| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : DARRYL CHARLES HARRIS and SHAYNEE MAREE HARRIS, the children of the late DARRYL LEEDHAM CAMERON suing by their next friend VANESSA HARRIS -v- STATE OF WESTERN AUSTRALIA [2003] WADC 39 CORAM : MACKNAY DCJ HEARD : 16 DECEMBER 2002 DELIVERED : 25 FEBRUARY 2003 FILE NO/S : CIV 642 of 2001 BETWEEN : DARRYL CHARLES HARRIS and SHAYNEE MAREE HARRIS, the children of the late DARRYL LEEDHAM CAMERON suing by their next friend VANESSA HARRIS Plaintiffs
AND
STATE OF WESTERN AUSTRALIA
Defendant
Catchwords: Practice - Western Australia - Appeal from decision of Deputy Registrar refusing leave to amend defence - Turns on own facts
Legislation: Prisons Act 1981 (WA) s 111
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Result:
Appeal allowed Representation:
Counsel:
Plaintiffs : DR J L Cameron
Defendant : Mr B P King
Solicitors:
Plaintiffs : D'Angelo & Partners
Defendant : State Crown Solicitor
Case(s) referred to in judgment(s):
Broom v Morgan [1953] 1 QB 597
Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714
McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633
Nada v Knight & Anor (1990) A Tort Rep 81-032, at 67,918
New South Wales v Lepore [2003] HCA 4
Puntoriero & Anor v Water Administration Ministerial Corporation (1999) 165 ALR 337
Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
Tony Sadler Pty Ltd & Ors v McLeod Nominees Pty Ltd (1994) 13 WAR 323
Case(s) also cited:
Baume v Commonwealth (1906) 4 CLR 97
Commissioners of Police for the Metropolis v Reeves (Joint Administratix of the Estate of Martin Lynch, Deceased) [1999] UKHL 35; [1999] 3 All ER 897; [1999] 3 WLR 363
De Bruyn v South Australia (1990) 54 SASR 231
Far North Queensland Electricity Board v Masterwood Pty Ltd [1998] QCA 431
Grljusich v Grljusich, unreported; SCt of WA; Library No 930253;
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Orange v Chief Constable of West Yorkshire Police [2001] 3 WLR 736
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Pretty v Director of Public Prosecutions and Secretary of State for the Home Department [2001] UKHL 61
Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
Reeves v Commissioner of Police [2001] 1 AC 360
Sinclair v James [1894] 3 Ch 554
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1995) 13 WAR 323
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Introduction 1 The writ of summons in this action was issued out of the Supreme Court in 1992, and sought damages for the infant children of Darryl Leedham Cameron deceased (the deceased), who died on 17 December 1991 whilst a prisoner at Greenough regional prison. 2 At the time of issue of the writ the firstnamed plaintiff was aged a little over 2 years, whilst the secondnamed plaintiff was born six months after the deceased's death. 3 The plaintiffs must now be aged 12½ years and 10½ years respectively. 4 Although there is no hint of it in the statement of claim, which was endorsed on an amended writ issued in January 1993, the claim is apparently one made under the Fatal Accidents Act 1959 (WA), on the basis that the plaintiffs were likely, but for the deceased's death, to have received some benefit from him. 5 The statement of claim alleges that the deceased took his own life, something admitted by the defendant, in a defence filed in April 1993, when an admission was also made that a duty of care was owed to the deceased by the defendant, although breach of it was denied. 6 In March 2001 the action was remitted to the District Court, and on 30 July 2001 it was entered for trial. 7 In February 2002 the defendant filed a minute of a proposed amended defence and made application to amend, that application coming a little less than nine years after the original filing. 8 The amendments sought in the minute included the addition of a plea in par 6 that further and in the alternative the defendant:
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9 The reference to "the Act" was a reference to the Prisons Act 1981 (WA) (the Act).
10 A further minute was filed in July 2002, the particulars of which need not be set out. 11 The application proceeded to a hearing before a Deputy Registrar of the Court and on 10 October 2002 the defendant's application to amend the defence was dismissed. 12 The defendant then appealed from that decision.
Proposed amendments 13 The defendant has now brought in another minute, par 6 of which relevantly reads:
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14 As to the proposed allegations par 6(b) is said to seek to raise an allegation of contributory negligence.
