O'Connor v Geo Group Australia Pty Ltd

[2019] NSWSC 202

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

O’Connor v GEO Group Australia Pty Ltd [2019] NSWSC 202

Hearing dates:

11, 12 and 13 September 2017;12, 13 and 14 December 2017

Date of orders:

05 March 2019

Decision date:

05 March 2019

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1)   There will be a verdict for the plaintiff on the issue of liability;

 

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

 (3)   The balance of the proceedings is listed for directions before the Common Law Registrar on Monday, 18 March 2019 at 9:00 am.

Catchwords:

NEGLIGENCE – liability – duty of care – prison authority – control – reasonableness – supervision – unlawful act of third party – inmate assaulted by other inmates – prison authority aware of potential threat

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D
Crimes (Administration of Sentences) Act 1999 (NSW), ss 10, 11, 23

Cases Cited:

Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
New South Wales v Bujdoso (2005) 227 CLR 1; [2005] HCA 76
Price v State of New South Wales [2011] NSWCA 341
Proprietors of Strata Plan 17226 v Drakulic [2002] NSWCA 381

Category:

Principal judgment

Parties:

Caleb James O’Connor aka Caleb O’Conner (Plaintiff)
GEO Group Australia Pty Ltd (Defendant)

Representation:

Counsel:
R de Meyrick (Plaintiff)
S E McCarthy (Defendant)

  Solicitors:
Shine Lawyers (Plaintiff)
Sparke Helmore (Defendant)

File Number(s):

2015/142422

Publication restriction:

Suppression order in respect of the identity of 'AB'; photographs, CCTV footage and plan of the relevant correctional facility are suppressed

Judgment

1. The plaintiff was on remand awaiting sentence at Parklea Correctional Centre (“Parklea”) when on 23 May 2012 he was viciously assaulted by other inmates, sustaining significant head injuries. He was 31 years old at the time of the attack.

2. He had been found guilty by a jury on 14 May 2012 of a number of offences including sexual assault causing grievous body harm, choke with intent to commit an indictable offence and various break and enter and property offences.

3. On 17 May 2012 information was provided to senior staff at Parklea that inmates had been overheard discussing a plan to attack the plaintiff because the nature of his crimes had recently been found out by those inmates.

4. The plaintiff says that he was not advised of the nature and source of the threat, and that he was required to sign a form preventing his removal to segregation. He pleads that GEO, then private managers of Parklea, took no action to ensure that he was not assaulted, and allowed other prisoners unsupervised and unobserved access to his cell. A number of breaches of duty of care by GEO are specified, including failing to adequately investigate and act on intelligence that its officers had received to the effect that the plaintiff was likely to be assaulted.

5. The attack was a violent one and involved the plaintiff being bashed in the head with an electric sandwich maker. He suffered multiple skull fractures and traumatic brain injury. He sustained an extradural haematoma that required evacuation. He has ongoing neurological difficulties, post traumatic amnesia and right sided weakness.

6. GEO denies that it was negligent, although it admits that it became aware of what it describes in its Defence as “a hearsay rumour that the plaintiff might be the subject of an assault by other unknown prisoner inmates”. GEO denied in its Defence that “such information could legitimately be described or would qualify as intelligence” and so took only certain limited action, the details of which I will return to in some detail later in this judgment.

7. GEO also pleaded that the plaintiff was contributorily negligent in refusing and/or failing to act upon GEO’s offers of protective custody.

8. On 27 November 2015 her Honour Justice Schmidt ordered that the issues of liability and damages be determined separately. Pursuant to that order, the hearing before me was limited to the issue of liability.

Duty of care

9. It is clear that a prison authority is in a special relationship with an inmate under its care; New South Wales v Bujdoso (2005) 227 CLR 1; [2005] HCA 76 at [32] and [45] to [46] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ:

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

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

…

44   It is true that a prison authority, as with any other authority, is under no greater duty than to take reasonable care.  But the content of the duty in relation to a prison and its inmates is obviously different from what it is in the general law-abiding community.  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.  The respondent here did not simply rely upon the notorious fact that prisoners convicted of sexual offences against minors are at greater risk than other offenders:  he proved that the appellant knew that he had been threatened and taunted by other prisoners, on that account, albeit to a somewhat lesser extent at Silverwater Prison than he might have been in the other institutions in which he had been imprisoned. 

45   In the United States, the common law, federal constitutional considerations apart, has long recognized the special situation of prisoners and the obligations of those having their custody. In a leading text on the law of torts it is said, with ample citation of authority:

"An affirmative obligation to use care to control the conduct of others may also be raised by a special relationship between the actor and the person injured. Thus where one stands in loco parentis, or is put in charge of persons under circumstances that deprive them of normal means of self-protection (e.g., prisoners), he must use care to restrain the foreseeable dangerous conduct of third persons that unreasonably threatens his wards."

In §320 of the Restatement of Torts, the reporter for which was Professor Prosser, it is said, with reference to a range of persons, including gaolers :

"One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal power of self-protection or to subject him to association with persons likely to harm him, is under a duty to exercise reasonable care so to control the conduct of third persons as to prevent them from intentionally harming the other or so conducting themselves as to create an unreasonable risk of harm to him, if the actor

(a)   knows or has reason to know that he has the ability to control the conduct of the third persons, and

(b)   knows or should know of the necessity and opportunity for exercising such control."

46   The position in England is well summarized in Halsbury's Laws of England:

"The duty on those responsible for one of Her Majesty's prisons is to take reasonable care for the safety of those who are within, including the prisoners. Actions will lie, for example, where a prisoner sustains injury as a result of the negligence of prison staff ; or at the hands of another prisoner in consequence of the negligent supervision of the prison authorities , with greater care and supervision, to the extent that is reasonable and practicable, being required of a prisoner known to be potentially at greater risk than other prisoners ; or if negligently put to work in conditions damaging to health ; or if inadequately instructed in the use of machinery ; or if injured as a result of defective premises.

