Leeder v The State of Western Australia
[2007] WADC 16
•9 MARCH 2007
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: LEEDER -v- THE STATE OF WESTERN AUSTRALIA [2007] WADC 16
CORAM: STAVRIANOU DCJ
HEARD: 4-8, 11-12 SEPTEMBER 2006, 7 & 16 FEBRUARY 2007
DELIVERED : 9 MARCH 2007
FILE NO/S: CIV 512 of 2005
BETWEEN: RICHARD ALVIN LEEDER
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Employer - Duty of care - Whether reasonable care exercised - Safe system of work - Injury to prison officer
Legislation:
Prisons Act 1981, s 36
Result:
Plaintiff's action dismissed
Representation:
Counsel:
Plaintiff: Mr B L Nugawela
Defendant: Mr D M G Burton
Solicitors:
Plaintiff: CLP Lawyers
Defendant: Srdarov Richards Burton
Case(s) referred to in judgment(s):
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Chance v Alcoa of Australia Ltd (1990) A Tort Rep 81‑017
Chapman v Hearse (1961) 106 CLR 112
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Hannell v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2006] WASC 310
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
McGhee v National Coal Board [1973] 1 WLR 1
McLean v Tedman (1984) 155 CLR 306
New South Wales v Bujdoso [2005] HCA 76
Purkess v Crittenden (1965) 114 CLR 164
Tame v New South Wales (2002) 211 CLR 317
The State of Western Australia v Watson [1990] WAR 248
Watts v Rake (1960) 108 CLR 158
Wilsher v Essex Area Health Authority [1988] 2 WLR 557
Wyong Shire Council v Shirt (1980) 146 CLR 40
Case(s) also cited:
Birkholz v R J Gilbertson Pty Ltd (1985) 38 SASR 121
Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291
Hughes v Minister for Health [1999] WASCA 131
Jarvis v Australasian Correctional Management Pty Ltd; 5 July 1996; DCt (Qld); 633/1994
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44
McDonald, Wilson and Shepherd v New South Wales (2001) Aust Torts Reps 81-620
McStravick v State of Western Australia [2001] WASCA 398
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383
Mulligan v Coffs Harbour City Council (2005) 80 ALJR 43
New South Wales v Bujdoso (2005) 80 ALJR 236
Ralph v Stratton [1969] Qd R 348
Richards v Victoria [1969] VR 136
State Government Insurance Commission v Oakley (1990) Aust Torts Reports 81-003
State of New South Wales v Napier [2002] NSWCA 402
State of New South Wales v Seedsman [2000] NSWCA 119
State of Queensland v Keeys (1997) Aust Torts Reports 81-441
Vairy v Wyong Shire Council (2005) 80 ALJR 1
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
STAVRIANOU DCJ: The plaintiff claims damages for personal injuries suffered by him in the course of his employment with the defendant as a prison officer.
Hakea is a prison controlled and operated by the defendant.
The plaintiff's case is that on 1 February 2000 he was assaulted by a prisoner in a cell at Hakea and thereby suffered personal injury. The injuries alleged to have been sustained include an injury to the back and a subsequent depressive illness.
The plaintiff alleges that the injuries were caused by the defendant's negligence.
Liability and quantum are in issue.
Pleadings
Events which occurred at Hakea on 31 January 2000 are central to the plaintiff's action
The plaintiff pleads that "on or about 31 January 2000 a prisoner incarcerated at Hakea ("the prisoner Willett") engaged in violent threats and behaviour." (Paragraph 4 of the Statement of Claim). The violent threats and behaviour relied upon are an incident which involved Mr Willett and a prison officer Mr Mark William Pulford on 31 January 2000 and the breaking of an observation window to a cell at Hakea.
The defendant admits that a prisoner named Willett was incarcerated but denies that he engaged in violent threats and behaviour.
The plaintiff alleges that the defendant was negligent in that it:
"10.1.1failed to provide any or proper supervision of the Plaintiff including, but not limited to, debriefing and instructions at the commencement of the Plaintiff's shift;
10.1.2failed to alert the Plaintiff of the incident report by Prison Officer Pulford on 31 January 2000, about the violent threats and behaviour of the prisoner Willett;
10.1.3failed to implement any or appropriate prisoner management for the prisoner Willett to include 'the three officer unlock' procedure;
10.1.4failed to ensure the management of the prisoner Willett was recorded and displayed on the whiteboard provided for the purpose in the control room of the premises;
10.1.5failed to ensure that appropriate warnings and prisoner management instructions were recorded on the whiteboard provided for the purpose on the medical observation cell door;
10.1.6failed to place the prisoner Willett in a designated punishment cell, which was available elsewhere on the premises;
10.1.7failed to inform the Plaintiff that the prisoner Willett was in fact being punished for violent threats and behaviour, and the reason why the prisoner Willett was being held in a medical observation cell rather than a punishment cell;
10.1.8failed to provide the necessary alerts to the Plaintiff about the prisoner Willett that are vital to ensure the safety of prison officers and, in particular, the Plaintiff;
10.1.9failed to prevent injury to the Plaintiff when by the exercise of reasonable care, the Defendant could or should have done so;
10.1.10generally failed to establish, maintain and enforce a safe system of work."
Particular 10.1.6 was abandoned at trial. It was accepted that particulars 10.1.9 and 10.1.10 were not proper particulars of negligence.
A claim for breach of statutory duty which relied upon the pleaded particulars of negligence was not pursued at trial.
The pleaded particulars of injury are:
"12.1.1Muscular and soft tissue injury to the lower lumbar spine.
12.1.2Posterior annulus fissure and shallow disc bulge at the L4/5 level.
12.1.3Posterior annulus fissure, mild posterior disc bulge and a broad based posterocentral right paracentral and right posterial lateral disc protrusion at L5/S1 level.
12.1.4Aggravation of disc degeneration at L4/5 level, previously asymptomatic.
12.1.5Aggravation of disc degeneration at L5/S1 level, previously asymptomatic.
12.1.6Major depressive illness.
12.1.7Sexual dysfunction.
12.1.8Permanent thoracic‑lumbar disability assessed at 15%.
12.1.9Permanent psychiatric disability assessed at 25%.
12.1.10Permanent sexual function disability assessed at 25%."
The defendant denies that it was negligent as alleged. The defendant maintains that it had a safe system of work and that it exercised reasonable care.
The issue in the case is whether the defendant was in breach of its duty of care to the plaintiff when he was assaulted in the course of his employment on 1 February 2000.
In relation to quantum the defendant pleads:
"8.Further, or in the alternative, if, which is denied, the Plaintiff did sustain any injury, the Defendant says that the Plaintiff merely sustained a soft tissue injury to his lumbar spine which was transient in nature and in respect of which he has now made a full and complete recovery.
9.Further, or in the alternative, if, which is denied, the Plaintiff has sustained any ongoing symptoms or incapacity, the Defendant says that any ongoing symptoms or incapacity are not the result of the alleged accident on 1 February 2000, but are the result of longstanding, pre‑existing and progressive degenerative disease in the lumbar spine.
10.Further, or in the alternative, the Defendant says that as a result of the longstanding, pre‑existing and progressive degenerative disease process, the Plaintiff would have been required to retire from his pre‑accident employment as a Prison Officer prematurely, and would have in any event been forced by reason of this medical condition to retire from the workforce before the age of retirement.
11.Further, or in the alternative, the Defendant says that the Plaintiff does have a retained earning capacity and by reason of his training, qualifications and experience is capable of earning an income in a clerical or sedentary capacity and has unreasonably failed or refused to return to the workforce and has thereby failed to mitigate his economic loss.
12.The Defendant denies that the Plaintiff is entitled to the relief claimed or to any relief at all."
The plaintiff
The plaintiff was born on 26 September 1951 and was 54 years of age at trial. He attended high school to age 14 whereupon he entered the workforce. In 1971 he obtained a certificate in photo lithography. Between 1972 and 1974 he was a national serviceman.
In 1974 he commenced employment as a photo lithographer and continued in that occupation until 1988 when he commenced work with the West Australian Newspapers as a production supervisor.
Between 1991 and 1993 the plaintiff was employed as a photo lithographer in the Middle East. In 1994 the plaintiff completed a mature age tertiary entrance examination. Between December 1994 and November 1996 the plaintiff was employed as a site supervisor at Mount Gibson.
In about November 1996 the plaintiff commenced full‑time employment as a prison officer with the defendant. He ceased employment in that capacity on 7 December 2001. In about July 2004 his employment with the defendant was terminated.
The plaintiff gave evidence that after the incident of 1 February 2000 he felt quite distressed and was in pain. He stated that the pain was in his back and radiating down his left leg.
The plaintiff attended upon his general practitioner Dr K Lam on 1 February 2000 who certified him totally unfit for work. He was referred for x‑rays and scans and prescribed medication. The plaintiff gave evidence that this made him feel "fuzzy in the head". The diagnosis made at that time was of low back pain. In April 2000 the plaintiff was referred to a rehabilitation consultant by Dr Lam. On 28 April 2000 the plaintiff was able to return to his pre‑incident occupation. Dr Lam noted that by 14 April 2000 the plaintiff was "85% better".
The plaintiff gave evidence that in 2000 he was involved in a gym programme organized by a rehabilitation consultant. He was asked in evidence about a rehabilitation report of 2 June 2000 which noted he was "back at work on full duties" but said he could not remember that far back. He similarly had no recollection of being involved in a prisoner restraint incident after 1 February 2000.
It was the plaintiff's evidence his symptoms got worse in September 2000 and he then went to a chiropractor. He gave evidence that he saw the chiropractor from September 2000 to October 2001.
The plaintiff's recollection of events which occurred in August 2001 and December 2001 was not good. The plaintiff gave evidence that in December 2001 he experienced an increase in symptoms. He was shown and identified a recurrence of disability form dated 12 December 2001. He gave evidence that at about that time he was developing depression. He gave evidence that the pain and/or the depression caused him to go off work in December 2001 and he was referred to a rehabilitation provider.
On 12 April 2002 Dr Lam noted that the plaintiff was suffering low back pain and depression. He was then referred to Dr Zelko Mustac, consultant psychiatrist. The plaintiff gave evidence that in April/May 2002 Dr Mustac certified him unfit for work.
The plaintiff gave evidence that in 2002 he was placed on a return to work programme involving the production of identification cards. The plaintiff's evidence was that he did not wish to increase the hours on the return to work programme as he could see he was not progressing towards returning as a prison officer.
The plaintiff gave evidence that after he became depressed he had difficulty sleeping. He gave evidence that Dr Warwick Black replaced Dr Mustac as his psychiatrist and thereafter changed his medication and that change improved his sleep.
The plaintiff gave evidence that in 2003 a rhizotomy was performed which gave him relief for between two or three weeks.
In July 2004 the plaintiff unsuccessfully attempted a course at Edith Cowan University. It was the plaintiff's evidence that he did not proceed with the course because of an inability to complete assignments.
On 16 July 2004 the plaintiff nominated for Federal Parliament. In February 2005 he stood for election for State Parliament.
The plaintiff gave evidence that he currently has back and leg pain and continues to take antidepressant medication. The back and leg pain was described by the plaintiff as being constant.
The plaintiff gave evidence that since 1 February 2000 he has been restricted in performing a number of activities around the home including cleaning and maintenance.
The plaintiff produced in his evidence his income tax returns for the financial years ended 30 June 1997 to 30 June 2006. He was taken to claims in the returns for work related uniform, protective clothing and laundry expenses. In evidence‑in‑chief he stated that he did not incur some of the expenditure claimed in the 2005 income tax return and that he had "obviously made a mistake". He said he intended to rectify the situation now that he was aware of it.
