L v State of SA
[2004] SADC 110
•6 August 2004
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
L v STATE OF SA
Judgment of His Honour Judge Smith
6 August 2004
TORTS - NEGLIGENCE
Negligence - duty of care - prisoner mistakenly released by Parole Board by reason of error in recording sentences - 8 months later prisoner invaded house of plaintiff and raped her - whether a duty of care is owed to plaintiff by Parole Board - discussion of the scope of content of any duty of care - held that there was no duty of care of the scope contended for by the plaintiff.
Crown Proceedings Act 1992 (SA) s 4(1), 5(2)(a); Correctional Services Act 1982 (SA) Part 6; Criminal Law (Sentencing) Act 1988 (SA) s 32(1)(b), referred to.
Commercial Oil Refiners Pty Ltd v State of South Australia (1974) 9 SASR 88; Kenny & Good Pty Ltd v MGICA (1992) Ltd (1997) 77 FCR 307; Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; Wyong Shire Council v Shirt (1980) 146 CLR 40; Graham Barclay Oysters Pty Ltd v Ryan (2002) 77 ALJR 183; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; Sullivan v Moody (2001) 207 CLR 562; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; Smith v Leurs (1945) 70 CLR 256; Brodie v Singleton Shire Council (2001) 206 CLR 512; Dorset Yacht Co Ltd v Home Office [1970] AC 1004; Agar v Hyde (2000) 201 CLR 552; Perre v Apand Pty Ltd (1999) 198 CLR 180; Reynolds v Katoomba RSL All Services Club Ltd (2001) 53 NSWLR 43; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Sutherland Shire Council v Heyman (1985) 157 CLR 424; Pyrenees Shire Council v Day (1998) 192 CLR 330; Caparo Industries PLC v Dickman (1990) 2 AC 605; Godfrey and Godfrey v State of New South Wales [2003] NSWSC 275; State of New South Wales v Godfrey and Godfrey [2004] NSWCA 113; Swan v State of South Australia (1994) 62 SASR 532; Orange v Chief Constable of West Yorkshire Police (2001) 3 WLR 736; Ellis v Home Office (1953) 2 All ER 149; Hill v Chief Constable of West Yorkshire [1989] AC 53, considered.
L v STATE OF SA
[2004] SADC 110Introduction
In this action at common law for negligence the plaintiff claims damages from the defendant for personal injuries, including both physical and mental injuries, sustained by her on the 15th December 1998, when she was the victim of a brutal home invasion and rape at the hands of Mark Anthony England (“England”). England had been mistakenly released from prison and was on parole. Quantum was agreed at $86,500. Thus the only contentious issue is whether the defendant by the relevant agency or instrumentality was negligent within the meaning of the tort of negligence.
The Proper Defendant
The State of South Australia is sued on the basis that it is responsible for the Department of Correctional Services who, it is said, mistakenly released England. This could not be completely correct.
The Crown Proceedings Act 1992 (SA) and its 1972 predecessor put the Crown in right of the State of South Australia on the same footing in respect of suits as an ordinary citizen. At common law the Crown enjoyed a limited immunity from suit by its subjects. So pursuant to the said Act an action can be conducted against the Crown in the name “The State of South Australia” (see s5(2)(a)). “Crown” within the meaning of s5 of the said Act includes, inter alia, “... instrumentality or agency of the Crown ...” (see s4(1)). The Parole Board of South Australia (“the Board”) constituted under Part 6 of the Correctional Services Act 1982 (SA) is an instrumentality or agency of the Crown in right of the State (see Commercial Oil Refiners Pty Ltd v State of South Australia (1974) 9 SASR 88). The provisions of the said Correctional Services Act make it clear that the Board was responsible for the accidental release of England on the 23rd April 1998, rather than the Department of Correctional Services as is alleged (see para 6 Statement of Claim). The Defence of the State of South Australia acknowledges, correctly in my view, that it was the Board who released England on parole on the 23rd April 1998 (see paras 2 and 3 of the Defence). There was no argument as to precisely which instrumentality or agency of the Crown was allegedly responsible. The appropriate defendant, namely the State of South Australia, is before the Court. So nothing further needs to be said about this issue of the proper defendant.