The prison authorities also owe a duty of care to members of the public, and an action will lie where property is damaged by prisoners which results from negligence on the part of the authorities, but wide latitude will be allowed the authorities in determining proper ways of dealing with inmates before liability is imposed.”” (Footnotes omitted.)

10. As stated by the Court of Appeal in Price v State of New South Wales [2011] NSWCA 341 at [35], there is no issue about the respondent (in that case the State of New South Wales operating the Parramatta Correctional Centre) owing an inmate a duty of care. Its content must however be considered:

“The custody of Mr Price involved detention and an assumption of control of his person resulting in a duty to exercise reasonable care for his safety during his detention: Howard v Jarvis [1958] HCA 19; 98 CLR 177 at 183 (Dixon CJ, Fullagar J and Taylor J). The relationship is a special one sufficient to include a responsibility to exercise care to prevent harm deliberately and unlawfully inflicted by others: State of New South Wales v Napier [2002] NSWCA 402 at [14]-[21] and cases there cited (Spigelman CJ) and [66]-[83] (Mason P); and see New South Wales v Bujdoso [2005] HCA 76; 227 CLR 1 at 9-10 [32] and 14-15 [45]-[46] (the Court). Critical to the special character for relevant purposes here is the control by the respondent of the appellant and its assumption of responsibility over the appellant. These matters no doubt pervade the whole life and existence of those in prison: most aspects of life, and autonomous existence, are subject to control and direction. These considerations often assume their importance in the responsibility to control the violence of third parties, such as other inmates. These considerations are relevant, however, in recognising the duty no doubt extends to the taking of reasonable care in the exercise of powers of control and direction that exist in order to avoid injury to an inmate.”

11. As discussed by Spigelman CJ in State of New South Wales v Napier [2002] NSWCA 402 at [14] to [21] and following, analysis of vulnerability, control and assumption of responsibility are key and interrelated.

12. Heydon JA (as he then was) in Proprietors of Strata Plan 17226 v Drakulic [2002] NSWCA 381 at [85] observed:

“Where gaolers owe duties to protect prisoners from being injured by the crimes of other prisoners, liability depends on the special vulnerability of the prisoners to be protected, the special knowledge which the authorities have or ought to have of the risks of injury, the assumption of responsibility by the authorities as part of the process of punishment they are administering, and the control which the authorities have”.

13. GEO in its Parklea Correctional Centre Operating Manual Policy No. OP085, titled “Management of Inmates who are Alleged Victims of Inmate on Inmate Assault”, under the heading “Duty of Care” at 4.1.3 recognises this special aspect of its duty of care to inmates where it states:

“As a custodian of inmates, and an employer of staff, Parklea Correctional Centre owes a duty of care to prevent injury to inmates and Staff arising from assaults”.

14. The content of the duty of care pleaded by the plaintiff in his statement of claim was that GEO had to:

“22.   …ensure their [the inmates’] safety, having regard to the presence within the Parklea Correctional Centre of prisoners who, foreseeably, would do grave physical injury to other inmates...”

15. GEO, rather than pleading what it says was the content of its duty of care, responded in its Defence as follows:

“29.   As to whole of the plaintiff’s claim, GEO says that insofar as it owed the plaintiff a duty of reasonable care (the scope and extend (sic) of which are not admitted) it discharged that duty of care in full.

30.   In further answer to whole of the plaintiff’s claim, GEO says that the plaintiff’s claimed injuries, loss or damage do not arise as a consequence of any act or omission on GEO’s part, and the plaintiff is put to strict proof on the issue of causation.”

31.   In further alternative answer to the whole of the plaintiff’s claim, GEO says that the plaintiff’s claimed injuries, loss and damage (which are not admitted) were wholly caused by the independent criminal action of other inmates in respect of which GEO played no part.

16. The plaintiff’s characterisation of the duty of care does not accurately reflect the applicable law, although it does appear to be an effort to reflect the test in s 5B of the Civil Liability Act 2002 (NSW). There is no duty to ensure the safety of an inmate, only to take reasonable steps or precautions. The defendant’s response in its Defence is somewhat prevaricating. Paragraph 31 of the Defence is misplaced as Modbury type considerations have no role to play in prison authority cases.

17. It is clear on the authorities that the relevant duty of care is a duty to take reasonable care to prevent harm deliberately and unlawfully inflicted by others. The issue is whether, in the circumstances here, given the information that became known on 17 May 2012, GEO took reasonable care. That requires detailed consideration of the facts and s 5B of the Civil Liability Act 2002 (NSW).

18. As stated in Price:

“37 Section 5B has now been discussed in many cases. It has been accepted as a statutory expression of the formulation of Mason J (as he then was) in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47-48: see Waverley Council v Ferreira [2005] NSWCA 418 at [45], Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360 at 397-398 [178]-[179] and Harmer v Hare [2011] NSWCA 229 at [209]-[213]. This involves a contextual and balanced assessment of the reasonable response to a foreseeable risk: Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; 234 CLR 330 at 354 [69].”

19. Section 5B provides:

5B   General principles

(1)   A person is not negligent in failing to take precautions against a risk of harm unless:

(a)   the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b)   the risk was not insignificant, and

(c)   in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2)   In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a)   the probability that the harm would occur if care were not taken,

(b)   the likely seriousness of the harm,

(c)   the burden of taking precautions to avoid the risk of harm,

(d)   the social utility of the activity that creates the risk of harm.

20. Sections 5C and 5D are also relevant to consider:

5C Other principles

In proceedings relating to liability for negligence:

(a)   the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b)   the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c)   the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

5D   General principles

(1)   A determination that negligence caused particular harm comprises the following elements:

(a)   that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b)   that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2)   In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3)   If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a)   the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b)   any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4)    For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

Facts

21. The plaintiff was 30 years old when he was arrested and remanded in custody in March 2011 for a series of sexual and personal violence offences as well as arson and other property damage offences. He was transferred to the Metropolitan Remand and Reception Centre, where he was classified as “Unsentenced A2” and so was suitable for placement in any correctional facility with places designated for remand prisoners.

