Haseldine v State of South Australia
[2007] SASC 39
•19 February 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
HASELDINE v STATE OF SOUTH AUSTRALIA
[2007] SASC 39
Judgment of The Full Court
(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice White)
19 February 2007
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE
TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE
Appeal against judgment of the District Court - appellant a prisoner who suffered injury whilst engaged in manual work - whether the State acted in breach of its duty of care to the plaintiff - whether, if liability of the State made out, the appellant was contributorily negligent - Held: State did not breach its duty of care to the plaintiff - appeal dismissed.
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES
Trial Judge, although dismissed plaintiff's claim, assessed damages in the event that an appeal court might reverse the finding - State challenged by cross-appeal this assessment of damages - whether assessment of damages was excessive - Held: the assessment of damages was well within the appropriate range for an injury of that nature.
New South Wales v Bujdoso (2005) 222 ALR 663; New South Wales v Watzinger [2005] NSWCA 329; McCoy v Engle (537 NE 2d 665 (Ohio App 1987)); Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Howard v Jarvis (1958) 98 CLR 177; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; Quinn v Hill [1957] VR 439; Hall v Whatmore [1961] VR 225; Morgan v Attorney-General [1965] NZLR 134; Pullen v Prison Commissioners [1957] All ER 470; Ellis v The Home Office [1953] 2 QB 135; Helmers v Department of Corrective Services (1997) 14 NSWCCR 248; Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16; Neindorf v Junkovic [2005] HCA 75; McArdle v Andmac Roofing Co (1967) 1 WLR 356; Jones v Bartlett (2000) 205 CLR 166; Vairy v Wyong Shire Council (2005) 223 CLR 422; Tame v New South Wales (2002) 211 CLR 317; Wyong Shire Council v Shirt (1979) 146 CLR 40; Paris v Stepney Borough Council (1951) AC 367; Brkovic v J O Clough & Son Pty Ltd (1983) 57 ALJR 834; Complete Scaffold v Adelaide Brighton Cement [2001] SASC 199, considered.
HASELDINE v STATE OF SOUTH AUSTRALIA
[2007] SASC 39Full Court: Duggan, Gray and White JJ
DUGGAN J. The facts are set out in the judgment of Gray J.
At the hearing of the appeal, it was not in dispute that the respondent owed a duty to the appellant to take reasonable care for the appellant’s safety.
I agree with White J, that this then gave rise to the issue whether the respondent acted unreasonably in failing to eliminate a foreseeable risk of injury. For the reasons canvassed in the judgments of Gray and White JJ this factual issue must be resolved in favour of the respondent.
In all other respects I agree with the reasons given by Gray J.
In my view, the appeal and cross-appeal should be dismissed.
GRAY J
The plaintiff and appellant, Alan Roy Haseldine, a prisoner, suffered injury whilst engaged in manual work. The primary issue on this appeal is whether the State acted in breach of its duty of care to the plaintiff. Other issues arise with respect to contribution and damages.
The Facts
The following facts have been drawn from the trial Judge’s findings. They were not disputed on the hearing of the appeal.
The plaintiff served a short term of imprisonment in 1996. When he was medically examined on his admission in 1996 his general health was recorded as “good”. There were no medical problems.
From 1996, the plaintiff had suffered from minor back problems. A report of the plaintiff’s lumbosacral spine of 6 May 1996 noted degenerative change. However, the plaintiff did not suffer significant back problems between 1996 and 1999. The plaintiff during this time worked as an abalone diver. He also took his fitness seriously and was a regular runner.
On 9 February 1999, the plaintiff was sentenced to six months’ imprisonment as a consequence of breaches of the Fisheries Act 1982 (SA). The offences involved taking abalone without required authorisation.
No medical problems were noted when he was assessed by the prison medical service on his admission in February 1999. After a period in Yatala Labour Prison, the plaintiff was assigned a low security classification and was transferred to Port Augusta Prison. He was examined on his arrival on 9 March 1999. A nurse recorded that the plaintiff appeared fit and well and had no complaints. During March and April 1999, he was seen at the medical centre at the Port Augusta Prison for unrelated minor matters.
The plaintiff, as a low security prisoner at the Port Augusta prison, was accepted to attend a manual outside work (“MOW”) camp. Prisoners accepted for such camps travelled to country locations where they worked at the direction of prison officers. On 11 March 1999, the plaintiff successfully applied to work at the northern MOW camp.
The MOW camp party left the Port Augusta prison on 16 April 1999, and travelled to the Danggali Conservation Park, north of Renmark on the border of South Australia and New South Wales. The party arrived at Danggali Conservation Park that afternoon. The supervisors were Trevor Bornholm and Darcy Coulthard. In addition to the plaintiff, there were seven prisoner attendees, including Rick Sugar and Colin Blatchford, both of whom gave evidence at the trial.
On the morning of Saturday, 17 April 1999, the party undertook fencing work. The Saturday afternoon and all of Sunday were rest times. On 19 April 1999, six of the men worked at the Canopus Homestead.
On 20 April 1999, six of the prisoners and the two officers travelled by vehicle to the Canopus Homestead for the purpose of erecting a windmill nearby. The windmill was to be erected at a place known as the Olympic Dam, a short distance from the Canopus Homestead.
Photographs of Olympic Dam, tendered as exhibits, show an excavation about 50 metres by 50 metres square. Removed soil had been placed around the outside perimeter of the site to form a mound. The site chosen for the construction of the windmill was on sloping ground between the mound and the wall of the dam. The windmill came in kit form. The tower of the windmill had three legs forming an equilateral triangle at their base. The windmill’s function was to pump water from the dam.
The party arrived at the site with crowbars and shovels. It was necessary to excavate a hole about one metre deep by 30 centimetres in diameter for each of the three legs of the windmill. The plaintiff was assigned to excavate one of the holes with Mr Blatchford. The plaintiff worked with the crowbar and Mr Blatchford used the shovel. They commenced digging close to lunchtime. They took a lunchbreak between 12 noon and 1.00pm and then resumed work on the hole.
The soil was relatively loose for the first eight to twelve inches. However, the soil then changed from what the plaintiff described as a “pinky clayey soil” to a “really dark soil” that was “really hard.... rock hard”. The plaintiff loosened the ground as best he could with the crowbar and Mr Blatchford removed that soil with the shovel. Other prisoners also complained about the hardness of the soil.
The plaintiff stated that when he used the crowbar he stood on both feet and used “a fair bit of strength” to try to break up the soil. He said he had to drive the crowbar in “pretty hard” to do so. The plaintiff could strike the bottom of the hole with the crowbar only if he let the crowbar go. However, on some occasions he adopted a bent position to try to force the crowbar into the ground.
While using the crowbar after the midday break, the plaintiff experienced pain at the belt-line in the middle of his back. He said “it could have been an hour after dinner”. At that time, the hole was about a metre deep and near completion. He informed his co-worker, Mr Blatchford, and reported his difficulty to a supervisor. The plaintiff went to rest in one of the vehicles and did not continue digging.
