Jiao v State of New South Wales

[2010] NSWSC 172

CITATION:	Jiao v State of New South Wales [2010] NSWSC 172
HEARING DATE(S):	12-15 October, 19-20 October, 26-28 October, 6 November 2009
JUDGMENT DATE :	16 March 2010
JURISDICTION:	Common Law Division
JUDGMENT OF:	Hislop J
DECISION:	1. Verdict and judgment for the defendant. 2. The plaintiff to pay the defendant's costs.
CATCHWORDS:	COMMON LAW - personal injury - inmate of correctional institution attacked by another inmate - no breach of duty of care by prison authority.
LEGISLATION CITED:	Civil Liability Act, 2002 Crimes (Administration of Sentences) Regulation 2001 Workers Compensation Act
CASES CITED:	Howard v Jarvis [1958] HCA 19; (1958) 98 CLR 177 New South Wales v Bujdoso [2005] HCA 76; (2005) 222 ALR 663 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 84 ALJR 19
PARTIES:	Zhi Ming Jiao (Plaintiff) State of New South Wales (Defendant)
FILE NUMBER(S):	SC 20280/07
COUNSEL:	T. Morahan (Plaintiff) S. Finnane (Defendant)
SOLICITORS:	Zhang Shijing Lawyers (Plaintiff) Crown Solicitor (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HISLOP J

Tuesday 16 March 2010

20280/07 Zhi Ming Jiao v State of New South Wales

JUDGMENT

Introduction

1 Shortly after 2pm on 21 July 2005, the plaintiff, whilst on remand at the Metropolitan Reception and Remand Centre (MRRC) at Silverwater, sustained injury to the left eye when he was attacked by another prisoner in the visiting area of the centre. The plaintiff was born in 1958 and was aged 46 at the time of the attack.

2 The plaintiff was conveyed from the scene of the incident to Westmead Hospital where surgery was performed to the left eye. Ultimately, as a result of the injury, it was necessary to remove the eye and replace it with a prosthesis.

3 The plaintiff has sought to recover damages for his injury from the defendant as the authority responsible for the administration and governance of prisons in the State of New South Wales.

4 The defendant has admitted it owed a duty of care to the plaintiff, but denies any breach of that duty. A causation issue also arises. There is no allegation of contributory negligence.

5 It is common ground that the plaintiff’s claim is subject to the provisions of the Civil Liability Act 2002 (the Act), including Pts 2 and 2A.

Liability

The visiting area

6 The visiting area consists of four visiting rooms numbered 1 to 4 and an outside area, to which access is gained through rooms 1 and 2. Rooms 3 and 4 have no direct access to the other visiting areas. Rooms 3 and 4 are used to separate segregation, protection and high risk prisoners from the main stream. The rooms are wedge-shaped, the apex of the wedge being at a corridor where there is located a counter where correctional officers process the prisoners and their visitors. There is access to each of the rooms from the counter area. In each of the rooms there are metal tables and chairs bolted to the floor. Room 1 had approximately 19 tables and 81 chairs. In a corner are coffee and tea making facilities, which include a supply of “paddle pop” sticks intended to be used as coffee and tea stirrers. The visitors approach the counter from the opposite end of the corridor to the prisoners. There are vending machines in that part of the corridor and a supply of plastic spoons intended to be used to consume some of the items purchased from the vending machines. The outside area has 23 tables and 94 chairs, and includes a grassed area, a paved area and an area set aside with play equipment for children.

7 The prisoners arrive at the counter after passing through a checkpoint where they are strip searched and required to change their clothing to a garment which has no pockets and is fastened at the top with a plastic flex. It is the practice that a visitor is first admitted to the visiting room and is later joined there by the prisoner.

8 Parallel to the corridor between the checkpoint and the counter are 12 booths (“boxes”). These are used for visits to prisoners whose entitlement to “open” visits has been forfeited for misbehaviour. Inside the box the prisoner and the visitor are separated by a non-breakable perspex screen with a holed grille at table height. The box has a lockable door to secure the inmate whilst visitors access it through a different door.

The surveillance of the visiting area

9 The defendant provided two forms of surveillance in the visiting area. The first form of surveillance was provided by 13 video cameras placed strategically throughout the visiting area, and capable of enabling surveillance of the whole area. These cameras were monitored on a screen at the counter, at the search officer’s check point, in a back room behind the counter and also in a control tower approximately 400 m away. There was communication between the control tower and the visiting area by mobile phone and radio. The monitor automatically switched from one camera to another every 3 seconds unless the automatic setting was manually overridden from the counter or from the tower.