Circumstances of the offence
On the 30th August 1992 England committed the offence of robbery with violence. He assaulted and robbed a taxi driver. In this Court, before Judge Hume and a jury, he pleaded not guilty to that and a number of other offences. On the 5th day of October 1993 he was found guilty of the said offence of robbery with violence. On the 8th October 1993 he was sentenced by Judge Hume to 5 years imprisonment with a non-parole period of 3 years, to commence on 5th October 1993.
After the robbery of the taxi driver, England committed indecent assault and two offences of rape. On the 12th September 1992 in the Grenfell Tunnel Nightclub he climbed over a cubicle wall in the nightclub and indecently assaulted a female by tearing her clothing. The offences of rape occurred on the 15th October 1992 when England broke into a home and twice raped a young woman. England pleaded guilty to all these offences. On 29th April 1994, in the Supreme Court, Justice Nyland imposed a sentence of 9 years for the two rapes and 2 years for the indecent assault. These two sentences were to be served concurrently, but were to be cumulative upon the earlier sentence of 5 years imposed by Judge Hume. Thus, the new head sentence was 14 years. Because England was the subject of an existing non-parole period of 3 years, Justice Nyland was obliged to “review the non-parole period and extend it by such period as the court thinks fit ...” (s32(1)(b) of the Criminal Law (Sentencing) Act 1988 (SA)). Her Honour reviewed and extended the non-parole period by 6 years. This is made clear in her sentencing remarks at page 5 where she says “I extend the existing non-parole period by six years.” As at the 29th April 1994, as a result of the sentence of Her Honour Justice Nyland, England had a head sentence of 14 years and a non-parole period of 9 years to serve. Both the head sentence and non-parole period were to commence on 5th October 1993 when Judge Hume commenced his sentences. The Sheriff’s Office Court advice form recorded this information incorrectly, stating that the new non-parole period was 6 years, rather than 9 years. A clerk at the Department of Correctional Services then transcribed this information onto the Justice Information System (JIS). The Report of Prisoner Tried (RPT) was then produced. It correctly recorded “existing non-parole period reviewed and extended by a further period of 6 years”. Unfortunately, the JIS was not corrected.
The result of this error in recording was that England became eligible for parole on 14th October 1997 instead of the correct date, namely 18th October 1999.
England applied for parole on 14th April 1997. The Parole Board considered this application and decided to interview him on 23rd September 1997, due to his alleged “substance abuse and insight into offending behaviour”. After this interview his application was refused on 1st October 1997. He applied again and this time it was granted. He was released from prison on 23rd April 1998. There were numerous conditions attached to this parole. Two of these were that he abstain from the use of drugs and that he live with his father in the Salisbury area.
England breached these conditions by returning a positive urinalysis on 5th August 1998. Cannaboids were detected. He received a warning letter from the Parole Board dated 6th October 1998.
The offence against the plaintiff was committed on the 15th December 1998. She lived in Salisbury Downs. At about 4am on 15th December 1998 England broke into her house. She was asleep in bed and was awoken by his hand over her face. She was forced to undress and was then raped. This offence has injured her both mentally and physically.
England committed seven other like offences in the Salisbury area at about this time (ie on 7th November 1998, 26th November 1998, 3rd December 1998, 26th December 1998, 6th January 1999 and 9th January 1999).
He has since been found to be incapable of controlling his sexual instincts.
Such are the facts. I turn to some legal principles and in particular the appropriate methodology to be followed in a case such as this.
Legal Principles
The cause of action against the State of South Australia is in common law negligence.
To succeed in a claim for damages for the tort of negligence a plaintiff must show that:
·the defendant owed the plaintiff a duty, recognised by law, requiring the defendant to adhere to a certain standard of conduct;
·the defendant breached that duty;
·the plaintiff suffered loss;
·the loss was caused by the defendant’s breach of duty; and
·the loss suffered by the plaintiff was not too remote.