The MOW crew knocked off at around the time when the plaintiff had hurt himself and returned to the camp. During the return trip, the plaintiff was in pain and had to lie horizontally in one of the vehicles. On arrival at camp, the plaintiff had a shower and rested. He got up for dinner, but then went straight back to lie down. The plaintiff was asked whether he wanted to go to Renmark to see a doctor, but said that he did not wish to jolt up and down on 100 kilometres of rough road: he just wanted to lie down.
The following day, the plaintiff remained in his room. Thereafter, he and Mr Blatchford were assigned the positions of cook and slushy in the camp. The plaintiff did not return to hard work for the duration of that MOW camp.
The party left the camp and returned to Port Augusta on 29 April 1999. On his return, the plaintiff made arrangements to see the prison doctor. The progress record of the prison medical service notes that Mr Smith, a nurse, saw the plaintiff at 1900 hours on 29 April 1999. The record reads:
Painful lower back. LSS. ? muscular. For U/S (ultrasound) treatment tomorrow. Booked in to see M.O. Monday.
The progress record discloses that the plaintiff had ultrasound treatment to his lower back on 30 April and 2 May 1999. He was examined on 3 May 1999 by a medical practitioner, who made the following note:
Back pain 21.4.99 at mo camp persistent. Has had prev. back problems which were usually fixed by chiropractor.
Physiotherapy treatment was arranged.
On 14 May 1999, the plaintiff attended a second MOW camp. Again, the supervisors were Mr Bornholm and Mr Coulthard. While the log of the camp contains occasional references to the plaintiff, there was no entry relevant to his physical fitness. The plaintiff’s ability to attend the second MOW camp indicated that the plaintiff was considered fit for work. At that time the plaintiff stated that he was feeling sore, but said that he was trying to get on with his life.
During the second camp, the plaintiff worked on dismantling fences and rolling up wire. He was able to carry out the work but experienced pain in his groin. The second MOW camp returned to the Port Augusta Prison on Thursday 27 May 1999.
The plaintiff engaged in running between the first and second MOW camps, but said he had “quietened down a bit” after he hurt himself at the first MOW camp. He went running during the second MOW camp and continued upon his return.
Following his return from the second MOW camp the pain in the plaintiff’s leg and groin increased. About four or five days later, the pain developed - “like a knife pain going into halfway between my groin and my knee in the thigh area”. The plaintiff had not previously experienced this level of pain and could not sleep because of the throbbing. A medical centre progress sheet recorded that the plaintiff complained of pain in his left lower back on 10 June 1999. His symptoms were noted to include “pain down inside thigh, in groin and into calf”. Anti-inflammatory medication was prescribed.
On 11 June 1999, the plaintiff was to leave Port Augusta to be a cook on a third MOW camp. Notwithstanding the pain, he still wanted to attend. However, the plaintiff was admitted to the Port Augusta Hospital at 5.00am on 11 June 1999 suffering from “back and groin pain”. He remained in hospital for several weeks. Scans of the lumbar spine and pelvis revealed:
At the L3-4 level, there is soft tissue opacification in the left lateral recess separated from the thecal sac by a plane of fat.... The lateral recess here is widened suggesting that this is of long-standing. The appearances are suggestive of a conjoint nerve root. There is minor generalized disc bulge at this level. The flaval ligaments were a little prominent. No further abnormality could be demonstrated at this level.
At the L4-5 level, there is mild posterior disc bulge and there is some flaval ligamentus hypertrophy, these changes making for triangular deformity of the thecal and a mild canal stenosis here. No further abnormality could be demonstrated at this level.
At the L5-S1 level, there is a little degenerative change in the facet joints. No further abnormality could be demonstrated at this level.
No abnormality could be seen in the bones or joints of the pelvis. The pelvis and hip joints appeared normal.
No clear diagnosis was made. The plaintiff was prescribed anti-inflammatory and painkilling medication and returned to prison on 28 June 1999.
On 1 July 1999, the plaintiff was released on home detention from the Port Augusta Prison. The plaintiff was transported to Adelaide by a 4-wheel drive vehicle where he was able to lie on a bed in the back of the vehicle. Upon his return, the plaintiff consulted a medical practitioner who referred him to a neurosurgeon. The plaintiff also consulted his general practitioner.
At the time of the neurosurgical consultation the plaintiff could barely walk and his upper thigh was wasted. An operation was recommended; however, the cost was beyond the plaintiff’s means. The plaintiff consulted a chiropractor and continued to see his general practitioner.
Since the plaintiff’s release from prison the only consistent work he has undertaken has been noodling for opal. This involves sifting through loose material to recover any opal that has been left behind. He carried out that work several times a week and on those occasions he took up a seated position for intermittent periods.
At times, the plaintiff has engaged in other mining work that involved descending a mineshaft on a seat attached to a winch. Whilst down the shaft, he would look for seams of opal in the walls where tunnelling machines had been. On occasions, he used a drill attached to an auger. That work caused difficulties in his leg and back. He has also carried out work with a pick and with a shovel.
The plaintiff has not dived since his release. He no longer runs, and continues to feel pain in his buttocks and a tingling down his thigh. He said the labouring work “nearly killed” him.
The Trial
The plaintiff sued the State for damages in negligence and for breach of statutory duty. The trial proceeded in the District Court of South Australia.
The particulars of negligence were as follows:
The defendant was negligent in that it by its servants and/or agents:-
10.1Failed to arrange and implement a safe system for performing the task, in particular by directing the plaintiff to undertake the particular task with a particular implement. This was negligent because:-
10.1.1The task involved the manual excavation of numerous holes in excess of 1 metre in depth. To do so, the plaintiff was required to stand on the ground and bend progressively lower as the depth of the hole increased. This was unsafe;
10.1.2The plaintiff was provided only with a crow bar to dig the hole. This was inadequate. The composition of the soil was hard. It comprised clay and contained rocks. It was unreasonable to expect the manual excavation of holes, by crow bar, in such material. Some mechanical means to break up the soil should have been made available to the plaintiff; and
10.1.3The plaintiff was over 45 years of age. It was unreasonable and negligent to direct and thereby require the plaintiff to excavate the number of holes in the particular soil, with only the use of a crow bar.
10.2Directed the plaintiff to perform the task when the defendant knew, or ought to have known that the system for performing the task was unsafe.
10.3Failed to warn the plaintiff adequately, or at all of the danger in using a crow bar at the depth that was required for the purpose of performing the task.
10.4Failed to provide the plaintiff with any mechanical means to assist in performing the task.
10.5Failed to provide the plaintiff with appropriate hydraulic equipment to assist in performing the task.
The State asserted, and the plaintiff accepted, both at trial and on appeal, that the relationship between the plaintiff and the State was that of a prisoner and State and was not a relationship of employer and employee.
As earlier observed, the plaintiff also claimed damages for breach of statutory duty, in particular section 29 of the Correctional Services Act 1982 (SA). That section provides:
(1)A prisoner (other than a remand prisoner) is, while in a correctional institution, required to perform such work, whether within or outside the precincts of the correctional institution, as the manager directs.
(2)A remand prisoner may, at his or her own request, and subject to any directions of the manager, perform any work that has been arranged by the manager.