22. After a number of transfers, on 12 March 2012 he was sent to Parklea.

23. On 14 May 2012, after a five day trial before a jury he was found guilty of, amongst other charges:

1. Attempt to choke AF with the intention of enabling himself to commit an indictable offence, namely to intimidate;

2. Sexual intercourse with AF causing actual bodily harm in circumstances of aggravation.

24. On 14 May 2012 he was returned to Parklea to await sentence.

Ms Bidart and Mr Halliwell and the information from AB – 17 May 2012

25. On 17 May 2012 at about 1:20pm, the Nursing Unit Manager at Parklea, Ms Bidart, was told by a sweeper known in the proceedings as “AB” that he had overheard that a group of inmates were planning to bash another inmate named Calum or Caleb because they had found out he was currently on trial for rape. The inmates thought he was in custody for other charges, but had found out what he was in fact in custody for.

26. Ms Bidart contacted the Parklea Operations Manager, Glenn Halliwell. Ms Bidart took the conversation seriously as AB was in her view a trusted person well educated, well-spoken and naive of what was ahead of him whilst in custody. In his statement dated 23 September 2016 and tendered in evidence, Mr Halliwell confirmed that he received the call from Ms Bidart and that although he could not recall the precise words she had used, the key component was to the following effect:

“I have just overheard a conversation from one of the inmates working around the clinic in which it appears that an inmate by the name of either Karl or Caleb or something like that from Unit 2B might be assaulted today at the Industries Section due to his offences”.

27. There is conflict between the recollection of Mr Halliwell and Ms Bidart about their conversation. Ms Bidart’s recollection was that she said:

“Our clinic sweeper AB has overheard a conversation between other inmates that they were going to bash an inmate by the name of Caleb as they’d found out what he was in custody for and that it was going to happen today”.

28. Ms Bidart says that Mr Halliwell told her that he would contact the intelligence manager, Mr Deal, and would talk to the inmate.

28. Immediately after that conversation Mr Halliwell ascertained who the inmate was likely to be, identifying the plaintiff. He ascertained that the plaintiff had been charged with offences that included aggravated sexual assault causing actual bodily harm and choke with intent to intimidate and that the plaintiff was on remand pending sentence. He says that he found this out from the Offender Integrated Management Systems (“OIMS”). He then consulted Mr Deal, and together they walked to the Industries Manager’s office and had the plaintiff called away from the Industries Section where he was then working.

29. Mr Halliwell says that he and Mr Deal had a conversation with the plaintiff to the following effect:

GH:   We have just received some information that suggests that you might be at risk of attack. We do not know at this stage who might be involved in this attack but the suggestion was that it was going to occur today in the Industries Section. Do you have any information that might assist us?

COC:   No way, that cannot be right. I have had no problems at all with any of the guys here. That is not correct.

31. Mr Halliwell says that the plaintiff looked surprised and bemused. Mr Halliwell directed the plaintiff to go to a reception room where he could be kept secure while investigations proceeded.

32. Mr Halliwell then spoke to Ms Bidart again. There was a further conversation to this effect:

GH:   We have identified the inmate as being Caleb O’Connor from Unit 2B. I have told him all that we know so far. He seemed quite surprised to hear it. Can you identify the inmate from whom you heard the information as I will need to speak to him individually to try and find out what all this is about?

DB:   The information came from AB who works around here as a sweeper. As I heard it, some of the other inmates didn’t like the nature of the charges against O’Connor and there was a suggestion that he could be attacked today in the Industries Section.

33. Mr Halliwell was not able to speak to AB that day so Mr Halliwell left the interview with AB until the following day.

34. In the meantime Mr Deal conducted an interview with the plaintiff. Mr Halliwell says that he was subsequently informed by Mr Deal about features of that interview. Mr Halliwell was not present for the interview.

35. Nothing in the statement of Mr Halliwell, or in his oral evidence, indicates that Mr Halliwell told the plaintiff that the reason an attack may take place was because other inmates had found out, and did not like, the nature of the plaintiff’s crimes for which he had just been convicted three days earlier.

36. Mr Halliwell says that steps were taken to ensure the Industries Section muster and lock-in was carefully surveilled. A search for “available intelligence materials” was made to see what could be found about the plaintiff but Mr Halliwell says that there was “no other information or intelligence available to support or contradict the initial information provided by Ms Bidart.”

37. A report by Mr Halliwell to Peter Ma’a, General Manager of Parklea, dated 17 May 2012 sets out the action taken and concludes:

“O’Connor had been working in the metal shop since approximately 07:40 am this morning without incident. The information provided indicated the assault was to occur in Industries and there had been approximately six hours prior to the information coming to our attention where this could have occurred.

Based on the above and combined with the knowledge of Industries muster was undertaken at normal time, completed without incident and with no indication of suspicious behaviour by any inmates and the lock-in muster for area 2B was also completed without incident, there was no other information or intelligence available to support the information provided.

As it is acknowledged the offences O’Connor is charged with increases the risk of being targeted by other inmates it is recommended this situation be monitored by Parklea Intelligence Unit through normal intelligence routines and should any further information become known to support the original claims appropriate action will be taken.” (Emphasis added.)

Mr Peter Ma’a – General Manager

38. Mr Ma’a was the person with authority to change the categorisation of the plaintiff’s accommodation. His statement dated September 2016 and tendered as his evidence in chief, is expressed in generalities rather than what his decision making was in relation to the plaintiff. Although Mr Ma’a gave evidence and was cross-examined, he did not address at all whether or when he saw Mr Halliwell’s report of 17 May 2012 although the report is addressed to him, or what action was discussed with him or he personally took or recommended should be taken in response, if any. There was nothing addressing this issue in his statement, which was confined to generalities about staffing, wing activities and timetabling, the role of segregation and protection and his understanding of usual practice based on his 30 years’ experience, including 12 years as a General Manager or its equivalent.