(See Kenny & Good Pty Ltd v MGICA (1992) Ltd (1997) 77 FCR 307 at 322).
In recent years there have been a series of significant High Court decisions which have elaborated upon the approach to negligence cases particularly in relation to public authorities (see para 21 hereunder). Distilling from these recent decisions a uniform set of guiding principles is difficult. However, the above starting pre-requisites referred to by the Federal Court in Kenny (supra) are still apposite (see Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at 475-6 where Kirby J sets out a similar but more expansive set of questions).
Further the principles set out more than twenty years ago in Wyong Shire Council v Shirt (1980) 146 CLR 40 are still repeatedly referred to with approval by the High Court Justices (see Graham Barclay Oysters Pty Ltd v Ryan (2002) 77 ALJR 183 per Gleeson CJ at 194, McHugh J at 205, Gummow and Hayne JJ at 221; see also Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 per Mason CJ at 472, McHugh J at 482, Kirby J at 493, Hayne J at 502).
So the two time-honoured propositions of Mason J, as he then was in Wyong Shire Council v Shirt (supra), though refined by the recent decisions as I will indicate, are still relevant and important:
As to the existence of a duty of care Mason J said:
“According to Lord Atkin’s statement of principle in Donoghue v. Stevenson [1932] AC 562 at 580, as it has been refined in later decisions, prima facie a duty of care arises on the part of a defendant to a plaintiff when there exists between them a sufficient relationship of proximity, such that a reasonable man in the defendant’s position would foresee that carelessness on his part may be likely to cause damage to the plaintiff (Home Office v. Dorset Yacht Co. Ltd [1970] AC 1004 at 1027, 1034, 1054, 1060; Anns v. Merton London Borough Council [1978] AC 728 at 751-752).”
(44)
As to whether there is a breach of the duty Mason J said:
“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.
The considerations to which I have referred indicate that 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. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”
(47, 48)
In this case the contention of the plaintiff is that the defendant by its instrumentality, the Parole Board, owed a duty of care to the public, including the plaintiff, to take all reasonable steps to ensure that England remained in prison for the custodial portion of his sentence it being reasonably foreseeable that a prisoner such as England posed a risk to members of the public so that any premature release of him into the community would result in him causing harm to persons whom he encountered, including the plaintiff. Further, the plaintiff contends that in breach of that duty the defendant mistakenly released England and as result he sexually assaulted the plaintiff.
The question in this case is, therefore, what is the measure or scope of the duty of care owed by the defendant.
The following factors have emerged from the recent authorities. They offer some guidance as to determining not only the existence of, but the nature and scope of, the duty of care owed in particular circumstances.
(1)Whether a duty of care exists is a multifaceted inquiry which is not answered by the application of any one formula.
In Sullivan v Moody (2001) 207 CLR 562 the Court said at 579 and 580:
“Different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care. Sometimes the problems may be bound up with the harm suffered by the plaintiff, as, for example, where its direct cause is the criminal conduct of some third party (eg Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254). Sometimes they may arise because the defendant is the repository of a statutory power or discretion (eg Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Brodie v Singleton Shire Council (2001) 206 CLR 512). Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits (eg Perre v Apand Pty Ltd (1999) 198 CLR 180). Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships (eg Hill v Van Erp (1997) 188 CLR 159 at 231, per Gummow J). The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle.”
(2)Foreseeability of harm is relevant to the enquiry as to whether a duty of care exists, but alone it is not sufficient.
(see Graham Barclay Oysters (supra) per Gleeson CJ at 187; Sullivan v Moody (supra) at 576; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 per Gleeson CJ at 267-8 Hayne J at 288).
(3)In the case of harm caused by foreseeable criminal conduct of a third party unless there is some special relationship or the criminal conduct is attended by a high degree of foreseeability and predictability, the law will not impose a duty.
In Modbury Triangle Gleeson CJ with whom Gaudron, Hayne and Callinan JJ agreed said at 267:
“The unpredictability of criminal behaviour is one of the reasons why, as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable.
