tiff or someone’s had problems with him from that unit in BCC” and his observation that the “issues” that had been “popping up” in S5 coincided with Prisoner X’s placement there. In cross-examination, it was suggested to Mr Corbin that “any review” of Prisoner X’s IOMS file did not “bear out” the information contained in this entry. Mr Corbin said he acquired this information first hand from CSO Robinson and he believed it.
On 14 May 2013, Mr Corbin wrote:
Prisoners cell was searched NTR.
Prisoner’s behaviour within the unit is trying at best, he was breached for possessing a lighter which he didnt hand over and a later strip search failed to reveal.
Reading back through this prisoner’s case file has revealed a history of this behaviour, plus Syringe Possession.
Prisoner was caught again with this lighter at 15:25, and it was finally surrendered to the Secure Manager, Secure Supervisor and CCO D. Guy.
This prisoner does not display the behaviour required here at this centre and has turned down placement in the Stepping out program. [This is discussed further below.]
This prisoner has established a bad baseline within the unit, please refer back to case note dated 29/04/13.
By “trying at best” Mr Corbin meant that Prisoner X was “Trying – he’s pushing the boundaries, basically just kept pushing us. Like, we have a set behaviour that we like in a unit, and if you keep pushing it, pushing it, to say you’re not conforming, basically, to what we want in the centre, in the unit”.[17] In terms of “the behaviour required here at this centre”, Mr Corbin explained that Prisoner X was defiant in the face of “get[ting] caught with something” whereas other prisoners would say “Okay, boss. You got me. Fair enough. I’ll cop it”.[18]
[17] Transcript 1 – 45, ll 20 – 25.
[18] Transcript 1 – 46, ll 7 – 14.
On 2 August 2013, Mr Corbin wrote:
Prisoners cell was searched Ntr, cell was clean and tidy and within QCS guidelines.
Prisoner’s behaviour can be hit and miss, and it is reflective of his case notes throughout his stay at this facility. But he is currently employed at Paint and powder much to my surprise.
This prisoner doesn’t appear to have a filter from his brain to his mouth, which would explain some of his actions.
He reported no issues or concerns at the time of the interview, he maintained good eye contact and good body posture and appears to be future oriented.
He explained that, by “hit and miss”, he meant that sometimes, Prisoner X was “being good ... playing the game” and “other times … he’s being defiant and not following rules”.[19] As to there being “no filter”, he explained that when he (Mr Corbin) gave Prisoner X an instruction he would “just shout out whatever he was randomly thinking”.[20]
[19] Transcript 1 – 59, ll 15 – 19.
[20] Transcript 1 – 59, ll 25 – 30.
It was suggested to Mr Corbin that the case notes which preceded this entry did not reflect “hit and miss” behaviour. Mr Corbin disagreed. The following exchange occurred:[21]
In between … a negative cell search with a good outcome and those good behavioural points, why put in there that he was hit and miss in his behaviour and he didn’t have a filter from his brain to his mouth, unless you didn’t like him? Why put it in there, Mr Corbin? --- It’s – I don’t know if you know what screw humour is like. It’s what we are. This is the humour – the banter back and forth we have with prisoners.
But you weren’t taught at the academy or at Wolston Correctional Centre when writing reports to make them witty and humorous. You were taught to make them factual and objective, weren’t you? --- We’ve got officers that just put a full stop and they’re – they’re case files basically reflects that. That’s their case note. You go look up on ---
So was this an attempt at humour, these comments about this prisoner on his file? --- No. It was basically saying that he was hit and miss in his behaviour but I’m glad to see he is still at his job and, unfortunately, he doesn’t think before he talks or acts.
But you’re not answering my question. Why put this in on this occasion when every interaction with him was positive? --- This is how officers talk. This is how we learn.
But it’s his file and it’s on his record and he’d done nothing wrong that day? --- I didn’t say he did.
[21] Transcript 1 – 104, l 28 – 1 – 105, l 5.
On 7 September 2013, Mr Corbin wrote:
Prisoners cell searched as per the rotational search matrix, NTR, His cell was clean and tidy and within QCS policies and standards, and Wolston Correctional centre local procedures.
Prisoner’s attitude hasn’t varied much from his arrival at this centre. That isn’t a good thing. He has problems with authority and following simple instructions. This prisoner has an ingrained drug culture that won’t be easy to erased, I don’t think this Prisoner’s attitude will change tho.
He has maintained employment at Paint and Powder much to my surprise.
Mr Corbin explained that he was referring, in that entry, to Prisoner X’s “trouble” following instructions and the fact that “it was always a performance to get him at lockaway”. He said, “When trying to get him to do tasks, he would either be defiant and then he would finally relent and do it – so it was an effort to get him to do anything”. The reference to his “ingrained drug culture” was a reference to his hanging with people who were known drug users. Mr Corbin believed there was a drug supplier in the unit.[22]
[22] Transcript 1 – 60, ll 13.
On that same day, Mr Corbin forwarded this case note to his supervisor, Brett Cross, by e-mail.
Mr Corbin added the following to the e-mail:
He has come to my attention today as being a ring leader in persecuting Prisoner [Z] and others, he is personally blaming Z for those prisoners being moved from the unit, It has been a good start moving those prisoners but could of gone further with Prisoner X, and Prisoner [Y] considered to move also.
Regards Kerry
He hoped that Mr Cross would move Prisoner X from the unit, in response to his e-mail.[23] That did not occur. He thought he followed up on his e-mail with Brett Cross on the following “inspection day” by saying “something” about it but “they [were] rushing, sort of, to get out of the unit, so they didn’t really want to hear a lot”. His evidence was to the effect that it was difficult to find time to speak to a supervisor.
[23] Transcript 1 – 61, ll 42 – 45.
Mr Cross did not receive this e-mail.
Mr Corbin was cross-examined about the reason for his including in the IOMS notes his opinion about Prisoner X in the absence of a particular incident or behaviour. It was suggested to Mr Corbin that he did not like Prisoner X and that all of his reports about him included “unnecessarily” significant negative comments. Mr Corbin denied that he was attempting to build a case against Prisoner X. He said he wanted prisoners in the unit to behave the way they were “supposed to”.
Mr Corbin was asked to confirm that, apart from the incident with the lighter, his case notes did not include any instance of Prisoner X behaving badly towards him. He did not answer in any responsive way. He said that he did not – as a result of the case notes – have Prisoner X “down as someone who needed to be watched carefully”. He said that he did not expect him to act as he did.[24]
[24] Transcript 1 – 107, l 35 – 1 – 108, l 17.
IOMS entries by other CSOs about Prisoner X
It is important to place Mr Corbin’s IOMS entries about Prisoner X in the context of other entries made about him while he was at WolCC:[25]
[25] Tab 8, Liability Trial Bundle, Volume 2.
The WolCC IOMS entries, by Mr Corbin and other CSOs, may be summarised as follows:
·12 April 2013 (by Matthew Standfield) –
ounremarkable presentation during interview following reception;
opolite and co-operative;
owilling engagement;
oreported a mental illness for which he was medicated.
·19 April 2013 (Matthew Standfield) –
osaid he was feeling good and had settled into S5;
otaking medications for current mental illness;
odenied “association” concerns;
owas looking forward to obtaining employment.
·19 April 2013 (Paul Georgas) –
onothing of concern found during cell search;
oappeared to be adjusting well within unit;
ointeracting with other offenders and staff;
oin the process of gaining employment.
·29 April 2013 – Mr Corbin’s entry about Prisoner X’s “major attitude problem”.
·2 May 2013 (Ulrich Rack) –
ocell neat and tidy;
ono contraband;
ogood standard of personal hygiene.
·7 May 2013 (Sarah Clatworthy (counsellor)) –
odeclined place on Stepping Up program. (Documentation about his refusal, found elsewhere in the evidence,[26] indicates that Prisoner X stated that he did not wish to participate because he had outstanding offences and he did not think that criminogenic programs would “count”. What that means is not clear. He may have meant that even if he were to do the Stepping Up program, it would not assist him in achieving parole because of his outstanding charges. However, the point is that his refusal was not because of belligerence on his part.)
[26] Page 569, Liability Trial Bundle.
·14 May 2013 – Mr Corbin’s entry about Prisoner X’s behaviour being “trying at best” and his “bad baseline”. He also refers in this entry to Prisoner X’s possession of a cigarette lighter.
·20 May 2013 (Duncan McKinnon) – workshop induction (for employment).
·(Not an IOMS entry) 28 May 2013 – Prisoner X pleaded guilty to a major breach of discipline, for possessing the cigarette lighter on 14 May 2013, and was reprimanded.
·4 June 2013 (Sheila Mack) –
ocell clean and tidy;
ocontraband removed (battery, jam, margarine, weetbix);
obreached in May 2013 for possessing a cigarette lighter;
oattended employment regularly.
·23 June 2013 (Sheila Mack) –
ocell clean and tidy;
ocontraband removed (battery and ashtray);
oregularly attending employment;
osecond refusal to attend getting started program. [I assume this is a reference to the Stepping Up program.]
·24 July 2013 (Edwin McIntosh) –
ostood at cell door with jocks on only;
oall prisoners remained at their doors until Prisoner X was dressed;
oPrisoner X “wasn’t happy and a bit lippy but didn’t cross the line”;
owarning issued.
·2 August 2013 – Mr Corbin’s entry about Prisoner X’s “hit and miss” behaviour and his having “no filter”.
·17 August 2013 (Jason Wood) –
onothing to report about cell search;
oworked;
ofollowed all directions given.
·23 August 2013 (David Williams) –
olate for industry parade;
odid not appear to take lateness seriously and was sent back to the unit;
ochallenged CSO by saying he would contact the trade instructor;
otrade instructor rang the unit and Prisoner X was permitted to go to work;
oPrisoner X “laughing as if it was all a joke”;
oPrisoner X “needs to show more responsibility to his employment and respect for authority”.
·30 August 2013 (Sheila Mack) –
ocontraband removed from cell (razor, roll of insulating tape, torn sheet);
o“Prisoner displays a poor attitude at times when he is required to comply with centre rules and regulations”;
oattends work regularly.
·7 September 2013 – Mr Corbin’s entry about Prisoner X having problems with authority and an ingrained drug culture.
·20 September 2013 (Alana Guy) – Negative result upon drug screening.
·20 September 2013 (Kamlesh Singh) –
ocell clean and tidy;
ohygiene and well-being “good”.
·6 October 2013 (Sharron Bianchi) –
oin a double up cell which was neat and tidy “considering”;
oattended work daily without prompting;
ostated he had no issues or concerns;
oconsidered some other prisoners in S5 to be mates.
Observation about IOMS entries
In my view, read as a whole, the IOMs entries about Prisoner X’s conduct at WolCC reveal that probably he stood over the more vulnerable prisoners and he was, at times, defiant and difficult in response to directions from prison officers.
They also reveal that the ringleaders in S5 had been broken up on 7 September 2013. None of the entries thereafter (prior to the assault) suggests a deterioration in Prisoner X’s behaviour. Up until the assault, he was better behaved at WolCC than he had been previously at AGCC and Brisbane Correctional Centre – although I acknowledge that the evidence reveals a significant deterioration in his conduct after his assault on Mr Corbin.[27]
[27] See Tamara Bambrick’s email, dated 24 February 2014: Pages 674 – 675, Liability Trial Bundle.
LIABILITY
The Workers Compensation and Rehabilitation Act (Qld) 2003
Part 8 of the WCRA concerns civil liability. Sections 305B and 305C set out the principles applicable to the standard of care. Sections 305D and 305E set out the principles applicable to causation.
Section 305B and 305C of the WCRA state:
305B General principles
(1) A person does not breach a duty to take precautions against a risk of injury to a worker unless –
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the position of the person would have taken the precautions.
(2)In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things) –
(a)the probability that the injury would occur if care were not taken;
(b)the likely seriousness of the injury;
(c)the burden of taking precautions to avoid the risk of injury.
305COther principles
In a proceeding relating to liability for a breach of duty –
(a)the burden of taking precautions to avoid a risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and
(b)the fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and
(c)the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk.