15 Paragraph 6(a), as appears, invokes the Act s 111, which provides: "No action or claim for damages shall lie against any person for or on account of anything done, or ordered or authorized to be done, by him which purports to be done for the purpose of carrying out the provisions of this Act, unless it is proved that the act was done, or ordered or authorized to be done, maliciously and without reasonable and probable cause." 16 The explanation for the belated inclusion of that plea is given in the affidavit of Georg Raithel of 2 August 2002 filed in support of the original application, which reads in part: "6. The Defence contains a bare denial of liability and is otherwise lacking in particularity. 7. At the time of the filing of the Defence the legal position regarding the interpretation of the provisions of s.111 of the Prisons Act 1981 (WA) was as set out in the matter of Nada v Knight (1990) Australian Torts Reports 81-032. 8. In that case a claim had been brought against the superintendent of Fremantle Prison and the State of Western Australia for damages and, before the Supreme Court, counsel for the State informed the Court that the State would not rely upon the immunity set out in s.111 of the Act. 9. Counsel argued that the State was not a 'person' within the meaning of s.111 and that its provisions could not be used as a plea that the State was not vicariously responsible for the negligent acts of its employees. 10. The Supreme Court accepted the submissions of counsel for the State and did not consider the point further. 11. Accordingly, the Defendant did not plead the provisions of s.111 of the Act at the relevant time and this action proceeded firstly in the Supreme Court and then in the District Court to the point where it appeared inevitable
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that the matter would not be programmed to a hearing by way of trial before a Judge of this Court. 12. As the solicitor having the conduct of this matter it was my view that the action should not proceed to trial on the present state of the pleadings, notably, the bare denial pleaded in defence to the Plaintiff's Statement of Claim. 13. I took advice from counsel, Mr Barry King, who recommended amendments to the Defence along the lines set out in the substituted Minute of Proposed Amended Defence of Defendant filed 13 February 2002. 14. Counsel referred me to the decision in Everett v The State of Western Australia and Another [2001] WADC 18 wherein counsel for the State made it clear that the State had changed it attitude in relation to the applicability of s.111 of the Prisons Act since the hearing of the appeal in Nada's case previously referred to. Everett's damages claim against the State was dismissed by Commissioner Ley who held that the State was a 'person' within the meaning of s.111 of the Prisons Act and that its provisions provided a complete defence to the Plaintiff's claim against the State. 15. Although not directly involved in the matter I was aware of the decision and I assumed, incorrectly, that the decisions was 'on appeal' and might well be determined once and for all in a superior court. 16. To my knowledge this has not occurred and the decision stands as a relevant, and potentially binding, authority for the proposition which the Defendant now seed to advance in its proposed amended defence." 17 Given the above the following passage in the judgment of Pidgeon J (with whom Rowland and Ipp JJ agreed) in Nada v Knight & Anor (1990) A Tort Rep 81-032, at 67,918, is relevant: "At the hearing of this appeal an order was made substituting as second respondent the State of Western Australia for the Minister for Corrective Services and amending the statement of claim to allege that the State of Western Australia was through its servants or agents responsible for the management, control
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and security of the prison and was responsible for the welfare of the prisoners. The original respondents had pleaded that the actions of the respondents in respect of which negligence is alleged were done for the purpose of carrying out the provisions of the Prisons Act 1981 and that the respondents would rely on sec. 111 of the Prisons Act. This provides that no action or claim for damages shall lie against any person for or on account of anything done in carrying out the provisions of the Act unless malice is proved. Mr Cock, for the respondents, made it clear at the hearing of this appeal that the State of Western Australia would not be relying on this section. The view taken by it was that the section applied to 'natural persons' and that the State of Western Australia does not come within the protection of the section. He said that the State of Western Australia also takes the view that the provision that no action or claim for damages shall lie against natural persons may not be used as a plea by the State of Western Australia that it is not vicariously responsible for negligent acts of its employees. Mr Cock said that this is the view that has prevailed with his instructing solicitors for some time and submits that a decision of the New South Wales Court of Appeal in Cowell v Corrective Services Commission of N.S.W. (1988) 13 N.S.W.L.R. 714 gives some support for this view. It is also not in dispute that the State is vicariously liable if negligence can be established. Mr Cock submitted that the defence provided by sec. 111 would be available to the first respondent but stated that it is not claimed by the second respondent. Mr Marshall, for the appellant, indicated that if judgment was obtained against the second respondent he would not seek to pursue the claim against the first respondent. If therefore the evidence does sustain a finding that there was a breach of duty of care in the way pleaded it is sufficient for judgment to be entered against the second respondent and there would be no need for this Court to consider the extent of or any limitations to sec. 111 by reason of this not now being pleaded as a defence by the second respondent." 18 The learned Judge went on to find such a breach. 19 In the NSW case referred to, Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714, the Court of Appeal found by majority that the commission (the first respondent) was liable for an unlawful detention of the appellant in a prison, brought about by a failure to properly calculate remissions, in circumstances where the