There may be circumstances in which, not only is there a foreseeable risk of harm from criminal conduct by a third party, but, in addition, the criminal conduct is attended by such a high degree of foreseeability, and predictability, that it is possible to argue that the case would be taken out of the operation of the general principle and the law may impose a duty to take reasonable steps to prevent it.”
(see also Smith v Leurs (1945) 70 CLR 256 per Dixon J at 261-2)
(4)Proximity in the relationship between the plaintiff and the defendant of itself is not an indicator of the existence of a duty. Like foreseeability, it is one of the factors to be taken into account.
In Sullivan v Moody the Court said at 578, 579 as follows:
“As Professor Fleming said (Fleming, The Law of Torts, 9th ed (1998), p 151), “no one has ever succeeded in capturing in any precise formula” a comprehensive test for determining whether there exists, between two parties, a relationship sufficiently proximate to give rise to a duty of care of the kind necessary for actionable negligence. The formula is not “proximity”. Notwithstanding the centrality of that concept, for more than a century, in this area of discourse, and despite some later decisions in this Court which emphasised that centrality (eg Jaensch v Coffey (1984) 155 CLR 549 esp at 584-585, per Deane J; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 52, per Deane J), it gives little practical guidance in determining whether a duty of care exists in cases that are not analogous to cases in which a duty has been established (Hawkins v Clayton (1988) 164 CLR 539 at 555-556, per Brennan J; Hill v Van Erp (1997) 188 CLR 159 at 210, per McHugh J; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 96-97 [270]-[274], per Hayne J). It expresses the nature of what is in issue, and in that respect gives focus to the inquiry, but as an explanation of a process of reasoning leading to a conclusion its utility is limited.”
(5)In respect of a statutory authority such as the Parole Board a common law duty to exercise reasonable care can co-exist with statutory obligations.
At 582 in Sullivan v Moody (supra) the Court said:
“The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.”
(6)The power to control by reason of a special relationship is also a factor relevant to existence of a duty of care.
(see Graham Barclay Oysters (supra) per Gleeson CJ at 189-192; Brodie v Singleton Shire Council (2001) 206 CLR 512 at 559; Modbury Triangle (supra) per Gleeson CJ at 263-4; Dorset Yacht Co Ltd v Home Office [1970] AC 1004 at 1039, 1055).
(7)The extent and potential indeterminacy of liability is also a factor. If the scope of the duty of care contended for embraces the public at large and an unlimited range of criminal conduct, then that will be an indicator against fixing a duty of care on the public authority (see Sullivan v Moody (supra) at 582; Agar v Hyde (2000) 201 CLR 552 at 578).
(8)The plaintiff’s vulnerability to harm and in particular knowledge by the defendant of such vulnerability is a relevant consideration.
In Perre v Apand Pty Ltd (1999) 198 CLR 180 Gleeson CJ said at 194:
“Moreover, knowledge (actual, or that which a reasonable person would have) of an individual, or an ascertainable class of persons, who is or are reliant, and therefore vulnerable, is a significant factor in establishing a duty of care.”
(see also Reynolds v Katoomba RSL All Services Club Ltd (2001) 53 NSWLR 43 per Spigelman CJ at 47; Graham Barclay Oysters (supra) per McHugh J at 200; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1).
(9)There has been some judicial disapproval of the role of reliance as a factor in determining the existence of a duty of care (see Sutherland Shire Council v Heyman (1985) 157 CLR 424; see also Pyrenees Shire Council v Day (1998) 192 CLR 330). However, it remains a pertinent consideration (see Modbury Triangle (supra) per Gleeson CJ at 264).