39. Mr Ma’a said that protective custody tends to have a stigma attached as it is often required for paedophiles, informants or ex-police officers. He says that segregation does not have the same stigma as protection, but usually segregation is a consequence of some form of offending in custody. He described it as a placement option imposed to ensure the good order and discipline of the centre, and one that is usually associated with curtailment of special programs, work and usual visiting privileges.

40. He was of the view that the nature of the plaintiff’s charges would not “of itself single the plaintiff out as a likely automatic target for inmate on inmate violence”, but he does not address why he did not respond to Mr Halliwell’s note in his report to Mr Ma’a that Mr Halliwell felt that the offences the plaintiff was charged with increased his risk of being targeted.

41. Mr Ma’a said that Unit 2B housed inmates of the general prison population who were not subject to segregation or protection or non-association orders or special placements. He said Unit 2B had four sub-units and was staffed by seven correctional officers including four officers, a manager, a supervisor and a rover. At the time of the assault, the unit was not in lock down and inmates could and did socialise and it was not unusual to have groups of inmates playing cards or watching television together in an inmate’s cell as prosocial normalising behaviour is encouraged.

42. Mr Ma'a addressed his powers under s 11 of the Crimes (Administration of Sentences) Act 1999 (NSW), to unilaterally mandate the protective custody of an inmate where in his opinion an inmate is perceived to be at risk. Sections 10 and 11 of that Act state:

10   Segregated custody of inmates

(1)  The Commissioner may direct that an inmate be held in segregated custody if of the opinion that such segregation is necessary to secure:

(a)  the personal safety of any other person, or

(b)  the security of a correctional centre, or

(c)  good order and discipline within a correctional centre.

(2)  The governor of a correctional centre may exercise the Commissioner’s functions under this section in relation to the correctional centre and, on each occasion he or she does so, must notify the Commissioner of that fact and of the grounds on which the segregated custody direction was given.

(3)  A segregated custody direction given by the governor of a correctional centre does not apply in relation to any other correctional centre.

(4)  Subsection (3) is subject to section 15.

11   Protective custody of inmates

(1)  The Commissioner may direct that an inmate be held in protective custody if of the opinion that the association of the inmate with other inmates constitutes or is likely to constitute a threat to the personal safety of the inmate.

(2)  The Commissioner may also direct that an inmate be held in protective custody if the inmate requests the Commissioner in writing to do so.

(3)  The governor of a correctional centre may exercise the Commissioner’s functions under this section in relation to the correctional centre and, on each occasion he or she does so, must notify the Commissioner of that fact and of the grounds on which the protective custody direction was given.

(4)  A protective custody direction given by the governor of a correctional centre does not apply in relation to any other correctional centre.

(5)  Subsection (4) is subject to section 15.

43. Mr Ma’a says that the relevant policy covering these matters is OP061 paras 5.1 and 5.3, and that he is required, when he has occasion to consider this type of action, to have regard to whether the inmate’s continued association with other inmates is likely to constitute a threat by reference to the personal safety of any other person, the security of Parklea as a whole or the good order and discipline of Parklea. As I have already observed there is no evidence at all that he went through these considerations regarding the plaintiff’s position and the information set out in Mr Halliwell’s report.

44. Mr Ma’a confirmed in cross-examination that nothing had been disseminated back to the officers on the wing about the plaintiff between the report on 17 May 2012 and the time he was assaulted. He, like Mr Deal and Mr Halliwell, seemed to place a large degree of reliance on the absence of any incidents in the past whilst in custody and the absence of any threats at other facilities prior to the plaintiff’s transfer to Parklea.

45. Unfortunately, like Mr Deal and Mr Halliwell, Mr Ma’a seemed distracted about the distinction between “information” and “intelligence” and so the categorisation of this in the intelligence system, rather than focusing on the context and content of the information. The context was that the threat came to light only three days after the plaintiff’s conviction for violent sexual offending after a jury trial. The content was that an overheard conversation that stated the reason for the attack was, in effect, the new knowledge, that the plaintiff’s crimes were different from what the inmates had initially thought, the clear inference being that the inmates now viewed the plaintiff as a target.

46. It is in my view largely immaterial that Mr Ma’a was of the view that usually this type of disapproval or targeting is reserved for sexual offending towards children. The point is the information available had the reasoning behind it that the nature of the plaintiff’s offending was thought by inmates to be an issue. The operations manager Mr Halliwell acknowledged in writing that the offences the plaintiff was charged with increased the risk of him being targeted. Also relevant to this consideration is the opening paragraphs of the report where Mr Halliwell says that when he received the information he:

“Reviewed the industries work sheet for Thursday 17 May which identified the possible person of interest… whose charges included Agg SA (sexual assault) – inflict ABH on victim”. (Emphasis added).

Mr Deal

47. Mr Deal (Intelligence Manager) says that he recalls being approached by Mr Halliwell about the information. He says that it was determined that the inmate in question was most likely to be the plaintiff. His report to Mr Ma’a dated 25 May 2012, two days after the assault, and the only report he prepared about the information and his actions, records that he had a conversation with the plaintiff to the effect that they had just come into possession of some information indicating that he may be the subject of an attack and that the plaintiff said that cannot be correct because he has had no problems at all whilst he had been inside.

48. The interview between Mr Deal and the plaintiff focused on whether the plaintiff had been threatened with physical harm by other inmates, and whether he noticed any change in behaviour in the way the other inmates had been relating to him. There had been no change that the plaintiff had seen and nothing had been said to him. The plaintiff was to notify him if he had any problems. Mr Deal handed the plaintiff an Inmate Request Form and asked him to complete the document. Mr Deal says that he then completed the “comments” section and countersigned the form.

49. The Inmate Request Form tendered does not have any section titled “comments”. It does include an area headed “Decision”, and in that box the following is recorded “intel will monitor movements each morning, inmate instructed to contact staff if any concern at all”. It is then signed by Mr Deal.