The plaintiff's evidence was that in the course of his employment with the defendant, he would work 12 hours shifts which commenced at either 7.00 am or 7.00 pm.
The defendant
Up until 2001 there were two facilities operated by the defendant in Canning Vale for detention of prisoners. The first was a remand centre known as the CW Campbell Remand Centre ("the Remand Centre"). The second was a facility for sentenced prisoners known as the Canning Vale Prison.
In 2001 the Canning Vale Prison and the Remand Centre were incorporated into one facility and renamed Hakea.
The Remand Centre comprised units. Each unit had a number of wings within which there were cells. One of the units, Unit 6, had a number of different types of cells which were variously described as safe cells, punishment cells, multipurpose cells and medical observation cells. Multipurpose cells had a small glass window. In contrast, medical observation cells had large perspex windows.
Cells C3 and C5 were within Unit 6.
Cell C5 was a multipurpose cell and had a small glass window with a sliding hatch. There was no precise evidence as to the dimensions of the window. Cell C3 was a medical observation cell and had a perspex window.
Within Unit 6 was a control room which was manned by officers of the prison. In the control room was a large whiteboard. The name of each prisoner in the unit was on a magnetic tag which was on the whiteboard. Outside each cell within Unit 6 and adjacent to the cell door was a small whiteboard.
The plaintiff was at various times a wing officer in "C" Wing of the Remand Centre. The plaintiff's evidence was that "C" Wing was purpose built as an area containing punishment cells. It was his evidence that there were seven cells in "C" Wing and up to a maximum of 14 prisoners. Unit 6 had in the order of 60 prisoners.
There was considerable evidence adduced concerning the methods the defendant utilized in dealing with the maintenance of good order in the prison. One particular procedure known as "a three officer unlock" was the subject of evidence from the plaintiff and the defendant.
The incident of 31 January 2000
On 31 January 2000 Mark William Pulford was on duty as a prison officer in the Remand Centre. In that role he was responsible for monitoring access to an oval where prisoners were able to engage in recreational activities. To gain access to the oval a prisoner was required to obtain a pass from his wing officer. The pass then needed to be presented to another officer, in this case Mr Pulford, to gain access to the oval.
On 31 January 2000 Mr Willett, a remand prisoner, approached Mr Pulford and requested access to the oval. Mr Pulford told Mr Willett of the requirement for a pass and that he also needed to have shoes on. Mr Willett's response to Mr Pulford was to swear at him and to then leave the area. Shortly after the exchange Mr Willett returned with a pass but still did not have any shoes on. Mr Pulford told him that he could not have access to the oval. Mr Willett then became abusive and in his evidence Mr Pulford described Mr Willett's conduct as being quite aggressive. At one stage Mr Willett adopted a boxing stance. Mr Willett was then taken to cell C5 in Unit 6 and isolated. It was Mr Pulford's evidence that there were four or five officers involved.
Mr Pulford completed a written report concerning the incident involving Mr Willett and informed another officer Mr Bruce Graham White of what had occurred. Mr White was a senior officer at the time. The report prepared by Mr Pulford contained a recommendation that Mr Willett be charged. Mr Pulford gave evidence that he made the recommendation because aggressive behaviour was not something that is taken lightly and generally a recommendation that a prisoner be charged could be made if the threat was taken seriously.
The report of 31 January 2000
The written report of Mr Pulford is dated 31 January 2000 and is in the following terms:
"Description of incident:
On Monday January 31, 2000 I was rostered recreation officer on the 07:30 – 19:30 shift. At approximately 15.50 prisoner Willett J approached myself at the stick office and requested to be let out to the oval. I asked Willett if he had an oval pass, to which he replied No. I informed him that he required an oval pass and shoes to go to the oval. Willett stated 'that's fucked I just want to go for a walk on the oval and I haven't got any shoes'. I told Willett to see his wing officer to get shoes. Willett then left the area. Approximately a minute later Willett walked past the stick office waving his oval pass in his hand. I informed Willett he still required shoes. Willett walked to the stick office door and in an aggressive manner said 'just shut your mouth and listen you fucking idiots what would a wing officer do for me you fucking idiot'. As I approached Willett he took an aggressive stance and said 'just fucking listen you fucking idiot'. I informed Willett I was going to place him in 'C' wing until he calmed down. Willett replied 'If you want trouble just fucking try'. He stopped and took a fighting stance and said 'come on then lets bring it on'. At this stage staff at unit six arrived and escorted Willett to 'C' Wing. I informed senior officer B White that I had placed Willett into 'C' Wing due to his aggressive behaviour. I recommend that Willett be charged."
Mr Pulford's description of the incident on his written report was that Mr Willett had "used insulting language". The incident was dealt with by him by isolating Mr Willett. This was accepted practice. In the report itself Mr Pulford noted that Mr Willett was placed in C Wing until he calmed down. There is no reference in the report to a physical assault by Mr Willett upon Mr Pulford.
Cell C5
At about 3.50 pm on 31 January 2000 Mr Willett was placed in cell C5.
On 31 January 2000 a written maintenance request was signed by a prison officer Mr Bruce Graham White in relation to cell C5 at some time before he left work at 7.30 pm on that date. Mr White gave evidence that the window to C5 would not have been damaged when Mr Willett was placed in it because he would not have been placed in an unserviceable cell.
The evidence establishes that on 31 January 2000 Mr Willett was seen by a prison psychologist Mr Williams at about 4.50 pm.
On 31 January 2000 Mr Willett was fed at 5.30 pm and de‑fed at 6.35 pm.
At about 6.35 pm Mr Willett was moved to cell C3.
There was no evidence as to the circumstances leading up to the movement of Mr Willett from C5 to C3. There was no evidence as to the circumstances in which the window to cell C5 was damaged.
The incident of 1 February 2000
The witnesses who gave evidence as to what occurred on 1 February 2000 and who were at Hakea on that day were the plaintiff, Mr Philip West a prison officer, Mr Bruce Graham White who was a senior officer at the time and Mr Leon Carberry. Evidence was also adduced by the plaintiff and the defendant concerning the incident from persons who had worked within the prison system in this State. I generally preferred the evidence adduced on behalf of the defendant to that of the plaintiff.
The plaintiff's evidence was that on 1 February 2000 he was rostered and working as a miscellaneous officer in "C" Wing. The duties of a miscellaneous officer were to provide assistance to other officers during the busy period which generally occurred in the mornings when prisoners received their breakfast and medications were dispensed.
The plaintiff gave evidence that there was a hand‑over conducted on every occasion a shift started. He gave evidence that on 1 February 2000 he could not think of anything that was different to a normal shift hand‑over.
It was the plaintiff's evidence that on 1 February 2000 he looked at the control room whiteboard. He saw that all the punishment cells were occupied except C5 which had the notation "US". It was the plaintiff's evidence that this denoted that the cell was unserviceable. He also saw on the whiteboard that Mr Willett was in cell C3 which was a medical observation cell. The plaintiff gave evidence that he was not surprised to notice Mr Willett in a medical observation cell on 1 February 2000. His evidence was that Mr Willett was a person who would fit the profile of a person who one would expect to be in a medical observation cell.
The plaintiff's evidence was that he was working with another officer Mr Phillip West on 1 February 2000.
The plaintiff gave evidence that on 1 February 2000 he was not given any information by anybody in relation to the disposition of Mr Willett. It was his evidence that he would consult the control room whiteboard and the whiteboard next to the cell in relation to prisoners. The plaintiff gave evidence that there was a C‑wing book which was maintained and which he described as being quite mundane. He gave evidence that anything of relevance would be put into the book. He gave evidence that on 1 February 2000 he did not look at the book.
The plaintiff gave evidence as to the reports and occurrence book maintained in the control room of "C" Wing. This book was maintained by the control officer and was accessible to all officers. It recorded a movement on 31 January 2000 of Mr Willett from cell C5 to cell C3.
Mr Willett was not called as a witness and the defendant's records concerning him were not produced. It was the plaintiff's evidence that he had known Mr Willett for about three months prior to 1 February 2000. During that period to the plaintiff's knowledge he had not demonstrated any violence against other prisoners.
The plaintiff agreed in his evidence that the use of bad language by prisoners in the remand centre was common and that prison officers are under constant threat on a daily basis of being assaulted or subjected to verbal abuse.
The plaintiff denied in his evidence that Mr White had told him on 1 February 2000 that Mr Willett had "played up the day before". However, he did agree in his evidence that it was the normal procedure for the senior officer to advise other officers as to the reason why it was necessary to open a prison cell door.
The plaintiff's evidence was that on 1 February 2000 he was standing next to Mr West when he was instructed by Mr White that a mental health nurse Mr Graham Craig, would be attending upon Mr Willett at approximately 8.00 am. As the mental health nurse did not have an access key to the cells an officer was required to facilitate the visit by opening the cell door.
The plaintiff gave evidence that he opened the door to Mr Willett's cell to enable Mr Craig to speak to him. Mr Craig entered the cell and whilst in the cell the plaintiff performed his normal duties.
The plaintiff gave evidence that Mr Willett was seen by him to be sitting quietly on his mattress at the time the cell door was opened. Mr Willett sat on the mattress talking to Mr Craig.
The plaintiff gave evidence that he recalled that after Mr Craig had entered the cell Mr Craig asked a question and he therefore stepped into the threshold of the cell. In his evidence he described the question as basically threatening. The plaintiff gave evidence that he saw Mr Willett in a squatting position, and that Mr Willett then punched the plaintiff on the side of the face with his clenched right fist. The plaintiff's evidence was that Mr Willett then started grappling with him. The plaintiff's evidence was that within a minute or a minute and a half Mr Willett was restrained with his hands behind his back, and it was then that the plaintiff felt a very, very sharp, powerful pain in his back that radiated down to his knee. The plaintiff's evidence was that he had no warning or expectation that Mr Willett would assault him when he entered the cell.
Phillip West is employed by the Department of Justice as a prison officer. He was called as a witness by the plaintiff. From January 1999 he has been working at Hakea. During that time he has worked with the plaintiff. It was his evidence that the plaintiff acted in a very mild mannered, calm and professional way in the discharge of his duties.
He gave evidence that on 1 February 2000, he was rostered on duty for a twelve hour shift commencing at 7.30am. He was partnered with the plaintiff and they had charge of the punishment wing and safe cell wing in C Block.
It was Mr West's evidence that he could not recall any conversation with a senior officer concerning movement of prisoners in the wing. He also could not recall if he spoke to Mr Craig.
He gave evidence that at approximately 0800 hours, Mr Craig asked to see one of the prisoners who was in one of the safe cells. Together with the plaintiff and Mr Craig he went to Mr Willett's cell C3. It was Mr West's evidence that the plaintiff lifted the slide hatch on the cell door, observed the prisoner and then opened the cell door for Mr Craig.
Mr West looked into the cell and saw Mr Willett sitting on a mattress. Mr Craig then entered the cell and sat next to Mr Willett and began to talk to him. He gave evidence that at no stage did the plaintiff walk away and perform duties elsewhere. Mr West said that at all times the plaintiff was standing outside the cell before the incident.
The plaintiff pushed the cell door slightly closed. After entering the cell Mr Craig directed a question towards Mr West or the plaintiff. Mr West gave evidence that Mr Craig asked the plaintiff: "What's Willett doing in this cell?". Before a response could be given by the plaintiff Mr Willett leapt to his feet shouting and at the same time punching the plaintiff to the left side of the head with his right fist. He gave evidence that he saw the plaintiff's glasses dislodge and fall to the floor and the plaintiff stumble back into a wall in the cell.
Mr West gave evidence that he saw the plaintiff take action to defend himself by grabbing Mr Willett. There was then a tussle on the floor and a short time later additional officers arrived to provide assistance.
Mr West gave evidence that he could not recall any other threats being made by Mr Willett but said they would have been reported.