Its relevance is demonstrated by the facts in the Modbury Triangle case. The first plaintiff in the case was an employee of a tenant who operated a video shop business in the shopping centre which was one of a number of shops in an area surrounded by a large outdoor car park. The video shop business remained open until 10pm. One night the first plaintiff was attacked and badly injured whilst walking to his car in the car park. The shopping centre’s floodlights had been turned off by the landowner at about the time the shop closed and there was no other direct lighting in the car park. It was held by the majority Justices that the landowner’s duty, as an occupier of the land, did not extend to taking reasonable care to prevent physical injury to the plaintiff resulting from the criminal behaviour of third parties on that land. As to the issue of reliance Gleeson CJ said at 264 as follows:
“Reliance is sometimes the basis of a duty of care. Here there was no relevant reliance. Why the video shop could not have been closed in sufficient time to enable employees of the shop to walk to their cars before the lights went off (assuming they went off at 10 pm) was not investigated at the trial. There was nothing to prevent the first respondent’s employer from making such arrangements for the security of its employees as it saw fit. The lease did not give the appellant the exclusive right to take measures for the safety and security of employees and customers of tenants.”
(10)What is “fair, just and reasonable” is not a relevant consideration when deciding whether to impose a duty of a given scope.
In the House of Lords decision of Caparo Industries PLC v Dickman (1990) 2 AC 605 the House of Lords enunciated a three-stage approach to determining the issue of the existence of a duty of care, namely:
(1) whether it was reasonably foreseeable to the alleged tort feasors that the particular conduct of or omission would be likely to cause harm to a person such as the claimant:
(2) whether between that tort feasor and the claimant a relationship existed that could be characterised as one of “proximity” or “neighbourhood”; and
(3) if so, whether it was fair, just and reasonable that the law should impose a duty of a given scope upon that tort feasor for the benefit of that person.
This three-stage test does not represent the law in Australia (see Sullivan v Moody (supra) at 579). The objection to the third question is essentially that it reduces the determination of whether there is a duty of care and its scope to an exercise of discretion determined by, amongst other things, policy questions rather than principle. At 579 in Sullivan v Moody the High Court said:
“There is a danger that judges and practitioners, confronted by a novel problem, will seek to give the Caparo approach a utility beyond that claimed for it by its original author. There is also a danger that, the matter of foreseeability (which is often incontestable) having been determined, the succeeding questions will be reduced to a discretionary judgment based upon a sense of what is fair, and just and reasonable as an outcome in the particular case. The proximity question has already been discussed. The question as to what is fair, and just and reasonable is capable of being misunderstood as an invitation to formulate policy rather than to search for principle. The concept of policy, in this context, is often ill-defined. There are policies at work in the law which can be identified and applied to novel problems, but the law of tort develops by reference to principles, which must be capable of general application, not discretionary decision-making in individual cases.”
I now turn to an examination of some of the cases to which I have been referred in argument.
Some relevant authorities
In the Dorset Yacht Co Ltd case seven boys with records of escape, were being held on an island which was under the control and supervision of the home office. It was alleged that while the guards were asleep the boys, who were unsupervised, escaped and boarded a nearby yacht and in making their getaway damaged the plaintiff’s yacht. The House of Lords held, as a preliminary question of law, that on the facts as pleaded, and assuming the proof of them, the Home Office by its servants, the guards, owed the plaintiff a duty of care in relation to the damaged yacht.
Lord Morris of Borth-y-Gest at 1039 said:
“There was a special relation in that the officers were entitled to exercise control over boys who to the knowledge of the officers might wish to take their departure and who might well do some damage to property near at hand. The events which are said to have happened could reasonably have been foreseen. The possibility that the property of the company might be damaged was not a remote one. A duty arose. It was a duty owed to the company. It was not a duty to prevent the boys from escaping or from doing damage but a duty to take such care as in all the circumstances was reasonable in the hope of preventing the occurrence of events likely to cause damage to the company.”
At 1055 Lord Pearson said, after referring to the rule that one man is under no duty of controlling another man to prevent his doing damage to a third:
“In my opinion, this case falls under the exception and not the rule, because there was a special relation. The Borstal boys were under the control of the defendants’ officers, and control imports responsibility. The boys’ interference with the boats appears to have been a direct result of the defendants’ officers’ failure to exercise proper control and supervision. Problems may arise in other cases as to the responsibility of the defendants’ officers for acts done by Borstal boys when they have completed their escape from control and are fully at large and acting independently. No such problem faces the plaintiffs in this case.”
