New South Wales v Godfrey

[2004] NSWCA 113

Reported Decision: (2004) Aust Torts Reports 81-741

Court of Appeal

CITATION:	STATE OF NEW SOUTH WALES v GODFREY & GODFREY [2004] NSWCA 113
HEARING DATE(S):	10 February 2004
JUDGMENT DATE:	7 April 2004
JUDGMENT OF:	Spigelman CJ at 1; Sheller JA at 87; McColl JA at 88
DECISION:	Appeal allowed
CATCHWORDS:	Tort - Duty of care - liability of Department of Corrections for injuries caused following escape of prisoner from gaol - reasonable foreseeability - policy - special relationship - special knowledge - control - assumption of responsibility - extent of liability - vulnerability - conflict and coherence - remoteness.
LEGISLATION CITED:	Suitors' Fund Act 1951
CASES CITED:	Agar v Hyde (2000) 201 CLR 552 Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn v Ashrafinia (2001) NSWCA 243 Brodie v Singleton Shire Council (2001) 206 CLR 512 Caterson v The Commissioner for Railways (1973) 128 CLR 99 Cattanach v Melchior (2003) 199 ALR 131 Cavey v Secretary of State for the Home Department (2002) EWCA CIV 775 Cran v New South Wales (2004) NSWCA 92 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Hill v The Chief Constable of West Yorkshire [1989] 1 AC 53 Hill v Van Erp (1997) 188 CLR 159 Home Office v Dorset Yacht Co Limited [1970] AC 1004 Lamb v Camden London Borough Council [1981] 1 QB 625 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 Palmer v Tees Health Authority and Hartlepool and East Durham NHS Trust [1999] Lloyd's Rep Med 351 Perre v Apand Pty Ltd (1997) 198 CLR 180 Proprietors of Strata Plan 17226 v Drakulic (2002) 55 NSWLR 659 Reynolds v Katoomba RSL All Services Club Ltd (2000) 53 NSWLR 47 Smith v Leurs (1945) 70 CLR 256 Smith v Littlewoods Organisation Limited [1987] AC 241 State of New South Wales by its Department of Corrective Services v Napier (2002) NSWCA 402 Sullivan v Moody (2000) 207 CLR 562 Tame v New South Wales (2002) 211 CLR 317 The Home Office v Dorset Yacht Co Limited (1970) AC 100 Thorn and Rowe v State of Western Australia [1964] WAR 147 Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES :	State of New South Wales Carol Ruth Godfrey Andrew William Godfrey by his next friend Carol Ruth Godfrey
FILE NUMBER(S):	CA 40377 of 2003
COUNSEL:	M.Sexton SC (Crown) J Sexton SC (Crown) D Kell (Crown) B Gross QC (Respondent) D Williams (Respondent)
SOLICITORS:	IV Knight, Crown Solicitor (Crown) Caroll & O'Dea (Respondent)

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	20344/00; 20345/00
LOWER COURT JUDICIAL OFFICER :	Shaw J

- 25 -

40377/03

SPIGELMAN CJ
SHELLER JA
McCOLL JA

Wednesday 7 April 2004

STATE OF NEW SOUTH WALES v GODFREY AND GODFREY

FACTS

On 27 July 1990 a prisoner escaped from a gaol run by the Appellant. On 5 October 1990 the escapee entered a newsagency in Schofields, Sydney where the first Respondent was working. He pointed a shotgun at her and demanded money. The first Respondent was twenty three weeks pregnant. She suffered nervous shock as a result of the robbery. Eight days after the robbery, she gave birth to the second Respondent. He suffered disabilities brought about by his premature birth, which, according to medical evidence, was precipitated by the robbery. The Appellant did not contest breach, or if any duty was owed. Shaw J held that the Appellant owed the Respondents a duty of care.

HELD
A

There is no established category of duty of care owed by a prison authority to prevent harm caused by an escaped prisoner beyond the immediate vicinity of a gaol. The duty of a gaoler to prevent the criminal activity of an escaped prisoner, so far as it has been established, is confined to the course of the escape, where control is still capable of being reasserted. [31], [34], [35], [87], [88].

The Home Office v Dorset Yacht Co Limited (1970) AC 100; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 applied.

B

Consideration of factors relevant to determining whether a duty of care should be recognised: foreseeability, assumption of responsibility, control, extent of liability vulnerability, conflict and coherence, and remoteness.

No duty should be recognised, by reason of:

i) the absence of any relevant control;

ii) the extent and indeterminate nature of the liability;

iii) the possible distortion of the penal decision making process;

iv) the remoteness in time and place from the negligent conduct. [52], [65], [75]-[80], [84],[85],[87], [88].

Hill v Chief Constable of West Yorkshire (1989) AC 53; Sullivan v Moody (2000) 207 CLR 562 applied; Agar v Hyde (2000) 201 CLR 552; Tame v New South Wales (2002) 211 CLR 317; Cattanach v Melchior (2003) 199 ALR referred to.

ORDERS

1 Appeal allowed.

2 Orders of Shaw J set aside.

3 Statement of Claim in the proceedings dismissed.

4 The Respondent to pay the costs of the Appellant before Shaw J and in this Court.

5 The Respondents to have a certificate under the Suitors’ Fund Act, if otherwise entitled.

40377/03

SPIGELMAN CJ
SHELLER JA
McCOLL JA

Wednesday 7 April 2004

State of New South Wales v Godfrey and Godfrey

Judgment

1 SPIGELMAN CJ: On 27 July 1990 Barry Raymond Hoole escaped from the minimum security section of Bathurst Gaol. He was not caught until 11 October 1990. On Friday 5 October 1990 he entered the Schofields Newsagency at Schofields in western Sydney carrying a shotgun. The first Respondent, Carol Ruth Godfrey was working in the newsagency. Mr Hoole pointed a shotgun at her face, demanded money and screamed that if anybody in the newsagency moved, “she would get it”. Mrs Godfrey felt numb and was concerned about two children who were present in the newsagency at the time. She handed the money to Mr Hoole. He ran from the shop.