10 The other form of surveillance was provided by officers of the Corrective Services Department. A patrol of two officers continually roved through the visiting area. In addition, two officers manned the counter, which was raised and afforded them a good view into rooms 1-4 and beyond into the grassed and paved areas. All officers had duress buttons to summon aid if required. It was part of the officers’ function to prevent or quell any inappropriate behaviour by prisoners or their visitors in the visiting area.

11 The visiting area and the system involving visits remained essentially the same at the date of the hearing of these proceedings as at the time of the plaintiff’s injury.

The incident

12 On the afternoon of 21 July 2005, the plaintiff was visited by his then wife (they divorced in 2009 though they continue to live together). Initially, they sat together in the grassed area, but then moved to a table in room 1. There were numerous visitors and prisoners in the area at the time, but none were sitting at the plaintiff’s table. The plaintiff’s wife was uncertain which seats she and the plaintiff occupied and changed her mind in this regard in the course of her evidence.

13 The plaintiff’s assailant was Chinese, as was the plaintiff. The assailant was born in 1983. He was on remand on charges of causing grievous bodily harm and assault. There was evidence he had shared the plaintiff’s cell for at least two days prior to the incident. There was no evidence the defendant was, or ought to have been, on notice of any animosity between the plaintiff and the assailant. At the relevant time the assailant had two visitors in the visiting area.

14 The versions of the incident given in evidence are not totally consistent.

15 The plaintiff’s versions were, relevantly:

(a) In evidence, the plaintiff said:

“A: My wife was visiting me. We were talking to each other. There was chocolate, coffee and coke. When the visit was about to finish, there came somebody from the side, from the side area and he was about to poke at me. The first time I helped to fend it away, but for the second time I failed to fend it away.
Q: What happened to you?
A: I fainted.”

(b) The Sydney West Area Health Service recorded the history taken by Dr Kwok on 21 July 2005 as follows:

“Assaulted, hit on left eye by his room mate at Silver Water detention centre at 2pm do not know used blunt and sharp tool punched 1 and fainted for few seconds.”

(c) A history recorded by Dr Christine Younen at Westmead Hospital on 21 July 2005, was, relevantly:

“History from pt via Dr Dennis Kwok. At 2pm alleged assault by another prisoner. Pt apparently punched with a fist only, then passed out.”

(d) The COPS report dated 22 July 2005 recorded:

“A short version of events was obtained from the victim via the interpreter …
… He said he was hit from behind and when he stood up, he was hit front on around the head and eyes area. He did not see any objects.”


This relates to being hit by two persons and may have been on a different occasion or simply the result of inaccuracy by the interpreter for the plaintiff.

(e) In a witness statement to police, dated 19 January 2006, which I accept was given by the plaintiff, he said:


“4. … I was sitting down with my wife on a chair in the inside visiting area. My wife was seated opposite me face to face about 60-70 cm away. It was about 10 minutes before visiting time was over, so I was concentrating on talking to my wife. Just before that, me and my wife had been in the outside visiting area talking for quite a while.

5. Suddenly I felt a punch to the left side of my face. I dodged it by pushing it away with both hands. The punch must have hit my face because I stood up. When I stood up, I saw another inmate. His name is Mr Zheng Yuan LI. I know Mr LI as being another inmate. I had been aware that Mr LI was in the visiting area, as I had seen him arrive from the gaol office about 30 seconds earlier and greet his friend.

6. … We were sharing a cell together although this had only been for two days …

7. Mr LI was throwing punches at me. I was defending myself throwing my arms up and about. I saw Mr LI holding something small in his right hand. I didn’t know what it was he was holding. Immediately I felt something stabbing into my eye. I felt severe pain and couldn’t see anything. I didn’t know what stabbed me at the time, but afterwards one of the lock and key fellows (correctional officers) told me that I was stabbed in the eye with a coffee stick. I don’t remember much after that, but I do remember my wife holding me. I said to her, ‘I can’t see anything; I am feeling severe pain in my eyes’.

8. The correctional officers took me to the office. I passed out and the next thing I remember is being in Westmead hospital.

9. I never expected anything like this to happen to me and I never had any problem with Mr LI before. Mr LI had been transferred to my cell two days earlier as I said. He was also from China same as me, and the night before he stabbed me, I had cooked up some noodles for him for which he had thanked me.”