Sections 305D and 305E of the WCRA state:
305D General principles
(1)A decision that a breach of duty caused particular injury comprises the following elements –
(a)the breach of duty was a necessary condition of the occurrence of the injury (factual causation);
(b)it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused (scope of liability).
(2)In deciding in an exceptional case, in accordance with established principles, whether a breach of duty – being a breach of duty that is established but which can not be established as satisfying subsection (1)(a) – should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party in breach.
(3)If it is relevant to deciding factual causation to decide what the worker who sustained an injury would have done if the person who was in breach of the duty had not been so in breach— (a) the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and (b) any statement made by the worker after suffering the injury about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4)For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party who was in breach of the duty.
305EOnus of proof
In deciding liability for a breach of a duty, the worker always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
THE DUTY OF CARE AND ITS CONTENT
As his employer, the defendant owed Mr Corbin a duty of care. The duty was to take reasonable care to keep him safe at work and protect him from known or foreseeable risks. What is “reasonable” care depends upon the context.
The duty of care owed in a similar context was discussed in New South Wales v Bujdoso.[28] In that case,[29] the question for the High Court was whether the State had breached its duty of care to one prisoner who was assaulted by another, in circumstances where the prisoners were not closely supervised. The primary judge found that the State had not breached its duty of care. The primary judge found that it was reasonable for the State to conclude that the relevant prisoners could be trusted not to inflict an assault upon another; and their minimal supervision was reasonable. Bujdoso was successful in the Court of Appeal and the High Court.
[28] (2005) 222 ALR 663; [2005] HCA 76.
[29] Which was referred to by both parties.
Bujdoso had been convicted of sexual offences committed upon children. On appeal to the Court of Appeal, it was considered to be of particular relevance that Bujdoso had often reported incidents in which he had been threatened, vilified or humiliated by other prisoners. The Court of Appeal found that the State knew that Bujdoso was at risk. The State was held to have breached the duty of care it owed to him. It had actual knowledge that he was at risk but took no additional steps to protect him.
The State appealed to the High Court. Of the duty of care owed and its content, the High Court said (my emphasis):[30]
It is true that a prison authority, as with any other authority, is under no greater duty than to take reasonable care. But the content of the duty in relation to a prison and its inmates is obviously different from what it is in the general law-abiding community. A prison may immediately be contrasted with, for example, a shopping centre to which people lawfully resort, and at which they generally lawfully conduct themselves. In a prison, the prison authority is charged with the custody and care of persons involuntarily held there. Violence is, to a lesser or a greater degree, often on the cards. No one except the authority can protect a target from the violence of other inmates. Many of the people in prisoner are there precisely because they present a danger, often a physical danger, to the community. It is also notorious that without close supervision some of the prisoners would do grave physical injury to other prisoners. The respondent here did not simply rely upon the notorious fact that prisoners convicted of sexual offences against minors are at greater risk than other offenders: he proved that the appellant knew that he had been threatened and taunted by other prisoners, on that account, albeit to a somewhat lesser extent at Silverwater Prison than he might have been in the other institutions in which he had been imprisoned.
[30] Ibid [44].
The High Court considered the special situation of prisoners and the obligations of those having their custody. The Court quoted from Halsbury’s Laws of England (my emphasis):[31]
The duty on those responsible for one of Her Majesty’s prisons is to take reasonable care for the safety of those who are within, including the prisoners. Actions will lie, for example, where a prisoner sustains injury as a result of the negligence of prison staff; or at the hands of another prisoner in consequence of the negligent supervision of the prison authorities, with greater care and supervision, to the extent that is reasonable and practicable, being required of a prisoner known to be potentially at greater risk than other prisoners ...
The prison authorities also owe a duty of care to members of the public; and an action will lie where property is damaged by prisoners which results from negligence on the part of the authorities, but a wide latitude will be allowed the authorities in determining proper ways of dealing with inmates before liability is imposed.
[31] Ibid [46].
The statement in bold about “wide latitude” was supported by reference to Home Office v Dorset Yacht Club.[32] In that case, Borstal boys escaped the control and supervision of the Borstal officers supervising them and damaged a yacht and her contents. The Home Office was sued for negligently allowing them to escape. A preliminary issue was raised about whether the defendant, as custodian of the boys, owed a duty of care to the plaintiff which was capable of giving rise to liability in damages. The issue was decided in favour of the plaintiff at first instance and on appeal. It was also decided in favour of the plaintiff on appeal to the House of Lords. The reference to “wide discretion” is taken from the judgment of Lord Diplock:[33]
A parliamentary intention to leave to the discretion of the Home Office the decision as to what system of control should be adopted to prevent the escape of Borstal trainees must involve, from the very nature of the subject matter of the decision, an intention that in the application of the system a wide discretion in the application of the system may be delegated by the Home Office to subordinate officers engaged in the administration of the Borstal system ...
[32] [1970] AC 1004; [1970] 2 All E R 294, HL.
[33] Ibid AC at 1068.
Lord Reid said something similar (my emphasis):[34]
Governors of these institutions and other responsible authorities have a difficult and delicate task … [The present] system is based on the belief that it assists the rehabilitation of trainees to give them as much freedom and responsibility as possible. So the responsible authorities must weigh on the one hand the public interest of protecting neighbours and their property from the depredations of escaping trainees and on the other hand the public interest of promoting rehabilitation. Obviously there is much room here for differences of opinion and errors of judgment. In my view there can be no liability if the discretion is exercised with due care. There could only be liability if the person entrusted with the discretion either unreasonably failed to carry out his duty to consider the matter or reached a conclusion so unreasonable as again to show failure to do his duty.
[34] Ibid AC at 1031.
The High Court stated that as the respondent was a known likely target of other prisoners, the State was under a duty to adopt measures to reduce the risk of harm to him. The High Court found that the State had adopted no measures to reduce the risk of harm to Bujdoso. It relied on its system of classification and “perfunctory personal oversight” by one warder, during the night, of all the prisoners in the relevant unit. It failed in its duty of care. Not only was there merely a foreseeable risk of injury to Bujdoso – he had been expressly threatened. Such a risk, once known, called for the adoption of measures to prevent it. Bujdoso pointed to measures which could reasonably have been undertaken but which were not (such as better and stronger locks). He was under no obligation to prove that those measures would have guaranteed his safety. Reasonable care was enough – but that was missing.
The plaintiff referred also to State of New South Wales v Napier[35] in which it was said that there was a duty on those responsible for Her Majesty’s prisons to take reasonable care for the safety of those within (as per the quote from Halsbury’s).
[35] [2002] NSWCA 402 at [73] – [75].
The defendant referred also to Leeder v The State of Western Australia,[36] in which the Court of Appeal made no criticism of the primary judge’s findings that (i) the State owed a duty to a prison officer to take reasonable care to avoid exposing him to an unnecessary risk of injury and (ii) that the risk of assault upon prison officers by prisoners was foreseeable.
[36] [2008] WASCA 192.
The defendant relied particularly upon the more recent case of Eastment v State of Queensland,[37] submitting that, following Eastment and the other cases mentioned, the State was under a duty to impose a regime of “normal control and supervision” upon Prisoner X, “absent some cogent basis of contemporary knowledge requiring additional measures”.[38]
[37] [2018] QCA 253.
[38] Defendant’s outline of submissions [19].
The plaintiff expressed the duty in the following, similar way: “Beyond the notorious risk of any possible violence, where there is a specific known risk or propensity the prison authority has a duty to take such further steps as are reasonably available to it to obviate that risk”.[39]
[39] Plaintiff’s outline of submissions [2.5].
I consider that, if the State was, or should have been, aware of a risk of harm to its prison officers posed by Prisoner X, over and above the ever present risk of harm in the prison environment, then the State was under a duty to take reasonable measures to avoid the risk of harm posed by Prisoner X, in addition to the control and supervision measures already in place.
That duty is non-delegable but it is not strict. To be successful, the plaintiff must show that the defendant unreasonably failed to take measures or adopt means reasonably open to it to protect him from a foreseeable risk of injury and that, had those reasonable measures been taken, the plaintiff would probably not have suffered the injury.[40]
[40] Turner v State of South Australia (1982) 56 ALJR 839 at 640 per Gibbs J.
FORESEEABILITY
A critical issue in this case is whether the assault upon Mr Corbin was reasonably foreseeable.
At common law, an inquiry about whether or not there has been a breach of duty, by failing to respond at all, or in a particular way, to a foreseeable risk of harm, must attempt, after the event, to identify what response a reasonable person, confronted with that risk, would have done to avoid if.[41] Breach is not established by positing, with the benefit of hindsight, that something more might have been done.[42]
[41]    Vairy v Wyong Shire Council (2005) 223 CLR 422.
[42]    Coca-Cola Amatil (NSW) Pty Ltd v Pareezer [2006] NSWCA 45 at [3].
Eastment approved the following comment from Vairy v Wyong Shire Council in expressing the scope of the duty of care (emphasis by Morrison JA): [43]
Again, because the inquiry is prospective, it would be wrong to focus exclusively upon the particular way in which the accident that has happened came about. In an action in which the plaintiff claims damages for personal injury it is inevitable that much attention will be directed to investigating how the plaintiff came to be injured. The results of those investigations may be of particular importance in considering questions of contributory negligence. But the apparent precision of investigations into what happened to the particular plaintiff must not be permitted to obscure the nature of the questions that are presented in connection with the inquiry into breach of duty. In particular, the examination of the causes of an accident that has happened cannot be equated with the examination that is to be undertaken when asking whether there was a breach of the duty of care which was a cause of the plaintiff’s injuries. The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be “nothing”.
[43] Eastment at [126].
In Stokes v House with No Steps,[44] Jackson J discussed the legal framework of liability where, as here, questions about breach of duty are not to be decided by reference to the common law alone: sections 305B to 305E of the WCRA apply.
[44] [2016] QSC 79, to which the plaintiff referred me.
At [62] his Honour observed that unless the relevant statutory provisions are borne in mind, it is likely that the wrong questions will be asked. His Honour said that the correct approach was illustrated by Adeels Palace v Moubarak:[45]
[27] The question of breach of duty must be considered by reference to the relevant provisions of the Civil Liability Act – in particular s 5B [the equivalent of s 305B of the Queensland Act].
[28] It may be accepted, for the purposes of argument, that there was a risk, of which Adeels Palace knew or ought to have known (s5B(1)(a)), that there would be violent, quarrelsome or disorderly conduct in the restaurant. It may be accepted that this risk “was not insignificant” (s 5B(1)(b)) The question then becomes whether a reasonable person in the position of Adeels Palace would have taken the precautions that the plaintiffs alleged should have been taken (ss5B(1)(c), 5B(2)). Those precautions were the provision of licensed security personnel who would act as crown controllers or bouncers.
[45] (2009) 239 CLR 420, 437 [27] – [28].
The plaintiff argued that the information available about Prisoner X’s drug use (in the community and in custody), his “propensity for violence including against authority figures” and his disrespect for authority, rules and directions “point[ed] to the prospect of the plaintiff acting in a violent manner towards prison staff being foreseeable”.[46]
[46] Plaintiff’s outline of submissions [3.6].
The plaintiff pleaded that, in the face of the reasonably foreseeable risk of harm posed by Prisoner X to CSOs, the State breached its duty to Mr Corbin by failing to manage Prisoner X by way of an intensive management plan – an “IMP”.[47]
[47] The plaintiff also pleaded that the State, by its employee CSO Mandic, was negligent in leaving Mr Corbin alone in the common area of S5 when it was unsafe to do so. I will deal separately with this aspect of the claim. The plaintiff did not pursue his assertion, in his Statement of Claim, that Prisoner X was negligently granted protection prisoner status: Transcript 6 – 3, ll 37 – 40. The assertion that he should not have been placed in S5 was not pursued either.
The defendant conceded that an assault by a prisoner upon a CSO was foreseeable and not insignificant. However, the defendant argued that, before it could be said that relevant additional steps were required to protect a CSO from that risk, “special circumstances giving notice of an imminent risk of harm over and above the normative risk of prisoner violence” were required – and none existed.[48]
[48] Defendant’s outline [25].
The defendant argued that there was nothing remarkable about Prisoner X which called for him to be managed differently from the other prisoners in secure units at WolCC. The defendant relied upon evidence to the effect that Prisoner X was a typical or unremarkable prisoner: a significant proportion of the prison population at WolCC included young prisoners with drug problems and “attitude”, like Prisoner X.
The plaintiff argued that Prisoner X was not unremarkable – and even if he were, that did not mean that additional measures were not required to protect Mr Corbin from the foreseeable risk which he posed.
Was Prisoner X a “remarkable” prisoner?
Evidence about whether Prisoner X was a “remarkable” prisoner, in the sense that he posed a risk that other prisoners at WolCC did not pose, was given by witnesses who had worked at WolCC, including those who knew Prisoner X, and experts.
Evidence from those who worked with Mr Corbin or knew Prisoner X
The plaintiff called Ian Eggins, who had worked for Queensland Corrective Services (QSC) for 32 years, retired in 2016. He worked at several prisons – mainstream and protection. He was a correctional supervisor at WolCC from 2011/2012 until he retired. He was one of Mr Corbin’s supervisors and spoke favourably of him.
He gave evidence about the behaviour of protection prisoners at WolCC from 2011 until 2013 and the change over time in the composition of protection inmates. He said:[49]
We tended to get a lot of prisoners requesting protection who would not normally have been classed as protection prisoner[s] in times gone past, so this meant that we got prisoners there who, for want of a better description, tried to be the – the big fish in a little pond. So some of them would behave themselves and just do their own time and get along with the sentence that they had to do and not cause any issues, but every now and then you got other prisoners who came in and who would like push the bounds of authority all of the time, stand over other prisoners for various – various items, flagrantly argue with the – the officer in charge of the – of the unit because they weren’t getting their own way. They probably weren’t the best behaved of the prisoners that we had …
[49] Transcript 2 – 57, ll 35 – 45.
The prisoners who became the “big fish” were younger prisoners with “issues” in a mainstream environment. He expressed his opinion that of the 300 prisoners at WolCC, 50 “should not” have been there. I find, on other evidence, that Mr Eggins probably significantly underestimated the number of prisoners at WolCC at the relevant time – but his estimate of the proportion of “big fish”, that is about one-sixth (or about 17 per cent) of the prison population, was consistent with other evidence and I accept it.
While Mr Eggins recalled that some units at WolCC were quieter than others, he could recall nothing in particular about the behaviour of prisoners in S5 in 2013. He was asked to compare Prisoner X’s behaviour, as revealed in the IOMS, to the other prisoners on S5. He stated that he did not know the other prisoners in the unit and he could not compare him to them, but his behaviour was “normal” for the 50 prisoners he considered ought not to be at WolCC.
Under cross-examination, he agreed that “the advent of methylamphetamines, ice [and] those sorts of drugs” changed the demographic of prisoners “to some extent”. He agreed that the prison setting in 2016 was more violent than it was in the 1980s. In his opinion, in part, the change in behaviour was a consequence of prisoners’ drug related mental health issues and because “the wrong people” were afforded protection status.
The defendant called Brett Cross, who had worked in QCS for 34 years – including 18 at WolCC. He retired in 2018. He was a supervisor at WolCC at the relevant time. He knew Prisoner X. He said that he was “probably in the range of 6” to manage. He could get “very edgy” if he “thought he was being backed into a corner”. Mr Cross felt he could “talk him down”.