(3)Tasks selected for prison work must, as far as reasonably practicable, be selected on the basis that they are likely to provide prisoners with experience in a recognised profession, trade or other field of employment.
(4)A manager must, in directing a prisoner to perform any particular work, have regard to the age and the physical and mental health of the prisoner, and any skills or work experience of the prisoner.
(5)A prisoner in a correctional institution is not entitled to perform any other remunerated or unremunerated work of any kind, whether for the benefit of the prisoner or any other person, unless the prisoner has the permission of the manager to do so.
It was accepted by the State both at trial and on appeal that the plaintiff was entitled to advance a claim of breach of statutory duty as a personal course of action.
The particulars advanced by the plaintiff alleged that the State had directed the plaintiff to perform work for which the plaintiff was unsuited given his age and physical health. It was the plaintiff’s case that it was unreasonable for the State to direct him, at the age of 45 years, to excavate the holes. Counsel for the appellant submitted that it was foreseeable that at that age a person could injure their spine in the excavation process. It was the plaintiff’s case that the State should have provided him with mechanical means to assist him in performing the work. A jackhammer was suggested as one possibility. Another suggestion was the use of an auger attached to the rear of a tractor.
Having reviewed a number of authorities, including the decision of the High Court in New South Wales v Bujdoso,[1] the trial Judge reasoned:
The particulars of negligence in the present case are wide ranging. They assert an unsafe system of work, failure to warn of the dangers of using a crowbar, failure to provide any mechanical means to assist in performing the task and failure to provide appropriate hydraulic equipment to assist in performing the task.
I proceed on the basis that the defendant owed a duty to take reasonable care, but the duty was less extensive than the duty owed by an employer to an employee. Accordingly, I find that the duty owed by the defendant did not extend to providing a safe system of work or providing mechanical equipment.
In evidence the plaintiff said that he had done a lot of digging and jack hammering and things like that and that he was familiar with the use of a crowbar by reason of his experience over many years. I find that the plaintiff was familiar with the use of a crowbar. I am not satisfied that a crowbar was such an unusual implement that the defendant was required to give the plaintiff special instruction in its use.
The evidence as to the plaintiff’s method of using the crowbar does not establish any reason for instruction or an appreciation that there was a risk of injury. There is no evidence that the injury was caused by the incorrect use of the crowbar by the plaintiff.
There is nothing inherently dangerous about a crowbar per se.
I find that the requirement that the plaintiff use a crowbar to excavate the hole was neither unreasonable nor negligent. That finding is reinforced by the circumstances in which the work was to be performed.
[1] New South Wales v Bujdoso (2005) 222 ALR 663.
The trial Judge further concluded that there was no identifiable risk associated with the use of a crowbar that would have required an alternative system of work to implement it. The Judge then reasoned:
When the work party left for the site of the windmill all that was known was that three holes measuring about 1 metre by 30 centimetres had to be excavated on the edge of the dam. There was nothing to suggest that the excavation of the three holes would present any unusual difficulty which would require the use of special equipment. The hardness of the soil was not known.
. . .
Overall, that evidence indicates that notwithstanding the fact that the soil may have been hard, the men made reasonable progress with the hole. The plaintiff said that the time when he felt the pain could have been half an hour after lunch. ...
[I]t was not an impossible task and the men had made good progress and almost completed the hole at the time that the plaintiff felt the pain in his back. The fact that the hole was capable of being excavated in one to one and a half hours indicates that it was not unreasonable to require the men to excavate the hole with a crowbar and shovel.
There is no reason not to accept the evidence that the soil was firm and that the work was hard. However, that does not mean that it was unreasonable for the supervisors to persist with the work using a crowbar and shovel. The existence of the hard dark soil was not identified until the men had travelled to the site and excavated approximately one third of the required hole. Until that stage had been reached there was no reason to consider an alternative means of carrying out the excavation.
... In my opinion the magnitude of the risk was minimal as was the degree of the probability of its occurrence. On the other hand the expense and inconvenience of taking special equipment such as a pneumatic drill to Olympic Dam at Danggali Conservation Park would in the context of the MOW camp have been considerable. Whether a pneumatic or some other drill would have assisted is debatable, but even if it would have been that does not mean that the completion of the final two thirds of the hole with the use of a crowbar involved an unacceptable risk. The three holes were completed in a reasonable time with the use of crowbars.
...
At the time when the party left Port Augusta Prison there was no reason to foresee any undue risk of injury. Even after the harder soil had been encountered there was no reason to foresee any undue risk of injury. There was no reason why the two prison officers should have directed the plaintiff to stop working with the crowbar.
The Judge concluded:
[W]hile the defendant did owe the plaintiff a duty to take reasonable care the defendant was not in breach of that duty.
The trial Judge then turned his attention to the alternative claim for breach of statutory duty pursuant to section 29 of the Correctional Services Act. In dismissing this claim, he reasoned:
When he applied to go on the MOW camp the plaintiff advised the person who interviewed him that he was fit to participate as a labourer on a camp and that he had skills as a labourer. The prison authorities had no reason to suspect that the plaintiff was not fit to use a crowbar.
The plaintiff said that he had done a lot of digging and jack hammering and things like that and that he was familiar with and had used a crowbar in performing the task at hand previously. He acknowledged experience over many years and said that he had “dug a lot of holes”. He said he was familiar with the use of a crowbar in these situations. It did not surprise him when he saw shovels and crowbars being taken from the vehicle for the job at hand.
The plaintiff said he did not need any training because being 45 or 46 he had probably done most things anyway. The question of training was not discussed. He agreed that there was not much to the use of a crowbar and said “crowbar’s a crowbar, you just you know, you use it for the purpose”. He agreed that he was very familiar with the use of a crowbar and shovel. The plaintiff had a choice as to whether he or Mr Blatchford used the shovel as against the crowbar. The plaintiff thought that he was a bit thicker set than Mr Blatchford and that he could operate the crowbar better. It did not bother him whether he did the shovelling or the crowbar.
I find that there was no breach of subsection 29(4) of the Correctional Services Act 1982. It is unnecessary to consider whether the relevant direction was the general decision by the person in charge of the Port Augusta Prison to allow the plaintiff to attend the MOW camp or whether Mr Coulthard or Mr Bornholm was a “manager” for the purpose of section 24(4). There was no reason why the plaintiff should not have been directed to carry out the work.
The Appeal as to Liability
In Bujdoso, the High Court considered whether the State of New South Wales owed a prisoner a duty of care. That case concerned an assault by another prisoner on the plaintiff. The High Court in its joint judgment observed:[2]
It is true that a prison authority, as with any other authority, is under no greater duty than to taken 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.
The court then considered the particular circumstances in that case of violence between prisoners. However, later in their reasons their Honours observed more generally:[3]
The position in England is well summarised in Halsbury’s Laws of England:
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; or if negligently put to work in conditions damaging to health; or if inadequately instructed in the use of machinery; or if injured as a result of defective premises.
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.