[The plaintiff then went on to hypothesise that the assault may have been committed at the request of another prisoner with whom the plaintiff had had a falling-out and who was a member of the same Chinese mafia gang as the assailant.]

16 The plaintiff’s ex wife (the tender of whose witness statement dated 22 August 2005 I reject pursuant to s 69(3) of the Evidence Act) gave the following evidence in chief:

“Q. Could you tell his Honour where you were when your husband of the time was attacked?
A. I was in the back of the room.

…

Q. And were you sitting down or standing up when Mr Jiao was attacked?
A. In the beginning we were seated.

Q. Were you sitting at a table?
A. Yes.

…

We were sitting next to the table in the back. We were talking to each other, then a man of Asian appearance came. He walked to the back of us. When I saw him, at the time I saw him, he already began to attack Jiao.

Q. And what did you see him do to Jiao?
A. I saw him hitting Jiao's eye.

Q. And how long did it take, that process that he was hitting, how long did that go on for?
A. I can't remember clearly about this.

Q. Did the man say anything when he was hitting Mr Jiao?
A. No.

Q. And did Mr Jiao say anything when he was being hit by this man?
A. No.”

In cross-examination, she gave the following evidence:


“Q. Did you see the man that assaulted your husband come in through the door?
A. Yes, I saw him walking in.

Q. Did you then take your eyes off him and look back to your husband?
A. I don't think I just moved my eye away from that man to look at my husband. I think I simply moved my eyes away to continue talking with my husband.

Q. Then at some stage after that the man assaulted your husband, is that correct?
A. Yes.

…

That man was there (witness indicated) in the back of us.

Q. Did you see the man hit your husband?
A. Yes.

Q. Was it one punch or one hit, what did you see, can you remember?
A. I was very frightened at the time and I remember I saw him hit my husband's eye several times, but I don't know how many times.

Q. Did your husband stand up?
A. In the beginning he was sitting and later probably he stood up.

Q. Did he punch back?
A. No.

…

Q. The whole incident was over in a matter of seconds, do you agree?
A. I'm not sure if it only lasted for several seconds or for one minute, but anyway it was very short.

Q. Within a very, very short time after the punch, the prison officers were there beside you and your husband, that's correct, isn't it?
A. I don't think they came very quickly to us because I believe they should have come earlier before this incident finished, but I remember they came after the whole incident finished.

Q. The man that hit your husband, did you hear him say, ‘He fucked my girlfriend’?
A. No.

Q. Did he say anything?
A. I can't recall he said anything.”

17 Corrective Services Officers Mills and Manousso, who were assigned to patrol the visiting area, gave evidence that they were in the outside part of the visiting area. They heard someone near room 1 yell out “fight”. They ran into room 1 and separated the plaintiff and his assailant. They heard the assailant say, “he fucked my girlfriend”.

18 Mr Iverson, a Corrective Services Officer for approximately 7½ years, gave evidence that he was working at the counter. He said:

“A. I was sitting facing visits room one. The alleged assailant came in as a visitor [sic]. I processed him. His visitors were sitting in room one. He walked in, he walked over to his visitors, said ‘hello’, then walked to the victim. The victim recognised him. He stood up, held his hand out, smiled as if to say ‘hello’. The assailant did a small, short jab. I don't remember whether it was his right-hand or left hand, hit the victim in the face.

The assailant then went straight to the back wall, knelt on the ground, crossed his ankles and put his hands up on his head in the position that we tell the inmates to assume when there's been trouble. The victim was standing there holding his eye with his hand. There was a little blood that came out of his hand. His wife had screamed, then the victim, if I can recall, went down on his knees on the floor.

The response officers arrived. Other officers came to the job. The SERT, which is the Special Emergency Response Team, officer and I took the victim back down to the back room where he was changed.

Q. Can I just ask you at this stage just to restrict yourself to what your response was. When you say, ‘The assailant went to his visitors,’ whereabouts were they located, can you recall?
A. They were located on a table. There was two of them. It was a table on their own to the right which is near the door leading to the outside yard.

Q. When you saw the punch thrown?
A. I did.

Q. What was your response?
A. I stood up, and then when the female visitor screamed I either jumped the counter or went around the side, I don't recall which. I took the other officer on the desk with me. He hit the button underneath the desk which opens the door to visits room one and I ran in.

