Hawkins v The State of Western Australia
[2006] WADC 103
•20 JULY 2006
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: HAWKINS -v- THE STATE OF WESTERN AUSTRALIA [2006] WADC 103
CORAM: GROVES DCJ
HEARD: 14 JUNE 2006
DELIVERED : 20 JULY 2006
FILE NO/S: CIV 567 of 2005
BETWEEN: DANIEL JOHN HAWKINS
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Torts - Negligence - Administration of prisons - Assault by one prisoner on another - Claim against State of negligence - Whether Crown a "person" within the meaning of s 111 Prisons Act 1981 - Statutory interpretation
Legislation:
Interpretation Act 1984, s 3(1), s 5
Prisons Act 1981, s 111
Result:
Immunity under s 111 Prisons Act 1981 does not extend to Crown
Representation:
Counsel:
Plaintiff: Mr M D Cuerden
Defendant: Mr C S Bydder
Solicitors:
Plaintiff: Slater & Gordon
Defendant: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Bank of New South Wales v Commonwealth (1948) 76 CLR 1
Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714
Crouch v Commissioner for Railways (Qld) 1985 159 CLR 22
Everett v The State of Western Australia & Anor [2001] WADC 18
Madras Electricity Supply Corporation Ltd v Boarland (Inspector of Taxes) [1955] AC 667
McGraw‑Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633
Nada v Knight, unreported; FCt SCt of WA; Library No 8050; 8 February 1990
Puntoriero v Water Administration Ministerial Corporation (2000) 199 CLR 575
Sue v Hill (1999) 199 CLR 462
The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40
University of Melbourne v Robinson [1993] 2 VR 177
Case(s) also cited:
Attorney General v MFAA (1989) 91 ALR 125
Australian National Airlines Commission v Newman (1987) 162 CLR 466
Dixon v The State of Western Australia [2001] WADC 18
Law Society v United Service Bureau [1934] 1 KB 343
Smith v Australian National Line Ltd (1993) 20 WAR 219
GROVES DCJ: The following issue was ordered to be heard and determined as a preliminary issue;
"Is the defendant a 'person' within the meaning of s 111 of the Prisons Act 1981?"
At the commencement of the hearing I proposed to counsel that, having regard to the importance of the determination one way or the other, the issue be remitted to the Supreme Court of Western Australia as a special case or case stated for the opinion of that Court or of the Full Court (see O 31 Rules of the Supreme Court 1971). After deliberation both counsel indicated that it was their preference that this Court should make an initial determination.
The issue is to be determined on the following agreed facts:
(1)As at 10 May 1999 the plaintiff was a sentenced prisoner at Canning Vale Prison in Western Australia, now known as Hakea Prison ("the Prison").
(2)The Prison was a "prison" within the meaning of the Prisons Act 1981.
(3)By virtue of s 16(1) of the Prisons Act the plaintiff was at all material times in the custody of the Chief Executive Officer within the meaning of the Act, who was, pursuant to s 7(1) thereof responsible for the management, control and security of the Prison and the welfare of the plaintiff, subject to the provisions of the Act and to the control of the Minister.
(4)The defendant owed the plaintiff a duty to take reasonable care and precautions to prevent the plaintiff being attacked by another prisoner.
(5)Further, at all relevant times the defendant was the employer of the prison officers engaged at the Prison.
(6)On or about 10 May 1999 the plaintiff was stabbed by another prisoner ("the Attack").
(7)The plaintiff alleges that the Attack occurred as a result of the defendant's negligence, alternatively the negligence of prison officers at the Prison for which the defendant is vicariously liable. The defendant denies these allegations.
By its defence the defendant pleads that no action lies by the plaintiff against the defendant by virtue of the provisions of s 111 of the Prisons Act 1981 ("the Act") in that:
"(i)the agents or servants of the defendant, if sued, are thereunder granted immunity; and
(ii)accordingly, the defendant as the employer of the agents or servants, and sued in respect of its agent's or servant's conduct, can have no liability; and
(iii)the defendant is, in any event, also a person in respect of whom the provisions grant immunity from liability."
The defendant is the Crown in right of the Government of Western Australia; Crown Suits Act 1947 ss 3, 5(2).
Section 111 of the Prisons Act 1981 provides:
"No action or claim for damages shall lie against any person for or on account of anything done or ordered or authorised 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 authorised to be done maliciously and without reasonable and probable cause."
There is no allegation here of malice.
The plaintiff claims that the defendant is liable both directly and vicariously. The issue before me was argued only on the basis of the direct liability of the State.
Proper approach to statutory interpretation
Counsel were ad idem that the proper approach to statutory interpretation is as stated by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v ABC (1998) 194 CLR 355 at 69 and 78:
"The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is to be constructed. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
. . .