He gave evidence that in dealing with a violent prisoner it was necessary to exercise more caution and have more staff available.
In his experience a three officer unlock was used in relation to prisoners who had demonstrated actual physical violence or posed a real threat to themselves or to other prison officers. It was not in his view a common occurrence and was not done on a daily or nightly basis in Unit 6.
It was his evidence that prisoners could see information on the whiteboard through the glass windows to the control room for Unit 6. He gave his evidence that for that reason it was usual to be careful about some of the information recorded on the board.
Mr West did not have a good recollection. In particular he did not recall conversations with either a senior officer or Mr Craig. The plaintiff's evidence and the evidence of Mr White was that Mr White had spoken to Mr West. I am not prepared to act and rely upon the evidence of Mr West.
Bruce Graham White works as a prison officer at Hakea Prison. He was called as a witness by the defendant. When he commenced employment on the 1 October 1979 with the Prisons Department he completed a three month training programme at the Wooroloo Prison which involved report writing, effective use of restraint equipment, and learning how to deal with prisoners.
He gave evidence that the training he received stressed the need to communicate with prisoners. The use of force was effectively a measure of last resort.
He gave evidence that he currently works at the Remand Centre. He gave evidence that remand prisoners and sentenced prisoners demonstrate different behaviour. In particular remand prisoners are more difficult to deal with and are quite often affected by drugs.
He gave evidence that prisoners were required to address officers in a respectful manner. He did not expect a prisoner to swear at him. He gave evidence that officers were frequently verbally abused by prisoners.
Mr White gave evidence that he had acted in the capacity of a senior officer at Hakea and that prior to the 31 January 2000 incident he had been acting in that capacity for 18 months to two years.
He gave evidence that he was on day duty as senior officer of Unit 6 at the Remand Centre on 31 January 2000. His shift hours were 7.30am until 7.30pm.
He considered that unit 6 was then known as unit 1. There were on his evidence as well as himself 6 other officers on duty in the unit. He estimated that were about 60 prisoners he was required to supervise that evening.
He gave evidence that Unit 6 was a special unit that dealt with recalcitrant prisoners.
He gave evidence that it was not an unusual occurrence for windows to be broken to cell doors.
He gave evidence that in the control room there is a muster board upon which appears the name of each prisoner in the unit, their cell location and often a work location. Mr White gave evidence that the control room is surrounded by glass windows. He said that because prisoners could see through the windows there was a policy to limit information recorded on the board.
Mr White said he could not remember being provided with Mr Pulford's incident report dated the 31 January 2000 but that it would have been provided to him.
He gave evidence it was his responsibility to assess the information in the incident report. In relation to his assessment of the report he said he:
"would have already dealt with the situation but basically the information I got was that Willett had used insulting language towards Officer Pulford and he was obviously aggressive; he was not cooperating with the officer and in order to calm him down, he was placed in what we call 36(3), in a one‑person cell under 36(3) of the Act where we have got the power to put them in there until they calm down, until they get assessed by management."
The reference to 36(3) was a reference to s 36(3) of the Prisons Act1981 which allows a prisoner to be restrained or contained in cells for the good order and management of the prison.
He gave evidence that Mr Willett was placed in the cell to calm down and on the understanding he would be "assessed the following day by the assistant superintendent, and for his own safety and for the officers' safety".
He did not consider that a three officer unlock in light of the information contained in that incident report would have been appropriate. This was because it was a fairly routine incident and one which had happened fairly regularly. There was no threat of actual violence and there been no actual assault.
He gave evidence that the incident of 31 January 2000 was a minor, routine occurrence.
He gave evidence that it was only in extreme cases that a three officer unlock would be used. He explained that circumstances which would trigger or justify a three officer unlock were where a prisoner had assaulted an officer, where a prisoner has an active intention to keep assaulting officers or where the prisoner had a particular history of violence. Extra officers were required to carry out a three officer unlock.
Mr White gave evidence in relation to an occurrence book maintained in the Remand Centre. The occurrence book contained a reference to "Dinner given" at 1735 and then that Mr Willett was de‑fed at 1835. He gave evidence in relation to the procedure adopted to feed prisoners. He explained the "de‑fed" is a process where the cell door is opened and the prisoner is told to bring out his utensils and any leftovers.
Mr White stated that he was in charge of the unit on the 1 February 2000 and commenced work on that day at 7.30am.
He gave evidence he could not recall any further information being brought to his attention about Mr Willett when he came on duty.
He recalled that he had a conversation with a mental health nurse Mr Craig on that day. He said he did this because he wanted to have Mr Willett seen. He gave evidence that he wanted Mr Willett seen so that he could find out how to manage him.
Mr White gave evidence that he did not consider it necessary to require a three officer cell unlock when Mr Craig went to assess Mr Willett.
He could not recall what was said in a conversation with the plaintiff after the incident.
He gave evidence that after 1 February 2000 he did not receive any information about threats that had been made by Mr Willett to prison officers. He stated that such threats are quite serious. He stated that if "someone's been threatened we jump right on it".
Mr White was asked in evidence about his usual routine and said:
"What time did you commence your shift that day (1 Feb 2000)?‑‑‑It would have been 7.30.
And what's your normal procedure when you commence a shift?‑‑‑Well, get the keys from the front gate; go to the unit; brief your staff in the morning. Quite often you actually find yourself – for example, if something happened overnight, if anything happened overnight, you get up to speed yourself and then brief your staff on what happened. Anything that's going to happen during the day, maybe say Joe Blow is going to court of if the boss is coming through or whatever, just any more information that you've got probably handed over from night shift, you get yourself up to speed and then you tell the staff. That's pretty well the routine.
So when you came on duty that morning was any further information brought to your attention about Prisoner Willett about the evening before?‑‑‑Not that I can recall, sir.
And then did you have any conversation with the mental health nurse?‑‑‑Yes, I seem to recall speaking to – giving Mr Craig a call.
Why did you do that?‑‑‑Because I wanted to get this bloke seen.
Did you explain why?‑‑‑Because he had these injuries externally and I just wanted to get him assessed as to where he was. He had to be seen by someone from the SEMT and they probably weren't available so I would have got Mr Craig to come and give me a hand. He wasn't really the person to do the job but he was a mental health nurse and I wanted to get this bloke assessed to find out – so that we can find out how to manage him.
. . .
NUGAWELA, MR: What would you have done?‑‑‑The routine would have been – for a start, my personal routine would have been to come in a few minutes early, read up the cards from the night before, get myself up to scratch with what's happening overnight. Then I would have briefed the staff of what was happening and then got the prison working. You just like – carrying on – it's just a certain routine you go through; get the prisoners fed and watered and ‑ ‑ ‑
Mr White's evidence was given in a straightforward and consistent manner. The distinct impression I formed was that he was an honest witness. His evidence was reliable. He was doing his best to recall events which occurred over six years ago. The view I formed was that he was a conscientious prison officer who took his duties seriously.
Leon Carberry is a prison officer who commenced employment with the defendant in November 1996. He was called as a witness by the defendant. By 2000 he was the assistant superintendent of the Remand Centre.
In his role as the assistant superintendent he was responsible for the day‑to‑day running of the prison, both staff and prisoners.
Mr Carberry gave evidence that he was on duty on 31 January 2000. He gave evidence that Mr White verbally reported an incident involving a prisoner and Mr Pulford to him. It was Mr Carberry's evidence that following the report from Mr White he gave instructions that Mr Willett was to remain in his cell until seen by him on the next day.
It was Mr Carberry's evidence that it was a strict policy at the Remand Centre that a prisoner who had abused an officer was removed from the general prisoner population. He gave evidence that it was in accordance with usual procedure for Mr Willett to be placed in a multi‑purpose cell after the incident of 31 January 2000.
Mr Carberry's evidence was that he assessed the incident report of 31 January 2000. He determined in the circumstances that Mr Willett had used insulting language. He gave evidence that Mr Willett was placed in a multi‑purpose cell pending an interview by him. This was pursuant to s 36(3) of the Prisons Act 1981. He gave evidence that he was on 24 hour call and could be contacted by mobile phone.
Mr Carberry gave evidence that he was on duty on 1 February 2000 and at about 8.50 am found out about the assault on the plaintiff. He immediately went to the unit where he spoke to the plaintiff. He gave evidence that in the conversation the plaintiff told him that he had been punched on the jaw by a prisoner.
Mr Carberry gave evidence that he was unaware that Mr Willett had said anything to the plaintiff after the incident. It was his evidence that if a threat had been made he would have requested a report from the officer concerned.
It was Mr Carberry's opinion that the incident of 31 January 2000 was of insufficient seriousness to justify a three officer unlock procedure being implemented. It was in his view an unusual occurrence within prisons. He gave evidence that if further charges were to be laid arising out of the incident of 31 January 2000 this would be up to Mr Pulford and while he recommended Mr Willett be charged the necessary documentation was not submitted by him.
Mr Carberry gave evidence that on 31 January 2000 at about 4.50 pm Mr Willett was assessed by Mr Williams, a psychologist. It was his evidence that Mr Williams assessed Mr Willett as "travelling all right". This occurred at 4.50 pm and whilst he accepted it was good practice to return prisoners to their usual environment in view of the s 36(3) issue Mr Willett was detained overnight in cell C3.
Mr Carberry referred to the occurrence book and to the fact the prisoner Mr Willett had been fed and de‑fed on 31 January 2000. He gave evidence that in the circumstances it looked like the prisoner had settled down.
He was examined about the incident of 31 January 2000 and said:
"Sorry. Do you still maintain, as you said to my learned friend, that the only concern you had at this stage was his insulting language?‑‑‑I can't – I can't say that at that stage. What I can say is that given the initial report, even the officer concerned considered his behaviour to be abusive language. He didn't consider when he wanted to submit the report that it was threatening behaviour.
But when you got this form, as you said you did, before you finished work on 31 January 2000, I presume you read it carefully?‑‑‑Yes.
Do you still stick by your evidence to my learned friend that your view back then would have been that this was just an instance of insulting language?‑‑‑This was an everyday incident that occurred within the prison system, that required me to place the prisoner under section 36(3) until such time as I reviewed the prisoner which would have been the next morning."
Mr Carberry impressed as an honest and reliable witness. The view I formed was that he was conscientious in the discharge of his duties and was aware of his responsibilities.
Other evidence adduced by plaintiff
Mark William Pulford is aged 45 years. He was a prison officer between July 1990 and November 2004 at Hakea. In August 1997 he completed a prison officer training course.
He gave evidence that he knew Mr Willett. Mr Pulford gave evidence of an incident which occurred on 31 January 2000. On that date he was the officer‑in‑charge of the recreation area. Mr Willett approached him. Mr Pulford told Mr Willett to put shoes on and obtain an oval pass from his wing officer.
Mr Pulford gave evidence that Mr Willett returned with an oval pass but still did not have shoes on. Mr Willett then became abusive and aggressive. Mr Pulford described Mr Willett as being quite aggressive at the time. He gave evidence that he was thankful that other staff were there. Mr Pulford stated that following the incident he informed the Senior Officer on duty Mr Bruce White of what had occurred and prepared an incident report. It was Mr Pulford's evidence that a three officer unlock was not an everyday occurrence and that a senior officer was required to justify the use of the three officer unlock procedure.
Mr Pulford gave evidence that normally prisoners would calm down once they have been placed in a multipurpose cell.
It was his evidence that Mr Willett had been placed in a multipurpose cell after the incident and not a punishment cell.
Mr Pulford said that he had worked with the plaintiff and gave evidence that he was not an aggressive prison officer and that the plaintiff utilised humour to diffuse difficult situations in the prison.