[2] New South Wales v Bujdoso (2005) 222 ALR 663 at [44]. (footnotes omitted)
[3] New South Wales v Bujdoso (2005) 222 ALR 663 at [46]. (footnotes omitted)
The trial Judge suggested that the High Court had approved this summary of the law. However, an examination of the reasons in Bujdoso suggest that the Court did not go that far. The reference and citation from Halsbury was noted by the Court as the position in England without any statement that the Halsbury summary represented Australian law. It would appear implicitly, however, that the passage was cited with apparent approval.
The trial Judge also referred to a decision of the New South Wales Court of Appeal in New South Wales v Watzinger.[4]That decision concerned a claim by a prisoner injured when carrying out plumbing work. The existence of a duty of care and its scope was the subject of some discussion. Having extensively reviewed a number of authorities, Campbell AJA (with whom Handley and McColl JJA agreed) observed:[5]
It is clear that the appellant owed to the respondent a duty to take reasonable care for his safety whilst in custody.
If the prison authorities expressly or impliedly directed the respondent to move the washing machine I consider that a duty was owed to provide him with such mechanical or manual assistance, or both, as was necessary to allow that operation to be carried out with reasonable safety.
[4] New South Wales v Watzinger [2005] NSWCA 329.
[5] New South Wales v Watzinger [2005] NSWCA 329 at [124]-[125].
Reference was also made to the United States authority, McCoy v Engle.[6] Campbell AJA observed:[7]
In McCoy v Engle, ..., an appeal in respect of an injury to a prisoner working on a prison farm, the Court of Appeal held that “in the context of the custodial relationship between the state and the prisoner, the state owes a duty of reasonable care and protection from unreasonable risks.” The judgment continued:
Having established that the state owed plaintiff a general duty of care, it should also be remembered that the duty does not exist in the abstract. Thus, where a prisoner also performs labor for the state, the duty owed by the state must be defined in the context of those additional factors which characterize the particular work performed. Accordingly, we hold that the state was under a duty to protect plaintiff against those unreasonable risks of physical harm associated with the performance of his duties as a ‘farm hand’.
[6] McCoy v Engle (537 NE 2d 665 (Ohio App 1987)).
[7] New South Wales v Watzinger [2005] NSWCA 329 at [115].
The State accepted in the present case that a duty of care was owed to the plaintiff. As earlier observed, the State contended and the plaintiff accepted that the duty was not that of an employer and employee. This submission should be accepted. Such a relationship did not exist.
Whilst counsel for the plaintiff accepted that the relationship between the plaintiff and the State was not that of an employer and employee, at times counsel was inclined to argue that the duty was akin to that of employer and employee. The attempted analogy is inappropriate. The correct approach is to look to the salient features that existed in the relationship between the prisoner and the State and from that relationship and those features to make an assessment of the scope of the duty, having regard to particular activities being undertaken and risks arising.
The relationship was of prisoner to State. The salient features of the relationship included a substantial degree of control exercised by the State over the prisoner.[8] The salient features gave rise to a relationship of such a nature that a duty of care was owed. The scope of that duty was to take reasonable care. In circumstances where a prisoner performs labour for the State, the scope of the duty owed by the State should be defined within the context of the additional factors that characterise the particular work to be performed.
[8] Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540.
In the circumstances of the present case, the State was under a duty to protect the plaintiff against any unreasonable risks of physical injury associated with the performance of his duties as a labourer. An alternative expression of this duty is that the State was required to exercise reasonable care in making an allocation of work to the plaintiff so as to avoid exposing the plaintiff to an undue risk of physical injury.
As earlier observed, the trial Judge concluded that the duty owed by the State did not extend to providing a safe system of work or providing mechanical equipment. Counsel for the plaintiff submitted to this Court that this formulation contained an error of law. This is too wide a reading of the trial Judge’s reasons. The particular passage was a reference to the trial Judge’s conclusions in the particular case. The State accepted that it could not avoid liability in the following circumstances: where the State knowingly exposed a prisoner to a risk of injury through an unsafe system of work directed to be undertaken when the risk that eventuated was reasonably foreseeable. So understood, there is no error on the part of the Judge.
As earlier observed, it was the plaintiff’s case that the labouring task was too heavy for a 45-year-old man to carry out, and that, in the circumstances, there was a foreseeable risk of injury that was not adequately guarded against.
This submission should be rejected. There was nothing to alert the prison authorities that the plaintiff had such a weak back that he should not have undertaken the labouring work. His earlier examinations at the prison had indicated that he was fit and well. The only attendance relevant to his back was for ultrasound treatment on 14 April 1999. On that occasion, a nurse made a record of treatment. However, there was no reference to any diagnosis of injury that could be considered of consequence. The plaintiff claimed that he could not recall any back problems at that time, or for that matter, the ultrasound treatment.
The plaintiff presented to the prison authorities seeking to attend the MOW camps and undertake labouring work. He did not suggest that he was other than well qualified and fit to do the work. On-site, he had the choice of using a shovel or a crowbar. He volunteered to use the crowbar. He took the view that he was sturdier than his fellow workmate. Immediately on the plaintiff’s complaint of pain, he was relieved of duties of a heavy nature and, following rest and recuperation, was put on light duties.
The trial Judge was correct to conclude that there was nothing inherently dangerous about a crowbar per se. He was also correct to conclude the following things:
-that the crowbar was not such an unusual implement that special instruction for its use was required;
-that there was no incorrect use of the crowbar by the plaintiff;
-that the requirement of the plaintiff using a crowbar to excavate the hole was neither unreasonable nor negligent;
-that there was no identifiable risk associated with the use of the crowbar that would have called for an alternative system of work to be implemented;
-that there was nothing to suggest that the excavation of the three holes presented any unusual difficulty that would require the use of special equipment;
-that the magnitude of the risk was minimal, as was the degree of the probability of its occurrence.
In short, the Judge was correct to conclude that the State did not breach its duty of care to the plaintiff.
The trial Judge’s conclusions in respect of the claim for breach of statutory duty were also correct. The prison authorities had no reason to suspect that the plaintiff was not fit to use a crowbar. A fit man at the age of 45 years is capable of safely using a crowbar. The plaintiff was familiar with the use of a crowbar and, as earlier indicated, chose to use the crowbar rather than to work with a shovel.
For these reasons, the trial Judge was entitled to dismiss the plaintiff’s claim.
Further Issues on Appeal
Further issues were also raised on appeal. The first related to a cross appeal advanced by the State asserting that, if liability was made out, then a finding of contributory negligence should be made. Counsel for the State contended that the plaintiff acted with a lack of care for his own safety, as he did not inform prison authorities of his back condition. Further, counsel for the State submitted that, following the incident, the plaintiff was negligent in undertaking running activities that exacerbated his back condition.
Both submissions can be disposed of shortly. There was no evidence that the plaintiff was aware that he had any serious back condition that called for notification to the prison authorities. He had had back trouble for some time, apparently as a result of degeneration. However, there was nothing to suggest that he was unfit for crowbar work. He had worked as a diver. He was fit and regularly ran a number of kilometres.
Following the incident the subject of this appeal, the plaintiff believed he had recovered. In those circumstances to resume his fitness activities did not amount to a lack of care for his own safety. In the event of the State being in breach of a duty of care, it would not be appropriate to make any reduction on account of contributory negligence.