Q. Were you the first officer on the scene or were there others there?
A. I think the other officers got there before me, the ones doing the yard patrol.”

19 The assailant was deported to China on 27 December 2005. He did not give evidence in these proceedings, nor was any statement by him tendered.

20 Corrective Services Officer Iverson picked up a broken paddle pop stick from the floor in the general vicinity where the incident had occurred. It has been suggested that the broken paddle pop stick had been used by the assailant to inflict the injury to the plaintiff’s eye.

21 There was conflicting evidence in relation to the role, if any, of the paddle pop stick in the assault, in that:

(a) The assailant was strip searched before being allowed into the visiting area and dressed in the pocketless garment. It is therefore unlikely that the paddle pop stick was brought into the area by him.

(b) There was no evidence the assailant had been to the coffee/tea area, or picked up a paddle pop stick from any other place prior to approaching the plaintiff.

(c) No witness said he or she saw the assailant use the paddle pop stick in the attack.

(d) The assailant was examined by the Corrections Health Service, which noted the following injuries:

“Red marks on ® knuckles. Nil other injuries.” (Exhibit 7)


(e) No DNA of either the plaintiff or the assailant was found on any part of the paddle pop stick.

(f) The paddle pop stick could have been dropped or broken by anyone in that area.

(g) The hospital report refers to a “penetrating injury” of the left eye. There was medical evidence of a broken bone in the eye area. It was also noted during surgery that the cornea had perforated along the lines of previous corneal incisions (presumably for refractive error).

22 In my opinion, the evidence does not establish the “paddle pop” stick was used in the attack. It is, however, unnecessary to pursue this question, as it was no part of the plaintiff’s case that paddle pop sticks should not have been in that area.

23 Although there are some differences between the various versions, there appears to be no doubt on the evidence that the attack occurred suddenly and without warning. The injury to the eye, most probably, was occasioned by the only, or the first of some three or four, blows. The attack occurred in a split second and there was no opportunity for intervention by any person. There was no reason for the defendant to anticipate that such an attack would occur and the fact that the assailant walked toward the plaintiff was not untoward as he could have walked in that direction in order to obtain a cup of coffee. His movements would not have excited suspicion until he suddenly struck the plaintiff.

Principles

The duty of care

24 A gaoler comes “under a duty to exercise reasonable care for the safety of [the prisoner] during the detention”: Howard v Jarvis [1958] HCA 19; (1958) 98 CLR 177 at 183.

25 In New South Wales v Bujdoso [2005] HCA 76; (2005) 222 ALR 663 the High Court said:

“[32] The appellant had not at the trial disputed that a duty was owed. That no doubt was because of what was said by Dixon CJ, Fullagar and Taylor JJ in Howard v Jarvis . This was applied as the settled law in Cekan v Haines . More recently, in State of New South Wales v Napier ([2002] NSWCA 402 at [75]), Mason P had said:

‘The control vested in a prison authority is the basis of a special relationship which extends to a duty to take reasonable care to prevent harm stemming from the unlawful activities of third parties.’


…

[44] … In a prison, the prison authority is charged with the custody and care of persons involuntarily held there. Violence is, to a lesser or a greater degree, often on the cards…It is also notorious that without close supervision some of the prisoners would do grave physical injury to other prisoners.”

Breach of duty

26 In Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-48, it was held:

“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 inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that 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.

… a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable.”

27 As previously noted, these proceedings are subject to the Act. Sections 5B and 5C of the Act are provisions directed to breach of duty: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 84 ALJR 19 at [13], whilst ss 5D and 5E are directed to causation - Adeels Palace at [14].

28 The above provisions of the Act are central to questions of breach of duty and causation: Adeels Palace at [15] but at a practical level do not appear to require any significant adjustment to the principles as determined by the common law and stated above.

29 The defendant admitted that it owed a duty of care to the plaintiff. The evidence of Assistant Superintendent Hannah (at [49]) confirmed the risk of injury arising from an attack by one prisoner on another in the visiting area was foreseeable. It was common ground the plaintiff was injured in the attack upon him. However, the plaintiff bears the burden of proving that his injury could have been avoided by some reasonably practical alternative course of conduct which the defendant should have taken. Plaintiff’s counsel sought to meet this requirement in four ways which are discussed hereunder.

Electronic surveillance

30 The plaintiff submitted the electronic surveillance system was defective for the following reasons:

(a) The cameras only viewed about 75 per cent of the room unless moved.