Alan Herbert Butler commenced employment with the Ministry of Justice on 25 January 1971 at Fremantle Prison. Between 1984 and 2002 he worked as a senior officer at Hakea. He has no specialised training in relation to administration, management or security of prisons.
He gave evidence that a three officer unlock was used if a prisoner is exhibiting violent behaviour. The officers are equipped with pepper spray, restraints and a baton. He gave evidence that it was a fairly common procedure and it would be utilised anything from weekly to monthly. The main purpose for its use was as protection for staff.
He described the three officer unlock as a procedure designed to show a prisoner that if he became violent there was sufficient staff to handle the situation.
In his substance of evidence he noted that:
"6.If, in addition to the behaviour Officer Pulford has described, and the broken window the prisoner also made threats to harm officers the previous evening then in those circumstances a 3OU clearly should have been arranged."
He gave evidence that persons with authority to order a three officer unlock were the senior officer in the unit, the superintendent, or the assistant superintendent.
He gave evidence that the incident report of the 31January 2000 should have been noted so that officers were aware that Mr Willett was likely to be violent if his cell was unlocked.
He gave evidence that based on the incident report he would have made sure that at least three officers were at the cell at the time. This was because Mr Willett had made threats.
Mr Butler has worked for many years within the prison system. He ceased employment at Hakea in 2001 and had 15 years experience as a senior officer. Overall he had 30 years' experience working within the prison system.
He agreed in cross‑examination that the senior officer who considered Mr Pulford's report had adopted the correct procedure by giving the prisoner time out. He agreed that the correct procedure was to try to de‑escalate situations. He agreed that up until 18:35 on 31 January 2000 a three officer unlock was unnecessary for Mr Willett. In re‑examination he was asked about cooling down of prisoners and gave evidence that based on the incident report he would have made sure that at least three officers were there at the time even if they didn't have pepper spray on them.
Michael Thomas Touchell gave evidence that from 1987 to the end of 1994 he was the assistant superintendent of the Metropolitan Security Unit situated at Canning Vale Prison. From the beginning of 1994 until about September 1994 he was the assistant superintendent at the Albany Prison and was in charge of security. Between January 1997 and about July 1998 he was the assistant superintendent at Canning Vale Prison. He was not working at Hakea in 2000 and was unfamiliar with its practices for dealing with prisoners at that time.
Mr Touchell gave evidence that at the handover the incident report from the previous evening should have been available to hand over to the plaintiff when he came on shift so he could read the report before commencing his shift. It was his evidence that he would want to know why the cell window was smashed and who had smashed it.
He agreed that officers on a daily basis are exposed to the threat of either physical or verbal abuse.
It was his evidence that on the face of the incident report there was no indication that urgent assistance or help was required.
Mr Touchell ceased employment within the prison system in 1998. He was therefore not employed at the Remand Centre on the date of the assault on the plaintiff. During the time he was employed by the defendant he had worked as an officer and was promoted to the position of an assistant superintendent.
In his substance of evidence dated 2 May 2006 he noted that given the history of "Prisoner Willett's behaviour a three officer unlock ("3OU") was appropriate…" He gave evidence that a three officer unlock was a common procedure.
Mr Touchell accepted that part of a prison officer's training in managing prisoners is to defuse rather than escalate a situation. In his evidence in cross‑examination he said that "obviously the wrong action was taken".
Mr Touchell was asked about the response of the prison authorities to the situation and agreed that it was more than adequate. He agreed that the senior officer's response to Mr Pulford's report was adequate.
Mr Touchell gave evidence that a smashed window indicates that a prisoner has not settled down. The smashed window was, on his evidence, one of the main factors. When asked and tested concerning his opinion he referred to counsel putting the "cart before the horse". This was when he was asked about the requirement for a three officer unlock. The impression I formed was that his opinion as to appropriate conduct was very much influenced by what ultimately happened on 1 February 2000, namely the assault on the plaintiff.
In the circumstances I find him to be an unsatisfactory witness. He was last within the prison system two years before the incident in question.
Kwok Keong Lam is the plaintiff's general medical practitioner. The plaintiff has been attending him since 1988. The last occasion he saw the plaintiff was on 8 March 2005 although he did maintain what he described in evidence as an overseeing role.
In 1996 the plaintiff consulted Dr Lam in relation to lower back strain. It was Dr Lam's evidence that the plaintiff recovered quickly from that strain. In November 1999 the plaintiff consulted Dr Lam in relation to aching in the left knee and left foot. At that stage a diagnosis of degenerative lumbar spondylosis was made.
It was Dr Lam's evidence that the physical injury sustained in the incident of 1 February 2000 and the secondary depression were the persisting factors in the plaintiff's presentation.
Dr Lam referred the plaintiff to a psychiatrist and a neurosurgeon.
It was his view that the work incident would have contributed to a significant degree to ongoing complaints of back pain.
It was Dr Lam's evidence that the plaintiff began to develop a degree of anger towards the Department of Justice. Dr Lam agreed that the plaintiff had shown evidence of being asymptomatic in the lumbar spine prior to 1 February 2000 work related incident. It was Dr Lam's evidence that disc problems can occur gradually as well as over time.
It was Dr Lam's evidence that prolonged sitting by the plaintiff would cause back problems. In his view, the limit for sitting by the plaintiff was four hours per day. In relation to employment it was his evidence that three days a week, four hours per day was a starting point for the plaintiff's employment.
Anet Parker gave evidence that in 2000 she was the administration coordinator at the CW Campbell Remand Centre. Her duties included attending to maintenance and preparation of rosters.
She identified a maintenance repair request in relation to unit 6 cell C5 and which was dated the 31 January 2000.
She identified a work order dated the 1 February 2000 which was registered at 15:16.
Allan Piper was called on behalf of the plaintiff. In 2004 he was the Director‑General of the Department of Justice.
Mr Piper produced a copy of a memorandum which he had prepared dated 24 May 2004. In the memorandum Mr Piper recommended that the plaintiff be retired on the grounds of ill health.
The recommendation was accepted by the relevant Minister on 18 June 2004.
The effect of acceptance of the recommendation by the Minister was that the plaintiff's employment with the defendant was terminated on or about 21 July 2004.
Albert John Harman is a 72 year old prison officer who works full‑time at Hakea and at Casuarina Prison. His duties are essentially limited to a security position at the gatehouse of each prison and has not had prisoner contact since age 65.
He gave evidence that there were no 72 year olds involved in restraining prisoners
Laurence Vivian Beaton is 59 years old and has been a prison officer at Hakea since 1981. He has been a first class officer since 1988.
Mr Beaton gave evidence that there was overtime available at Hakea and that of the $69,000 gross he had earned in the 2006 financial year $14,000 was attributable to overtime. In his opinion comparable earnings for a prison officer who is not a first class officer would have been around $53,000 gross.
Warwick Black is a consultant psychiatrist who commenced practice in that capacity in about 2000.
He first saw the plaintiff on 9 December 2004. The history which he obtained was that the plaintiff was injured by a prisoner who was understood to be in a "drug induced psychosis". In his report of 23 February 2005 he noted he had been told by the plaintiff that he was unable to work for nine months and that he subsequently went back to work for a period of 12 months during which time he received chiropractic intervention.
In his report of 22 August 2006 after summarising the views of a number of other practitioners he stated in response to specific questions:
"(a)Please summarise the approximate frequency with which our client has consulted us since provision of your report of 10 May 2005
I have been meeting with Mr Leeder approximately monthly.
(b)Please describe our client's progress, from a psychiatric perspective, since then
Mr Leeder's mental state over time has been reviewed in the above text. His mental state has fluctuated significantly over time. At times, he has been doing reasonably well, although residual depressive symptoms have been present throughout. At other times, I have had to consider hospitalisation. His mood, and general mental state, has varied in response to a range of life events, including the Workers' Compensation process, but it is my opinion that his underlying depression has strongly contributed to his limited ability to cope with changes in his circumstances.
Even when external factors have been relatively stable, his depression has reduced his quality of life considerably. For example (as highlighted above), he recognised that he should have been able to enjoy the birth of his grandchild, but found himself unable to do so. This inability to experience pleasure is referred to as anhedonia. Anhedonia is described in all of the psychiatric reports that have been provided.
It would appear that all the psychiatrists that have assessed Mr Leeder are in agreement that he has suffered from a significant episode of depression (ie Major Depression, single episode, now in partial remission).
(c)In your report of 10 May 2005 you expressed the view that at the time our client was totally incapacitated from working and that this was likely to continue for the foreseeable future. You also indicated however that with appropriate treatment and rehabilitation our client should be able to perform some kind of work in the near future
Would you please advise with respect to our client's present and likely future working capacity. When responding to this question would you please address the following matters:
(i)Please identify those of our client's symptoms which impair his capacity for work and are likely to continue to do so in the future
In my opinion, some of the core symptoms of depression include, anhedonia (ie an inability to experience pleasure), amotivation and fatigue.
These symptoms are linked in that they are commonly attributed to dysfunction in the noradrenergic, and particularly dopaminergic, neurochemical systems.
The fatigue is different to the tiredness associated with being overworked, but is characterised by an inability to 'recharge' despite sleep and rest.
Anhedonia and amotivation are also linked in that individuals, who find it difficult to experience pleasure (ie receive an intrinsic reward / sense of satisfaction) for performing an activity find it difficult to motivate themselves.
The various psychiatrists who have assessed Mr Leeder have also highlighted his cognitive impairment (e.g. impaired concentration etc).
(ii)What is the likelihood of our client being able to obtain and maintain employment in the future. In answering this question please comment with regard to both his mental capacity to undertake the duties expected of him, and as to the likelihood of his condition becoming sufficiently stable to enable him to maintain employment for days and weeks on end
This is a difficult question to answer. In addition to the effects of the symptoms described above I am concerned that Mr Leeder has not worked in many years.
I believe that Mr Leeder (probably like everyone else) would benefit from engaging in some productive 'work'. Considerable vocational rehabilitation would be necessary. Although, he has (sic) an intelligent man, I suspect that retraining that would involve an educational component would take him longer to complete than the average person. Depending on the extent of the cognitive demands, I suspect that this could take him 30% to 50% longer than he might otherwise have taken.
If suitable employment could be found I would not anticipate Mr Leeder working more than 20 hours per week. I do not believe that he would be (sic) to commence working as many hours per week, but may require vocationally (sic) rehabilitation that starts with supported work experience, followed by the graded return to work. Being able to find meaningful work would probably assist this process, given the symptoms described above. Issues such as loss of self‑esteem, and self‑efficacy are also likely to impair his ability to return to work.
In my opinion, the estimations provided above, reflect the best case scenario. Given the treatment resistant nature of his depression, the length of time he has been depressed, and the length of time he has been out of work, a return to work may not be possible.
In my opinion, this is an 'unknowable' situation.
I believe that consideration should also be given to his age, and the likelihood that an employer would see him as an asset. Personally, I would think that this lowers the possibility that he will be able to return to work.
It may be worth consulting with a vocational rehabilitation provider (e.g. CRS) to review the statistical probability that he would be employable.
(iii)If ultimately you believe that our client will be fit for some form of employment in the future please describe what sort of work environment and/or duties he will need to avoid
For a long time, Mr Leeder wanted to return to work as a prison officer. This is no longer possible.
At one point during the course of treatment Mr Leeder became enthusiastic about going to University, but the enthusiasm was not sustainable. I would be surprised if he could complete university studies.
I believe Dr Proud is correct (if I understand him accurately) in stating that Mr Leeder has been unable to look beyond the end of this Workers' Compensation process. Mr Leeder has been trying to cope with financial restrictions, potentially losing his home, relationship difficulties, these legal proceedings etc, and these factors have made it difficult for him to concentrate on anything else. Essentially, it has been an overwhelming period in his life. I believe that he has had to find mechanisms to put some of his worries out of his mind, because he has been finding this cluster of challenges overwhelming.