The State also challenged by cross appeal the damages assessed by the trial Judge. The Judge made his assessment in the event that an appeal court might reverse his finding that the State had not acted in breach of duty.
The trial Judge assessed the plaintiff’s past non-economic loss at $30,000 and future non-economic loss at $30,000. For past loss of earnings, including loss of superannuation benefits, the Judge, in respect of a seven-year period, would have allowed a lump sum of $75,000. In respect of the future, the Judge made a further allowance of $75,000, including superannuation benefits. The Judge would have ordered the payment of past special damages and an allowance for future expenses.
The trial Judge’s conclusions in regard to the injuries sustained included the following:
On balance, I am satisfied that the plaintiff did suffer an injury to his back on 20 April 1999 because there was a noticeable worsening of his condition on that day. On the basis of the evidence of Dr McCulloch, I find that on 20 April 1999 the work with the crowbar caused an L4-5 disc protrusion which over the period between 20 April and 10 June 1999 ultimately resulted in pressure on the left L4 nerve root with displacement of the left L4 nerve root.
I find, on the balance of probabilities, that notwithstanding the earlier problems, the substantial cause of the plaintiff’s back pain was a tear in the disc at L4-5 which was caused on 20 April 1999 and progressed over the following weeks to the extent that pressure was applied to the L4 nerve root. The progression of the injury may have been aggravated by activities such as running, but the potential for deterioration was created by the injury sustained on 20 April 1999.
These conclusions and findings were open to the Judge. They were not challenged on appeal. The Judge then made the following observations before making his assessment:
The plaintiff is to be compensated for a period of severe pain and a period of hospitalisation. Over time the severe pain settled and the plaintiff is left with a permanent residual disability. Dr Molloy has assessed that as a 35% impairment of the lumbar spine and a 20% impairment of the left lower limb due to motor weakness and loss of function of the left lower limb. She considers the condition stable and is not aware of any non-organic features. His capacity for work has been severely affected. He is not able to carry out any lifting activities.
Placing a percentage on the disability is rather artificial. It is more appropriate to look at the way in which the disability affects the plaintiff’s day to day activities and his capacity for work.
The plaintiff’s inability to engage in hard work must be considered in the context of his age, the deterioration of his spine which was identified in 1996 and the other unidentified problem which caused lower back pain on 14 April 1999.
Counsel for the State submitted that the trial Judge, when assessing damages, failed to adequately take into account the appellant’s pre-existing degenerative condition of his spine. It was pointed out that the appellant had suffered from back problems since 1996. Attention was drawn to the appellant’s evidence as well as that of his treating medical practitioners. It was said that the pre-existing degenerative condition should have led to a material reduction in any award of damages.
This submission should be rejected. As earlier observed, the trial Judge specifically considered the plaintiff’s ongoing disabilities:
... in the context of his age, the deterioration of his spine which was identified in 1996 and the other identified problem which caused lower back pain on 14 April 1999.
Although these remarks were made in reference to the plaintiff’s inability to engaged in hard work it is clear that the Judge took into account the pre-existing degenerative state in his overall assessment.
The plaintiff sustained a serious back injury that will have lasting consequences. The assessment of damages was well within the appropriate range for an injury of that nature. The submissions of the State in this respect should be rejected.
Conclusion
For these reasons, this appeal should be dismissed.
WHITE J: The circumstances giving rise to this appeal are set out in the judgment of Gray J.
It was common ground between the appellant (“the plaintiff”) and the respondent (“the defendant”) both at trial and on appeal that the Department of Correctional Services (“the Department”) owed a duty of care to the plaintiff in respect of his work in the Danggali Conservation Park on 20 April 1999. The principal issue was whether that duty had been breached. However, the submissions on that topic tended to merge with submissions about the scope of the duty which was owed. In addition, there was a question as to whether the Department had breached the duty imposed by s 29(4) of the Correctional Services Act 1982 (SA) (“the CSA”) which was said to be owed to the plaintiff. By way of cross appeal, the defendant sought to impugn the judge’s findings concerning contributory negligence and the assessment of damages.
The Duty of Care
The Department owed a duty to the plaintiff as a prisoner to take reasonable care for his safety. Such a duty was recognised by the High Court in Howard v Jarvis.[9] The Court said:
We feel no doubt that the learned judges of the Supreme Court of Tasmania were right in holding that [the arresting police officer] was subject at common law to a duty to exercise reasonable care for the safety of [the prisoner] during his detention in custody. He had deprived [the prisoner] of his personal liberty, and assumed control of his person. In arresting and detaining [the prisoner] he was no doubt acting lawfully and properly and in the due execution of his duty, but he was depriving [the prisoner] of his liberty, and he was assuming control for the time being of his person, and it necessarily followed, in our opinion, that he came under a duty to exercise reasonable care for the safety of his person during the detention.[10] [Emphasis in the original]
[9] (1958) 98 CLR 177.
[10] Ibid at 183.
In New South Wales v Bujdoso,[11] the High Court considered the liability of a prison authority for injury to a prisoner caused in an assault by another prisoner. Such cases are an example of a wider category of case in which one person may be liable for injury caused by the action of a third party.[12] The Court cited, with apparent approval, a passage in Halsbury’s Laws of England:[13]
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 it is reasonable and practicable, being required of a prisoner known to be potentially at greater risk than other prisoners; or if negligently put to work in conditions damaging to health; or if inadequately instructed in the use of machinery; or if injured as a result of defective premises.[14] [Citations omitted and emphasis added]
[11] [2005] HCA 76; (2005) 80 ALJR 236.
[12] Cf Modbury Triangle Shopping Centre Pty Limited v Anzil [2000] HCA 61; (2000) 205 CLR 254.
[13] 4th ed reissue, vol 36(2).
[14] Ibid at [565].
The liability of a prison authority for injury suffered by a prisoner in carrying out work whilst in custody has been discussed in some authorities. In Quinn v Hill[15] the Full Court of the Supreme Court of Victoria considered the liability of a prison wardress for injuries suffered by a prisoner while operating a mangle in the prison laundry. The majority (Herring CJ and Gavan Duffy J) considered that the mere allocation by the wardress of the work did not give rise to a duty of care. Smith J, in dissent, held that the duty owed by the wardress should be held to have required her “to exercise reasonable care in making an allotment of work to the [prisoner] so as to avoid exposing her to undue risk of physical injury”.[16]
[15] [1957] VR 439.
[16] Ibid at 453.
This passage in the judgment of Smith J was cited with apparent approval in the later Victorian case of Hall v Whatmore.[17]
[17] [1961] VR 225.
In New Zealand, in Morgan v Attorney-General,[18] after a review of the Australian authorities to which reference has already been made and of the English decisions of Pullen v Prison Commissioners[19] and Ellis v The Home Office,[20] Tompkins J said:
I think, applying the above cases, that the Superintendent and each of his subordinate prison officers owed a duty to the plaintiff to take reasonable care for his safety during his detention. This duty, however, did not go so far as to put them under a duty to provide safe equipment or a safe system of work. Their duty is limited, so far as the employment of the prisoner is concerned, to using reasonable care not to allot the prisoner to work, and not to give him orders, which they could reasonable foresee would cause harm to him. They are not under a duty to warn the plaintiff of dangers in his work.[21]
[18] [1965] NZLR 134.