[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinary, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the cannons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.' "
As to the latter paragraph, the example given by the Court in Project Blue Sky Inc v ABC (supra) was the presumption that, in the absence of unmistakable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms or immunities.
Consistently also with this statement, s 111, insofar as it is said to confer immunity on the defendant, is to be interpreted on the footing that the protection conferred by it should not be carried further than a jealous or strict interpretation will allow; Puntoriero v Water Administration Ministerial Corporation (2000) 199 CLR 575at [4], [34], [109] and [113]; Bell v Western Australia(2004) 28 WAR 555 at [18] and [63].
Thus, the question is to be determined on the basis of whether the State falls within the meaning of "person" as that word is used in s 111 of the Prisons Act 1981. The answer to that question requires consideration as to whether or not the State falls within:
(a)the ordinary meaning of the word "person"; and
(b)the statutory definition of the word "person" in the Interpretation Act 1984, which will apply unless express provision is made to the contrary or the intent and object of the Prisons Act 1981 or something in the subject or context of the Prisons Act 1981 is inconsistent with such application.
The Interpretation Act 1984, s 5 defines "person" to include "a public body, company or association or body of persons, corporate or unincorporated".
Legislative history and context
In written submissions on behalf of the plaintiff the legislative history and context is outlined which, for the purpose of these reasons, I adopt.
Section 111 is in relevantly identical terms to s 75 of the Prisons Act 1903, which was the predecessor to the Prisons Act 1981.
The 1903 Act was enacted prior to the Crown Suits Act 1947, and therefore at a time at which, in Western Australia, the Crown's immunity from suit prevailed, and Crown servants but not the Crown itself were liable: see Kneebone, Tort Liability of Public Authorities, 1998 pp 300-301. Although the practice developed whereby the Crown would "stand behind" its servant, that practice provided no machinery for recovering damages where the negligence was that of the Crown itself rather than its servant: see Hogg & Monahan, Liability of the Crown, 3rd ed, 2000 pp 110‑111. The predecessor to the Crown Suits Act 1947, namely the Crown Suits Act 1898, only permitted claims against the Crown for damage "in connection with a public work" see Kneebone pp 298‑299; Hogg & Monahan p 109 (footnote 6) and see The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 at 63, 65‑67.
Against the relevant background, therefore, the terms of s 75 of the 1903 Act provide no ground for concluding that that provision evinced any intention to confer immunity on the Crown.
The terms of s 75 were then retained in relatively identical terms as s 111 of the 1981 Act. Hansard reveals there was no debate about s 111.
Thus, so it is contended on behalf of the plaintiff, there is no basis for concluding, from the legislative history, that the legislature had any intention in enacting s 111, to extend immunity to the Crown.
The defendant's submissions
It is the State's submission that the Crown is a "person" for the purposes of s 111. It is contended that:
(i)the ordinary meaning of the word "person" encompasses the Crown;
(ii)the ordinary meaning of the word "person" is extended by the inclusive definition of "person" under s 5 of the Interpretation Act 1984;
(iii)that in the context of the definition of "person" under s 5 of the Interpretation Act 1984 the Crown may be understood as being a corporation sole or a corporation aggregate and falls within the extended definition on that basis; and
(iv)there is no express provision in the Prisons Act 1981 which is inconsistent with construing "person" in s 111 in accordance with its ordinary meaning and the broader meaning provided for by s 5 of the Interpretation Act 1984. Further, there is nothing in the intent and object or the subject or context of the Prisons Act 1981 which is inconsistent with that construction.
I will deal with each of those contentions in the course of dealing with the plaintiff's submissions to the contrary and in my conclusions.
The plaintiff's submission
The issue was considered by Commissioner Ley in Everett v The State of Western Australia & Anor [2001] WADC 18. His Honour ultimately did not decide the point however in the course of his reasons made reference to certain relevant authorities as follows:
"The effect of that provision has only been considered by a Court in this State on one previous occasion. However, a very similar provision in the New South Wales Prisons Act 1952 ("the NSW Act") was considered by the New South Wales Court of Appeal in Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714.
In Cowell, a former prisoner brought proceedings for false imprisonment against the Corrective Services Commission of New South Wales and the State of New South Wales on the ground that he had been confined in prison for a period longer than the law provided because his entitlement to remissions had been calculated in accordance with an incorrect interpretation of the remission provisions of the NSW Act. The Commission and the State defended the action inter alia on the ground that no action such as that brought by the plaintiff could lie against either of them because of the provisions of s 46 of the NSW Act. Section 46 was, to all intents and purposes, in identical terms to s 111 of the Act.
The Commission was a body established under amendments to the NSW Act passed in 1978, to administer prisons in New South Wales. Prior to the 1978 amendments, a natural person, the Commissioner for Corrective Services, had the responsibility for care and control of prisoners.