I have discussed vocational rehabilitation with Mr Leeder on many occasions, but would find difficult (sic) to identify any form of work that would be suitable.
It may be more appropriate to ask this question of a creative vocational rehabilitation provider.
(iv)Dr Proud expresses the view in his most recent report of 4th February 2006 that our client is currently fit to work 25 hours per week. We inquire whether you agree with this
As Dr Proud indicates Mr Leeder has a strong work ethic, but I find it very difficult to imagine Mr Leeder walking into a job and commencing work at 25 hours per week. As stated above, I believe it needs to be taken into consideration that he has been unemployed for several years, and he would require sensitive, vocational rehabilitation.
Based on experience, given Mr Leeder's current mental state, I believe it would be difficult to find an employer, who would provide him with 25 hours of work per week. Once again, a vocational rehabilitation provider may be in a better position to answer this question.
(d)Dr Proud also makes several comments in his most recent report regarding our client's motivation and lack of plans in terms of attempting to return to the workforce. At the bottom of page 3 of his report he notes that our client was unable to give any indication as to how he saw his future or whether or not he believed he would be able to return to the workforce noting that our client was still coming to terms with his current situation.
This appears to be consistent with Dr Mustac's observation in his report of 14 May 2004 to the effect that although at times Mr Leeder appeared quite determined to return to work, at other times he became disheartened and believed that is a combination of both his depressive illness in his ongoing chronic back pain he would be and at considerable risk if he would return to work
I believe that there are a number of issues worth considering:
(i)Prior to Mr Leeder's injury he had an excellent work history.
(ii)It has been suggested, and I would agree, that Mr Leeder has a good work ethic.
(iii)Mr Leeder has made several attempts to go back to work, but has been unsuccessful on each occasion.
(iv)He became enthusiastic about engaging in university studies, but quickly became disheartened.
(v)The depression, and this repeated failure, for want of a better term, has severely battered Mr Leeder's self‑esteem.
(vi)Mr Leeder has found the various life challenges that he has faced in recent years overwhelming, and has essentially lived one day at a time.
(vii)I suspect that he has run out of ideas, about what he could do, because it has not been possible to work in the areas in which he feels he has some expertise.
(viii)I suspect that even a creative vocational rehabilitation provider would struggle to find work that would be suitable given Mr Leeder's depression and back pain.
Is it reasonable to characterise our client's lack of plans regarding his future as being attributable to his depressive illness, and difficulty accepting what has happened to him, rather than due to a lack of the motivation on his part
As I have indicated above, amotivation is a core symptom of depression (ie there is a biological basis for this). I believe that Mr Leeder would have liked to have kept working. I believe that there is an interplay of 'psychiatric' (e.g. the depression) and 'secondary psychological' (e.g. the loss of self‑esteem and self‑efficacy) factors that contribute to this lack of motivation. I believe that being unemployed has led to numerous losses, including status, camaraderie, self‑respect etc. Although, it is often claimed that there is 'secondary gain' in remaining out of work, I believe that it would be more appropriate to associate Mr Leeder's circumstances with 'secondary loss'.
To ensure that my opinion is not misinterpreted, I am referring to the loss of self‑esteem and other psychological sequelae, the loss of other measures of quality of life (e.g. quality of relationships etc), and monumental uncertainty (e.g. he almost lost his home etc).
I believe it should be taken into consideration that Mr Leeder has an excellent work history, has made multiple attempts to return to work, or gain further education, and his losses have been enormous. In my opinion, the psychiatric evidence that there are secondary gains for Mr Leeder in remaining out of work are extremely difficult to substantiate. In my opinion, it would be inconsistent with his life story.
(e)We confirm that in the years since our client began receiving psychiatric treatment there has been considerable focus on his irritability and quickness to anger. Would you please advise whether his irritability and/or anger is a symptom of his depression
I believe that his irritability is primarily driven by the depression. Any anger that may have manifested is most likely due to a combination of his depression, and his sense of injustice about how he has been treated when he has needed support.
(f)We understand from Dr Mustac's report of 21 March 2003 that some of our client's antidepressant medication may be contributing to his irritability. Do you agree with this
I have answered this question in the text above. I suspect that his irritability has been primarily due to a lack of efficacy of the antidepressants used, rather than due to the antidepressant.
As Dr Proud has noted Mr Leeder's irritability and anger has attenuated since the introduction of Lamotrigine. As stated above, I prescribe a lot of Lamotrigine, because it is well tolerated, leads to a more natural sensitive well‑being than most other antidepressants, and has other favourable effects such as reducing irritability and aggression.
(g)We refer to your letter of 9 May 2006 regarding the medication our client was then taking. Would you please list our client's current medication required to advise whether or not the current regime is likely to continue to be required
The medications that Mr Leeder is currently taking, include:
(i)Lamotrigine 400 mg in the morning
(ii)Lyrica (Pregabilin) 300 mg twice daily
(iii)Citalopram 40 mg in the morning]
(iv))Seroquel (Quetiapine) 100 mg at night
Note: each of these medications has been shown to have an effect on mood and/or anxiety. Lamotrigine and Pregabalin also have been shown to be useful in the treatment of chronic pain. These medications have been chosen, partly because of their dual action, but also because of the lack of efficacy of other antidepressant medications, and the more favourable sense of well‑being (including a reduction in the intensity of pain) that has been produced since his medications have been introduced.
(h)In his latest report, Dr Proud advised that medication will only be needed for a period of approximately 12 months following completion of the legal proceedings. We inquire whether you agree with this or whether it is likely that our client will require medication in the longer term. If so, please specify approximately how long it is likely that our client will continue to require medication so that we can ensure that the cost of same is claimed on his behalf at trial
As I have indicated above, the medications that Mr Leeder is prescribed have a dual action. In particular, the Lamotrigine and Pregabalin have also resulted in an attenuation in Mr Leeder's pain with a corresponding reduction in the use of analgesic medication.
It is possible that a reduction in the dose of Citalopram, Seroquel (Quetiapine), and possibly Lamotrigine could occur, but I would be inclined to proceed cautiously.
As Mr Leeder's treating psychiatrist I have no plans to change his medication at this point in time, or in the immediate/foreseeable future. I do not anticipate ceasing all of his medication at any point. I suspect that Mr Leeder will require lifelong pharmacological treatment to minimise his pain.
Furthermore, given the length of time that Mr Leeder has been depressed, I believe it is highly likely that he will require ongoing pharmacological treatment for his depression.
Even if his 'antidepressant medication' was ceased, the length of time he has been depressed, and the treatment resistant nature of his depression, would make it highly likely that he would relapse, and as such would require further treatment.
In my experience, the majority of patients with recurrent depression, or chronic depression, prefer to remain on medication rather than experience the turbulence and suffering associated with ongoing exacerbations of their symptoms."
Dr Black's diagnosis was that the plaintiff was suffering from a treatment resistant major depressive disorder. He accepted that his conclusions were based upon the reliability and veracity of what the plaintiff told him together with other information he obtained.
John Kingston Kerr is a specialist in rehabilitation medicine and first saw the plaintiff in February 2002.
It was his evidence that the since the injury of 1 February 2000 the appearance of this plaintiff's lumbar sacral disc had changed. This was, in his view, important in relation to prognosis. He considered that the plaintiff's symptoms and his restrictions were likely to persist rather than resolve.
He considered that the plaintiff was going to be restricted to sedentary work.
Dr Kerr gave evidence that he obtained a history from the plaintiff that he had no past history of spinal pain before the incident of February 2000.
He gave evidence that a scan of August 2001 revealed that herniation was more prominent than shown on 14 February 2000. He said that there was a triggering of symptoms from August 2001 to December 2001. It was his evidence that there was a direct connection between the increase in symptoms from August 2001 and the development of new pathology first observed in the scan of August 2001 and further confirmed on the scan of December 2001.
Dr Kerr gave evidence that a disc herniation can be asymptomatic but that would be exceptional. It would, in his view, be more frequently symptomatic. The herniation was not shown in the scan of February 2000 or on the CT scan of August 2001.
Dr Kerr gave evidence that there was clear evidence of degeneration in the plaintiff's lumbar spine. He gave evidence that it was reasonable to suggest that the plaintiff had ceased to work in December 2001 because of the presence of new pathology namely the disc herniation.
Dr Kerr was asked about the disc herniation. He gave evidence that whilst it is difficult to draw a direct correlation between an incident of injury the plaintiff is recovering from and change in symptoms, he did not think he could discount that the incident of 1 February 2000 may have had some contribution to the development of the herniation.
In relation to disc herniation Dr Kerr gave the following evidence in re‑examination:
"Can you elaborate upon that?‑‑‑For disc herniation to occur there needs to be disruption of the outer coverings of the disc or the annulus. That can be a complete tearing or disruption giving free passage for nuclear material from the centre of the disc to herniated out of the disc or it may be a partial disruption of the annulus allowing some bulging of the annulus but not any true disc herniation and sometimes we encounter situations where somebody has had one of these partial disruptions for a period of time which then either as a result of a further traumatic incident or sometimes spontaneously further disrupts, allowing at that stage nuclear material to herniated. I would have to say, however, that such a (sic) circumstances can also occur in degenerative pathologies of the disc.
Doctor, my learned friend asked you this question: 'Was he unfit because ‑ was a major factor of his unfitness the disc herniation in December 2001?' Your answer was, 'At no time did he ever return to full custodial duties.' What was the relevance of that answer?‑‑‑Well, I don't think he made a full, I don't think – if this man worked as a prison officer and part of his job description as a prison officer was to undertake the custodial supervision of prisoners and if he never was considered fit enough to do that then he didn't make a full recovery, not at least in functional terms.
You agreed with my learned friend that the triggering of symptoms consistent with herniation demonstrated in the August and, later, December 2001 scans was consistent with new pathology in his spine. Is that relevant to your opinion on diagnosis and causation as expressed in your first report?‑‑‑Yes, I think it probably is."
Dr Kerr accepted that the plaintiff had transferable skills. When asked about prognosis Dr Kerr gave evidence that the plaintiff could achieve improved function in time but primarily if his psychiatric disorder allowed that function to be utilised in the context of the workforce
It was Dr Kerr's evidence that he was relying significantly upon the clinical presentation of symptoms by the plaintiff.
James Richard Baldwin Ball is a psychiatrist who first saw the plaintiff on 21 June 2002.
He provided a report dated 5 July 2002. He could find no evidence of cognitive impairment of the plaintiff or of features suggestive of organic psychiatric disorder. It was his view that the plaintiff had an adjustment reaction consequential upon ongoing physical problems. It was his view that the plaintiff's situation was related to his physical problems which were persisting and that psychiatric difficulty was secondary.
It was Dr Ball's evidence that when he saw the plaintiff, the plaintiff told him that he was catching up with activities in the house and garden and that he did housework and gardening.
Dr Ball's view as to prognosis was that it related to ongoing back problems.
John Lawrence Lee is a general medical practitioner who for 10 years between 1992 and 2002 worked in the area of sexual problems of men. He first saw the plaintiff on 20 January 2003.
Dr Lee provided a report of 17 March 2003. In the report he noted a history obtained from the plaintiff of back pain on attempting sexual intercourse and also of delayed ejaculation and often an inability to ejaculate. He gave a history to Dr Lee of lower back strain in 1996 and lumbar spondylosis diagnosed in 1999. By 10 March 2003 the plaintiff's ability to ejaculate had returned to normal. It was his opinion that the plaintiff's loss of sexual function was due to the accident on 1 February 2000. As at the date of his report Dr Lee was hopeful that there would be no impairment of sexual function.