2 Mrs Godfrey was twenty-three weeks pregnant with her first child, the second respondent. After the robbery, she felt abdominal cramps that she identified with going into labour. That feeling persisted for the weekend and on Wednesday 10 October 1990 she was admitted to Hawkesbury Hospital in Windsor. Eight days later Andrew William Godfrey was born, prematurely, weighing ninety five grams. On the medical evidence before the Court, the premature birth of Andrew was precipitated by the robbery.

3 In the proceedings, Mrs Godfrey asserted that she had suffered damage including nervous shock, identified as post-traumatic stress disorder and severe anxiety depressive disturbance as a result of the robbery. Andrew Godfrey alleged that he suffered from disabilities brought about by his premature birth. Those disabilities included low comprehension, difficulties with his social behaviour and with fine motor skills. At birth, significant hydrocephal was remedied by the placement of a Rickham reservoir, but this was complicated with meningitis. Later, a shunt was placed inside his skull.

4 Mr Hoole had been imprisoned in October 1987 for break, enter and steal offences. He had previously escaped five times from juvenile detention centres. He was released on parole in October 1988 but, after committing further offences of break, enter and steal, he was returned to custody in January 1989. He had no prior record of armed robbery. He was a heroin addict and was able to obtain supplies for his addiction whilst in gaol.

5 There was no issue at the trial about breach. The appellant conceded, for the purposes of the proceedings, that the escape of Mr Hoole from Bathurst Gaol on 27 June 1990 was due to a want of reasonable care on the part of the Department of Corrective Services.

6 Justice Shaw found for both Plaintiffs. His Honour rejected the Appellant’s submissions that there was no duty of care; that the requisite causal relationship had not been established and that the damage suffered was too remote. Each of these matters is raised as a ground of appeal.

7 His Honour also admitted into evidence a statement of a retired police officer as expert opinion evidence. This evidence was concerned with the likely behaviour of prison escapees. The evidence was admitted over objection. A separate ground of appeal challenges the admissibility of this evidence.

8 The Appellant also makes a formal submission that the correct test for foreseeability is that a Plaintiff must establish an ability on the part of the Defendant to foresee a risk of injury that is not unlikely to occur, or, alternatively, is likely to happen as a probable consequence of the Defendant’s act or omission. These alternative formulations are derived from certain observations in Caterson v The Commissioner for Railways [1973] 128 CLR 99 at 102 and Smith v Littlewoods Organisation Limited [1987] AC 241, 251, 256, 259, 261 and 270.

9 This formulation is inconsistent with the test for foreseeability laid down by the High Court in Wyong Shire Council v Shirt [1981] CLR 40 at 47 to the effect that the risk of injury is foreseeable unless it can be described as “far-fetched and fanciful”. This test has been doubted (see Tame v New South Wales [2002] 211 CLR 317 at [96]-[104] per McHugh J with whom Callinan J agreed at [331]). However the case has not been overruled and remains binding on this Court. That is why the submission made is a formal one.

Decision of Shaw J

10 His Honour found that there was a duty of care upon the Defendant which he expressed in the following way:

[70] “The duty imposed is not to prevent escapees from committing criminal acts. Nor is the duty to keep all prisoners in gaol. It may be accepted that some escapes are inevitable. In the context of this case, the duty I am prepared to find there was a duty to take reasonable steps to prevent harm to the Plaintiff by controlling the opportunities of a prisoner to escape.”

11 I should note that this was not the duty pleaded. It is by no means clear to me that the Appellant’s concession on breach was made with respect to a duty so described. This was not a matter raised on the appeal.

12 Shaw J went on to consider the content of the duty in terms of identifying a greater degree of precision with respect to the duty owed. In this context he said: “the duty was to prevent the escape of Mr Hoole” (76). His Honour concluded his judgment by identifying affirmative duties first, in general terms and secondly in terms of a specific duty relating to the particular escapee, in the following passage:-

“[109]….
(d) That the allegation of negligence against the Defendant falls within an established category of that tort, namely, the recognised obligation falling upon gaolers.
(e) Alternatively, that there were special circumstances arising from the knowledge of the Defendant of Mr Hoole’s likely conduct given an opportunity to escape and the right of the Department to control Mr Hoole to prevent such an opportunity arising.”

13 With respect to the “established category” relating to gaolers, His Honour referred to a number of authorities, which I will further discuss below. In particular: The Home Office v Dorset Yacht Co Limited (1970) AC 100; Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn vAshrafinia (2001) NSWCA 243; (2002) Aust Torts Reports §81 – 636; Thorn and Rove v State of Western Australia (1964) WAR 147. His Honour distinguished Cavey v Secretary of State for the Home Department (2002) EWCA CIV 775; Hill v The Chief Constable of West Yorkshire (1989) 1 AC 53; Palmer v Tees Health Authority and Hartlepool and East Durham NHS Trust [1999] Lloyd’s Rep Med 351. His Honour also distinguished Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 and Proprietors of Strata Plan 17226 v Drakulic (2002) 55 NSWLR 659.