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Prisons Act 1952 (NSW) (the NSW Act) s 46 provided an immunity in similar terms to the Act s 111. 20 A claim against a nominal defendant representative of the State of NSW (the second respondent) was dismissed. 21 Clarke JA (with whom Priestley JA agreed) said (726) that the matter, which was decided on agreed facts, involved assertions by the appellant in the statement of claim that the first respondent and the governor of the relevant prison both wrongfully imprisoned him, and in addition that each was the employee and/or agent of the second respondent, who was therefore liable for their wrongful conduct. 22 After noting the NSW Act provided for the first respondent to have the care, direction, control and management of all prisons and the making of provision for the welfare of prisoners, Clarke JA said the appellant's submission was that the first respondent was liable both vicariously for the acts of wrongful imprisonment by the prison governor and directly for its own acts in unlawfully detaining him. 23 As to the issue of vicarious liability the learned Judge pointed out (731) that the: "… theory of vicarious liability was stated by Fullagar J in Darling Island Stevedoring and Lighterage Co v Long (1957) 97 CLR 36 (at 57) in these terms: '… The rule is, in my opinion, rightly stated, as it always is, in terms of liability and not in terms of duty. The liability is a true vicarious liability: that is to say, the master is liable not for a breach of duty resting on him and broken by him but for a breach of duty resting on another and broken by another.' " 24 After a discussion of the competing view, that the source of the master's liability was the servant's act rather than his liability, and of the gloss placed on the rule in Broom v Morgan [1953] 1 QB 597 that a master could not take advantage of an immunity conferred on the servant, Clarke JA followed Fullagar J and declined (733) to follow Broom. 25 As a consequence he found the first respondent was not vicariously liable for the act of the prison governor. 26 The learned Judge then observed (734):
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"Nonetheless it is said that the first respondent is directly responsible for the unlawful detention of the appellant. This, as I apprehend it, involves proof of conduct on the part of the Commission which, quite apart from any particular conduct of a servant, establishes the cause of action on which the appellant bases his claim." 27 After observing that it was necessary to look to clearly define the conduct complained of, and that such was the unlawful detention of the appellant, Clarke JA referred (735) to the first respondent's "overall management of the prisons under its control" and other duties and said those things dictated the conclusion that responsibility lay with it, notwithstanding that the appellant was, under the NSW Act, "deemed" to be in the custody of the governor. 28 Reference was also made (737) to "the first respondent's lawful power to exercise control over the prisoner, both directly by order and by directions to a governor". 29 The learned Judge then said: "It follows that the action of the governor in detaining the prisoner beyond the date of his expiry should be seen as an action performed under the direction of the first respondent who is therefore directly responsible for its consequences: Hogg, Liability of the Crown (1971 at 64-65)." 30 Clarke JA went on to find that the first respondent was not itself a "person" able to benefit from the immunity conferred by the NSW Act s 46 and in doing so referred (739) to the: "… social policy favouring the grant of immunity to Crown servants but not the Crown, or, in this case, the statutory corporation fulfilling governmental functions: Parker v Commonwealth of Australia; Friedmann and Benjafield, Australian Administrative Law, 2nd ed (1962) at 107; Hogg, Liability of the Crown (at 112) and Public Torts and Contracts, Aronson and Whitmore (1982) at 20." 31 The learned Judge had earlier found the second respondent was not liable on the basis of the rule that an action ought be brought against an incorporated government instrumentality rather than the Crown, where such exists.
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32 In Western Australia the position under the Act as it stood on 17 December 1991 was, it would appear, that there was a permanent head of the prisons department known as the "Director".
33 Pursuant to the Act s 7(1) and subject "to (the) Act and to the control of the Minister, the Director (was) responsible for the management, control and security of all prisons and the welfare of all prisoners". 34 It was further provided in the Act s 16(1) that "(e)very prisoner (was) deemed … to be in the custody of the Director". 35 Various other responsibilities were also given to the Director. 36 As to the existing pleadings in the present case it is alleged in the statement of claim that the deceased "came into the care, custody and control of the defendant and its servants or agents" on 12 December 1991, that he was then unconscious and suffering from a potentially fatal overdose of apparently self-administered drugs, that he required hospital treatment, and that on 17 December 1991 while at Greenough Regional Prison he was found dead in a prison cell, having hung himself with a prison issue belt. 37 A number of particulars of the alleged breach of duty are given, including a failure to take action to protect the deceased from self-harm, and failures to keep him under close observation, to provide support and to prevent access to an implement used to modify the belt. 38 The provision of the belt and the use of a cell in which potential suspension points had not been screened are also alleged and complained of. 39 In the existing defence the defendant admits that the deceased was "in the care, custody and control of the Defendant and/or its servants or agents", albeit that it is now desired to add to that admission an allegation that the Greenough Regional Prison was a "prison" within the meaning of the Act and that by virtue of s 16 thereof the "Plaintiff" (sic) was in the custody of the chief executive officer of the prison. 40 The admission that the defendant owed the deceased a duty of care is not sought to be withdrawn in the minute. 41 As Fleming (8 ed (1992) p 369 n 24) observes, a usual plea in a case of alleged vicarious liability is that "the defendant acted 'by himself, his servants, and agents'."