He was asked how Prisoner X compared to others in the unit. He said he was – on the “spectrum of prisoners” – just outside of average. He could “verbalise a bit” but he was working.
His attention was drawn to Mr Corbin’s case note, dated 2 August 2013, which mentioned Prisoner X’s hit and miss behaviour and his having no filter. He said that entry gave him no reason to speak to Mr Corbin. Nor did the entry of 24 July 2013 raise any concerns, because he had been given a warning and the matter had been dealt with. He did not think that Prisoner X’s attitude as revealed in those entries needed follow up.
He did not recall ever receiving the email which Mr Corbin sent to him. Had he received it, he would have spoken to Mr Corbin about it.
Evidence of General Managers of WolCC
The plaintiff called Sharon Clark who was the general manager of WolCC from 2009 until February 2013. She began working for Corrective Services in 1996. She left in 2016. She knew Mr Corbin and described him as fair-minded and competent. She was not at WolCC when Prisoner X was there.
Ms Clark said it was difficult to categorise “an ordinary prisoner”. She explained that there was variety among the prisoners at WolCC who had protection status. They included child sex offenders; prisoners who had been Crown witnesses; high profile or notorious offenders; prisoners released from maximum security units, who required intensive management; psychogeriatric prisoners and those who had compatibility issues with other prisoners. Also, WolCC also ran the high intensity sexual offenders treatment program, and prisoners were placed there to complete that program.
She was taken to information about the behaviour of Prisoner X which included IOMS entries to the effect that –
·on 4 October 2012, after a prisoner was told to down the volume of the television, he –
oberated a prison officer, including by calling him a “fucking dog” and writing ‘DOG” with buttered toast on the glass of the officers” station; and
othreatened to “smash” an officer;
·on 17 October 2012 – he possessed a syringe;
·on 6 December 2012, he –
ocalled another prisoner a “fucking dog” and punched him;
orefused to come into the airlock with prison officers;
oargued about wanting his coffee (which was being held by a prison officer) and knocked it out of the officer’s hand; and
·26 February 2013 –
oset up a string line from his cell to another cell to send another prisoner a letter; and
omade “wise comments to” and stared at prison officers in the company of another three prisoners.
Ms Clark considered that behaviour to be different from the behaviour of a “typical” WolCC prisoner and more like the behaviour of a young, mainstream prisoner. She agreed that prisoner-on-prisoner assault was not uncommon, but it was not the “norm” for every prisoner and “certainly not in a protection jail”. She agreed that it was not entirely preventable. She agreed that a significant number of prisoners at WolCC in 2013 were prisoners of the young, mainstream prisoner type (between 100 and 120).
The defendant called Tamara Bambrick, who has been employed by QSC for 21 or so years, since 1997. She was appointed as the General Manager of WolCC in May 2013.
Ms Bambrick was on leave on the day Prisoner X assaulted Mr Corbin. Whilst she may have had previous conversations about Prisoner X, he was not “on her radar” as a prisoner she was concerned about.
She had reviewed the behaviour of Prisoner X between his arrival at WolCC and the assault. Prisoner X sat in the “middle of the bell curve” when it came to prisoner behaviour. He was a “normal” prisoner – although that did not mean that he was “well behaved”. He was, in Ms Bambrick’s assessment, anti-social, pro-criminal and involved in drug use, if not the drug trade. He was sarcastic and belligerent, although that fluctuated. On balance, he was compliant.
She gave evidence, consistent with other evidence, to the effect that a prisoner might behave better upon their placement than upon remand. A placed (that is, sentenced) prisoner knew their future and could work towards parole. After placement, a prisoner’s actual behaviour would determine his treatment at WolCC.
She explained that the demographic of WolCC had changed since it opened in 2000. In 2000, it had a reputation for, and in fact had, no incidents. By 2008, her third “tour of duty” at WolCC, the demographic had changed significantly and it had changed again upon her return in 2013:[50]
... The – the stereotype of … the mature aged paedophile who is a very clean, tidy prisoner who doesn’t pose you any problem which was real in the year 2000 has not been in evidence for over a decade now. It’s about the youth, it’s about the – the introduction of ice into our community and the – the mental health impacts that that has. It’s about the anti-authoritarian etcetera, that we have in our – in our youth coming through.
And you mentioned the change in demographic associated with that; has it also meant a change in overall behavioural patterns? --- Absolutely.
To what extent? --- To the extent that this now becomes fairly normal behaviour, that anti-authoritarian I – I think I can challenge authority. You know, 21 years ago when I started, prisoners didn’t challenge authority and when they did, they were markedly different instantly. This is just the norm.
[50] Transcript 5 – 56 l 37 – 5 – 57, l 18.
She was taken to the case notes about Prisoner X at WolCC which included Mr Corbin’s negative notes about Prisoner X. She said that some of Mr Corbin’s notes reflected “almost an assumption that protection was synonymous with good behaviour” which it was not. She did “not at all” agree that protection prisoners were generally quieter and had fewer problems than mainstream prisoners.
The defendant called Kerrith McDermott who had been employed by QCS for 28 years before her retirement in June 2018. She was the general manager of WolCC from February to May 2013 – and was the general manager upon Prisoner X’s arrival. Her first appointment as general manager was in 1998. She had been the general manager of five Queensland prisons, including WolCC.
She explained the process of reviewing prisoners upon their arrival at WolCC to determine their placement and management. Advice about new prisoners was given by the Intelligence Manager to the general manager and those present at morning meetings – that is the management team, sentence management staff, correctional managers, medical staff and others. The information provided depended upon the new prisoner’s profile.
Ms McDermott had no independent recollection of Prisoner X’s arrival at WolCC. For the purposes of the trial, she had reviewed his IOMS from October 2012 until October 2013 and the information about his behaviour at AGCC. On the basis of that material, she described Prisoner X’s behaviour as “fairly typical for his age group” and “fairly typical for the nature of his offences” which were predominantly theft and drug related offences. He was “no stand out”.[51] He was an unremarkable prisoner.
[51] Transcript 6 – 7, ll 19 – 30.
Ms McDermott observed that AGCC was different from WolCC because WolCC was a placement centre and the prisoners there (at WolCC) were “settling into home”. The prisoners at AGCC (a remand prison) were “facing court and charges and everything else that goes with that”. The prisoners there tended to be “less settled, more inclined to injure themselves, more inclined to lash out, [and to have] less reserves … to manage their own behaviour.[52]
[52] Transcript 6 – 8, ll 28 – 37.
In cross-examination, Ms McDermott was taken through Prisoner X’s history of detention in 2012. It was suggested to her that his knocking the coffee cup out of a prison officer’s hand was “significantly aggressive”. She agreed that it was inappropriate activity and an aggressive move, but “in terms of … the scale” she was not sure that it was significant.[53] She said that while Prisoner X’s conduct included implied threats to prison staff – in terms of what was “normal” within a correctional centre, it was not serious.
[53] Transcript 6 – 17, ll 15 – 20.
It was suggested to her that the usual history of a WolCC prisoner would not include “four stints in the detention unit over five months”. She said it would and that that history was not uncommon. Considered in isolation, Prisoner X’s behaviour looked “very poor” but it was unremarkable when compared to the criminal and institutional behaviour of other prisoners. She did not agree that it was “significantly worse than the average prisoner coming into Wolston”.[54]
[54] Transcript 6 – 18.
Ms McDermott said that all prisoners “posed a significant risk to the good order of the prison and the safety of prisoners and staff” if their behaviour was not managed “appropriately”. It was suggested to her that Prisoner X posed a “significant risk”.[55] She said:[56]
I think there was a good chance here – and there was evidence – that he would continue with his drug-seeking and drug-taking behaviour. I think he would continue to be belligerent and a show off, but I didn’t see – I don’t see any evidence that there would have been, at that particular point, a serious risk to the safety of the centre.
[55] Transcript 6 – 21.
[56] Transcript 6 – 21, ll 31 – 38.
I asked questions of Ms McDermott with a view to understanding how she, as general manager, would have managed a prisoner like Prisoner X who was likely to continue with his drug seeking and belligerent ways at WolCC. She said:[57]
The best way to manage a prisoner is with the involvement of correction staff. And I think when you look at the case notes at Wolston Correctional Centre, I think staff were doing a good job of managing him.
… Which is why there were so relatively few negative incidents … and why he was able to maintain employment. Employment’s a very prized activity in any correctional centre. So there must have been something identified that suggested this prisoner was, you know, worthy of continued employment.
[57] Transcript 6 – 25.
She considered his behaviour at AGCC to be on the relatively lighter end of the scale. She continued:
And it would not be unreasonable for a prisoner to come in and say “Okay. This is Wolston. This is a fresh start. You’ve got your sentence. You’re doing this long a period. You can have this many visits. You can get employment. You can move to residential. There’s actually a glimmer of hope.