14 His Honour referred to the decision of this Court in State of New South Wales by its Department of Corrective Services v Napier (2002) NSWCA 402, particularly with respect to the significance of “control” when determining whether a duty of care is imposed in the circumstances. On the issue of control, His Honour said:-

“[64] In one literal sense, such authorities do not control the action of escapees once they escape. It might be said that the most they can do in such situations is seek to locate and incarcerate the person who has been sentenced to imprisonment but who has escaped.
[65] However, I can find that prison authorities have ‘control’ over an escapee in a relevant legal sense based upon what was said by Heydon JA in Drakulic at [75] where His Honour points out that at least in some parts of the judgment in Modbury Triangle the references to ‘control’ are not to control in fact, but rather ‘the right to control’. Once the test is framed in these terms the issue becomes capable of resolution. If one accepts that criminal behaviour is unpredictable and sporadic but nonetheless foreseeable, it is open to conclude that there was a legal duty upon the Department to control escapees to prevent them from escaping and to exercise that control to limit the opportunities available to prisoners to escape and thus to commit further offences during the period of that escape which may injure persons or properties.

[66] Heydon JA said in Drakulic of Dorset Yacht that:

“officers in charge of borstal boys have control of them ‘even if the boys escape’ “.

15 With respect to the issues of “vulnerability” and “assumption of responsibility” His Honour said:-

“[62] I do not think that there can be any serious question about the vulnerability of a pregnant woman working in a newsagency to armed robbery. Similarly, I do not think that there can be a serious doubt about the assumption of responsibility that a prison administrator must take for persons who are entrusted to its custody and who escape from lawful detention, particularly those who have demonstrated capacity for serious crime, by reason of a serious drug addiction and prior criminal history”.

16 With respect to the alternative basis, set out in para [11] above, upon which His Honour expressed himself to be satisfied that a duty of care existed in the specific circumstances of the case, His Honour’s findings were as follows:-

“[56] In this case, the prison authorities could be said to know that there was a risk that Mr Hoole would escape. Indeed, the very reason for incarceration of offenders in gaols is to prevent their return to the community by escaping. Such knowledge, would, in my opinion, satisfy the requirement of a high degree of foreseeability that seems to be necessary in a case such as this; Modbury Triangle per Gleeson, CJ at [30]; per Hayne J at [117]; see Heydon JA in Drakulic at [92]. Alternatively, I am satisfied that the knowledge that Mr Hoole would be likely to take an opportunity to escape was a special knowledge, that in the context of a special relationship between the Department and Mr Hoole also gave rise to a duty to prevent it. In any event the defendant concedes a breach of duty of care in relation to the escape itself.”

17 His Honour referred to a letter written in May 1998 to Mr Hoole from another prisoner who invited Mr Hoole to commit an armed robbery when both are released. With respect to this letter, and to the knowledge that Mr Hoole had on a number of occasions escaped from custody in juvenile detention, which I take to be the reference to “history” in the following extract, His Honour concluded:-

“[80]. I accept this letter, combined with the history of Mr Hoole, means that the Department has acquired a special knowledge of the likelihood that Mr Hoole would take an available opportunity to escape and that it was within the knowledge of the Department to realise that in such circumstances, Mr Hoole could possibly re-offend.”

18 His Honour referred to the evidence, both expert and statistical, on the propensity of persons who escape to commit further offences but did not resolve the conflict in the evidence by any formal finding.

19 His Honour concluded:-

“[103] I am satisfied that the Defendant, having special knowledge of the possibility of Mr Hoole escaping, his potential to re-offend and the capacity to exercise the right of control to minimise that occurrence, has breached the duty of care, owed to the plaintiffs…..
[106] I am satisfied that the likelihood of Mr Hoole escaping, as an eventuality, was reasonably foreseeable and could not be dismissed as fanciful.
[107] The Defendant therefore failed to prevent Mr Hoole from escaping and thus provided him with an opportunity to do so. This, in turn, caused injury to the Plaintiff.
[108] I am satisfied that a reasonable person would find the risk of Mr Hoole causing injury to someone if he escaped justified that ‘effective measures’ should have been taken and observed to prevent him escaping.
Duty of Care

20 Plainly, the retention of Mr Hoole in custody was a primary function of the Appellant. The issue is whether the Appellant, by its Department of Corrective Services, owed the Respondents a duty of care at common law to prevent Mr Hoole’s escape. No authority has gone so far as to establish a duty of care of the character identified by Shaw J in the present case.

21 In Modbury Triangle, supra at 264 [20], Gleeson CJ, with whom Gaudron and Hayne JJ agreed, referred to the judgment of Dixon J in Smith v Leurs (1945) 70 CLR 256-262 to the effect that as a general rule a person is not under a duty to control another person unless there is a special relationship between the person said to be under such a duty and the person whose conduct is in issue. His Honour said:-

“[29]…
The unpredictability of criminal behaviour is one of the reasons why as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable.
[30] There may be circumstances in which, not only is there a foreseeable risk of harm from criminal conduct by a third party, but in addition, the criminal conduct is attended by such a high degree of foreseeability, and predictability, that it is possible to argue that the case would be taken out of the operation of the general principle and the law may impose a duty to take reasonable steps to prevent it…..”

22 Hayne J enforced the strength of the general principle when he said at [7]:-

“Established principle … reveals that there is no duty to control the criminal conduct of others except in very restricted circumstances”.

23 At 264 Gleeson CJ referred to the Dorset Yacht case. Immediately after His Honour’s quotation from the judgment of Dixon J in Smith v Leurs, Gleeson CJ said:-

“[21] Control was the basis of liability in Dorset Yacht Co Limited v The Home Office , where Lord Morris of Borth-y-Gest, after citing the above passage, said the case was “one of a special relationship involving a duty to control another’s actions.”