At first instance, the plaintiff's claim both against the Commission and against the State was dismissed. On appeal, and by a 2-1 majority, his claim against the Commission was upheld but the dismissal of his claim against the State was affirmed.
Clarke JA (with whom Priestley JA agreed) considered that both the prison governor who was in charge of the prison in which the plaintiff had been unlawfully detained and the Commission were directly responsible for the plaintiff's unlawful detention. He did not think that the Commission was vicariously liable for the actions of the governor, who would have been immune from suit by virtue of s 46.
He then considered the question of whether the Commission could avail itself of the protection of s 46. He said (at 739):
'In the light of this clear expression of intention by the legislators who set up the body corporate at the same time I am of the view that 'person' in s 46 should be interpreted no more widely than it was before 1978; that is, as applying to individuals and, perhaps, the government as a body politic. This was because no corporation was charged with the obligation of carrying out the provisions of the Act and there was no body corporate which could have sought its protection.
If the terms of the Act as they were prior to 1978 provided clear evidence of an intention not to extend the meaning of 'person' in s 46 to bodies corporate, as I believe they did, the 1978 amendments would have had to have the effect of widening the meaning of the word. There is no doubt this could have been done. Indeed if the Act, as amended, had not included Schedule 3, clause 15, then there would be a respectable argument that the amendments creating the body corporate removed the context which displaced the statutory meaning of the word.
But when those amendments contain a provision protecting individuals and not the corporation I am bound to conclude that the statutory context continued to limit the meaning of person in s 46.'
On that basis, he held that s 46 could not be construed so as to protect the Commission from suit and held that it was liable for the plaintiff's claim. He upheld the dismissal of the action against the State on the ground that the Commission was the correct party to be sued as it was the Commission and not the State which had care and control of the prison.
In Nada v Knight, unreported; FCt SCt of WA; Library No 8050; 8 February 1990 the Full Court heard an appeal against a decision of this Court in which the appellant's claim for damages arising out of two separate assaults on him whilst he was a prisoner on remand at Fremantle Prison was dismissed. The claim had been brought against the Superintendent of Fremantle Prison and the State of Western Australia. However, on the hearing of the appeal, the respondents did not rely on s 111 of the Prisons Act. Pidgeon J said (at p 3):
'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 the 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 New South Wales Court of appeal in Cowell v Corrective Services Commission of New South Wales (1998) 13 NSWLR 714 gives some support for this view.' "
The position taken by the State of Western Australia in Nada v Knight, unreported; FCt SCt of WA; Library No 8050; 8 February 1990 was not the position taken in Everett (supra) or this case. The defendant's attitude to the applicability of s 111 has changed since Nada v Knight and it is now contended that it is a "person" within the meaning of s 111.
As to the ordinary meaning of the word "person" the defendant sought to rely on the decision of the House of Lords in Madras Electricity Supply Corporation Ltd v Boarland (Inspector of Taxes) [1955] AC 667. On the one hand it was stated authoritatively by Lord Reid at 686 that: "it is not disputed that the Crown is in law a person …". On the other hand where the word "person" appeared elsewhere in the same legislation it was for the reasons enunciated by Lord MacDermott at 684, interpreted as not including the Crown. What this points up is that care needs to be exercised when relying on authorities which whilst dealing with the same issue for interpretation must nevertheless be read and understood in the context of the particular legislation there being considered. One cannot generalise that because a word has been interpreted in one way in relation to particular legislation that that particular interpretation must also apply in other circumstances.
The same might be said of the decision of the High Court in McGraw‑Hinds (Aust) Pty Ltd v Smith (1978‑1979) 144 CLR 633. In that case the High Court considered a similar question when it was asked to determine whether the Crown was a "person" for the purposes of the Unordered Goods and Services Act 1973 (Qld). In that case the High Court held that the natural and ordinary meaning of "person" included the Crown. The legislative provision there under consideration was however very different from s 111 and I, like Commissioner Ley in Everett (supra) would hesitate to use it to determine this case.
A contrasting decision is that of Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 where the High Court was called upon to consider a reference to "person" in s 6(3) and s 75B(1) of the Trade Practices Act 1974 (Cth). Section 75B(1) defined the expression "person involved in a contravention of a provision" of Pt IVA or Pt V to mean a person who participated in a contravention in any of various specified ways. Section 22(1) of the Acts Interpretation Act 1901 (Cth) provides:
"In any Act, unless the contrary intention appears:
(a)expressions used to denote persons generally (such as 'person', 'party', 'someone', 'anyone', 'no‑one', 'one', 'another' and 'whoever'), include a body politic or corporate as well as an individual …"
The Court there held that the claims made against the State of New South Wales were not maintainable because the State was not a person within s 6(3) or s 75B(1) of the Trade Practices Act.
In Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 363 Dixon J remarked:
"…[the Constitution] treats the Commonwealth and the States as organisations or institutions of government possessing distinct individualities. Formally they may not be juristic persons, but they are conceived as politically organised bodies having mutual legal relations and amenable to the jurisdiction of courts upon which the responsibility of enforcing the Constitution rests."
(Referred to by the High Court in Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22 at 39 and more recently in Sue v Hill (1999) 199 CLR 462 at 501.)
Conclusions
The State urges the view that the starting point in determining the issue should be that "person" includes the Crown and that nothing in the subject or intent of the Act excludes that interpretation. I do not accept that proposition. That the Crown is not expressly identified by s 111 as a body to which no action or claim for damages shall lie is plainly capable of being construed as an indication that the statute does not include the State within the scope of the immunity conferred. Such an approach by a court would be consistent with the strict interpretation to which such immunity provisions are to be subjected: Puntoriero v Water Ministerial Corporation (supra); see Bell v Western Australia (supra) per E M Heenan J at 568.
The word "person" appears on enumerable occasions throughout the Act. The use of the word "person" in those sections must plainly be understood to be referring to an individual. For example, in s 3 "officer" means a person…" as does a "police officer", "prisoner", "prison visitor", "visiting justice", etc. Likewise the use of "person" in s 109P, s 109Q, s 109S, s 109T, etc. The consistent use of the word "person" in other sections of the Act where clearly the reference is to an individual simply does not permit a wider interpretation to apply or to be applied to its use in s 111. That being so it excludes the interpretation being drawn that "person" in s 111 is to be taken as including the Crown.
As to the natural and ordinary meaning of the word "person" I defer to the new shorter Oxford English Dictionary which defines "person" most relevantly as "an individual human being or a group of individuals as a corporation regarded as having rights and duties recognised by the law". That definition in my opinion is not capable of being understood to include the Crown.
Furthermore, put in its historical context, the word "person" in the Prisons Act 1903 could not have been understood to have included the Crown. At that time the Crown was immune from suit. By the time the Prisons Act 1981 was enacted the Crown was no longer immune from suit but s 111 was re-enacted in relevantly identical terms to its predecessor s 75. Parliament at the time of enacting the Prisons Act 1981 did not, so it seems, draw its mind to the ambit of s 111. In those circumstances I am of the view that "person" in s 111 should be interpreted no more widely than its application under the Prisons Act 1903. It could not apply to the Crown at the time the Prisons Act 1903 was enacted. In my opinion it does not apply to s 111 of the Prisons Act 1981.
In my opinion "person" in s 111 is referring to an individual, ie a "natural person" and the State was correct in its acknowledgment of that interpretation in Nada v Knight (supra).
Furthermore, as the plaintiff contends, s 111 qualifies the word "person" with the pronoun "him". Whilst that plainly includes both genders (Interpretation Act s 10(a)), it suggests that the protection conferred by s 111 is limited to natural persons and does not extend to include the Crown. This point was similarly made in the University of Melbourne v Robinson [1993] 2 VR 177 at 188 where the issue was whether a corporation could fall within the phrase "the personal affairs of any person". Reference in the legislation to "himself" (which necessarily also means "herself") could not be taken to include "itself" as would be necessary if one was referring to a corporation. Similarly here the Crown being the executive branch of government is not sensibly described as "him" or "her". As was noted in The State of Western Australia v Bond (supra) at 63 there is a distinction between the (impersonal) Crown and the (personal) Sovereign. For that reason also I am supported in the conclusion that the reference to "person" in s 111 does not extend to the Crown.
It is noteworthy also that since Nada v Knight (supra) the State prosecuting authorities hold a different view than was expressed in that case. Having changed its interpretation it is perhaps surprising, although no conclusion can be drawn from the fact, that legislative amendment was not pursued so as to make it clear that "person" in s 111 was to be understood as including the Crown. Had it been the legislative intent to confer immunity on the Crown it would have been a simple matter for it to have said so expressly.
Nor in my view does the extended definition of "person" under s 5 of the Interpretation Act 1984 assist the defendant. The Crown is not a "public body" which might inter alia be referable to the numerous statutory public bodies. Nor is it a "company" in that it does not fall within the definition of "company" in the Corporations Law (Cth). Nor, in my opinion, is it an "association or body of persons, corporate or unincorporate". In Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714 (referred to in Everett v State of Western Australia above) the Court drew the distinction between "body corporate" and the State. Nor is it an association and, by reason of extension of logic, can it be regarded as an unincorporated body. The Crown in right of the State reflects the political units that emerged at Federation. That is the body politic. It would require an unacceptable distortion of the English language for the Crown to fall within any part of the extended definition of "person".
Accordingly I hold to the view that the reference to "person" in s 111 of the Prisons Act 1981 does not extend to the Crown in right of the State.
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