Ms McDermott said that there was a definite difference in behaviour between prisoners on remand and those in a placement prison. But the history of a prisoner’s behaviour in a remand prison informed those at the placement prison about the prisoner. Here it informed the defendant that Prisoner X was not “squeaky clean … he’s a druggie … he’s very mouthy and he loves to show off”.
Ms McDermott was asked to compare the “good” IOMS entries made about Prisoner X while he was in the detention unit at AGCC to the poor behaviour referred to in the IOMS entries when he was out of the detention unit. Ms McDermott explained that daily IOMS entries were required for prisoners in the detention unit. Once out of the detention unit, IOMS entries were required fortnightly and if the prisoner behaved in a way which warranted adverse comment. One could assume, therefore, good behaviour in the absence of an IOMS note on a particular day.
The evidence of the experts about Prisoner X
The parties each called prison management consultants to give expert evidence about the reasonable management of Prisoner X.
Neither consultant had current operational experience in prisons.
The evidence of the several witnesses with relevant, current, operational experience of WolCC evidence included evidence about the change in the composition of WolCC over time, the mix of protection prisoners and the way in which Prisoner X compared to the rest of the WolCC prisoner population, as outlined above. However, the experts were not asked for their opinions on the assumption that that evidence was true. The factual basis for their opinions was limited to the documents produced by the defendant about Prisoner X’s criminal and correctional history, divorced from any information about the protection environment at WolCC in 2013. That was not satisfactory.
Also, the defendant’s expert had not considered the whole of the documentary material in detail before he gave his evidence.[58]
[58] Transcript 4 – 83 – 4 – 84. The material had been provided in two batches. The plaintiff’s expert provided a supplementary report having considered the second batch of material. The defendant’s expert did not.
In my view, the inadequate factual bases upon which each of the experts expressed their opinions substantially reduced the weight of their opinions.
William Allgood, a Correctional/Security Management Consultant, was the plaintiff’s expert.[59]
[59] He prepared three reports, dated 27 March 2017, 10 September 2017, and 13 April 2018.
Mr Allgood joined the Victorian Prison Service in 1979 and completed his training in general duties in 1980. He served on committees and reference groups (which I assume had a policy focus) from about 1987. In 1997, he was the Acting Director of Prisons, Victoria. He served in senior roles, including as deputy governor, governor and general manager of prisons, until June 2005. He has been a consultant since June 2006, and from 2008, has provided expert opinion reports.
In Mr Allgood’s experience, Prisoner X’s behaviour was not “an accurate reflection of a normal prisoner accommodated in a protection unit or protection prison”. His breach profile was more akin to an incident profile of “a higher security recalcitrant inmate”. I note that Prisoner X was designated a “high security” prisoner. The evidence at trial was that he did not warrant a higher security classification. There was no evidence at trial about the security status of a “normal” protection prisoner housed in a secure unit at WolCC.
Mr Allgood was “confident” that few, if any, of the prisoners in S5 would have the range of indiscretions/behaviours as those recorded against Prisoner X. He considered Prisoner X remarkable in that sense.[60]
[60] Report, 27 March 2017 [126], [127].
The defendant’s expert, Neil McAllister,[61] is a consultant, specialising in advice to corrective services agencies. He has worked in correctional and detention environments since 1990, in research and policy roles. He has conducted investigations into serious incidents in secure facilities involving violent offenders. He has consulted to corrective services since 2008. He has not managed a prison, nor has he worked as a correctional officer (apart from a few weeks when he provided relief because of industrial action).
[61] Mr McAllister prepared two reports – the first dated 19 July 2017 and the second dated 11 September 2017. The first report was based on incorrect documents and was replaced by the second.
Mr McAllister had no personal knowledge of WolCC. He had extensive knowledge of AGCC, which he described as a tough prison in terms of its client base of remand prisoners who were known to be more problematic and troublesome than sentenced prisoners.
Mr McAllister did not think that Prisoner X’s history was “remarkable” compared to the cohort of prisoners of his same age and background. In his opinion, there were no “strong indicators” that Prisoner X was reasonably likely to assault a prison officer on the day of his assault upon Mr Corbin.
Under cross-examination, Mr McAllister was shown to have based his opinion on an incomplete or inaccurate understanding of Prisoner X’s previous behaviour. He did not know that he had previously threatened prison staff on more than one occasion. He did not appreciate that his criminal conduct including his driving a car at police and other acts of violence. His opinion, that Prisoner X’s Queensland prison history was “relatively minor”, was based on incomplete information which did not include certain reports of prison incidents involving Prisoner X.[62]
[62] Transcript 4 – 32ff.
He agreed that his assessment of Prisoner X’s dangerousness had been based on incomplete information but remained of the view that Prisoner X was not remarkable.
Prisoner X was not a remarkable prisoner
There was consistency between the witnesses who had worked at WolCC at the relevant time about the significant proportion of protection prisoners who did not fit the stereotypical protection prisoner mould of the quiet, older paedophile. The prisoners who did not fit the mould were younger prisoners who used drugs and challenged authority. They were in protection because they had “issues” in mainstream prison units (not because of the nature of their offences). They had attitude and they were defiant. Their inclusion in the protection population was a consequence of the uptake of the use of methylamphetamine in the community. And prisons, including protection prisons, were more violent places than they once had been.
Mr Allgood’s view, that Prisoner X was remarkable, was at odds with the views of those with current WolCC experience. Those with current WolCC experience, including the plaintiff’s witness Ms Clarke, acknowledged that times had changed and that the protection prison environment included about 20 per cent of offenders like Prisoner X – that is, younger prisoners, who had committed “mainstream offences”, who were not as easy to manage as the stereotypical, older, paedophile, protection prisoner.
I find that Prisoner X fell into this proportion of prisoners. In that sense, he was unremarkable. Indeed, on the evidence, other prisoners like him were removed from S5. However, I agree with the plaintiff that the relevant question is not so much whether Prisoner X was remarkable, but whether the foreseeable risk which he posed of an assault upon a CSO required his management under an IMP.
Should Prisoner X have been managed by way of an IMP?
The Custodial Operations Standard Operating Procedure – Intensive Management Plans which applied in this case explained the purpose of IMPs – namely they were “multipurpose” and implemented for prisoners who were identified as requiring “a higher level of supervision and/or case management and/or intervention strategies than provided through standard prison management processes”. On one view – “remarkable” prisoners.
The procedure included as an example of a prisoner who might require an IMP as one who was “identified to have a pattern of breaches of discipline, behavioural case reports and/or intelligence reports identifying problematic behaviour (e.g. observed to bully, intimidate or victimise other prisoners and/or actively engaged in substance abuse and drug related behaviours”.
The experts and those with operational experience of IMPs gave evidence about IMPs generally and whether Prisoner X warranted management by way of an IMP.
Evidence of those with operational experience in Queensland of IMPs
Bernard Kruhse was the General Manager of Brisbane Correctional Centre who granted protection status to Prisoner X in 2013. He said that Prisoner X’s institutional conduct was not relevant to the decision about his protection status. He said that prisoners calling prison officers “dogs” was “almost a daily occurrence”, as was threatening officers to “have a go … I’ll smash you”. It was relevant to a prisoner’s management to know that they engaged in drug activity and used a stringline to pass messages. It was also relevant that a prisoner was willing to be part of a group and act in a disruptive manner: but that was “98, 99 percent” of Mr Kruhse’s prisoners.
As to whether a prisoner spending 31 days out of a five-month period (as Prisoner X had done in 2012) was unusual, Mr Kruhse said that it depended. He said the goal was to manage a prisoner in a way which would see him succeed, which might include managing him via an IMP:[63]
… Prisoners can, depending on their individual circumstances, go through acute phases of – of sort of raging against the system, where they feel that they’ve been mistreated, unfairly dealt with, etcetera. And we can generally, over time, get them through that. Short periods in the … detention unit … to defuse that situation, take them out of the environment where they might be … many prisoners suffer mental health issues and they can be led by other prisoners. There’s a great deal of peer pressure. So to get to know what’s driving the prisoner, to be able to look at what causes the prisoner to fail, and then to be able to design a management process around that prisoner to see them succeed – all of those things you’ve mentioned are considered because we’d know then his drug activity, his propensity to join gangs and be involved … as a follower. The – we know that that causes him to fail, so we’ll try and make sure that we design something around him to see him succeed.
And when you say “design something around him”, that might be an individual – an intensive management plan, mightn’t it? --- It very well could be.
[63] Transcript 5 – 21.