50. The details of the “Inmate Request” on the document is recorded as “I do not have any concerns about my safety and do not wish to move”. In cross-examination Mr Deal conceded that he could have unilaterally made a decision to move the plaintiff onto SMAP (Special Management Area Placement) or segregation without the plaintiff’s approval (T142.14-28). He also conceded that the fact that the plaintiff was tall and muscular and gave the impression that he could physically look after himself, influenced his decision about whether he should be moved (T144.24-27).

Plaintiff’s evidence

51. A short statement by the plaintiff was tendered in which he said that he recalled that before the assault he was met by some officers at Parklea and escorted to a nearby office near the lunch room in the metal shop and was asked the following questions:

Question: “Has anyone threatened you? Do you feel safe?”

Plaintiff’s reply: “No, I feel safe”.

Question: “Do you want to be moved?”

Plaintiff’s reply: “No”.

The next thing he recalls is being escorted to a reception cell in the reception area and waiting for a long time, and that then one of the officers came into the cell with a form to sign. He does not recall the conversation that occurred, but he recalls that he was required to sign the form so that he could return to his cell.

52. He says that he signed and wrote on the form as required and was then escorted back to his cell and that it was dark by the time he was escorted back to his cell. He also conceded frankly that he could not be 100% sure of what was said and couldn’t remember the actual details of the conversation, although he did remember telling them that he did not want to move.

Mr Deal’s subsequent report and action

53. Mr Deal prepared an Officer Report form on 25 May 2012, two days after the assault. In that Report the conversation he had with the plaintiff is described as follows:

“I asked inmate O’CONNER [sic] if he had ever been threatened or spoken to by any inmate in regards to any threat or form of physical harm whilst at Parklea Correctional Centre.

O’CONNER [sic] stated that he had been in custody for 16 months and had been at Parklea for two months and has never had a drama. O’CONNER [sic] further stated that he was not going to go anywhere and was safe here as he has been here for two months.

It was at this time I provided inmate O’CONNER [sic] an inmate request form to which he provided a written statement stating “I do not have any concerns about my safety and do not wish to move” signed and dated 17/05/2012.

I again explained to inmate O’CONNOR that if he had any concerns what so ever he was to contact any staff member to which he replies “I have no problems”.”

54. Mr Deal then goes on to say “at this time the only information was that O’Conner was at risk in the industry area on the day of 17/05/2012”.

55. Mr Deal says that the plaintiff was escorted back to his cell after lock down for the evening. He says that the General Manager was informed of the information, but he does not state how, when or by what means that occurred, or what Mr Ma’a’s response was, if any.

56. Mr Deal recorded that there was a search for Officer’s Reports and IRM’s for the intervening weekend and that there were no unusual occurrences relating to the plaintiff recorded. He says that Mr Halliwell “briefed him in regards to the conversation he had with the human source, with no further information provided”, however he did not recall what was said to him by Mr Halliwell about that.

Mr Halliwell’s discussion with the source, AB, on 18 May 2012

57. Mr Halliwell had a discussion with AB at about 2.15pm on 18 May 2012 (as recorded in Mr Halliwell’s second report dated 24 May 2012). In Mr Halliwell’s 24 May 2012 report AB is noted to have not given any information identifying specific inmates that were to be involved, describing it as just “pigeon yard talk of something happening.”

58. Mr Halliwell’s report about this further conversation with AB was prepared and submitted only after the plaintiff’s assault. It seems from this report – and the apparent misunderstanding in the 17 May 2012 report – that it was not until later on 17 May 2012 that Mr Halliwell understood that it was not Ms Bidart who had overheard the conversation, but that she had been told about it by a concerned inmate who had overheard the conversation, AB, the clinic sweeper. This means that neither Mr Halliwell nor Mr Deal, when they spoke to the plaintiff, had understood accurately the source of the information and so had not questioned it further but instead, it seems, focused on trying to find out what the plaintiff knew and proceeded on an assumption that the attack would only take place in Industries on that day, rather than really examining the nature of and reason for the threat.

What was the plaintiff told?

59. Nowhere in the documents prepared contemporaneously is there any mention of the plaintiff being told that the reason overheard for the threat of assault was because other inmates had become aware of the nature of his charges for which he had, on 14 May 2012, been convicted.

60. The plaintiff gave some limited evidence and was briefly cross-examined. He confirmed that he did not feel at the time that there were any problems and he did not feel threatened or unsafe. He confirmed in answer to a question asked by counsel for GEO that he was quite a muscular man at the time of the assault and was about 190 cms tall. The implication of this question seemed to be that because the plaintiff was a big fit man, he was unlikely to be assaulted, or “could look after himself”. Either assumption is unwise and unjustified in the context of the information disclosed.

61. The plaintiff did not recall being asked whether he noticed any changes in the way other inmates had been relating to him, but he candidly admitted that he felt that he could not remember 100% of the detail of the conversation.

62. In answer to a question suggesting that he would have been upset if someone at Parklea had required him to move to another correctional facility even if he did not want to, the plaintiff said:

“I would have been upset though if I was informed that I was getting to get beat up and get hurt, then I would have accepted that, to move”.

63. In re-examination the plaintiff said that he did not ask for the Inmate Request Form and that he could not remember how he came to choose the words that were written under the heading “Details of Inmate Request” on the form.

Conclusion regarding what the plaintiff was told by GEO staff

64. Mr Halliwell’s evidence went no higher than a belief that “he would have” told the plaintiff that the reason behind the overheard planned assault was that the inmates had become aware of his crimes. Mr Halliwell conceded that there was nothing in his report or his statement about that.

65. In my view, Mr Halliwell was frank and truthful. He would not state, as a matter of fact, that he had conveyed that information to the plaintiff. I reject the submission of counsel for the defendant that ‘Mr Halliwell was adamant he had conveyed it to the plaintiff” ([33] Defendants written submissions) citing T96-7 in support of this submission. Nowhere on those pages did Mr Halliwell say he had conveyed it. All he said is he “believed he would have”. When the distinction between recollection and belief was drawn to his attention, no further answer changing his position was volunteered and the issue was not returned to in re-examination.