(b) Only the view of a single camera was shown on the monitor at any one time.

(c) If the automatic system was overridden, all parts of the visiting area, other than that shown on the monitor, would be unobserved by electronic means.

(d) The officers on the counter who were assigned to view the monitor would not always be observing it, as they had other duties to attend to in relation to the processing of visitors and prisoners and their attention may be otherwise distracted.

(e) The officers in the control tower, whilst continually viewing the monitor, were 400 m away and could only act by contacting the officers in the visiting area.

31 Senior Assistant Superintendent Morrow, who was responsible for the video surveillance system, gave evidence that she had unsuccessfully requested an upgrade of the surveillance system. She acknowledged there were monitors available at the time of the plaintiff’s injury which monitored four cameras at a time on the screen, and that such a monitor was in use in the control tower at the time of the plaintiff’s injury but not at the counter.

32 However, electronic surveillance has its limitations and even if this incident and the moments leading up to it were shown on the monitor and observed by an officer, there would still, of necessity, be a reaction time before an appropriate response could occur.

33 Counsel for the plaintiff conceded, correctly in my opinion, that on the evidence, on the balance of probabilities, no electronic surveillance system could have prevented the injury to the plaintiff from happening.

Statutory provision

34 The plaintiff relied upon the Crimes (Administration of Sentences) Regulation 2001, cl 99(1), which provided:

“A visit must take place within sight of a correctional officer unless the Governor permits otherwise.”

35 The plaintiff submitted that there was a breach of this provision, as a correctional officer did not have the plaintiff directly within his vision at the time he was attacked.

36 In my opinion, such a construction of the regulation is untenable. It would virtually require that there be one on one surveillance of each prisoner. This would be impracticable and could not have been intended. The meaning of “sight” in the Macquarie Dictionary includes “range of vision”.

37 In my opinion, the words “within sight” in the regulation mean “within the range of vision”. There was thus no failure to comply with that regulation.

38 In any event, even if the plaintiff had been directly within the vision of a correctional officer, the officer would not have been required to be so close to the plaintiff as to have prevented the injury.

Patrol

39 The plaintiff submitted that the system of having two correctional officers roving through the visits area was a defective system, as the officers could be in the outside area, too far away to deal with an event which suddenly occurred, or in room 4, from which it was impossible to see the whole of the visiting area.

40 The plaintiff submitted that reasonable care required that there be two officers permanently stationed in each visiting room to prevent an event such as occurred and that the officers would rove individually about the room, covering an area of a 10 m radius at any one time.

41 This change in procedure would have resulted in an additional eight officers being employed to perform that duty. There was evidence that this would create staffing problems. Presumably, similar precautions would be required in other New South Wales gaols.

42 In my opinion it is unlikely that the presence of two officers in room 1 would have prevented the injury to the plaintiff, as the assailant appears to have acted without regard to the fact that he must inevitably be caught and, unless the officer was standing between the plaintiff and the assailant, it is very unlikely he could have prevented the injury.

43 Plaintiff’s counsel put the prospect of avoiding the risk of injury by this means no higher than “a chance the risk might be obviated”. A mere possibility is insufficient to establish that, on the balance of probabilities, injury would have been obviated.

Box visits

44 The plaintiff submitted that all prisoners should be accommodated in individual booths or cubicles with their visitors. There should be no “open” visits. This would prevent a prisoner attacking another prisoner or another prisoner’s visitors. The booths or cubicles would be the same as the “boxes” presently used by persons who had lost their privileges. Initially it was submitted the perspex screens, which are presently in the boxes, should be absent but as this would enable contraband to be passed from visitor to prisoner it was accepted that the screens should be included or two video cameras would be required in each box.

45 Whilst the introduction of box visits for all prisoners would have prevented injury to the plaintiff, once he was in the box, a system would need to be set up to prevent any interaction between prisoners and visitors awaiting allocation of a box. The ability to set up an effective system was not canvassed in the evidence.

46 The cost of the alternative system suggested by the plaintiff would be high. Not only would additional boxes be required but it may be necessary for there to be two video cameras installed in each box. There was no evidence as to the likely cost of the system proposed by the plaintiff or the multiplier effect of such a system being adopted in other correctional institutions.

47 The plaintiff called no evidence to establish that the system he proposed would be practicable or reasonable or that any other system was appropriate.