24 Lord Morris’ Borth-y-Gest’s judgment, to which His Honour referred, included the following at 1039 A-B:-

“There was a special relation in that the officers were entitled to exercise control over boys who to the knowledge of the officers might wish to take their departure and who might well do some damage to property near at hand. The events which are said to have happened could reasonably have been foreseen. The possibility that the property of the company might be damaged was not a remote one. A duty arose. It was a duty owed to the company. It was not a duty to prevent the boys from escaping or from doing damage but a duty to take such care as in all the circumstances was reasonable in the hope of preventing the occurrence of events likely to cause damage to the company.”

25 It is of some significance that, in the passage quoted, Lord Morris of Borth-y-Gest referred to the possibility of escapees doing some damage “to property near at hand”. This particular perspective is repeated in the observations of Lord Diplock in Dorset Yacht at 1070:-

“To give rise to a duty on the part of the custodian owed to a member of the public to take reasonable care to prevent a Borstal trainee from escaping from his custody before completion of the trainee’s sentence there should be some relationship between the custodian and the person to whom the duty is owed which exposes that person to a particular risk of damage in consequence of that escape which is different in its incidence from the general risk of damage from criminal acts of others which he shares with all members of the public.
What distinguishes a Borstal trainee from one who has been duly released from custody is his liability to re-capture and the distinctive added risk which is a reasonably foreseeable consequence of the failure to exercise due care in preventing him from escaping is the likelihood that in order to elude pursuit immediately upon the discovery of his absence, the escaping trainee may steal or appropriate and damage property which is situated in the vicinity of the place of detention from which he has escaped.
I should therefore hold that any duty of a Borstal officer to use reasonable care to prevent a Borstal trainee from escaping from his custody was owed only to persons whom he could reasonably have foreseen had property situate in the vicinity of the place of detention of the detainee which the detainee was likely to steal or to appropriate or damage in the course of eluding immediate pursuit and re-capture.” (Emphasis added).

26 Dorset Yacht was concerned with property damage. The courts have traditionally been more protective of personal injury damage. The issue in this case is whether the liability to persons who may suffer damage of that character should be expressed more widely.

27 This line of authority was considered by Heydon JA in Ashrafi supra. His Honour identified a number of relationships in which a party has a duty to protect another from the criminal conduct of a third. This included the following at [64]:-

“(e) In some circumstances, gaolers owe a duty to take care to prevent prisoners being injured in gaol, for example by fire ( Howard v Jarvis 1958 98 CLR 177), and to prevent persons being injured by the crimes of prisoners, whether they be prisoners who have departed from custody ( Greenwell v Prison Commissioners 1951 101 LJ 486 (theft and malicious damage to property); Thorn v State of Western Australia (1964 WAR 147 at 151 (duty to prisoner’s wife assumed if gaoler knew that prisoner was likely to attack his wife); Dorset Yacht Co Limited v Home Office 1970 AC 1004 (malicious damage to property) or prisoners who injure other prisoners in gaol ( Ellis v Home Office 1953 2 AER 149; (if the gaoler knew or ought to have known of the risk of the Plaintiff being physically attacked); L v Commonwealth of Australia 1976 10 ALR 269)”.

28 His Honour went on to observe with respect to all of the categories he had listed (which included employer/employee, pupil/school, parents/children):

“[65] These exceptions can be tied back to the control criteria which in significant measure underlies the main principle.”

29 I understand His Honour’s reference to the “main principle” to be that identified in Smith v Leurs and in Modbury Triangle that, generally, a person is not liable for the criminal conduct of a third person. His Honour proceeded:-

“[65] The relationship of employer/employee is one in which the law has for a long time been exceptionally solicitous for the employee’s interest, inter alia, because of the control which the employer has over the incidents of the relationship. The relationship of school and pupil is one in which the pupil can be exceptionally vulnerable by reason of youth and inexperience and in which the school has a measure of control. It is inherent in the relationship of bailor and bailee that the bailee has a duty to take reasonable care to keep the goods bailed safe against third parties, including criminal third parties, because the bailee, by reason of its control of the goods, is in the best position to fulfil it. Strangers cannot control the children of others, both parents are supposed to be able to. A gaoler has control over prisoners and “control imports responsibility”; Dorset Yacht Co Limited v Home Office 1970 AC 1004 at 1055 per Lord Pearson.
[66] The High Court made it plain that the “special relationships” do not constitute a closed list of categories; nor are the boundaries of each particular category fixed, because ultimately each category rests on particular circumstances which make it just to impose liability.”

30 In Dorset Yacht, Lord Pearson, in the passage to which Heydon JA made reference confined his observations to the category of persons who suffered loss in the immediate vicinity of the escape. Like Lord Morris of Borth-y-Gest, quoted with approval by Gleeson CJ in Modbury Triangle, Lord Pearson also commenced with the relevant extract from the judgment of Dixon CJ in Smith v Leurs and continued: at 1055 F-G:-

“In my opinion, this case falls under the exception and not the rule, because there was a special relation. The Borstal boys were under the control of the Defendants’ officers and control imports responsibility. The boys’ interference with the boats appears to have been the direct result of the Defendant’s officers failure to exercise proper control and supervision. Problems may arise in other cases as to the responsibility of the Respondent’s officers for actions done by Borstal boys who may have completed their escape from control and are fully at large and acting independently. No such problem faces the Plaintiffs in this case.”