64. I am of the opinion that Mr Deal also gave frank and truthful evidence. When he spoke to the plaintiff, he had only been briefed that there was a possible risk from an assault. He had no detail about the basis of the information, or from whom it had originated. He was asked during evidence in chief, “What did you tell O’Connor the information was?”, and he answered, “That he could be possibly at risk. That was it” (T149.24-37).

65. I do not accept that Mr Halliwell or Mr Deal or any other employee or agent of GEO told the plaintiff of the reasons stated to be behind the overheard planned assault. I conclude that he was not informed that the reason for the planned assault was the nature of his crimes becoming known by other inmates, and so he was deprived of the opportunity of understanding this change in his circumstances, and the effect this could, and according to what had been overhead by AB, did, have on other inmates’ attitudes to him. Despite Mr Halliwell noting in his report of 17 May 2012 that “it is acknowledged the offences O’Connor is charged with increases the risk of being targeted by other inmates…”, that increased risk seems not to have been properly taken into account in the steps taken, and the increased risk was not conveyed to the plaintiff to assist him in making a decision as to whether he ought to agree to or request to be segregated or transferred to another correctional facility for his safety.

The assault – 23 May 2012

68. The plaintiff was housed in cell number 40 in Unit 2B at Parklea. Cell number 40 was one of 16 cells along a corridor that was monitored by a CCTV camera with coverage lengthways down the corridor. At about 1.28pm the plaintiff entered his cell and closed the door. CCTV footage tendered shows that at about 1.40pm the cell doors of cell numbers 31 and 42 were left open at a 90 degree angle to the wall, effectively blocking CCTV camera vision down the corridor. The footage – about eight minutes in length – shows various inmates coming and going but leaving the doors in position. It is common ground that this was a period of “let go” where inmates were free to socialise and circulate in the wing, including participating in “buy-ups”.

69. The assault happened inside the plaintiff’s cell some time between 1.41pm and 1.48pm. It is common ground that it involved three now known assailants (who had initially been named as defendants in these proceedings) and that the plaintiff was bashed in the head with an electric sandwich maker. It is evident from the CCTV footage that no uniformed staff entered or exited that part of Unit 2B between 1.40pm and 1.48pm. At 1.48pm a staff member is shown on the CCTV footage carrying a piece of paper. She says in her statement that at that time she discovered the plaintiff injured on the floor of his cell.

Expert Evidence

70. The question of the adequacy or otherwise of the steps taken is significantly informed by the opinions of the experts. The plaintiff and the defendant each retained one expert. The expert for the plaintiff was Lee Downes. Ms Downes has had 34 years of experience in corrective services reaching the rank of Deputy Superintendent Security Manager and Superintendent (General Manager). She had experience managing private correctional facilities including a senior role in supervising and overseeing various private correctional facilities in New South Wales. Ms Downes had also worked for Corrective Services NSW in the role of Assistant Commissioner, overseeing security and intelligence.

71. The defendant retained Colin Kelaher. He has a similar level of experience and expertise to Ms Downes. In his CV Mr Kelaher referred to over 30 years of experience in corrective services, including a number of senior roles for Corrective Services New South Wales, up to the role of Governor. From 1999 to 2001 he was employed by GEO as the General Manager of the Junee Correctional Facility. From 2001 to 2006, he was the Executive General Manager of Operations for GEO. In 2006 to 2013 he returned to Corrective Services NSW and performed at the rank of Assistant Commissioner.

72. No issue was raised by counsel for the plaintiff as to Mr Kelaher’s objectivity, despite having had approximately seven years in the employ of the defendant. Twice in his evidence, when giving answers as to what the defendant should have done, Mr Kelaher used the term “we” when discussing actions of GEO staff. This was an unfortunate slip and one that betrayed perhaps a slight tendency to identify with the defendant however I consider that both experts have approached their tasks with care, professionalism and sufficient objectivity and my conclusions in respect of their opinions are not tainted by Mr Kelaher having been a former employee of the defendant.

(i) Ms Downes’ reports

73. Ms Downes prepared three reports. The first was dated 7 July 2016. The second report dated 20 March 2017 was a supplementary report taking into account the statements of the defendant that had been served. The third report, dated 30 March 2017, was a response to Mr Kelaher’s report of 26 September 2016.

74. Ms Downes took no issue regarding the plaintiff’s initial classification or placement but took the view that the response to the information provided on 17 May 2012 was inadequate and failed to address the potential risks to the plaintiff. First, Ms Downes said there was inadequate questioning of Ms Bidart and so potential detail was not obtained at the first opportunity. Second, unnecessary attention was drawn to the plaintiff by him being interviewed in the Industries manager’s office which may have led other inmates to consider that he was informing. Third, there was a flawed assessment of the risk, in the failure to turn minds to the risk that the threat may be carried out somewhere other than in the Industries Section, and the plan by Mr Halliwell that the information simply be monitored through normal channels was inconsistent with his opinion set out in his report that the plaintiff was at increased risk of attack because of his crimes.

75. Given those circumstances, Ms Downes was of the view that the plaintiff should have been segregated and transferred for his own protection, which would not have any stigma attached given he was a remand prisoner and could quite easily be shifted. Alternatively he could have been placed into protection – the negatives of that status being outweighed by the advantage of keeping him safe from assault.

76. Ms Downes said that the form completed by the plaintiff was irrelevant because the staff were the ones with responsibility to properly manage the risks associated with the threat they had been told about, and to properly explain options to him, including the basis of the threat.

77. A fourth area of criticism was that Mr Halliwell’s advice to the General Manager Mr Ma’a breached GEO’s own policies OP061 “Segregation and Protection” and OP085 “Management of Inmates who are Alleged Victims of Inmate on Inmate assault”.

78. OP061 was agreed in the joint report to be the relevant operational procedure. Section 5.5.1 of that policy states that an inmate who is under threat because they are considered under threat from another inmate/s, must be separated from possible contact with other inmates.