Finally, Lord Diplock said at 1070 and 1071:
“What distinguishes a Borstal trainee who has escaped from one who has been duly released from custody is his liability to recapture, and the distinctive added risk which is a reasonably foreseeable consequence of a failure to exercise due care in preventing him from escaping is the likelihood that in order to elude pursuit immediately upon the discovery of his absence the escaping trainee may steal or appropriate and damage property which is situated in the vicinity of the place of detention from which he has escaped.
So long as Parliament is content to leave the general risk of damage from criminal acts to lie where it falls without any remedy except against the criminal himself the courts would be exceeding their limited function in developing the common law to meet changing conditions if they were to recognise a duty of care to prevent criminals escaping from penal custody owed to a wider category of members of the public than those whose property was exposed to an exceptional added risk by the adoption of a custodial system for young offenders which increased the likelihood of their escape unless due care was taken by those responsible for their custody.
I should therefore hold that any duty of a Borstal officer to use reasonable care to prevent a Borstal trainee from escaping from his custody was owed only to persons whom he could reasonably foresee had property situate in the vicinity of the place of detention of the detainee which the detainee was likely to steal or to appropriate and damage in the course of eluding immediate pursuit and recapture. Whether or not any person fell within this category would depend upon the facts of the particular case including the previous criminal and escaping record of the individual trainee concerned and the nature of the place from which he escaped.”
So what can be distilled from the decision in the Dorset Yacht case is as follows:
·firstly, it endorses the basic rule that the law does not impose on one person a duty to prevent harm to another by the conduct of a third party;
·secondly, it permits of an exception to the above basic rule when there is the special relationship of control and the risk of harm is highly foreseeable and predictable; and
·thirdly, it indicates that the scope of any duty of care would not extend to liability for acts done for instance by escapees who had completed their escapes and were “fully at large and acting independently”.
All this is adverse to the plaintiff’s claim for reasons which I will detail later.
The plaintiff particularly relied upon the case of Godfrey and Godfrey v State of New South Wales [2003] NSWSC 275. The facts of the case have some similarities to this matter. On the 27th July 1990 Barry Raymond Hoole (“Hoole”) escaped from Bathurst Prison. On the 5th October 1990 armed with a shotgun, he held up a newsagency in the western suburbs of Sydney. The first plaintiff, Mrs Godfrey, worked at the newsagency. Hoole pointed the shotgun at her face and threatened her life. She was pregnant with the second plaintiff and considerable complications resulted from this ordeal. The second plaintiff was born prematurely and suffered a number of disabilities as a result. The plaintiff sued on the basis that Hoole’s escape was a result of wanton care on the part of the Department of Corrective Services. At first instance Justice Shaw found for both plaintiffs. His Honour found that there was a duty of care owed to the plaintiffs and that the injuries and disability to both plaintiffs resulted from a breach of it.
In the course of time since the trial in this matter the decision of Shaw J has been reversed on appeal by the New South Wales Court of Appeal (see State of New South Wales v Godfrey and Godfrey [2004] NSWCA 113). Spigelman CJ with whom Sheller and McColl JA agreed, found that there was no duty of care owed by a prison authority to prevent harm caused by an escaped prisoner beyond the immediate vicinity of the gaol and that the duty of a gaoler to prevent the criminal activity of an escaped prisoner, so far as it was established in the case, is confined to the course of the escape where control is still capable of being asserted.
So the case of Godfrey is now very much adverse to the plaintiff’s contentions.
Finally, I turn to the case of Swan v State of South Australia (1994) 62 SASR 532. The plaintiff sued the State of South Australia in negligence for injuries suffered by him as a result of sexual assaults perpetrated on him by one Sincock who was at the time on parole. It was a condition of Sincock’s parole that he not associate with children under the age of 14 except in the presence of another adult. It was alleged that Sincock breached that condition over a period of time by having, amongst other children, the plaintiff stay at his home. The Parole Board and its officers became aware of the allegations but apart from accepting the statement of Sincock that other adults were present they took no further steps.