[19] [1957] All ER 470.
[20] [1953] 2 QB 135.
[21] [1965] NZLR 134 at 140.
The view of Tompkins J that the duty did not extend to the provision of safe equipment and a safe system of work or to the giving of any necessary warnings resulted from his acceptance that prisoners are not employees and therefore are not entitled to all the incidents of the common law duty of care owed by an employer to its employees. This is apparent from the following passage:
It is clear that a prisoner is not an employee of the Prisons’ Department … Accordingly the Prisons Department is not subject to the duties of an employer to provide safe equipment or a safe system of work or to being vicariously liable for injuries caused by a fellow prisoner.[22]
[22] Ibid at 137.
The reasoning of Tompkins J was applied by the trial judge in this case. The judge said:
I proceed on the basis that the defendant owed a duty to take reasonable care, but the duty was less extensive than the duty owed by an employer to an employee. Accordingly, I find that the duty owed by the defendant did not extend to providing a safe system of work or providing mechanical equipment.
The plaintiff was not an employee working under a contract of service.[23] Ordinarily the work performed by a prisoner in a prison environment is not performed pursuant to a contract of any kind. Instead prisoners (other than remand prisoners) are required to perform work, whether within or outside the prison, as the prison manager directs.[24] There may be a penal aspect to the work, but rehabilitation of the prisoner is also an important consideration in the work which is allocated.[25]
[23] State of New South Wales v Watzinger [2005] NSWCA 329 at [67] per Campbell AJA, applying Helmers v Department of Corrective Services (1997) 14 NSWCCR 248.
[24] Correctional Services Act 1982 (SA), s 29(1).
[25] Ibid s 29(3).
Because the relationship of the Department with the plaintiff was not that of employer and employee, the duty of care owed by the Department should not be equated with that owed by an employer to an employee.[26] In an individual case there may be aspects of a prisoner’s circumstances which, in practice, liken his or her position to that of an employee under a contract of service. However, in the ordinary case (of which this is one) several of the features which inform the employer’s common law duty of care are absent. There is no contract of employment from the terms of which implications as to the nature and extent of the duty of care can be drawn. The Department does not expose the prisoner to some danger in the course of securing an economic benefit for itself. In addition, as already noted, there is a penal aspect to the work required of prisoners, and the maintenance of discipline and good order within the prison has to be considered.
[26] State of New South Wales v Watzinger [2005] NSWCA 329 at [67] per Campbell AJA.
However, even when allowance is made for these factors, it would be wrong in principle, in my opinion, for it to be held that insofar as the plaintiff’s injury may be attributable to the want of a safe system, or to lack of proper equipment, the Department could not be held liable. In the first place, obligations of those kinds do not arise only in an employer-employee relationship. In Stevens v Brodribb Sawmilling Company Pty Ltd[27] the High Court considered the liability of a sawmiller for injury caused to one independent contractor of the sawmiller by another contractor. All members of the court accepted that the duty of care owed by the sawmiller to its independent contractors required the prescription and provision of a safe system of work. That obligation existed even though the independent contractors were not employees. Mason J said:
Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system.[28]
[27] (1986) 160 CLR 16.
[28] Ibid at 31. See also McArdle v Andmac Roofing Co (1967) 1 WLR 356.
An a priori statement that because a prisoner is not an employee a prison authority is not required to provide a safe system of work or safe equipment is wrong in principle for an additional reason. The High Court has counselled against attempts to articulate the duty element of the tort of negligence with undue specificity.[29] It results in a blurring of the distinction between the duty of care on the one hand and the standard of conduct required to fulfil that duty on the other. In Jones v Bartlett[30] Gleeson CJ drew attention to the effect which such attempts have in pre-empting a court’s later decision as to the reasonableness (or unreasonableness) of the defendant’s conduct. Gleeson CJ said:
There is no ground in principle for imposing upon the respondents an obligation greater than an obligation to take reasonable care to avoid foreseeable risk of injury to their prospective tenants and members of their household. The critical question is as to what is reasonable. The judgment of the Full Court, with which I agree, to the effect that there was no failure to take reasonable care, was a judgment of fact. It cannot be circumvented by an attempt to formulate the legal duty with greater particularity, in a manner which seeks to pre-empt the decision as to reasonableness.[31]
[29] Cf Neindorf v Junkovic [2005] HCA 75 at [51], [55], (2005) 80 ALJR 341 at 353-4 per Kirby J.
[30] [2000] HCA 56; (2000) 205 CLR 166.
[31] Ibid at [57], 184-5.
In Vairy v Wyong Shire Council,[32] McHugh J too counselled against a sub-division of the ordinary duty of care into specific factual categories.[33] Having referred to the duty of care being a duty “to conform to the legal standard of reasonable conduct in the light of the apparent risk”,[34] McHugh J said:
As a result, the duty owed by motorists to other users of the highway, for example, is expressed in terms of the duty to take reasonable care for the safety of other users of the highway having regard to all the circumstances of the case. The duty is not subdivided into categories such as a duty to keep a proper lookout or sound a warning or to keep a safe distance away from the car in front. In the particular circumstances of the case, failure to do one or more of these things may constitute a breach of the duty to take reasonable care. But they are not themselves legal duties for the purpose of the law of negligence.
…
[D]uring the present appeal … the argument for various parties did not keep the issues of duty and breach distinct. The arguments were often clouded by reference to phrases such as “the scope and content of duty” and “duty to warn”. Judges and lawyers often use such phrases. When they are understood as commensurate with the standard of care required to discharge the defendant’s duty of reasonable care, they cause no harm. But often enough they are used as if they themselves define or were the duty, or part of it. Using them creates the risk that they will be treated as stating legal propositions and convert what is a question of fact into a question of law. Hence, their use invites error in analysis, particularly the analysis of judicial precedents.[35]
In Neindorf v Junkovic[36] Kirby J, in emphasising that the standard of care required in any particular case is a question of fact which is separate and distinct from the legal question concerning duty, quoted with approval the following passage from Professor Fleming’s text:
The general standard of conduct required by law is a necessary complement of the legal concept of 'duty'. There is not only the question 'Did the defendant owe a duty to be careful?' but also 'What precisely was required of him to discharge it?' Indeed, it is not uncommon to encounter formulations of the standard of care in terms of 'duty', as when it is asserted that a motorist is under a duty to keep a proper lookout or give a turn signal. But this method of expression is best avoided. In the first place, the duty issue is already sufficiently complex without fragmenting it further to cover an endless series of details of conduct. 'Duty' is more appropriately reserved for the problem of whether the relation between the parties (like manufacturer and consumer or occupier and trespasser) warrants the imposition upon one of an obligation of care for the benefit of the other, and it is more convenient to deal with individual conduct in terms of the legal standard of what is required to meet that obligation. Secondly, it is apt to obscure the division of functions between judge and jury. It is for the court to determine the existence of a duty relationship and to lay down in general terms the standard of care by which to measure the defendant's conduct; it is for the jury to translate the general into a particular standard suitable for the case in hand and to decide whether that standard has been attained.[37] [Footnotes omitted]
[32] [2005] HCA 62, (2005) 223 CLR 422.