79. OP085 states that as a preventative action, “any inmate that has been identified as …at risk from other inmates at Parklea CC must be separated immediately and housed in Segregation on a Non-Association order, until a suitable placement and management option can be formulated and actioned… A review of placement and classification is to be completed as soon as is practicable for the inmate to be relocated to a Centre that can provide safer housing.”

80. Fifth, Ms Downes is critical of the supervision in the wing at the time of the attack. She observed that the CCTV footage of the plaintiff’s area identified on the footage commencing at 13:40:26 showed doors being deliberately left perpendicular to obscure activity from the CCTV camera. Ms Downes says that it was quite obvious that this was deliberate. This visual obstruction was in place for almost nine minutes. Officers supervising the area should have noticed. The fact that they did not, indicates that the supervision was inadequate. Ms Downes also noted that according to the documents setting out assignment of wing duties, there was a need for staff to supervise “buy-ups” that were timetabled to take place between 12.30pm and 1.30pm, so wing staff may well have been distracted by that task.

81. Ms Downes points out that there is documentation that there was a wing check at 1:30pm which should have included a check of the corridors and cells and bathrooms, however the CCTV footage does not bear out that was done, (I note however that given that timing, I do not conclude this has any bearing on the matters I need to determine, as the perpetrators may well have waited until the wing check was finished and timed the attack just after that time).

82. According to CCTV footage, the first officer who attended the area after the attack was at 1:48pm. That officer said in her statement that she was looking for an inmate to sign a form, not that that she was on designated patrol in that wing.

83. Ms Downes makes the point that CCTV is not what prevents assaults, but officers being aware of what is happening and properly being alert to the risks. The issue here Ms Downes says is that inadequate supervision created that opportunity for assault when there was no arrangement for real time CCTV viewing.

84. In her first supplementary report, Ms Downes pointed out that Ms Bidart in her statement made it clear that she trusted that the informant was reliable. Ms Downes pointed out that Mr Halliwell’s response was not logical because once the plaintiff had been removed from Industries, there would be no need to have increased supervision and observation of muster when the plaintiff was kept elsewhere. Ms Downes also emphasised that the focus on the information not being raised to the status of intelligence was illogical and the threat should have been passed on to staff to aid them to fulfil their responsibility for the safety and security of the plaintiff.

85. Ms Downes is critical of Mr Deal’s involvement as Intelligence Manager because he was distracted by the distinction, (a false one in her view), between the information conveyed being classified “information” as opposed to “intelligence”. Ms Downes said that Mr Deal should have questioned the plaintiff about what he knew about whether the inmates knew of his crimes and what they knew about his crimes.

86. Ms Downes said that the apparent assessment by Mr Deal of the plaintiff’s capacity to look after himself because of his size and strength was an irrelevant consideration and should not have been taken into account at all.

87. Ms Downes says that Mr Deal did not appropriately assess the information because the possibility that the attack would occur outside the Industries area seems not to have been considered, despite Ms Bidart in paragraphs five and eight of her statement saying nothing about the attack necessarily occurring in the Industries section.

88. There is no explanation as to how informing K9 staff would have assisted, given there was no information regarding where they would be located and how their knowing of the threat would assist in the protection of the plaintiff. Ms Downes also says that Mr Deal should have passed the information on to central intelligence – although how that would have prevented the assault is not specified. Ms Downes concluded that reasonable care required that the plaintiff be moved and whilst it is true that an inmate can appeal any unilateral decision, it does not matter if it is necessary for his protection.

89. Ms Downes observed that whilst Mr Ma’a’s statement talks about staff being assigned to Unit 2B on the afternoon of the assault, there is no information in Mr Ma’a’s statement about where they were and how it was that during that almost nine minute period, no staff member was in that part of the wing as observed in the CCTV footage.

90. In her final report Ms Downes responds to issue taken by Mr Kelaher about her view, in particular regarding the role of ss 11(3) and (5) of the Crimes (Administration of Sentences) Act 1999. Housing in segregation on a non-association order is an interim measure until the review of placements and classification is completed so that the inmate may be transferred to another correctional centre where no threat exists, and he can there be managed in normal discipline.

(ii) Mr Kelaher’s reports

91. Mr Kelaher, in his first report dated 26 September 2016, focused significantly on the distinction between information and intelligence. He pointed out that CCTV is randomly fed to the control room and it is unrealistic to expect that each wing’s CCTV footage would be viewed in real time by a correctional officer. Even if it was, it was unlikely that the footage would have been seen in sufficient time for intervention to have occurred.

92. Mr Kelaher placed emphasis on the problems associated with being placed on protection, namely that it interferes with work visits and can have a stigma attached that the person is a “dog” or informer or a paedophile, but the plaintiff’s sexual offending did not involve a child and he was not an informer, so that would be unfair to the plaintiff.

93. Mr Kelaher also placed great emphasis on concerns that unsubstantiated information and misinformation can be unreliable and cause management issues if all of it is acted upon.

94. Mr Kelaher said that the intelligence manager (in this case Mr Deal) had a responsibility to “investigate and interview the relevant people”. I pause here to observe that Mr Deal did not interview AB at all. He only interviewed the plaintiff and did so at a time when AB had not been interviewed by Mr Halliwell. The result of this is that the information Mr Deal conveyed to the plaintiff about the threat was incomplete, although Mr Halliwell at least did interview AB the following day and no other specific information about the overheard attack plans was obtained.

95. Mr Kelaher said that using the “alert system” in OIMS or transferring the plaintiff to another facility should only be used in circumstances where the threat “became substantiated and judged to be a real risk.” Until then, there should be no transfer. In his view the information did not meet that threshold.

96. Mr Kelaher also observed that “buy-ups” on his instructions were performed by a contractor and so there is no reason why wing staff would be distracted with this task. I can therefore put that issue to one side and I do so.

97. In that part of his report where he deals with the reports of Ms Downes, Mr Kelaher says again that the threat was only to the level of “information”. Reliance was placed by Mr Kelaher on the plaintiff not having fears for his own safety.