A District Court Judge dismissed the plaintiff’s action as not disclosing any cause of action.
The Full Court of the Supreme Court of South Australia held:
·that the Parole Board did not owe any duty of care to members of the public at large, including the plaintiff, as to the manner in which it exercised its powers to release convicted persons;
·that the Department of Correctional Services did not owe any duty of care to members of the public at large, including the plaintiff, in supervising the conduct of released criminals; and
·that where particular information is conveyed to departmental officers alleging a breach of parole conditions, which if true, would cause harm to a particular person or class of persons then a duty of care did arise whereby the departmental officers would be obliged to act to prevent that harm continuing.
Therefore the order of the District Court dismissing the action was set aside and the matter remitted for further hearing.
Bollen and Duggan JJ, with whom Mohr J agreed, based their judgments on the concept of proximity. It is now a somewhat controversial notion (see Sullivan v Moody (supra) at [48]). Nonetheless, the decision in Swan would still be regarded as correct on the basis that a duty of care would arise from the defendant’s knowledge that the plaintiff was potentially vulnerable to harm and therefore reliant on the defendant to exercise care (see Perre v Apand Pty Ltd (supra) per Gleeson CJ at 194).
A clear example of this issue of knowledge of vulnerability giving rise to a duty of care would also be cases concerned with suicides in custody where the authorities have knowledge of such a risk. In such cases it has been found to create a duty of care to guard against even such self-inflicted harm (see Orange v Chief Constable of West Yorkshire Police (2001) 3 WLR 736).
The case of Swan is clearly unhelpful to the plaintiff’s case.
Conclusion – Findings
So the issue is whether the Parole Board owes a duty of care to the plaintiff to take care to prevent injury to her by prematurely and mistakenly releasing prisoners who may inflict harm on persons such as her.
Causation
At the outset, it is enticing to assert that in cases such as this, the answer lies in causation (ie that the harm was caused by a new criminal act). Indeed the primary submission of counsel for the defendant was that the plaintiff failed to establish causation. But that does not provide the answer in this case. There is often an acceptance by the courts that tortious or criminal conduct of a third party is the result of a careless act of the defendant. Nonetheless there remains for determination whether a duty of care exists (see Dorset Yacht Co Ltd (supra) per Lord Reid at 1028).
Foreseeability
Clearly it is foreseeable that a prisoner who is mistakenly released may take up offending again and thereby cause harm to others. Of itself that will not indicate the existence of a duty of care.
In relation to the foreseeable risk of harm from criminal conduct, if such conduct is attended by a high degree of foreseeability and predictability the law may not follow the general rule that one man is under no duty of controlling another to prevent damage to a third, but rather may impose a duty to take reasonable steps to prevent it (see Modbury Triangle (supra) per Gleeson CJ at [30]).
In this case, re-offending by England was no doubt reasonably foreseeable but its prospects could not be characterised as being highly likely in the sense envisaged in the Dorset Yacht case.
Special Relationship
Further, a duty of care can arise in relation to the foreseeable risk of harm from criminal conduct if there is in existence a special relationship. There are a number of special relationships which bring with them a duty to protect another from harm from the criminal conduct of a third person (eg gaolers and police owe duty to take care to prevent prisoners at risk from harming themselves – Orange v Chief Constable of West Yorkshire Police (supra): gaolers are bound to prevent prisoners injuring other prisoners – Ellis v Home Office (1953) 2 All ER 149: employers are duty bound to take care of their employees: teachers are duty bound to take care of their students). This sort of special relationship is founded upon control.
Certainly the Parole Board and the officers of the Department of Correctional Services are empowered to control prisoners such as England and ensure he serves his sentence. However, once paroled, even mistakenly, like an escaped prisoner, that control no longer exists.
So in this case there is no special relationship between the defendant and England once England was mistakenly paroled such as would give rise to a duty to prevent the sort of criminal conduct which befell the plaintiff.