Neurological examination revealed numbness over the left cheek. There was titubation of the head and a mild to moderate resting hand tremor – greater on the left than the right. There was no evidence of facial weakness or drool.
In terms of whole person impairment, in 2015, Dr Campbell was of the opinion that the headaches amounted to a 3 per cent whole person impairment; and the left cheek numbness amounted to a 2 per cent whole person impairment. Dr Campbell was not qualified to offer an opinion about the percentage whole person impairment constituted by the tremors and stutters – deferring to the opinion of a neurologist. The neck complaint, which Mr Corbin emphasised in 2018, amounted to a 3 per cent whole person impairment.
Dr Peter Field – psychiatrist (plaintiff’s treating psychiatrist)
On 30 September 2013, by letter to Mr Corbin’s general practitioner, Dr Field confirmed his history of bipolar disorder.
He saw Mr Corbin on 14 October 2013 – four days after the assault, then not again until 12 August 2014. He had by then developed the severe tic and reported problems with headaches and concentration. Mr Corbin told Dr Field that his tic was all day, every day but was not as severe if he was relaxed or involved in an activity which was not stressful. It was then responding to Clonazepam. The tic was more severe if Mr Corbin was under stress or required to attend to a task that required a considerable amount of concentration. Those facts indicated to Dr Field that psychological factors played a part but he was reluctant to say whether the condition was functional or psychogenic.
On 1 September 2014, Dr Field replied to questions from WorkCover to the effect that Mr Corbin’s movement disorder was not related to his pre-existing psychiatric condition (that is, his bipolar disorder).
On 18 November 2014, Dr Field stated that Mr Corbin had not made good progress and had been more depressed. His neck spasms had not improved and his last Botox injection was nowhere near as effective as his first.
On 17 September 2015, in a letter address to “To Whom It May Concern”, Dr Field offered these observations:
Although there is no agreement from the neurologist and the psychiatrists about the cause of this man’s symptoms, there seems to be no doubt that the attack by the prisoner played a crucial role. Dr Foxcroft’s report gives a very good account of how psychological factors played a very important role causing this man’s problems. I am not able to argue with his conclusion; however I find it very hard to understand how the Botox has such a significant effect if there is no neurological cause for his problems. Whether this condition is psychological or neurological, in my mind there is no question that the attack by the prisoner on 10 October 2013 was the cause of his problems.
In conversation with Mr Corbin’s legal representatives on 19 March 2018, Dr Field emphasised that he had not seen Mr Corbin since 2015 and that he was not a neurologist, nor was he treating Mr Corbin for anything other than his bi-polar disorder.[109] In