On 27 October 2003 Dr Lee provided a further report to the plaintiff's solicitors. The report is in the following terms:
"Further to my letter dated 8th September 2003 and in response to your letter of the 3rd October, 2003 I reply as follows:
1.Regarding serum testosterone levels, the normal range of serum testosterone in the laboratory that we use is between 10 and 35nmol/L. Mr Leeder's initial serum testosterone done by us was 5.8nmol/L from the 20th January, 2003. This increased to 7.1nmol/L on 28th April, 2003 but recently on the 8th September, 2003 his serum testosterone had again fallen to 6.7nmol/L. I have previously described in my letters to you the complex series of events whereby a lumbar back injury resulting in pain can cause decrease frequency of sexual intercourse then depression intervening causing a further downward spiral of events leading to a low serum testosterone.
2.I now note that Dr Zelko Mustac has given his opinion that Mr Leeder suffers with a permanent psychiatric disability of about 25%.
Regarding the back injury firstly let me apologise for my mistake in describing a low back strain in 1996 and lumbar spondylosis diagnosed in 1999. I can only say I must have been reading another patient's notes and there is no history of previous back injury and I regret having caused any confusion in this regard.
I have before me now Dr John Kerr's letter stating that Mr Leeder's back injury amounts to the permanent loss of 15% of the use of the low back and that this disability is permanent. It therefore follows that the resulting loss of sexual function that has occurred because of the back pain he suffers will also be permanent.
When I reviewed Richard recently on the 20 October 2003 there had been no improvement in his libido resulting from the previous injection of Primoteston 250mg.
He had not attempted intercourse for about one month, and, at that time his erection had been poor. I therefore, have come to the conclusion that Richard's loss of libido will require continuing medical treatment and have referred him to Dr Greg Smith with a suggestion that he would be suitable for testosterone implants on an ongoing basis.
Coming now to assess Mr Richard Leeder's loss of sexual function over the period of time that I have known him, I would say that his loss of libido, occasional poor erections, delayed ejaculation and general lack of enjoyment of sexual relations amounts to 50% loss of sexual function and that this loss is now permanent. I would therefore say that this amounts to a 25% loss of the use of the urogenital organs, pursuant to item 37 of schedule 2 of the Workers' Compensation and Rehabilitation Act and that this loss is permanent. The cost of ongoing treatment with testosterone implants may have to be taken into account before finalising Mr Leeder's claim.
I trust that is the information that you require and Richard's case can now proceed to settlement."
Dr Lee's evidence in cross‑examination concerning the back injuries was:
"Regarding the back injury, firstly, let me apologise for my mistake in describing the low back strain in 1996. A lumbar spondylosis diagnosed in 1999. I can only say I must have been reading another patient's notes?‑‑‑Yes.
There's no history of previous back injury and regret having caused any confusion in this regard.
That comment there was as a result of a specific letter sent to you by the plaintiff's solicitors. Correct?‑‑‑Correct.
And in fact they told you the instructions were that the plaintiff was of the view that he had never injured himself prior to this injury of 1 February 2000. Correct?‑‑‑Yes, but can I add that I actually now know where I got this information from.
Where did you get that from?‑‑‑It was from a letter from his GP."
Dr Lee gave evidence that the pathology in the plaintiff's back had been an ongoing thing over a period of time even before the incident of 1 February 2000. In relation to causation of the plaintiff's sexual dysfunction problems he gave evidence that in view of the ongoing problems over some years it was simplistic to attribute the sexual dysfunction problems all to an incident on 1 February 2000.
Dr Lee gave evidence that his opinion as to erectile or sexual dysfunction was reliant upon the history provided.
Dorothy Carmen Theresa Leeder is the plaintiff's wife and gave evidence as to the changes she had observed in the plaintiff after 1 February 2000. She was unable to recall whether she and the plaintiff had gone on holiday between October 2001 and December 2001.
Mrs Leeder gave evidence that the plaintiff did not have a genuine desire to be elected as a State or Federal Parliamentarian and that his motivation was to facilitate the election of another person.
Other evidence adduced by defendant
James Patrick Fisher is the general manager of Arthur Gorie Remand Prison in Brisbane. It has a compliment of between 800 and 850 prisoners.
He gave evidence that he was employed for 29 years by the Department of Justice in Western Australia. He was initially engaged as a prison officer and ultimately obtained the rank of superintendent. His last position was in charge of the staff training academy, intelligence branch and emergency unit. He has been the superintendent of several prisons in Western Australia including Hakea, Casuarina Prison, Bandyup Women's Prison and several country facilities. He gave evidence that he had spent approximately 15 years involved in the training of staff. He had been an officer, chief officer, assistant superintendent and a superintendent of Hakea.
He gave evidence that he has a diploma in training and assessment, and a diploma in correctional management.
He gave evidence that working in a remand prison was different from working in a facility housing sentenced prisoners. He gave evidence that remand prisoners can be very stressed and still under the influence of drugs.
He stated that incidents in a remand prison often settle very quickly.
Mr Fisher had considerable experience and knowledge in prison management, staff training, risk management, prison audits and critical incident response. His credentials were the most impressive of the witnesses called.
It was the evidence of Mr Fisher that in response to the incident of 31 January 2000 Mr Pulford had adopted good management practice by seeking to isolate Mr Willett. In his view the incident was of a pretty low level in a remand prison. He was aware of the broken window to cell C5. This did not affect his opinion as to the adequacy of the manner in which the defendant had acted on 31 January 2000 and 1 February 2000.
It was the evidence of Mr Fisher that because Mr Willett had been fed it demonstrated that he calmed down.
Mr Fisher gave evidence that the three officer unlock procedure could be utilized generally where the senior officer was concerned about the prisoner doing harm to himself or was a risk to staff. In his view a three officer unlock was not justified based on the report of 31 January 2000. He gave evidence that it was pretty normal for property to be broken in a remand prison.
He gave evidence, which I accept, that it was not the training of officers that carrying out a three officer unlock was to be used as a demonstration of an ability by staff to deal with violence.
Mr Fisher's evidence was logical and persuasive. He denied it was appropriate as the plaintiff's case suggested, to show prisoners restraining equipment through a cell window. I accept his evidence and find him to be credible and reliable.
Peter Anthony Connaughton is a specialist occupational physician who saw the plaintiff at the request of the defendant's solicitors on the 16 June 2005.
He examined a radiological report concerning the plaintiff of November 1999 which noted degenerative disc change at the lower two lumbar disc levels and also the facet joints but no disc prolapse.
He gave evidence that he obtained a history from the plaintiff of back pain in late 1999 which the plaintiff attributed to a fall at work and that the symptoms had resolved in a couple of weeks.
Dr Connaughton gave evidence that the nature of the injury sustained by the plaintiff in February 2000 was a strain probably to the L4‑5 segment in the low back. He gave evidence that in his opinion the plaintiff's symptoms and situation significantly changed towards the end of 2001.
Dr Connaughton was asked about the role or influence of any other disease process on the plaintiff's medical condition and said:
"Well, the x‑rays both prior to, at the time of and subsequently show the degenerative change in the lower two disc levels is a significant factor. There's subsequently the disc prolapse on the right at L5-S1 which was not there earlier on and also degenerative changes in the facet joints, so the x‑ray changes and the history indicates that degenerative change in the lumbar spine is a significant factor."
In relation to capacity for employment it was Dr Connaughton's view that the plaintiff was fit for restricted duties on a part‑time basis for at least five hours per day or 20‑25 hours per week. In his opinion the plaintiff was able to do any of a range of administrative or clerical duties within the prison system. He considered that there were a range of possibilities within the prison system.
In relation to degenerative change he gave evidence that all of the investigations indicated there was age‑related degenerative change in the lower two disc levels of the lumbar spine.
Dr Connaughton gave evidence that when the plaintiff had attended upon him he described the prisoner who had attacked him as a psychiatric patient. Dr Connaughton noted in his report of 18 July 2005 that he had been told by the plaintiff that "the prisoner had said he was going to assault someone the following day but this information was not passed on…". Dr Connaughton gave evidence that by the time he saw the plaintiff in June 2005 a number of other issues had developed. These were described by the plaintiff to Dr Connaughton as being financial access and the legal process and the way the Ministry had treated him.
The history the plaintiff gave to Dr Connaughton was that in September 2000 his level of disability was such that he was almost paralysed from the waist down.
Dr Connaughton's diagnosis in relation to the plaintiff was of non‑specific mechanical back pain with referred symptoms to the left leg. He also noted degenerative change in the lower lumbar spine particularly at the last two levels.
Dr Connaughton referred to a report of a CT scan of 14 February 2000. In that report there was no reference to a disc prolapse at L5‑S1. In later scans of 16 August 2001, 7 December 2001 and an MRI scan of 2 February 2002 a disc prolapse at the L5‑S1 level is identified on the right side.
Dr Connaughton gave evidence that it was inevitable that the plaintiff would have experienced low back symptoms regardless of what occurred in February 2000, because of the previous history of two episodes of back pain. He referred to degenerative change on the X‑rays and significant subsequent degenerative change, particularly the right sided L5‑S1 disc prolapse in late 2001, some two years later. In his view, in all of the circumstances, it was extremely unlikely that the plaintiff could have continued working past the age of 60.
Dr Connaughton gave evidence that he could not discount the incident of 1 February 2000 from playing a role in the plaintiff's current symptoms.
Dr Connaughton was questioned in detail in relation to the view he expressed as to the role of 1 February 2000 incident. Part of his evidence in that regard was as follows:
"When you made that assessment in June 2005 as the causative role of the February 2000 incident, my question is were you aware that the plaintiff had been working from February 2000 as a prison officer until December 2001 when he stopped work?‑‑‑No.
Armed with that information, how does that information as to his employment history through that period impact upon your opinion as to the causative role of the February 2000 incident as to his ongoing symptoms?‑‑‑It's a very significant impact for two reasons. The picture which was painted, if I can put it that way, on the first page of that report was, "By September 2000 I was almost paralysed from the waist down and I had to drag myself around the house until I saw my wife's chiropractor in September 2000." When I compare that with Dr Lam's notes, it looks to me as though he was only off work for a relatively short period, days or a week, and was reporting he was 90 per cent better within six weeks. Medically that's really important. The average recovery time from simple back strains is about six weeks. If someone is off work and drag themselves around the house because their legs don't work for seven months is different to being 90 per cent better in six weeks and in terms of the time frames, that's one of the reasons why I'm struggling. Is this man dragging his legs around the house until September 2000 or is he 90 per cent better in six weeks, which 90 per cent of people are if they have a back strain? So to answer your question, yes, it makes a big difference.
STAVRIANOU DCJ: The history is all important?‑‑‑It's essential in terms of causation.
10 minutes of questioning, what you are saying is the history is all important?‑‑‑Vital; vital that the severity degree and duration of disability after an event – doctors go on history, examinations, not x‑rays, and they are two very different stories. So at that time I didn't know that this man was saying he was 90 per cent better six weeks later and off work for less than a week. I'm not sure if that answers the question.
BURTON, MR: So if that information is proven to be correct by his Honour's finding that he did go back to work from February 2000 and worked as a prison officer until December 2001, what is the causal connection, if any, in your opinion, at the date of your assessment with regard to the February 2000 incident?‑‑‑Date of assessment in?
June?‑‑‑June 05. I would like to explain my answer. Seen in the perspective of back pain in 96, back pain in 99, off work for maybe a week or a few days in February 2000 and 90 per cent better in six weeks, subsequent change in condition in late 2001, subsequent disc prolapse, my picture from that is that the incident in February – and also his description – his description of what happened on that day on 1 February 2000 wasn't a catastrophic event. There was a punch and a subduing of the prisoner. Putting all of that together to me in 2005, so we are talking about February 2000 to five years later, five years later, to me that seems, in relative terms, trivial."