48 Assistant Superintendent Hannah, a Corrective Services officer of 21 years standing, who had been in charge of the inmates’ visits for the previous six years, gave evidence that almost all inmates at MRRC were remand inmates. In all, there were 900 inmates entitled to visits and a maximum of 120 visits per day were scheduled. Every inmate was allowed two one hour visits per week and exceptions were made for overseas/long distance travellers/special circumstances. The allowance was for up to four adult visitors and a reasonable number of children per visit.

49 224,640 visits, involving an estimated 1,296,000 visitors, occurred during the six years Mr Hannah had been visits manager at MRRC. During that period, six incidents (including the plaintiff’s incident) occurred where force was necessary to restrain or subdue inmates in the visiting area. None of these incidents (except for that involving the plaintiff) resulted in other than minor injuries.

50 Mr Hannah gave evidence box visits were used as a form of punishment where an inmate had breached prison discipline or rules. Mr Hannah said that a minimum of 60 boxes would be necessary to implement the plaintiff’s suggestions. The majority of the prisoners were on remand and had not been convicted. More importantly, contact (“open”) visits were an essential ingredient for humanising inmates’ time in gaol. There was very little scope for a reward and punishment system in the gaol and contact visits were the most significant reward. Box visits were a further step towards dehumanisation of the inmate. Without contact visits, the behaviour of the inmates would worsen considerably and one of the most significant methods for control and good management of the gaol would be lost.

51 Mr Hannah said in cross examination that he was a proponent of box visits as a punishment. He acknowledged that box visits were safer for prisoners but considered that open visits were desirable for the reasons earlier referred to in this judgment. Mr Hannah, in my opinion, was an experienced officer whose opinion I accept. I prefer his opinion to that of Mr Iverson who lacked the experience of Mr Hannah and would have all visits boxed so that there could be no contact and hence no problems.

52 Overall the defendant submitted that the system provided was adequate. The duty of care does not require that safety be guaranteed, but rather, that reasonable care be taken to obviate foreseeable risks. Reasonable care was taken.

53 In my opinion, it has not been established that the proposed change to box visits was a reasonably practical alternative having regard to the need to balance the benefits in relation to the control and good management of the gaol with the limited risk of injury, the improbability that injury, if inflicted, would be of a serious nature, the cost of implementing the change and the social utility of the activity that created the risk of harm - see 5B(2) of the Act.

Conclusion

54 In my opinion, the plaintiff has not established that his injury could have been avoided by some reasonably practical alternative course of conduct which the defendant should have taken.

55 In my opinion, the plaintiff has not established negligence on the part of the defendant. There will be a verdict and judgment for the defendant.

Damages

56 It is unnecessary to consider the issue of damages having regard to the determination of the liability issue. However, against the possibility the matter may go further, I make the following short comments in this regard.

57 Part 2A of the Act contains special provisions for the award of damages to offenders in custody. It was common ground that Pt 2A of the Act applied to the plaintiff’s claim (see s 26A(1), s 26B, and s 26C of the Act; see also the Crimes (Administration of Sentences) Act 1999, s 4).

Non economic loss

58 The claim for non-economic loss is limited by the Act to the total amount to which the plaintiff would be entitled under the Workers Compensation Act 1987, s 66 and s 67 (see s 26H and s 26I of the Act).

59 It was agreed between the parties that the s 66 entitlement was $163,100.

60 The parties could not reach agreement on the amount payable under s 67.

61 The total amount payable pursuant to s 67 in respect of a “most extreme case” is $50,000. The plaintiff is entitled to receive a percentage of that sum representing compensation for pain and suffering resulting from the permanent impairment, as distinct from the injury.

62 The relevant evidence is that the plaintiff has an impairment, with evidence of some actual pain in the left eye area, but not to a great degree, and of some distress or anxiety resulting from the impairment. There is evidence from a psychologist and a psychiatrist that the plaintiff is depressed by his condition, but this appears to be a secondary psychiatric component, which would not be taken into account - the Workers Compensation Act, s 65A. I would allow the plaintiff $25,000 pursuant to s 67, and thus a total sum for non economic loss of $188,100.

Past out of pocket expenses

63 This figure is yet to be advised.

Future out of pocket expenses

64 Dr Delaney opined that:

“No further treatment is possible at this stage for the left eye except for routine replacement of [the plaintiff’s] prosthesis. This will be required on average every 2 ½ - 3 years and the current cost is $1350.”