Indeterminacy of Liability
The plaintiff in the circumstances of this case was effectively a member of the public. To accept the extent of the duty of care contended for by the plaintiff would be to fix the defendant with a wide and indeterminate duty of care to the public at large. The scope of such a liability would mitigate against imposing a duty (see Agar v Hyde (supra) at 578; Sullivan v Moody (supra) at 582).
Vulnerability to Harm – Reliance
At the time of England’s attack on her, the plaintiff lived in the suburb of Salisbury Downs. England was paroled to an address in nearby Salisbury. The question which arises is whether because the plaintiff lived in a suburb in the general area of England’s parole address she thereby became a more limited class of person who was especially vulnerable to harm at his hands and therefore was reliant upon the defendant by its servants exercising care to protect her.
This issue was canvassed at length under the headings Extent of Liability and Vulnerability by Spigelman CJ in Godfrey (see [52-69]). The newsagency robbed by Hoole was close to where he “grew up”. Spigelman CJ found, inter alia, that this did not render Mrs Godfrey especially vulnerable to harm in the way in which the yacht owners were in the Dorset Yacht case. Mrs Godfrey was one of many persons over a large area of Sydney who were vulnerable. Thus the duty contended for was too indeterminate and wide.
The case of Hill v Chief Constable of West Yorkshire [1989] AC 53 is a graphic example. The daughter of the plaintiff was killed at night in a street within the area under the control of the defendant. Her attacker had committed a series of murders and attempted murders on young women in that area. The plaintiff claimed on behalf of the estate of his deceased daughter, in negligence against the defendant. He contended that the defendant should have caused the attacker to be arrested prior to the relevant attack. The House of Lords held that there was no duty of care owed to Miss Hill by the West Yorkshire Police. In the course of his speech, Lord Keith of Kinkel said at 62:
“(The victim) was one of the vast number of the female general public who might be at risk from his activities but was at no special distinctive risk in relation to them, unlike the owners of yachts moored off Brownsea Island in relation to the foreseeable conduct of the Borstal boys. .... (The victim) cannot for this purpose be regarded as a person at special risk simply because she was young and female. Where the class of potential victims of a particular habitual criminal is a large one, the precise size of it cannot in principle affect the issue. All householders are potential victims of an habitual burglar, and all females those of an habitual rapist. The conclusion must be that although there existed reasonable foreseeability of likely harm towards (the victim) if the offender were not identified and apprehended, there is absent from the case any such ingredient or characteristic as led to the liability of the Home Office in the Dorset Yacht case”.
Accordingly, it is my view that despite the fact that England was carelessly paroled to the same general area of the plaintiff’s home, this does not place her in an especially select class of people such as to indicate a duty of care.
In my view the required high degree of foreseeability and predictability of harm cannot be said to apply to England, at the date of his accidental release on parole. By the time of this offending he had become an uncontrolled menace, but not then. Nor could it be argued that the infractions of parole conditions constituted notice to the Board or the officers of the Department of Correctional Services such that they had special knowledge of the vulnerability of the people living in the vicinity of England. The infractions related to drug use and cannabis in particular.
Therefore whilst the defendant, by its servants, had been careless in recording and implementing the sentence imposed by Justice Nyland, the scope of the duty is not as contended for by the plaintiff.
What remains undisplaced is the general rule enunciated in Smith v Leurs (supra) by Dixon J at 261-2:
“But, apart from vicarious responsibility, one man may be responsible to another for the harm done to the latter by a third person; he may be responsible on the ground that the act of the third person could not have taken place but for his own fault or breach of duty. There is more than one description of duty the breach of which may produce this consequence. For instance, it may be a duty of care in reference to things involving special danger. It may even be a duty of care with reference to the control of actions or conduct of the third person. It is, however, exceptional to find in the law a duty to control another’s actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third. There are, however, special relations which are the source of a duty of this nature.”
(The italics are mine)
(see also Modbury Triangle (supra) per Gleeson CJ at 267).
So there is no duty of care of the scope contended for by the plaintiff. In particular, I conclude that the defendant owed no duty of care to the plaintiff in the circumstances of this case.
Accordingly, on the claim there will be judgment for the defendant against the plaintiff.
I will hear the parties as to costs.
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