re-examination, Dr Field agreed that, even if the movement symptoms were neurological, rather than psychogenic, they would vary in accordance with Mr Corbin’s stress and anxiety.
[109] Transcript 4 – 7, l 33 – 4 – 8, l 30.
Dr Malcolm Foxcroft – psychiatrist (plaintiff)
Dr Foxcroft prepared two reports about Mr Corbin, dated 17 March 2015 and 20 March 2018, as well as a report prepared jointly with Dr Harvey Whiteford dated 6 April 2017.
In 2015, Mr Corbin told Dr Foxcroft about the financial, physical, psychological and social consequences of the assault. He told Dr Foxcroft of his previous diagnosis of

bi-polar disorder and his psychological treatment which assisted him to come to terms with the end of his marriage. Dr Foxcroft found that there was little in the way of pre-existing psychiatric impairment as a consequence of his “low grade” bi-polar disorder.
Mr Corbin presented to Dr Foxcroft in a dishevelled state. He wore a beard to cover the scar on his lip. His mood was appropriate. His cognitive functioning was intact on gross clinical testing, although he performed “serial sevens” poorly, was very distractible and ceased the test in frustration. His performance was consistent with an impairment in concentration at a clinical level.
Dr Foxcroft observed that Mr Corbin presented with a very marked tremor, with “constant nodding and shaking and dystonic movements of his head and also similar grasping and finger clasping movements of his right hand”. These movement were involuntary but increased in frequency when he discussed the injury, the symptoms of his post-traumatic stress disorder or his anxiety.
In Dr Foxcroft’s opinion, Mr Corbin had developed a post-traumatic stress disorder as a consequence of the assault. His PTSD symptoms were active, moderately severe, and severely disabling. He was withdrawn and socially isolated. He was fearful of being reinjured; of crowds and of other people. He had active symptoms of intrusive

re-experiencing phenomena and related anxiety. His tic disorder occurred “secondarily” to his PTSD. Tic disorders were not uncommonly seen in post military service PTSD.
In 2015, he rated Mr Corbin at 19 per cent on the Psychiatric Impairment Rating Scale (PIRS). His PIRS rating for his bi-polar disorder was 0 per cent.
In 2015, Dr Foxcroft considered Mr Corbin’s prognosis to be poor. PTSD was difficult to eradicate and tended to have a chronic course. His ongoing physical symptoms (tics, pain and numbness) were reminders of his condition. His social and general withdrawal, and his avoidance, reinforced the symptoms of his PTSD. He was totally and permanently incapacitated for all forms of work.
Dr Foxcroft re-assessed Mr Corbin in 2018. Mr Corbin outlined his living arrangements – that is, with his elderly mother who provided him with supervision and support, despite her frailty. Mr Corbin reported, among other things, that his personal hygiene had decreased. He suffered from flashbacks and nightmares about the assault, but they had decreased in frequency. His hypervigilance and detachment had worsened. He said he had no friends. He had had only transient relationships. He was depressed. His concentration was poor and he had difficulty remembering what day it was. He suffered from panic attacks and mood swings. He wished he could return to the workforce.
Dr Foxcroft observed that the symptoms of his cervical dystonia had clearly worsened since 2015. Mr Corbin presented with very frequent, quite marked and, at time, painful muscle spasms and tics in his neck, face, head shoulders and arms. He was jumpy and hypervigilant.
Dr Foxcroft described Mr Corbin’s PTSD as severe, with features of secondary cervical dystonia. His PTSD was the primary cause of his psychiatric impairment. Having regard to the worsened neurological symptoms, Dr Foxcroft considered Mr Corbin’s impairment had increased to 24 per cent and that he was totally and permanently incapacitated for work. His current symptoms were severe. Dr Foxcroft said: “He reports extension of the symptoms [of dystonia] into his right forearm which [was] causing further difficulties and frustrations for him in day to day activities”. He considered Mr Corbin to be experiencing the progressive effects of a chronic, severe, psychiatric disorder with ended his career path and disrupted his lifestyle. His condition could deteriorate in the long term.
Of the protracted, ongoing legal conflict, Dr Foxcroft said that it was causing Mr Corbin “continued clinical distress”, risking his long term outcome and increased his risk of death by suicide.
Dr Foxcroft had seen the surveillance video of the plaintiff. He observed the following, from a psychiatric perspective:[110]
… I initially did not know that the videotape was taken after he left my rooms, but it made a lot of sense then. From watching the video, I think there’s good evidence that’s he’s displaying symptoms of post-traumatic stress disorder. He’s quite hypervigilant. He sort of scans the environment. He runs – when he walks down to the station, he runs along the rail along the wall, you know, say in a defensive kind of – that defensive sort of posture or position, stands against the wall when he’s on the platform. When he’s eating his Macca’s he – he is looking around the environment. So it’s a consistent sort of video or consistent sort of display of someone who – who might be distressed or moderately distressed or sort of – just hypervigilant, someone with PTSD who’s out of their environment. And he – he uses, like, the phone to keep himself distracted while he’s waiting for the food. He did seem to struggle getting the ticket a bit, which I wonder whether that’s due to his concentration difficulty. So, overall, I didn’t really find any inconsistencies with his sort of presentation and the video. I mean, granted he is out of his own and so it had been my sort of expectation that he was having difficulty being out on his own, but then he does describe – display some symptoms which would – or some behaviours which could be consistent with him being, well, nervous and symptomatic …
… So he was on his own and, I mean, he’s described difficulties being out on his own to me, which is then reflected in my first writing. But, I mean, he – he does display evidence of anxiety and so – I mean, the only thing that – the only thing that might be a bit different from my reports, based on that report, would be, yes, he – yes, he is out of his house on his own, you know, which he has some difficulties with, so probably you could argue the point about my rating on the PIRS rating for travel. But otherwise … the video footage doesn’t change my opinion.
[110] Transcript 3 – 86, l 20 – 3 – 87, l16.
He recalled that Mr Corbin was “pretty stressed” when he came in to the appointment in 2018, but settled down during it.
Under cross-examination, he agreed that under surveillance, Mr Corbin displayed no tremor in his right hand. Dr Foxcroft said that the tremor was a “very interesting symptom”. He said it was closely connected to levels of anxiety and the other symptoms of PTSD. The fluctuation in the appearance of the symptom was consistent with his views of it.
He agreed that there was no sign of Mr Corbin’s facial tic while he was under surveillance, nor dystonic head movements. He agreed that Mr Corbin displayed no overt signs of distress, nor, while he was leaning waiting for his food, did he look to see who was next to him or behind him.
Dr Foxcroft did not agree with Dr Whiteford that the plaintiff would be able to return to work within six to 12 months after the end of the litigation. He did not think there would be any change. Mr Corbin had had a lot of symptoms for a long time. He thought it highly unlikely that Mr Corbin would be able to do administrative or console work which required him to leave his house, concentrate and interact with others.
Joint report – Dr Foxcroft and Professor Whiteford
In accordance with an order made by this court on 16 December 2016, Dr Foxcroft and Professor Whiteford spoke to each other on 5 April 2017 and produced a joint report.
They agreed that Mr Corbin suffered from PTSD. The difference in their PIRS ratings – 19 per cent (per Dr Foxcroft) 15 per cent (per Professor Whiteford) was not “major” and was explicable by a change in psychiatric symptoms over time and their emphasis by