Dr Connaughton had made a detailed and thorough examination of the material. I accept his evidence as reliable.
Stephen Jay Proud is a consultant psychiatrist who first saw the plaintiff on 12 November 2003.
Dr Proud provided a report dated 15 November 2003. Dr Proud gave evidence that the plaintiff was "sad and angry most of the time". He explained that the anger was directed "towards the system" and particularly towards "some incompetent managers and towards the Department of Justice."
It was Dr Proud's opinion that the plaintiff was able to return to his pre‑disability duties as a prison officer from a psychiatric point of view. It was his view that the plaintiff's depression was not of sufficient severity to interfere with his ability to work in a significant way.
Dr Proud provided a further report dated 6 May 2005 following an assessment on 28 April 2005. At that stage Dr Proud's assessment was that the plaintiff's depression was present but would not prevent him working less than 25 hours a week.
Dr Proud next reviewed the plaintiff on 2 February 2006 and reported on 4 February 2006. At that stage Dr Proud assessed the plaintiff as having only a mild to moderate impairment to work because of residual depression.
Dr Proud gave evidence that, in his view, the plaintiff would improve once the stress of the medico‑legal process was over but that he would still have some mild residual depression because of lower back pain. Antidepressant medication should in his view be continued for one year after the end of the medico‑legal process.
Dr Proud gave evidence that the plaintiff had definite views about what caused his injury and that he was angry about it. The plaintiff was, in his view, largely or mainly focussed upon his perception of negligence by the defendant. Dr Proud accepted that the treating psychiatrist would be in a better position to assess the plaintiff's requirements for medication.
Helene Drobiski is a rehabilitation consultant and registered psychologist. The plaintiff first attended upon her on 4 April 2000 for an initial assessment and a determination as to whether the plaintiff could perform his pre‑incident duties as a prison officer.
It was Ms Drobiski's evidence that when she saw the plaintiff he was extremely positive and well motivated to return to work. She gave evidence that Dr Lam the plaintiff's general practitioner, was very supportive and quite positive that the plaintiff would be able to return to his duties in a full capacity.
It was Ms Drobiski’s evidence that, after the plaintiff had completed a programme he had been able to return to his prison officer duties without restriction.
In February 2002 Ms Drobiski prepared a new programme for the plaintiff.
Ms Drobiski gave evidence that in November 2002 she met with the plaintiff for the purpose of rehabilitating him into alternative employment with an external employer. She gave evidence that initially he was compliant with the programme which had been developed but that his motivation changed. She gave evidence that the plaintiff started to express frustration towards the Department of Justice.
It was Ms Drobiski's evidence that the plaintiff continued to believe that he wanted to return to his pre‑injury occupation and also, if alternative employment was to be considered, he would like to return to a meaningful occupation and also retraining in the long‑term. She identified work as a Customs Officer, work within the Police Department and work within the Court system as possibilities for the plaintiff.
The plaintiff's evidence
The plaintiff was cross‑examined at considerable length not only in relation to the incident of 1 February 2000 but also in relation to his income tax returns and his prior medical history. I have carefully considered all of the evidence adduced.
I do not accept the plaintiff as either a credible or a reliable witness. I am not prepared to act on his evidence. There are a number of reasons for this. There were inconsistencies between what he said and the evidence of other witnesses. In relation to what occurred on 1 February 2000 the plaintiff said that he had accompanied Mr West and Mr Craig to Mr Willett's cell and that, after opening the cell door to enable Mr Craig to enter, he had gone about his normal duties. Mr West's evidence was that the plaintiff had remained outside the cell. The plaintiff's counsel had opened the case on the basis that the plaintiff had stood outside the cell with Mr West.
Mr Carberry said that after the incident he had spoken to the plaintiff. The plaintiff denied this was the case. I prefer Mr Carberry's evidence. It was part of Mr Carberry's employment duties to attend such incidents.
The plaintiff alleged that Mr White had told him to continue working after the incident and that he could not seek immediate medical assistance. I do not accept that evidence. I prefer the evidence of Mr White that he did not say this to the plaintiff. Mr White impressed me as a careful and cautious person. I do not accept he would have refused the plaintiff the opportunity to obtain medical assistance.
I find that the plaintiff's history to medical practitioners was at times inaccurate. He had told Dr Lee that he suffered no back problems prior to the February 2000 incident. In his evidence the plaintiff sought to explain this on the basis that he had muscular strain rather than skeletal strain. I do not accept that explanation.
The plaintiff told Dr Connaughton that Mr Willett was a psychiatric patient. He told Dr Lam that Mr Willett was psychotic. He told Dr Black that he had been injured by a prisoner who was understood to be in a "drug induced psychosis".
Dr Mustac in a report of 21 March 2003 noted that the plaintiff:
"explained that the prisoner he was required to restrain had been angry and had told another prison officer that he would physically attack the next person who walked into the cell. Unfortunately this message was not conveyed to Mr Leeder and he was injured in the process of attempting to restrain him."
It was the plaintiff's evidence that Mr Willett had made a threat to kill the plaintiff's family after the incident. On the plaintiff's evidence Mr West was present when the threat was made but did not give evidence as to the threat. There was no report of the threat. The evidence establishes that such a threat would have been taken seriously. I do not accept that if such a threat had been made the plaintiff would not have reported it to someone. The plaintiff did not tell any of the medical practitioners he saw about the threat. The plaintiff's explanation for not reporting the threat was that it was not unusual. I do not accept the plaintiff's explanation.
The plaintiff gave evidence that the distance from where a person could see the whiteboard in the control room to Unit 6 was between 10 to 12 metres. Other witnesses estimated the distance as much less.
The plaintiff's income tax returns for the years 30 June 2003 and 30 June 2004, 30 June 2005 and 30 June 2006 contained claims for work related expenses at times when the plaintiff was in receipt of weekly payments of workers' compensation and was not working. The claims included claims for car expenses, laundry and uniforms.
The returns had been prepared by the plaintiff and he accepted in his evidence that there was no basis for some of the claimed expenditure.
In the application form for Parliament he was required to describe his health which he described as "robust". This description was inconsistent with the plaintiff's evidence as to the level of his incapacity. He was unable to recall that on 26 February 2005 he stood for election for State Parliament.
The plaintiff became angry and frustrated with his inability to work after December 2001. Not long after, he was referred by his general practitioner for review and treated by a psychiatrist. When he saw Dr Proud in 2003 he was angry. That anger was directed towards the Department of Justice.
I had the opportunity to observe the plaintiff give his evidence. The distinct impression I formed was that he was extremely cautious to ensure that any answers he gave to questions did not prejudice the possible success of his action.
Legal Principles
The duty of an employer is to take reasonable care to avoid exposing its employees to unnecessary risk of injury (Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 307‑8; Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25). The employer is not the insurer of the safety of the employee and the duty is not an absolute one (Bankstown Foundry Pty Ltd v Braistina (supra) at 307 and 314).
In order to establish liability there are four elements which need to be proved:
"1.That there was a risk of injury which was reasonably foreseeable. (The foreseeability issue).
2.That there were reasonably practicable means of obviating the risk. (The preventability issue).
3.That the employee's injury belonged to the class of injuries to which the risk exposed him. (The causation issue).
4.That the defendant's failure to eliminate the risk showed a want of reasonable care for the employee's safety. (The issue of reasonableness)."
(See Glass, McHugh and Douglas: The Liability of Employers in Damages for Personal Injury (2nd Ed at p14).
In McLean v Tedman (1984) 155 CLR 306 it was made clear that the standard of care expected of a reasonable man required him to take account of the possibility of inadvertent and negligent conduct on the part of others, and so also, an employer is required to take account of such a possibility in the conduct of his employees. At p 312 it was said that:
"The employer's obligations in this respect cannot be restricted to the provision of a system which safeguards the employee from all foreseeable risks of injury except those which arise from his own inadvertence or negligence. There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations the possibility that the employee will act inadvertently without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle, the employer is bound to take care to avoid such a risk. ... The employer's obligation is not merely to provide a safe system of work: it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer ... and in deciding whether an employer has discharged his common law duty to his employee, the court must take account of the power of an employer to prescribe, warn, command and enforce obedience to his commands."
In Wyong Shire Council v Shirt (1980) 146 CLR 40, Mason J at p 47 explained the correct approach to follow in judging whether a defendant has breached a duty of care:
"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 person. 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 remained to be considered with other relevant factors."
The failure to eliminate a risk that was reasonably foreseeable and preventable is not necessarily negligence. Tame v New South Wales (2002) 211 CLR 317 at [98]-[99] per McHugh J.
Where there are possible competing causes it is sufficient if the evidence would support an inference that the defendant's negligence 'materially contributed' to the plaintiff's injury: McGhee v National Coal Board [1973] 1 WLR 1 at 6; Wilsher v Essex Area Health Authority [1988] 2 WLR 557 at 560; Chance v Alcoa of Australia Ltd (1990) A Tort Rep 81‑017 at 67,727.
In Watts v Rake (1960) 108 CLR 158 Dixon CJ said at 160:
"If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause. If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred."
As Professor Luntz notes in Assessment of Damages for Personal Injury and Death (4th ed) at [1.9.13] the Chief Justice in Watts v Rake (supra) prefaced his remarks with the statement (at page 159) that:
"The law of course places upon a plaintiff who sues in tort for unliquidated damages the burden of satisfying the tribunal of fact of the damages he has suffered both special and general and of the quantification in money that should be adopted in the sum awarded. That is the legal burden of proof which rests upon him throughout. Only in one respect is the burden of proof upon the defendant and this is when he sets up matter in mitigation of damages." (My emphasis).
In Purkess v Crittenden(1965) 114 CLR 164 Barwick CJ, Kitto and Taylor JJ, at 168, considered the decision in Watts v Rake (above) and said:
"We understand [Watts] to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre‑existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre‑existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre‑existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v. Rake was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre‑existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre‑existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross‑examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre‑existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence."
Findings
A prison may immediately be contrasted with, for example, a shopping centre to which people lawfully resort, and at which they generally lawfully conduct themselves. In a prison, the prison authority is charged with the custody and care of persons involuntarily held there. Violence is, to a lesser or a greater degree, often on the cards. No one except the authority can protect a target from the violence of other inmates. Many of the people in prisons are there precisely because they present a danger, often a physical danger, to the community. It is also notorious that without close supervision some of the prisoners would do grave physical injury to other prisoners. New South Wales v Bujdoso [2005] HCA 76 at [44] .
The defendant, through its employees, was required to make decisions which affected the safety of prisoners and staff. Situations must be assessed which involve value judgments and the exercise of discretion. The requirement to make decisions does not in any way erode or detract from the defendant's obligation to exercise reasonable care for the safety of its employees.
I am satisfied that the defendant ought to have reasonably foreseen the likelihood of the plaintiff and other officers being exposed to a real risk of injury of being assaulted by a prisoner in the Remand Centre.
In my view there was a real risk that could not be described as far fetched or fanciful.
Mr Pulford's evidence was that Mr Willett was aggressive and quite angry on 31 January 2000. He gave evidence that he was thankful when the other officers became involved. However the written report describes the incident as being one involving the use of abusive language. Mr Pulford was not physically assaulted in the incident and saw no reason to recommend a three office unlock procedure. That said, the decision as to a three officer unlock was not one he could make as he was not a senior officer. There was no evidence of the use by Mr Pulford of his duress alarm which could have suggested the incident was serious so far as Mr Pulford was concerned.
Mr Pulford reported the incident of 31 January 2000 to his senior officer Mr West and recommended that Mr Willett be charged over his conduct. However Mr Pulford did not follow up that recommendation by lodgement of the necessary documentation to enable a charge to be laid against Mr Willett.