31 There is no authority which recognises a duty of care to the public at large, beyond the immediate vicinity of the gaol from which an escape occurred. Indeed, the possibility that the Home Office could have been held liable for a burglary committed by the escapee Borstal boys at the other end of the United Kingdom has been described as “ludicrous”. (Lamb v Camden London Borough Council [1981] 1 QB 625 647 per Watkins LJ).

32 As Lord Diplock said in Dorset Yacht, in a passage immediately before the passage quoted above in which he confined the duty to persons with property in the immediate vicinity of the escape, at 1070, D-E:-

“The risk of sustaining damage from the tortious acts of criminals is shared by the public at large. It has never been recognised at common law as giving rise to any cause of action against anyone but the criminal himself. It would seem arbitrary and therefore unjust to single out for the special privilege of being able to recover compensation from the authorities responsible for the prevention of crime a person whose property was damaged by the incautious act of a criminal merely because the damage to him happened to be caused by a criminal who had escaped from custody before completion of his sentence instead of by one who had been lawfully released or who had been put on probation or given a suspended sentence or who had never been previously apprehended at all.”

33 After quoting this passage, in an extended form, Lord Keith of Kinkel said in Hill v Chief Constable of West Yorkshire [1989] AC 53 at 62:

“It appears from the passage quoted from the speech of Lord Diplock in the Dorset Yacht case that in his view no liability would rest upon a prison authority, which carelessly allowed the escape of an habitual criminal, for damage which he subsequently caused, not in the course of attempting to make good his getaway to persons at special risk, but in further pursuance of his general criminal career to the person or property of members of the general public”.

34 Dorset Yacht, with its focus on the immediate vicinity of the gaol, may be based on the proposition that a prison authority should be taken to still have control at that point, because the possibility of recapture is at its highest. As quoted above, Gleeson CJ referred to Dorset Yacht as involving liability based on control (Modbury Triangle supra at [21]). If Dorset Yacht does represent the law in Australia, its application should, in my opinion, be confined to the course of the escape, where control is capable of being reasserted by the persons who should have prevented the escape. No such duty has ever been found to encompass conduct hundreds of kilometres from, and months after, an escape.

35 In my opinion, Shaw J erred in his conclusion that there was a line of authority which recognised, as an established category, a duty of a gaoler to persons far removed from the immediate vicinity of an escape. His Honour’s judgement is the first such case. It is, accordingly, necessary to consider the range of considerations which are relevant to determine whether such a duty should be recognised in Australian law.

Foreseeability

36 The “undemanding” nature of the foreseeability test for purposes of duty is well known. Foreseeability is established unless a contingency can be categorised as far fetched or fanciful. I do not see how that can be said of the circumstances before the Court.

37 The Appellant sought to rely on the fact that the offender’s prior escapes were from juvenile detention and that his prior convictions were for break, enter and steal which had not involved the kind of violence involved in an armed robbery. He was, however, and remained, addicted to heroin. His crimes fed this habit.

38 On the issue of foreseeability in this case, neither further offending, nor escalation in criminality, could be dismissed as far fetched or fanciful. On the question of duty, foreseeability was, as his Honour found, well established.

39 But foreseeability alone is not sufficient to establish a duty of care. In Sullivan v Moody (2001) 207 CLR 562 at 567 [42] the High Court stated:

“… the fact that it is foreseeable, in the sense of not being a real and not far-fetched possibility, that a careless act or omission on the part of one person may cause harm to another does not mean that the first person is subject to a legal liability to compensate the second by way of damages for negligence if there is such carelessness, and harm results. If it were otherwise, at least two consequences would follow. First, the law would subject citizens to an intolerable burden of potential liability, and constrain their freedom of action in a gross manner. Secondly, the tort of negligence would subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms. A defendant will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take such care.”

40 Nevertheless, the degree of foreseeability is of significance in the multifaceted inquiry required to determine whether a duty of care exists. There may be a “high degree of foreseeability and predictability” (Modbury Triangle supra at [30] per Gleeson CJ).

41 In this case there was adduced as a body of conflicting, purportedly expert, evidence and statistical evidence about the propensity of escapees to commit crimes and on the propensity of persons with convictions for non violent offences to escalate their criminality. The conflicts in this evidence were not resolved by the trial judge. In any event, I found the evidence distinctly unhelpful.

42 The issues that arise on this evidence concern the size of the risk, i.e. how likely is the behaviour. This is a matter which arises on the question of breach when determining what, in the particular circumstances of the case, the reasonableness standard required. (See Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48). The Appellant, by conceding breach, disenabled itself from raising such qualitative issues in that regard.

43 The evidence relating to this matter is not of a character which is likely to turn on an assessment of the witnesses. Accordingly, it is appropriate for this court to assess the evidence, even in the absence of findings of fact.

44 The statistical evidence does suggest a relatively low level of risk that an escapee will commit offences of violence. Indeed, the Appellant relied on this evidence against the suggestion that the State would incur an intolerable burden if liability of this character were to be recognised.

45 The record of this particular offender suggested that he may commit crimes, including, possibly, armed robbery, after an escape, but again not at a particularly high level of probability given the fact that such would involve an escalation of his criminality. The evidence of the former police officer, even if admissible, does not rise above the level of an opinion that “it would be more probable than not”, that Mr Hoole would commit more serious crimes than housebreaking, including armed robbery. (Blue AP 681).

46 This, and other such evidence does not involve such a high degree of predictability as to constitute a significant factor in determining whether a duty of care exists.