Mr Corbin at their separate assessments of him.
The psychiatrists agreed that Mr Corbin was unfit, when they assessed him, for any form of full-time work. They believed further psychiatric treatment was necessary, targeting his PTSD. Whether he could return to work depended on his response to treatment. They had not then (in April 2017) seen him since 2015 and could not comment on his current impairment.

Professor Harvey Whiteford – psychiatrist (defendant’s expert)

Dr Whiteford’s report of 13 July 2015 contains an extensive review of Mr Corbin’s history.His mental state examination of Mr Corbin then revealed evidence of clinically significant anxiety and depression. His dystonia was prominent and the frequency and severity of Mr Corbin’s movements was not influenced by conversational content. He met the diagnostic criteria for PTSD with secondary depression. Dr Whiteford deferred to Dr O’Sullivan’s diagnosis of craniofacial dystonia, triggered by the assault. He offered a guarded prognosis for his psychiatric impairment. On the PIR scale, he rated

Mr Corbin’s psychiatrist impairment at 15 per cent with a rating of 5 per cent for his pre-existing disability.
Dr Whiteford re-examined Mr Corbin on 1 March 2018. In his report about that examination, he also discussed the conclave he had had with Dr Foxcroft – noting that the 4 per cent difference in their ratings could be explained by a fluctuation in Mr Corbin’s symptoms at each assessment. They held different views about Mr Corbin’s pre-existing impairment.
Upon re-examination, Dr Whiteford found that Mr Corbin’s PTSD symptoms had decreased but his neurological symptoms had increased. Dr Whiteford considered numerous reports about Mr Corbin’s neurological symptoms in the course of preparing his report dated 6 March 2018.[111] He concluded that the general consensus was that

Mr Corbin’s dystonic movements were either wholly or partially caused by his psychological symptoms, aggravated by the distress of his involvement in his compensation claim and this litigation.
[111] Tab 22, trial bundle, pages 5 – 6.
Mr Corbin reported his current symptoms to Dr Whiteford – nominating as the most debilitating his headaches with neck pain, poor memory, right hand weakness, an intermittent stutter and his involuntary movements. He also reported impaired cognition.
Dr Whiteford noted that Mr Corbin presented as very anxious at the start of the assessment, with a mild stutter. His anxiety lessened and the stutter became intermittent and then stopped during the examination. His anxiety did not fully remit during the examination. His cognitive ability fluctuated in accordance with the fluctuations in his anxiety.
From a psychiatric perspective, the diagnosis was generalised anxiety disorder with residual features of PTSD. Conversion disorder had to be considered as an explanation for his dystonia – the opinion of relevant medical specialists having moved towards the view that Mr Corbin’s movement disorder was not explained by a primary neurological disorder. Dr Whiteford rated Mr Corbin’s overall impairment at 15 per cent (of which he considered 5 per cent to be pre-existing).
Dr Whiteford requested further medical records which were provided to him. He noted that the records confirmed that his movement disorder was worse with stress. He expressed a belief that Mr Corbin could return to employment once the litigation was over. Mr Corbin was highly motivated to return to employment.
In April 2018, Dr Whiteford was asked to consider Dr Foxcroft’s 2018 report in which Dr Foxcroft concluded that Mr Corbin’s overall condition had worsened and his impairment rating had increased from 19 per cent to 24 per cent. He noted that

Dr Foxcroft considered Mr Corbin’s dystonia to be secondary to his PTSD. Dr Whiteford observed that he was not sure that that view was shared by Dr O’Sullivan. He also noted the lack of consensus among the neurologists.
Dr Whiteford was also shown the surveillance footage. He observed no tremor, no anxiety and no dystonic movements. Mr Corbin’s presentation on the video was completely inconsistent with his presentation during his recent assessment with

Dr Whiteford. Having seen the surveillance recording, Dr Whiteford’s opinion about

Mr Corbin’s PTSD did not change, but his impairment was, in Dr Whiteford’s view, much less that the 15 per cent he had previously estimated. He did not believe that Mr Corbin was disabled from employment. He remained of the view that the litigation was a significant stressor and that upon its conclusion, Dr Whiteford expected Mr Corbin’s anxiety and associated impairment to decrease.
Under cross-examination, Dr Whiteford agreed that the surveillance was “one brief snapshot” of Mr Corbin’s presentation. Dr Whiteford was not able to say how Mr Corbin presented at other times.
It was suggested to Dr Whiteford that the surveillance did not show anything inconsistent with Mr Corbin’s previous reports about what he was able to do. Dr Whiteford said, in effect, that it revealed inconsistency. he said:[112]
---- The video shows Mr Corbin interacting in a very relaxed manner without any overt signs of panic or anxiety, being able to negotiate all the things he needs to do to purchase at a busy outlet that he didn’t avoid with no evidence of tremor or dystonic movements which were overt when I assessed him.
[112] Transcript 5 – 66, ll 12 – 16.
He agreed that Mr Corbin’s looking around while he ate could be consistent with his hypervigilance and that he was likely to be less anxious on his way home than on his way to an appointment. The video revealed to Dr Whiteford that Mr Corbin’s symptoms were not present all the time.
Dr Nicholas Burke – occupational physician (defendant’s expert)
Dr Burke, occupational physician, prepared four reports about Mr Corbin – the first dated 9 April 2015 the last dated 10 April 2018.
Having examined Mr Corbin on 7 April 2015, Dr Burke concluded that he was unable to perform the duties of a custodial correctional officer. His capacity to work was affected by his PTSD and his craniofacial dystonia. Nor could he work in an alternative capacity within QCS. While he would defer to the opinion of a consultant psychiatrist, he considered that Mr Corbin should be permanently restricted from returning to operational duties as a CSO.
Dr Burke assessed Mr Corbin again on 1 February 2018. Mr Corbin reported his ongoing symptoms. His primary symptoms related to his involuntary movements. He told

Dr Burke that he could do most things, but “paid” for it the next day.
Dr Burke found Mr Corbin to be a fit looking man in no significant distress. The level of jerkiness in his head was not as profound as he recalled it and there was no significant facial dystonia. He had a reasonable range of motion in his cervical spine. There was diminished sensation over the left maxillary region. There was no abnormality in his lumbar spine movements.
Dr Burke interpreted other reports as revealing general agreement that Mr Corbin’s dystonia was most likely related to psychosocial factors. He referred to a report by

Dr O’Sullivan in which Dr O’Sullivan nominated Mr Corbin’s anxiety and depression as significant contributors to his current symptoms and disability.
Dr Burke’s general impression was that there had been improvement in Mr Corbin’s symptoms since his last review. He was lucid and cognitively aware and there had been improvement in his ability to perform his activities of daily living. His facial dystonia was “not constant”. It was “not too bad”. It would probably become worse if he was stressed.
Whether he was able to return to work was dependent upon psychiatric opinion about his PTSD. From a physical point of view, he could work in a driving position or in call centre work. He would need to avoid repetitive or forceful movement of the hand/wrist and prolonged or sustained lifting, carrying, pushing or pulling. Unless his PTSD precluded it, he could work as a security officer, roaming or in a control room.
Dr Burke was shown the video footage. Mr Corbin’s presentation in it was consistent with his presentation to Dr Burke. There was “minimal” evidence of tics and muscle spasms.
Under cross-examination, he clarified that from a physical point of view, Mr Corbin could drive, but from a psychiatric point of view, he might not be able to, for example, drive to the city. He considered that Mr Corbin would be able to manage his neck and back symptoms as a courier, including because he would be in and out of a vehicle. He considered Mr Corbin safe to drive. PTSD symptoms might prevent him from working in a busy and hectic call centre – but physically, he could undertake that work. His level of symptoms were not incompatible with that environment. Mr Corbin’s stuttering might – if severe – make it difficult for him to work in a call centre.
Inference to be drawn from the surveillance