65 Dr Gertler opined that further psychiatric treatment for 12 months would be appropriate.

66 The defendant did not dispute the plaintiff’s entitlement to the items listed on p 10 of Ms Hammond’s report.

67 I would allow a claim for future out of pocket expenses on the above basis.

Gratuitous attendant care

68 The plaintiff claimed gratuitous care for 28 hours per week at the rate of approximately $22 per hour from 1 April 2007 to date and continuing for the plaintiff’s life expectancy.

69 The principal difficulty for the plaintiff with this claim is that the plaintiff by 2006 had very poor vision in the right eye. The cause of the visual loss in the plaintiff’s right eye was a cone-rod receptor dystrophy. This was a congenital defect and was neither caused nor exacerbated by the injury to the left eye. This condition progresses over many years without any obvious clinical signs until the end stage of the dystrophy and only then does retinal degeneration become apparent. No treatment is possible. The condition may deteriorate further but, in the plaintiff’s case, this would not produce a measurable change in his impairment, as he is already legally blind in the right eye with less than 6/60 vision in that eye. The medical evidence does not deal at any length with the question of the effect of the congenital condition on the left eye had it been uninjured. However, I infer from the joint report of Drs Delaney and Pittar dated 12 August 2009 that the probabilities are that the left eye would have degenerated in a similar fashion to the right eye and that by about 2006 the left eye would have manifested a similar loss of vision to the right eye had the left eye not been previously removed. Even if the traumatic injury to the left eye had not occurred, there would have been the need for gratuitous attendant care to a similar degree occasioned by the congenital defect in both eyes.

70 Section 15(2)(b) and (c) of the Act provides:

“(2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that:
(b) the need has arisen (or arose) solely because of the injury to which the damages relate, and
(c) the services would not be (or would not have been) provided to the claimant but for the injury.”

71 As the plaintiff was released to parole on 21 March 2007 the damages under this head, if any, would be minimal.

Impairment of earning capacity

72 The plaintiff claimed loss of earnings and impairment of earning capacity calculated at $US68,000 per annum to age 65.

73 In their joint report, Drs Delaney and Pittar concluded:

“Mr Jiao is now legally blind. He would require extensive training and rehabilitation to enable him to function but it is unlikely that he would be able to find gainful employment.”

74 Ms Hammond recorded:

“Mr Jiao has not sought work since his discharge from gaol, nor has he sought employment assistance from Vision Australia to identify suitable employment options.

Mr Jiao faces the following employment barriers:

· Loss of vision
· Lack of formal educational qualifications
· Non English speaking and literacy
· Discrimination from employers with both his criminal history and his visual disability”

75 The plaintiff resided in Australia from 1997 apart from a short period in the latter half of 2004 and early 2005. He gave evidence he was running a company in Australia on behalf of a Chinese parent company. At no time did he lodge a taxation return in Australia. He stated that most of the company records had been lost in a fire or had been taken by the police and not returned. The Court was informed an accountant of the parent company was coming to Australia to give evidence to support the plaintiff’s claim for loss of wages but she did not attend. In the circumstances I refused to permit an affidavit of the proposed evidence of that person to be tendered as there was no evidence to explain her absence and it would have been unfair not to have afforded the defendant an opportunity to cross examine her about the contentious issues in respect of which she was to give evidence.

76 There were serious doubts as to the plaintiff’s pre injury earning situation. However, it is unnecessary to pursue that issue further as:

(a) the plaintiff was sentenced to a non parole period of imprisonment for two years commencing on 22 March 2005 and expiring on 21 March 2007 with a total term of four years four months for conspiracy to kidnap a young child for ransom;

(b) the plaintiff was admitted to parole on 21 March 2007. The congenital condition of his eyes would have reduced his work capacity to what it is now by about mid 2008. In the circumstances, a small buffer would be appropriate compensation for any loss of wages and impairment of future earning capacity due to the injury sued upon.

The plaintiff’s credit

77 A sustained attack was made on the plaintiff’s credit in relation to alleged lies told by the plaintiff as to his previous employment, his qualifications, his pre injury health, his knowledge of a brothel being run in premises owned or rented by him, as well as his prevarication in giving evidence and his failure to lodge taxation returns. It is unnecessary to go into the detail of these matters beyond observing that particular care is required before accepting the plaintiff’s evidence unless corroborated by reliable evidence.

Orders

78 The orders of the Court are:

(1) Verdict and judgment for the defendant.

(2) The plaintiff to pay the defendant’s costs.

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