Assumption of Responsibility

47 Shaw J referred (at [62]) to the ‘assumption of responsibility’ of a prison administrator for prisoners. However, that phrase is used in the cases to refer to an assumption of responsibility to take care to prevent injury or harm to others. There was no such ‘assumption of responsibility’ here. The “responsibility” of the Appellant to retain Mr Hoole in custody was a statutory obligation imposed in the public interest. This is a case where this phrase, as deployed, is “imprecise and beguiling but deceptively simple”. (Hill v Van Erp (1997) 188 CLR 159 at 229 per Gummow J referred to, with approval, by Gleeson CJ in Modbury Triangle supra at [25]).

Control

48 That a prison authority has duties within the confines of a prison, where it exercises a high degree of control, can readily be accepted. (See the cases collected by Heydon JA in Ashrafi supra at [64(e)] to which can be added NSW v Napier (2002) NSWCA 402 at [17]-[22] and [75]-[96]). Such a situation is not of the same character as that which arises after an escape where, by definition, the authority no longer has any element of control.

49 Control has been emphasised as a relevant factor in a number of cases (see e.g. Graham Barclay Oysters v Ryan (2002) 211 CLR 540 at [20], [90]-[95] and [149]-[152], Modbury Triangle supra at [19]-[21], [42]-[43], [110-117], Brodie v Singleton Shire Council (2001) 206 CLR 512 at [102]). I do not see that it has any salience in a case of this character, at least beyond the immediate vicinity of the gaol. The general rule about the criminal conduct of others identified in Smith v Leurs and discussed above, is applicable. In substance, this is not a case about the ability to control the conduct of others. This is a case about a duty not to lose control.

50 Shaw J (at [65] quoted above) relied on the idea of a “right to control” as the basis for finding a duty to prevent a prisoner from escaping. His Honour found that terminology in the judgment of Heydon JA in Drakulic supra at [75]. In Drakulic this Court found that an occupier did not have the requisite degree of control to impose a duty of care to prevent criminal acts by intruders. This was so even though the door of the premises could be, but was not, locked. The references in Modbury Triangle which Heydon JA characterised in terms of a “right to control”, were to situations in which such a right was combined with a capacity to assert control. In the paragraph which Heydon JA quoted, Hayne J referred to the “power to assert control” (at [111]), a phrase which Heydon JA specifically picked up in the last sentence of paragraph [75] in Drakulic. In that part of paragraph [111] which Heydon JA quoted, Hayne J said “the gaoler can assert authority over … prisoners”.

51 In the present case, after the escape, there was no capacity to assert control or authority over Mr Hoole.

Extent of Liability

52 A factor of considerable significance in the present case is the extent and indeterminate nature of the liability that may arise in the case of an escapee. Where or when such a person may commit further offences cannot be determined. Nor can the nature of the offences be identified in advance. The duty, it would appear, is owed to the public at large. It would seem to apply to any offences committed. The Appellant contended that the duty extended for the whole of the indeterminate time for which an escapee may be at large.

53 Mr B. Gross QC, who appeared for the Respondent, suggested that considerations of this character are no longer significant in view of the High Court’s rejection of “proximity” as an all embracing identifier of the existence of a duty of care. This misunderstands the basis on which the High Court came to abandon the test which earlier judgments of the Court had adopted. The facts and matters previously considered under the label “proximity” remain material. The extent of liability, and its indeterminate quality, is relevant to the multi-factorial inquiry appropriate when determining novel categories.

54 In order to confine, to some degree, the extent and indeterminate nature of liability, the Respondent restricted its pleading to “suburbs in the region” of what was described as the “Blacktown/Mt Druitt” area of Sydney and to offences of armed robbery. This was based in part on the fact that Mr Hoole’s mother’s home was in Blackett, just north of Mt Druitt. Schofields, where the armed robbery in issue in these proceedings occurred, is a few kilometres north-east of Mt Druitt and even further north-west of Blacktown. Armed robbery was said to be merely an extension of the burglary offences which Hoole had hitherto committed.

55 “Blacktown/Mt Druitt” is an ill-defined area. Even as so confined, it contains hundreds of thousands of people and tens of thousands of houses and businesses which could be a target for a criminal seeking to obtain money. That the scope of liability is potentially so wide is a factor against the imposition of a duty. (See e.g. Agar v Hyde (2000) 201 CLR 552 at [67]; Sullivan v Moody (2000) 207 CLR 562 at [61]; Tame v New South Wales (2002) 211 CLR 317 at [239]). The indeterminate nature of liability is itself an important factor. (Cattanach v Melchior (2003) 199 ALR 131 at [26]).

56 In any event, the evidence did not suggest that the area within which a duty, if any, is owed, could be confined to any particular area.

57 Mr Hoole gave evidence that he lived in the family home at Blackett until the age of ten. Thereafter he was brought up in a refuge in Bidwell, a suburb just north of Blackett (Black AB 43L). He thereafter spent periods in juvenile institutions and in an adult prison. He was, at different times, in gaol at Goulburn, Long Bay, Parramatta, Parklea and Bathurst. During the periods that he was legitimately out of gaol, he did not stay with his parents in Blackett (Black AB 43L). He did, however, drink regularly at the Bidwell pub (AB 43P).

58 The evidence about where he stayed during the period after his escape was that he first went to Liverpool, (Black AB 38B) and thereafter moved from place to place (Black AB 38X-39C). He was recaptured at Casula, far to the south (Black AB 50E). When he was asked about his evidence in the criminal proceedings for the various offences he had committed while on the run, he described the suggestion that he had escaped because his father was ill and his mother was incapacitated as “excuses” he used “to the Court”. “They were just lies”, he said (Black AB 37S). He denied that he visited his family during this period (Black AB 38D).