Ms Gardner, who has been the plaintiff’s treating psychologist for many years, said that the plaintiff’s presentation during the recording was consistent with his presentation to her: his tremor varied; it worsened with stress.
The plaintiff’s expert neurologist said that the plaintiff’s presentation during the recording could be explained by stress or the lack of it.
The plaintiff’s expert psychiatrist said that the plaintiff’s tremor was a “very interesting symptom”, secondary to his PTSD and closely connected to his levels of anxiety and the other symptoms of PTSD. The plaintiff’s presentation during the recording did not change his opinion.
The defendant’s neurologist found the plaintiff’s presentation during the recording completely inconsistent with his past presentations. He concluded from it that the plaintiff did not have any neurological impairment or disability.
The defendant’s psychiatrist was of the view that the plaintiff’s dystonic movements were wholly or partially caused by his psychological symptoms, aggravated by his involvement in this litigation. His presentation during the recording was completely inconsistent with his presentation including on 1 March 2018.
The defendant’s occupational physician, who assessed the plaintiff on 1 February 2018, found then his facial dystonia to be “not too bad” but it would probably worsen under stress. The plaintiff’s presentation during the recording was consistent with his presentation to the physician.
I note the difference in the plaintiff’s presentation to Dr Burke and Ms Gardner from his presentation to the other experts. I consider it unlikely that the plaintiff deliberately feigned his movement symptoms during his examinations by relevant experts. In reaching that conclusion, I have had regard to the time at which they first arose (that is, not long after the plaintiff attempted a return to work) and his distress upon learning that Botox was not reducing them. I find it likely that the difference in his presentation is explicable by reference to the stress of the neurological and psychiatric examinations, which Mr Corbin would have appreciated were particularly relevant to his monetary success in this litigation.
I have however formed the view that the plaintiff overstated his movement symptoms to the extent that he asserted that were constant or ever present unless he was lying down.
I do not have the benefit of the opinion of the plaintiff’s treating neurologist, who is a movement specialist to whom the other experts said they would defer. In my view, the movement symptoms are more likely to be functional – but regardless, I find that they are aggravated by stress, particularly in the context of this litigation. I find that they are not ever present. Probably, when the plaintiff is feeling no stress or low stress they are not present. It follows that I consider there to have been some overstatement by the plaintiff of the other physical symptoms which arise as a consequence of the involuntary movements.
I note that the plaintiff claimed to be hypervigilant at the time of the surveillance recording. The absence of movement symptoms suggests otherwise. I am not persuaded by Dr Foxcroft’s evidence that he was showing signs of PTSD during the recording. For example, Dr Foxcroft suggested that the plaintiff struggled to purchase a train ticket because of issues with concentration. In my view, there was nothing remarkable about the plaintiff’s use of the ticket machine. And while he may have distracted himself with his phone while waiting for his food, there was nothing remarkable about that. Indeed, he showed no concern for those around him while he was focused on his phone and he adopted a relaxed position against a column at the time.
Consistently with the report of Ms Gardner, I find that the plaintiff’s PTSD symptoms are not as severe as they once were. However his symptoms are such that finding employment will be difficult for him.

General damages

General damages are to be assessed by reference to the Workers Compensation and Rehabilitation Act 2003 and Workers Compensation Rehabilitation Regulation 2014.
The parties agree that the plaintiff’s dominant injury is psychological. The parties acknowledge the difficulty in classifying (under the Regulation) the plaintiff’s dystonia. The plaintiff argues that, because of its association with his PTSD, his mental disorder ought to be classified as serious, attracting an ISV of 31. The plaintiff submits that having regard to his neck pain, headaches and other injuries, his ISV should be at the top of the range for the dominant injury – that is, at 40.
The defendant submits that the plaintiff’s mental disorder ought to be assessed as moderate, with an ISV of 8. Applying multiple injury uplift, the plaintiff submits the appropriate ISV is 12.
I consider an ISV of 20 appropriate – which leads to general damages in the sum of $34,100.
Past economic loss
I find that the plaintiff experiences involuntary movements that vary from day to day and with stress. I find that he has some impairments of memory and concentration – although he gave his evidence with no particular sign of weakness in those fields.
I find that overall his psychological symptoms are not as intense as they were in 2015. I find that his psychological injuries are the primary impediment to his working in the fields in which he is suited or trained.
The defendant argues that I should assess the plaintiff on the basis of three years of incapacity, and beyond that, I should assess him as capable of the sort of work referred to by Dr Burke, which included security work, Uber driving or Taxi driving, courier work, or call centre work. I note that Dr Burke emphasised that his focus was on Mr Corbin’s physical capacity and that his opinion was subject to the opinions of the psychiatrists about Mr Corbin’s PTSD.
The plaintiff submits that I ought to proceed on the basis that Mr Corbin is completely unemployable.
I am satisfied that if the plaintiff had been able to find work he was capable of doing after the assault he was likely to have attempted it.
In my view, security work and Uber and Taxi driving (especially with passengers in the back seat) carry risks for the plaintiff similar to the risk of his returning to work as a CSO (which neither party suggests he can do). Courier work or call centre work might be possible but it depends on when it is reasonable for Mr Corbin to expect some relief from his PTSD. The evidence about this is unclear.
I consider the plaintiff to have been unemployable from the date of the assault until now, but will apply a discount of 15 per cent to my assessment of his past economic loss to reflect the risk that the plaintiff’s pre-existing psychological condition and other vicissitudes may have impaired his capacity to work, particularly given the stressful nature of custodial work; and, having regard to the uncertainty about his recovery from PTSD, a further discount of 5 per cent to deal with the possibility that some work (like call centre work) may have been available to him on a casual basis from time to time.
From the date of the assault, 10 October 2013, until 1 May 2019 is about 5 years and 28 weeks (or 288 weeks). For 20 weeks, Mr Corbin was paid by his employer.
I consider the calculation of past economic loss at the rate of $950 per week for 268 weeks, discounted by 20 per cent to be appropriate: a sum of $203,680.

Interest on past economic loss

The plaintiff received WorkCover weekly benefits of $39, 965.08, to be subtracted from the sum above for the purposes of the interest calculation. That is, interest is to be calculated on the sum of $163,714.92 – at the rate of (2.667 per cent divided by 2) for 5 years: a sum of $10,915.
Past loss of superannuation
At 9.5 per cent - $19,349.60.
Future economic loss
The defendant submits that the plaintiff ought to be treated as “not incapacitated for a variety of work, including call centre work and delivery driving”. The defendant submits that the difference between the likely income of those jobs and the plaintiff’s work as a CSO is $200 a week.
The plaintiff submits that he will never be able to work again – or if he can, it would be limited to light work for a limited number of hours per week. He submits that I should assume a loss of $950 per week.
I do not consider it likely that the plaintiff would have worked until he was 67 as a corrective services officer – given the nature of the work and his attitude to it as revealed in the IOMS. I consider it likely that he would have worked in that profession until he was 60.
I consider that his psychological conditions and movement symptoms are likely to persist for some uncertain time into the future. He is an older person and it is reasonable to assume that the labour market would be challenging for him. I do not find that the surveillance represents the plaintiff’s presentation on a daily basis. I consider it an example of his presentation on “good” days. I consider his residual earning capacity to be limited.
Assuming 10 more years of employment, at $950 per week, and applying the multiplier of 413 (5 per cent) gives an amount of $392.350, which I consider ought to be discounted by 30 per cent to allow for contingencies (including the prospect of some employment and the complications of the plaintiff’s pre-existing vulnerability). This results in an amount of $274,645.
I calculate the future loss of superannuation at $31,034.
Past special damages (including interest)
I accept the plaintiff’s calculations: $37,228.
Future special damages
It is unlikely that the plaintiff will need psychiatric treatment into the future to deal with his psychological injuries (although he might occasionally need to see a psychiatrist for a review of his bi-polar medication). It consider the plaintiff’s submission that he will require Botox injections until he is 80 to be speculative. I accept that he will have medication expenses and may benefit from some physiotherapy. A global assessment of $15,000 would be appropriate.

CITATION:	Corbin v State of Queensland [2019] QSC 110
PARTIES:	KERRY CORBIN (plaintiff) v STATE OF QUEENSLAND (QUEENSLAND CORRECTIVE SERVICES) (defendant)
FILE NO:	BS3127 of 2016
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	3 May 2019
DELIVERED AT:	Brisbane
HEARING DATE:	16 – 20 April 2018 and 26 November 2018
JUDGE:	Ryan J
ORDER:	1. Judgment for the defendant. 2. The parties are to be heard on the question of costs.
CATCHWORDS:	TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – GENERALLY – Where the plaintiff was employed by the defendant as a corrective services officer – where the plaintiff was assaulted by a prisoner – whether the assault to the plaintiff was reasonably foreseeable – whether the defendant failed to take measures to protect the plaintiff from foreseeable harm – whether the defendant’s breach caused the harm to the plaintiff
COUNSEL:	J Wiltshire for the plaintiff B Charrington for the defendant
SOLICITORS:	Shine Lawyers for the plaintiff Cooper Grace Ward for the defendant