[33] Ibid at [25]-[29], 432-4.
[34] Ibid at [25], 32.
[35] Ibid at [26], [29], 432-4.
[36] [2005] HCA 75 at [52]; (2005) 80 ALJR 341 at 353.
[37] Fleming The Law of Torts, 9th ed at 117-8..
Thus, in my opinion, it is wrong in principle to approach the matter by inquiring whether there was a duty to provide a safe system of work, or particular equipment or some other specific duty.
In any event, in the circumstances of this case, I do not regard a statement that a duty may exist in relation to the allocation of work, but not in relation to the system of work to be adopted, to be very useful. The task allocated was the manual excavation of a hole, but it could just as easily be described as the manual excavation of a hole, using a crowbar and shovel. The system of work involved use of a crowbar and shovel. It is unreal to suppose that a duty existed in relation to the former, but not in relation to the latter.
The expression “system of work” in the context of an employer’s duty of care is generally taken to include the arrangements or the organisation of the operation or process, the sequence in which the various steps in the operation are carried out, the coordination of different parts of the operation, the methods of using particular equipment or machines or carrying out particular processes, the supply of suitable appliances and adequate manpower, and the provision of proper instructions, warnings and notices before, during or after the operational process in question. In short, it is the method of carrying out the operation in which (usually) an employee is engaged.[38] The proposition that a prison authority may have a duty of care not to allocate particular work at all but no duty of care with respect to an appropriate method of carrying out allocated work is, for the reasons already stated, unsound.
[38] Glass McHugh and Douglas The Liability of Employers 2nd ed, at 20.
In my opinion, given that it was accepted that the Department owed a duty of care to the plaintiff, the issue in this case was not to be approached by inquiring as to the scope of the duty. Instead the question was the familiar one, namely, had the Department acted unreasonably in failing to eliminate a foreseeable risk of injury?[39] That is a question of fact.
[39] Tamev New South Wales [2002] HCA 35 at [99]; (2002) 211 CLR 317 at 353 per McHugh J; Vairy v Wyong Shire Council [2005] HCA 62 at [46]; (2005) 223 CLR 422 at 438-9 per McHugh J.
Insofar as the judge’s conclusion that the Department did not owe a duty to provide a safe system of work or mechanical equipment was a conclusion about the scope of the duty owed by the Department, in my respectful opinion it was in error. Nevertheless, as will be seen, I agree with the judge’s conclusion on the question of breach.
The Statutory Regime
Section 29 of the CSA provides for the performance of work by prisoners. It provides:
(1)A prisoner (other than a remand prisoner) is, while in a correctional institution, required to perform such work, whether within or outside the precincts of the correctional institution, as the manager directs.
(2)A remand prisoner may, at his or her own request, and subject to any directions of the manager, perform any work that has been arranged by the manager.
(3)Tasks selected for prison work must, as far as reasonably practicable, be selected on the basis that they are likely to provide prisoners with experience in a recognised profession, trade or other field of employment.
(4)A manager must, in directing a prisoner to perform any particular work, have regard to the age and the physical and mental health of the prisoner, and any skills or work experience of the prisoner.
(5)A prisoner in a correctional institution is not entitled to perform any other remunerated or unremunerated work of any kind, whether for the benefit of the prisoner or any other person, unless the prisoner has the permission of the manager to do so.
It can be seen that the plaintiff, not being a remand prisoner, was required to perform such work as the Port Augusta Prison Manager directed. The work which he was directed to perform had to be selected, so far as was reasonably practicable, on the basis that it would provide him with experience in a recognised profession, trade or other field of employment. Regard had to be had to his age and physical and mental health as well as any skills or work experience which he had had.
Work in the MOW Camps
The trial judge was provided with relatively little evidence about the general purposes of MOW camps. Mr Coulthard, the plaintiff’s supervisor, said that a MOW camp was a mobile outback work camp pursuant to an arrangement between the Department and the Department for Environment and Heritage (“DEH”). It served the purpose of aiding the rehabilitation of low security prisoners whilst at the same time benefiting DEH by having low maintenance work performed which could not otherwise practically be done by contractors. Mr Coulthard described the DEH as the project sponsor and the Department as the service deliverer. It was not suggested that the Department received any remuneration from the DEH.
The camps involved a group of prisoners (in this case eight) travelling with two supervisors from the Port Augusta gaol to the Danggali Conservation Park for a period of 14 days. Two of the 14 days were spent in travelling to and from the park. The group camped in a former homestead within the park area. The DEH indicated the work which it wished to have performed. It provided tools and equipment to the MOW group. The evidence did not disclose whether the supervisors knew, before leaving Port Augusta, the particular tasks which the DEH would wish to have them perform during the course of that camp.
No Breach of the Duty of Care
The judge accepted that the question of whether the duty of care owed to the plaintiff had been breached was to be considered in the way suggested by Mason J in Wyong Shire Council v Shirt,[40] namely:
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and convenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balance out the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.[41]
[40] (1979) 146 CLR 40.
[41] Ibid at 47-8. See also Tame v New South Wales [2002] HCA 35 at [99]; (2002) 211 CLR 317 at 353 per McHugh J.
In my opinion, in the circumstances of this case, the work required of the plaintiff did involve a foreseeable risk of injury. The test of reasonable foreseeability is relatively undemanding.[42] Strenuous manual work almost always carries with it a foreseeable risk of injury, especially a back injury of a musculo-ligamentous kind. Furthermore, such injury, if it eventuates, can be serious.
[42] Tame v New South Wales[2002] HCA at [99]; (2002) 211 CLR 317 at 353 per McHugh J
The judge concluded that “an undue risk of injury” was not foreseeable. What the judge meant by his use of the word “undue” is not altogether clear, but in context, it seems that the judge concluded that such risk as there was, was slight and further, a risk which was not likely to be realised. The judge said:
The magnitude of the risk was minimal as was the degree of the probability of its occurrence.
Later the judge said:
If the magnitude of the risk and the degree of probability of its occurrence was significant then the prison officers should have made arrangements for the equipment to be made available, but as I have said, that was not the case and there was no reason for an alternative to a crowbar and shovel to be made available.