59 The highest his evidence got in this regard was an acknowledgement that the crimes he committed, in what was described by the questioner as the “Blacktown/Mt Druitt/Parramatta corridor”, were in an area with which, accepting the word suggested by counsel, he was “familiar”, because, he added, “I grew up around there” (Black AB 38T). He knew about the Schofields newsagency because it was close (AB 43X-44B).

60 The factual basis in the evidence for confining the scope of the duty to a particular region was, to say the least, tenuous. Mr Hoole indicated in evidence that his choice of targets was unplanned, even haphazard: “Drive past, see one, do it. There’s no thought that goes into it” (Black AB 53H). The Schofields newsagency was such a drive past (Black AB 53L).

61 Mr Hoole had, at an earlier time, breached a parole and been sent back to gaol. During that time he committed one offence in Bidwell. However, another offence was committed far to the south at The Oaks and other offences were committed significantly to the north, in and around Wilberforce.

62 During the period of his escape he committed a large number of offences. Some were in and around Mt Druitt, others in and around Blacktown and to the north. However, many offences were committed elsewhere (see Blue AB 663): a number in an arc through the Hills district to the east, a number south, in and around Liverpool, others further east around Ryde, one as far east as Brookvale and one as far south-east as Campsie. Most of these offences occurred before the robbery at the Schofields newsagency. Why should a duty be owed in the latter case but not in the case of most of the earlier robberies?

63 Nothing in the body of evidence suggests a principled basis by which the duty to potential targets of criminal behaviour can be confined either in terms of region or kinds of offences. An escaped criminal is likely to commit offences anywhere. It may well be that, in some cases, such offending will occur in and about an area with which that offender is “familiar”, to use the word which counsel put in the mouth of Mr Hoole. That may be enough to satisfy a test of foreseeability. It does not, however, have so high a degree of foreseeability as to assist the Court to confine an otherwise indeterminate duty of care (c/f Sullivan v Moody supra at [63]).

64 There is no suggestion, in this case, of a specific likely target. Neither the Respondent nor the newsagency at Schofields had any kind of prior connection with Mr Hoole. Nor did the Appellant have any kind of knowledge or means of knowledge, that this victim would be targeted. The newsagency was one of many possible targets in Sydney, or a substantial part of Sydney, where offences could occur.

65 This, in my opinion, is an important factor against the imposition of liability in this case. It is by no means clear to me that the geographic extent of liability for the conduct of an escapee from a prison in rural New South Wales can be confined to Sydney, let alone to a part of Sydney with which the escapee can be said to be “familiar”. However, even if so confined, the extent and indeterminate nature of the liability is such that it weighs against the conclusion that a duty to take care is owed to potential victims of crime in such an area for the whole period of an escape, or to any more precisely defined region or time period which would encompass the relevant events.

Vulnerability

66 Vulnerability is an important consideration when determining whether a duty exists. See, for example, the extracts from Perre v Apand Pty Ltd (1997) 198 CLR 180 and Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR1 which I collected in Reynolds v Katoomba RSL All Services Club Ltd (2000) 53 NSWLR 47 at [30]-[43].

67 In the present case, Shaw J emphasised the fact that the victim was “a pregnant woman working in a newsagency”. This formulation identifies the class for duty purposes far too narrowly. Pregnancy is not relevant for this purpose. The class, if any, must be at least as wide as persons susceptible to armed robberies. The awareness on the part of the Appellant of those at risk – what Gleeson CJ called in Perre v Apand at [13] “an ascertainable class of vulnerable persons” – cannot be narrowly confined. There must be an element of special risk.

68 In Hill v Chief Constable supra, the Court was concerned with the failure of the police to apprehend a serial offender. Lord Keith of Kinkel, as I have noted above, distinguished Dorset Yacht, including on vulnerability grounds at 62:

“(The victim) was one of a vast number of the female general public who might be at risk from his activities but was at no special distinctive risk in relation to them, unlike the owners of yachts moored off Brownsea Island in relation to the foreseeable conduct of the Borstal boys. …. (The victim) cannot for this purpose be regarded as a person at special risk simply because she was young and female. Where the class of potential victims of a particular habitual criminal is a large one, the precise size of it cannot in principle affect the issue. All householders are potential victims of an habitual burglar, and all females those of an habitual rapist. The conclusion must be that although there existed reasonable foreseeability of likely harm towards (the victim) if the offender were not identified and apprehended, there is absent from the case any such ingredient or characteristic as led to the liability of the Home Office in the Dorset Yacht case”.

69 As Gleeson CJ put it in Perre v Apand at [11]:

“The degree (and nature) of foreseeability may have an important bearing on whether there is a duty of care”.

70 In the circumstances of this case, the class of vulnerable persons is so large that this matter merges into the issue of extent of liability. The Appellant sought to identify the relevantly ‘vulnerable’ class as those susceptible to armed robbery, many of whom do not have the means of protecting themselves. That may well be so, but the extent of liability in time and place is of particular significance where the ‘vulnerable’ class is so defined. On any view, there were tens of thousands of persons in the class.

Conflict and Coherence

71 There is, of course, no conflict between the statutory obligation of a prison authority to prevent escape of a prisoner and a common law duty expressed in, generally, the same terms. Nevertheless, there may be conflict, or at least tension, between a common law duty of this character and a public duty, or with some aspects of public policy which apply, by way of qualification to, or elaboration of, the statutory obligation.