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42 However, as that learned author also says (p 368), the "hallmark of vicarious liability" is that it is not based on the defendant's own conduct, or even on breach of his own duty, whereas personal liability in contrast is necessarily related to breach of one's own duty.
43 Further, the term "agent" can include someone through whose instrumentality the defendant has committed a tort of his own. 44 In the present case, given the nature of the allegations in the statement of claim, and the particulars, the plea may be able to embrace both an allegation of vicarious liability and one of direct liability on the part of the defendant, although the precise nature of the latter is difficult to discern. 45 A question could arise whether the defendant was under a non-delegable duty of care to the deceased, given the statutory obligations on the Director as head of the department referred to, the deceased's status as a prisoner, the allegations as to his condition and the manner of his demise. 46 In that regard, in New South Wales v Lepore [2003] HCA 4 Gleeson CJ observed (36) that in "cases where the care of children, or other vulnerable people, is involved, it is difficult to see what kind of relationship would not give rise to a non-delegable duty of care". 47 Gaudron J pointed out (104): "There is another feature of the duty arising out of the particular relationships that have been identified as giving rise to a non-delegable duty of care which should be stressed. It is that the relevant duty can be expressed positively and not merely in terms of a duty to refrain from doing something that involves a foreseeable risk of injury. Thus, the relevant duty of adjoining owners can be expressed as a duty to take reasonable care to provide support; that of an employer, to take reasonable care to provide a safe system of work; that of a hospital, to take reasonable care to provide proper nursing and medical care; that of a school authority, to take reasonable care to provide a safe school environment. Once the relevant duty is stated in those terms it is readily understandable that the duty should be described as non-delegable." 48 As stated, a failure to act is alleged against the defendant here.
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49 No breach of any statutory duty is presently alleged.
50 The plaintiff's claim against the defendant could thus be advanced, in theory at least and if the present pleading be ignored, in one or more of three ways; first as an allegation of vicarious liability, second as an allegation of direct or "personal" liability or third as one resulting from a breach of a non-delegable duty. 51 In the light of Cowell a plea by the defendant of the Act s 111 must be said to be at the very least arguable, in response to any allegation of vicarious liability, on the basis that if the servant is not liable then the master cannot be either. 52 However, for the defendant to have the benefit of the section in relation to any claim proceeding in whole or part on the second or third basis, it would be necessary for the defendant to demonstrate it was itself a "person" under the Act s 111. 53 For that the defendant asserted there was authority to support it, including McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633. 54 Dr Cameron for the plaintiffs submitted that the definition of "person" in the Interpretation Act 1984 (WA), which does not include a "body politic", excludes the defendant from the ambit of the term in this State. 55 Reference ought also be made to the comment of Kirby J in Puntoriero & Anor v Water Administration Ministerial Corporation (1999) 165 ALR 337, 352-353 that: "… it has been stated in a series of decisions in this court that immunity provisions, such as the one in question here, will be construed jealously or strictly so as to confine the scope of the immunity conferred. The reason for this attitude on the part of courts is not, ostensibly, to defeat the purposes of the legislature. It is no function of courts to do that. Rather, it is to ascertain the true purpose of the provision upon an hypothesis, attributed by the courts to parliament, that legislators would not deprive a person of legal rights otherwise enjoyed against a statutory body, except by the use of clear language. A similar rule applies in the construction of legislation defensive of liberty. A like approach is taken to the construction of legislation said to deprive the individual of procedural fairness."
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56 The statement of Clarke JA in Cowell set out above is of course also apposite.
57 Tony Sadler Pty Ltd & Ors v McLeod Nominees Pty Ltd (1994) 13 WAR 323, 336 was also referred to, in relation to the need to consider case management principles on a belated application for leave to amend. 58 No affidavit was filed for the plaintiffs as to any reason for the delays in this action, which the next friend has the carriage of, or as to any particular effect on the plaintiffs that a grant of leave might cause. 59 On the basis of the submission made before me, the proposition that the defendant is a "person" under the Act s 111 is scarcely convincing. 60 Nonetheless it seems to me that it must be regarded as not beyond argument. 61 Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146, in which the High Court pointed out that adherence to case management principles cannot come at the expense of a party being able to raise an arguable ground of defence, in the absence of some particular prejudice, is also relevant. 62 In all the circumstances I am of the view that leave to amend the defence to plead the matters set out in the minute ought be granted. 63 Criticism of the minute as a pleading was made by counsel for the plaintiffs, and that was accepted to some extent at least by Mr King, with the result that I indicated that if leave was granted it would be on the basis that the defendant would have leave to bring in a further minute. 64 I will therefore grant leave in those terms, subject to questions of costs, including the question whether the costs of the action to date ought be reserved. 65 I will hear from counsel as to those matters.
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