The submissions on appeal sought to impugn these findings. It was said that the plaintiff had a special vulnerability which increased the risk of injury in his case. Reference was made to two factors: the plaintiff’s age (45 years); and to his attendance at the Port Augusta Prison Medical Service on 14 April 1999. On that occasion, the plaintiff had been seen by Mr Smith, a registered nurse. Ultrasound treatment had been applied to his lower back. The evidence available to the trial judge in respect of this attendance, and any condition which may have given rise to it, was slight. The plaintiff’s case as opened was that when he commenced his prison sentence, he was a 45 year old man with no medical problems. He was described as “essentially fit and well”. Those statements were confirmed in the plaintiff’s evidence. He described himself as “pretty fit” and gave evidence of his daily running regime (between five and 15 kms per day) by which he maintained physical fitness. No reference at all was made by the plaintiff to the attendance at the Port Augusta Medical Service on 14 April 1999. When it was put to him in cross-examination, the plaintiff was unable to remember the attendance, nor the symptoms which had given rise to it. Mr Smith, the nurse, gave evidence. He did not have any memory of the attendance either and could say no more than that the note which he had made at the time indicated that some complaint of pain in the lower back had been made to him by the plaintiff. In these circumstances, the finding by the judge that “the evidence does not enable the problems from which the plaintiff was suffering with his lower back immediately prior to his attendance on the MOW camp to be identified” is quite understandable.
Mr Coulthard, the supervisor, said that prisoners were selected for MOW camp work according to a number of criteria, one of which was fitness. The plaintiff had been medically examined at the commencement of his prison sentence. He did not report any injury or disability and the medical assessment was “N.A.D.” which I take to indicate “No Abnormality Detected”. There was no evidence indicating that those responsible for selection of the plaintiff for participation in the MOW camp were, or should have been, aware that the plaintiff had complained of some symptom in his back, let alone that it may be indicative of an underlying condition which made the plaintiff unsuitable for manual work. The prison staff must have been aware of the plaintiff’s daily running regime within the prison and his overall fitness. In these circumstances, I do not think it could be said that there were special circumstances known to the Department, or of which it ought to have been aware, concerning the plaintiff which would add to the duty of care owed to him.[43]
[43] Cf Paris v Stepney Borough Council (1951) AC 367 at 386. See also Brkovic v J O Clough & Son Pty Ltd (1983) 57 ALJR 834, in which a finding that the evidence had failed to show that the system of the employer created any risk of injury to a worker of ordinary or average strength and physical soundness was upheld.
The judge accepted the plaintiff’s evidence that during the course of his working life prior to his imprisonment he had done a lot of labouring work including digging using a crowbar and shovel as well as use of a jackhammer. The plaintiff said that he was familiar with the use of a crowbar by reason of his experience over many years. The judge also accepted that a crowbar was not such an unusual implement that the Department was required to give the plaintiff special instruction in its use.
The judge found that it was not unreasonable for the Department to require the hole to be excavated with the use of a crowbar and shovel rather than, as the plaintiff’s counsel suggested, by use of a jackhammer. The plaintiff’s counsel abandoned at trial a suggestion that it would have been practicable for an auger attached to a tractor to be used. The excavation of a hole of the kind involved in this case by means of crowbar and long-handled shovel is commonplace. That meant, the judge concluded, that it was not unreasonable for the Department to have directed the plaintiff, and his fellow prisoners to use that method at the commencement of the excavation of the hole. The judge accepted that the difficulty of the excavation became apparent after about 300mm had been excavated. He accepted that the soil thereafter was firm and the digging difficult. The judge rejected the plaintiff’s submission that at that point a direction should have been given that the work cease until a jackhammer was obtained. The judge noted that the total time which the excavation took was of the order of one and a half hours. He considered that that indicated that the men had, despite the difficulty, been able to make good progress so that it was not unreasonable for the Department to have required the men to continue excavating the hole with a crowbar and shovel.
On appeal, the plaintiff submitted that this finding was wrong. Mr Walsh QC, who appeared with Mr Allen for the plaintiff, drew attention to evidence from Mr Coulthard, the supervisor, that use of a jackhammer would have been “more useful” and that if it had been up to him, a jackhammer would have been used. It was said that this evidence illustrated the unreasonableness of the Department in not making a jackhammer available. I disagree. When read in full context, that evidence of Mr Coulthard indicates a belief by him that the job would have been easier with the use of a jackhammer and not a belief that it was unreasonable, having regard to the risk of injury, for the Department to have required it to be completed with a crowbar and shovel. On the contrary, Mr Coulthard, who had considerable experience in station work, said that it was “normal” for a crowbar and shovel to be used in such circumstances. For the plaintiff to succeed, it would have to be established that it was unreasonable in the circumstances, considered from the perspective of risk of injury, to have required him to continue working with a crowbar and shovel.
The judge considered that the expense and inconvenience of taking special equipment such as a jackhammer or pneumatic drill would, in the circumstances, have been considerable. Unless the supervisors knew in advance that excavation of a hole would be required in difficult conditions, such equipment would, presumably, have had to be taken on every trip. Further, as this work was being carried out in a remote location, a power source, such as a compressor, would also have had to be provided. In addition, the use of a jackhammer is not itself without risk. It is itself a task which ordinarily requires some training. This too would add to the expense and inconvenience involved. In these circumstances, the judge’s conclusion about expense and inconvenience was correct.
Finally, on the question of whether the Department acted unreasonably it is also relevant to note that there does not appear to have been an particular time constraint within which the job had to be completed.
In my opinion, the judge’s conclusion that the duty of care had not been breached has not been shown to be wrong.
Breach of Statutory Duty
Section 29(4) of the CSA which the plaintiff submitted had been breached by the Department, has been set out above.
In the submissions at trial and on appeal, it was common ground that a breach of s 29(4) of the CSA, if proved, would give rise to a claim in damages against the defendant. Given that it was common ground, I will consider the plaintiff’s claim on the same basis.[44]
[44] Cf Complete Scaffold v Adelaide Brighton Cement [2001] SASC 199 at [46] per Doyle CJ; Neil Foster, Breach of Statutory Duty and Risk Management in Occupation Health and Safety Law: New Wine in Old Wineskins? (2006) 14 Tort L Rev 79.
The duty imposed upon a prison manager by s 29(4) is to have regard, in a fundamental way in the selection of work for a prisoner, to the prisoner’s age and physical and mental health.
The judge was correct, in my opinion, in concluding that there was no evidence that that obligation had been breached. The plaintiff agreed that he had been interviewed in relation to his allocation to the MOW camp group. At the time, he knew the work involved labouring work and he told the interviewer that his medical condition was good. There was no evidence indicating that the work required on the MOW camp was unsuitable for a 45 year old man. Having regard to the plaintiff’s fitness, it could not have been held that s 29(4) had been breached in this case.
For these reasons, my opinion is that the appeal should be dismissed.
Contributory Negligence
My conclusion with respect to the fate of the appeal makes it unnecessary strictly speaking to consider the defendant’s submissions with respect to contributory negligence. In particular, it is unnecessary to consider the procedural deficiencies in the way in which contributory negligence was raised on appeal.
If I had been satisfied that the defendant had been negligent or in breach of a statutory duty, I would not have concluded that the plaintiff should have been found guilty of contributory negligence. I agree with the conclusion of Gray J in this respect.
Damages
The defendant lodged a cross-appeal complaining of the trial judge’s assessment of damages. Again, given my view as to the appropriate disposition of the appeal, it is not strictly speaking necessary to consider this aspect of the matter. However, in case the matter goes further I indicate my agreement with Gray J that the “cross appeal” against the assessment of damages should be dismissed.
Conclusion
For the reasons given above, I would dismiss the appeal and the cross appeal.
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