72 It was tension of this character which Lord Keith of Kinkel had in mind when he said, rejecting the imposition of a proposed duty of care on police to conduct investigations so as to apprehend a criminal who had committed a series of offences:

“In some instances the imposition of liability may lead to the exercise of a function being carried out in a defensive frame of mind”. ( Hill v Chief Constable supra at 631).

73 This is an issue which may arise at the level of duty or at the level of breach. In Wyong v Shirt supra, Mason J referred at 47-48 to “any other conflicting responsibilities which the defendant might have” as one of the considerations which arises when determining what the reasonableness standard requires in the context of the case. This aspect of the matter cannot be pursued in view of the Appellant’s decision not to put breach in issue.

74 The issue arises also on the issue of duty. As the High Court said in Sullivan v Moody supra at [60]:

“The circumstances that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which power or discretion may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties provided they are not irreconcilable …. . But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that a duty exists”.
(See also Cran v New South Wales (2004) NSWCA 92 at [64], [71]).

75 The question of conflict or coherence arises in the present case by reason of the classification system adopted by the Department of Corrective Services in New South Wales. The central concept is the ‘staging down’ principle, by which prisoners are progressively declassified with a view to release into the community. Classification requires the formation of an opinion with respect to matters which overlap substantially with the kinds of considerations which, if a duty to prevent escape was found to exist at common law, would have to be taken into account in determining what reasonableness required in the circumstances of a case.

76 The classifications are:

“Category A1 - those who, in the opinion of the Director-General, represent a special risk to good order and security and should at all times be confined in special facilities within a secure physical barrier that includes towers.
Category A2 - those who, in the opinion of the Director-General, should at all times be confined by a secure physical barrier that includes towers or some other highly secure perimeter structures.
Category B - those who, in the opinion of the Director-General, should at all times be confined by a secure physical barrier.
Category C1 - those who, in the opinion of the Director-General, should be confined by a physical barrier unless in the company of an officer.
Category C2 - those who, in the opinion of the Director-General, need not be confined by a physical barrier at all times but who need some level of supervision.
Category C3 - those who, in the opinion of the Director-General, need not be confined by a physical barrier at all times and who need not be supervised.

77 Plainly, decisions to classify, other than at the highest levels, involve an element of risk. However, as the Nagle Royal Commission, on which the current system is based, observed a level of escapes can be acceptable, when the alternative is a restrictive and repressive regime. The superimposition of a common law duty could distort the penal decision making process by encouraging such decisions to be made, to use Lord Keith of Kinkel’s words, “in a defensive frame of mind”.

78 This would be undesirable because the objectives of the system as set out in the relevant Classification Manual, include the following:

“Nature and Purpose of Classification
1.1 The role of the classification system is to assist in the preparation of each prisoner for his/her earliest proper release, by providing a programme facility which ensures:
(a) that each prisoner is contained at the lowest appropriate level of security;
(b) that each prisoner is afforded a proper level of protection throughout his/her sentence;
(c) that the welfare needs of each prisoner and those of his/her family are satisfied;
(d) that each prisoner is given the opportunity to develop his/her educational and employment potential;
(e) that each prisoner programme is regularly reviewed and updated.”

79 In particular, the ‘staging down’ principle serves a broader public purpose. It is explained in the Manual as follows:

“It could be to the effect that as part of the principle of keeping each prisoner at the lowest appropriate rating, officers or Commissioners reviewing ratings from time to time, notwithstanding that a prisoner had an initial high rating, are justified in recommending a lower rating in appropriate cases, having regard to the development of the prisoner in all relevant respects with the passage of time, to the approach of the time when the prisoner is likely to be released, and to the desirability of preparation of the prisoner for his/her earliest proper release. All of these factors must be viewed in the light of and balanced against the prisoner’s conduct particularly dangerousness, as evidenced by his/her crime and prior history. The likelihood of escape must also be taken into account.”

80 There is tension between the policies reflected in this system and a common law duty. The application of a standard of reasonableness may well import a different range of considerations to those which arise under the ‘staging down’ principle. The uncertainty of litigation will increase the possibility of conflict between the two regimes. The courts should be very slow to import a common law duty in such a context.

Remoteness

81 The Appellant relied, in the alternative, on the proposition that the injury was too remote from the negligent conduct. There is no authoritative exposition of the principle of remoteness. The case law affords no clear guidance on the application of the principle. It may not be possible to do so.

82 The principle may have work to do in the case of a well established category of negligence. If this was such a category then, largely for the reasons given under the heading “Extent of Liability”, I would find the injury in this case too remote in time and place from the negligent conduct.

83 On the basis on which I have proceeded above, namely that this is a novel case, a multifaceted or multifactorial inquiry is required. In such a case, remoteness is best considered as one such factor on the issue of duty.

84 I have discussed these issues under the heading “Extent of Liability”. The Respondent is, in my opinion, so far removed from the negligent conduct that this is a factor which weighs in the balance against the imposition of a duty of the character for which the Respondent contends.

Conclusion

85 In my opinion, the factors which I have discussed above under the headings “Extent of Liability”, “Conflict or Coherence” and “Remoteness”, lead me to conclude that the Appellant owed no duty of care to the Respondents in the circumstances of this case.

86 I propose the following orders:

1. Appeal allowed.

2. Orders of Shaw J set aside.

3. Statement of Claim in the proceedings dismissed.

4. The Respondent to pay the costs of the Appellant before Shaw J

and in this Court.

5. The Respondents to have a certificate under the Suitors’ Fund Act,

if otherwise entitled.

87 SHELLER JA: I agree with Spigelman CJ.

88 McCOLL JA: I also agree with Spigelman CJ.

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Last Modified: 04/14/2004