Mr Carberry received an oral report as to the incident involving Mr Pulford on 31 January 2000 soon after it had occurred.
I accept the evidence of Mr Carberry that on 31 January 2000 he reviewed the incident report prepared by Mr Pulford. He carefully considered the matter. Mr Willett had been seen by the psychologist after the incident involving Mr Pulford and had been fed and de‑fed. This involved opening the cell door to Mr Willett's cell on a number of occasions. There is no evidence to suggest there was any difficulty on any of these occasions. Mr Carberry assessed the situation and made a decision in relation to management of Mr Willett after he had spoken to Mr White. His decision was made in accordance with the practice adopted by the defendant. The incident report contained no evidence of a struggle. There was no threat directed to officers in general made by Mr Willett.
There was no evidence that Mr Willett had made any threats directed to other prisoners or officers either before the incident involving Mr Pulford or between when that incident occurred and when the plaintiff was assaulted.
Before 7.30 pm on 31 January 2000 the observation window to cell C5 was broken. It was not an unusual occurrence for windows to be broken to cell doors. In this regard I accept the evidence of Mr White. I am not satisfied that the window to cell C5 was broken by Mr Willett. Cell C5 was in a wing with seven cells and there was a maximum of 14 prisoners in the unit. There was no evidence that Mr Willett was the only person who had access to the cell window at the time when the window was broken. Whilst Mr White had said that it was logical it was Mr Willett I am not satisfied that I can in the circumstances draw the inference that it was Mr Willett who broke the window.
The reports and occurrence book maintained by the defendant contained a notation for 31 January 2000 that at 15:50 Mr Willett was received. The report book noted that he was "in time out for abusing staff". I am satisfied that the documentation maintained by the defendant being the reports and occurrences book contained adequate and sufficient information. It was accessible to all officers and there is no evidence it was not properly maintained.
When the plaintiff commenced his shift on 1 February 2000 Mr Willett was in cell C3 of Unit 6. Mr White was the acting senior officer and he instructed Mr West that the mental health nurse would be visiting Mr Willett at 8.00 am. The evidence of the plaintiff was that on 1 February 2000 he was not given any information by anybody in relation to the disposition of Mr Willett. It was Mr West's evidence that he could not recall any conversation with a senior officer in relation to the management of prisoners on 1 February 2000. It was the evidence of Mr White that he would have briefed the plaintiff and Mr West as to the situation. He said this is what he did with all officers in the unit. When pressed in cross‑examination Mr White gave evidence that there was no reason why he would not have warned the plaintiff on 1 February 2000. Mr White knew about the broken window. He had signed the maintenance repair request dated 31 January 2000 before the end of his shift on that date.
I accept and prefer Mr White's evidence to that of the plaintiff and of Mr West, and am satisfied based upon the evidence of Mr White that the plaintiff was given proper instructions at the commencement of the shift on 1 February 2000. In his evidence the plaintiff said that in relation to the 1 February 2000 incident that he could not think "anything was different to a normal shift hand‑over". In any event I am satisfied that by the morning Mr Willett had calmed down to such an extent that a specific warning was not required.
At about 8.00 am on 1 February 2000 the plaintiff opened the cell door to cell C3 in which Mr Willett was detained to enable Mr Craig access. Mr Craig entered the cell and spoke to Mr Willett. The plaintiff subsequently entered the cell. As he did so he was punched in the face by Mr Willett. I accept that Mr Willett did assault the plaintiff and that this was unexpected by the plaintiff.
The plaintiff alleges a breach of duty by the defendant in failing to implement any appropriate management for Mr Willett to include the procedure known as a three officer unlock. In evidence the plaintiff described the procedure as involving the use of handcuffs, a belt and a disabling spray to restrain a prisoner. It was his evidence that this was a frequently utilised procedure. I do not accept that evidence. The plaintiff's evidence was that the three officer unlock procedure was a control system in the prison, in effect a method of demonstrating authority to the prisoners. He gave evidence that "it was what we considered to be a very minor way of dealing with people". It was the plaintiff's evidence that by 1 February 2000 he had been involved in probably more than 10 three officer unlocks. Mr Pulford's evidence was that the three officer unlock was not an every day occurrence in Unit 6.
I find that Mr Fisher was an impressive witness who has considerable experience in management of prisoners. I accept and prefer his evidence that the incident of 31 January 2000 was a "pretty low level incident in a remand prison".
The evidence of Mr Touchell was that proper procedures had been adopted to "de‑escalate" the situation and that, on an objective analysis, Mr White had adopted correct procedures in the light of the incident report.
I accept based upon the weight of the evidence that a three officer unlock procedure was unnecessary on 1 February 2000. In this regard I prefer the evidence of Mr Fisher, Mr White and Mr Carberry.
The breaking of a cell window was described as a not infrequent occurrence. I accept that evidence. The breaking of the window either of itself or in combination with the incident of 31 January 2000 did not call for any additional measures to be taken by the defendant in the discharge of its duty to exercise reasonable care. No special or additional warning or instructions to the plaintiff prior to commencement of the shift of 1 February 2000 were required. This was Mr Fisher's opinion. As I have said I cannot be satisfied that the cell window was broken by Mr Willett.
I accept the evidence of Mr Fisher that the appropriate action was to settle the situation down if possible. This is what occurred on 31 January 2000 and was in accordance with the exercise of reasonable care by the defendant.
I find that the incident had been properly handled by the defendant on 31 January 2000 and that the defendant exercised reasonable care on that date and on 1 February 2000. Mr Willett had been given time to cool down and nothing further was required. It was unnecessary for there to be any further measures taken. The incident which occurred on that date was not unusual and nothing further was required.
I find that the plaintiff was a very experienced prison officer. The evidence was that prior to 1 February 2000 the only occasion that there was difficulty with Mr Willett was when the incident involving Mr Pulford occurred.
The effect of the evidence adduced on behalf of the defendant was that writing information concerning prisoners on a whiteboard which could be viewed by prisoners generally might create problems within the prison population. I accept that evidence. The whiteboard in the control room could be seen by the general prison population, as could the whiteboards outside each cell. In those circumstances there was a potential for problems to arise if prisoners were able to access information concerning other inmates.
In any event, I have found that the plaintiff had been properly instructed when he commenced his shift on 1 February 2000.
In the circumstances, I do not consider that, based upon what was known of Mr Willett, any further measures needed to be taken by the defendant.
Consequently, I find that the plaintiff has not established any breach of duty by the defendant.
Causation
I have determined that the defendant was not in breach of duty. Notwithstanding that finding I intend to consider causation.
In March v E & MH StramarePty Ltd (1991) 171 CLR 506 at 622 Deane J said:
"For the purposes of the law of negligence, the question of causation arises in the context of the attribution of fault or responsibility: whether an identified negligent act or omission of the defendant was so connected with the plaintiff's loss or injury that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it."
The applicable legal principles may be shortly stated:
1.It is unnecessary for the plaintiff to prove that the defendant's negligence was the sole cause of the injury or damage – it is sufficient if it was a cause: Chapman v Hearse (1961) 106 CLR 112 at 120.
2.Establishing a connection between the plaintiff's injury and the defendant's negligent act or omission is a prerequisite to the recovery of damages.
3.The standard of proof is the balance of probabilities.
4.The legal burden of establishing that the defendant's negligent act or omission caused or materially contributed to the plaintiff's injury rests on the plaintiff at all times.
5.A causal contribution is "material" if it is shown on the evidence not to have been negligible: The State of Western Australia v Watson [1990] WAR 248 at 286.
6.The evidentiary onus may shift in the sense that where the plaintiff has proved a breach of duty by the defendant and that the breach increased the risk of injury and that risk eventuated then, in the absence of evidence that the breach has no effect or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty of care caused or materially contributed to the injury. Hannell v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2006] WASC 310 at [25] per Le Miere J.
It was the plaintiff's evidence that before the incident on 1 February 2000 he had not seen Mr Pulford's report dated 31 January 2000. He gave evidence that if he had seen it he would have made further investigations with the senior officer as to the circumstances and how the cell door was to be opened. He was asked about whether he would have crossed the threshold to cell C5 and gave evidence that this would depend on the senior officer. He gave evidence that if he needed to do so he would have but he would have been prepared for what may have been a "volatile situation". I do not accept that, in the circumstances, the plaintiff would not have entered the cell in any event, or that he would have acted differently in any way. The incident involving Mr Pulford was, as I have accepted, a minor everyday occurrence within the Remand Centre. Similarly the breaking of a window occurred not infrequently. Importantly, the plaintiff had had the opportunity to observe Mr Willett talking to Mr Craig. As the plaintiff said the assault was quite unexpected. In the circumstances I do not accept that the plaintiff has established a causal connection between the alleged breach and the injury.
I find that a three officer unlock procedure, even if adopted, would not have prevented the assault by Mr Willett upon the plaintiff. The assault was spontaneous and without warning. I am not satisfied that more officers being present would have prevented the assault. As noted by Mr Fisher the size of the cell would have prevented all three officers from entering. I do not accept that the plaintiff has established that the pleaded allegations of negligence caused or materially contributed to his injury.
Provisional assessment of damages
Notwithstanding my finding that the plaintiff's claim should be dismissed, I consider it appropriate to make a provisional assessment of the damages to which the plaintiff would have been entitled if the action had succeeded.
I repeat my findings in relation to the plaintiff's credibility and reliability. I do not accept that the extent of the plaintiff's incapacity has been as significant as outlined in his evidence.
The accuracy of the diagnosis and prognosis of the various medical practitioners upon whom the plaintiff attended necessarily depended upon an accurate history being provided to them. I cannot be satisfied that the plaintiff did provide an accurate history.
Prior to February 2000 there was radiological evidence of a degenerative appearance in the lower two segments of the plaintiff's spine.
I accept and prefer the evidence and opinion of Dr Connaughton that the injury sustained by the plaintiff was a low back strain to the L4‑5 segment. By the end of 2001 the plaintiff's symptoms had changed significantly. The scans at that time demonstrated additional pathology. He had been able to work on a full‑time basis from 28 April 2000. Dr Lam had noted the plaintiff was 85 per cent better by 4 April 2000.
Between about May 2000 and August 2001 the plaintiff was able to work on a full‑time basis. He had treatment in this period from a chiropractor. However in December 2001 the plaintiff's back condition deteriorated. I am not satisfied that the plaintiff's problems with his back after December 2001 are related to the incident of 1 February 2000.
I accept the evidence of Dr Ball that the plaintiff's psychiatric problems were secondary to his physical problems. This was also the view of Dr Proud. The nature of the plaintiff's psychiatric condition as identified by Dr Proud and Dr Black is depression. The plaintiff first sought assistance in relation to psychiatric issues from Dr Lam in 2002 who then referred him to Dr Mustac.
I have determined that the effects of the plaintiff's back problems arising out of the accident had resolved to such an extent that by three months after the accident he was able to return to full‑time employment and remained so employed until December 2001.
I am not satisfied that the plaintiff's psychiatric problems are causally linked to the incident of 1 February 2000.
The plaintiff first sought assistance from Dr Lee in January 2003. I do not accept that the plaintiff's sexual dysfunction problems are causally related to the incident of 1 February 2000.
I find that the injury sustained by the plaintiff to his lower lumbar spine in the incident of 1 February 2000 was not significant.
I accept that the plaintiff was required to have some time off work up until 28 April 2000 and was required to see his general practitioner. He did have treatment from a chiropractor. However after about the time he returned to work his condition had improved. This was the position up until some time between August 2001 and December 2001.
The plaintiff sustained an injury to his lower lumbar spine in the incident of 1 February 2000. This necessitated some time off work.
In my view a global award of $30,000 would, in all the circumstances, represent adequate compensation.
Conclusion
The action is dismissed.
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