98. Mr Kelaher said that an entry into the wing logbook “may increase any risk to the inmate” or create new risks. The basis of this is not lucidly explained, but seems to stem from a risk that an officer may use the information and stir up trouble by flat-footed inquiries creating further difficulties for the plaintiff as a result.

99. Mr Kelaher made the point that the interview with the plaintiff in the Industries Section did not increase risk because the physical layout of the place where he was called to did not involve the interview being able to be seen by other inmates and the calling of his name over the loudspeaker would not necessarily draw negative attention to him as this methodology is adopted when inmates are required for legal visits and similar matters. I accept that part of his analysis and opinion.

100. Overall, in answer to the assertion by Ms Downes that the plaintiff should have been transferred, Mr Kelaher repeated that because the information did not rise to the level of intelligence, there was no basis for transfer of the plaintiff.

101. There are some problems with Mr Kelaher’s report in that he has made some incorrect assumptions. He assumed that it was Ms Bidart who overheard the conversation, whereas in fact she was told about the conversation by AB. This means that Mr Kelaher’s assessment of the adequacy of the first day’s response is based on a misunderstanding of the facts.

102. Mr Kelaher also incorrectly assumed that the plaintiff is the one who said that the threat of assault was “just pigeon yard talk”. This is very important because it is the plaintiff’s case that he was not told anything about the specifics of what had been overheard and how the information came to Mr Halliwell and Mr Deal’s attention. In fact the person who used the term “pigeon yard talk” was AB, who was only interviewed by Mr Halliwell the day after the plaintiff’s interview with Mr Halliwell and Mr Deal.

103. Mr Kelaher’s supplementary report dated 17 November 2017 is largely argumentative, reiterating the views he already stated in his first report. He closed the report with this observation:

“He was a large man with a history of committing assault on others and I understand he was not new to the correctional system. In other words, he knew how the system operates and was aware of his decision to refuse protection or removal from the facility.”

(iii) The Joint Expert Report

104. A joint report was produced on 20 November 2017. There were some important areas of agreement. Both experts agreed that it was essential that the informant be interviewed and that the inmate should have been advised of “the nature of the threat and the basis on which it was made”. This was explored further (T264) because it seemed that the experts had a different understanding as to what this meant.

105. Mr Kelaher said that what he meant by the “nature of the threat” was who it came from and how it was being made, and the “basis on which it was made” was just a description of how the information came to hand, that is that it had come from other inmates who had been overheard. Ms Downes however interpreted the “nature of the threat” as the threat that somebody was going to beat the plaintiff up and that the “basis on which it was made” was the nature of his offences. Later in joint evidence, in answer to questions about whether the reason stated to be behind the overheard threat to bash the plaintiff was information about the plaintiff’s crimes, Mr Kelaher agreed that a reasonable correctional facility should have informed the plaintiff about that.

106. It was agreed by both experts that the plaintiff should have been interviewed and senior staff should have been notified, particularly the officer in charge of Industries.

107. It was agreed that if staff were watching the CCTV and saw the doors placed in the way they were on the day of the assault, there should have been immediate notification to the officers in the wing and the central room officer.

108. Both experts agreed that it was necessary for the intelligence officer to “assess and validate” the information.

109. Both experts agreed that the CCTV monitoring system in place was reasonable, and in respect of staffing levels in Unit 2B, even given the information made known on 17 May 2012, there was no need to increase staffing above the normal number of rostered staff, but Ms Downes was of the view that the officers working in the area should have been notified of the potential threat to the plaintiff’s safety so that they could be alert for signs of trouble.

110. There was divergence on the issue of the response that should have been made to the 17 May 2012 information and what steps should have been taken. Mr Kelaher took the view that given the “limited information” and the “denial” by the plaintiff of any need for protection, all that should have happened is that key senior staff should have been told to closely monitor the situation.

111. Ms Downes however emphasised that it was important that the plaintiff be informed of the basis of the threat being that the nature of his crimes had become known, and options for ongoing management should have been discussed, including change of location and change of worksite, as well as transfer to another centre and protection. If the plaintiff was unwilling to go into segregation having been given all the relevant information, he could still be ordered to go pursuant to the powers that the general manager held. Another step that should have been taken was that wing staff should have been told about the threat by briefing or notation in the communication logbook or by OIMS alert.

104. The key point of division between the experts was whether it was reasonable to “force” protective custody, segregation or transfer, Mr Kelaher saying that it was reasonable not to do so and Ms Downes saying it was unreasonable not to do so. I hasten to add that there may well have been no need to “force” protective custody if the plaintiff had had explained to him the basis of the threat was that inmates had found out his crimes were different to the ones that they thought he was in custody for, that a discussion about him being bashed as a result had been overheard, and that Mr Halliwell was concerned that the plaintiff’s offences did in fact increase his risk of attack, as set out in his 17 May 2012 report to Mr Ma’a.

105. In response to the question “What steps, if any, should a reasonable correctional authority in the position of the defendant have taken to disseminate the information that it received on 17 May 2012 to other correctional staff and what means should it have used to so disseminate”, Mr Kelaher offered the view that given the “limited and unsubstantiated information” it would (nevertheless) be prudent to notify the appropriate senior staff (although he does not specify who that would comprise), although it would “include” the general manager, security manager and the officer in charge of the Industries Section to provide heightened surveillance of the plaintiff. This suggests that the information must have been thought to be sufficiently reliable and important for senior staff to be told about it.

106. The position articulated in the expert reports was generally maintained in their oral evidence with a few concessions and additions. Mr Kelaher agreed that it was quite common for prisoners to be targeted if inmates develop a disdain for the nature of another inmates offences.

107. Mr Kelaher said that in his view OP085 did not apply to the plaintiff:

“Because the information was very scant, it was second hand and given his history in the facility and his history in detention, some 16 month without any other threat to his well-being, and his adamant rejection of any need for protection, we considered the inmates request, or they considered the inmates request, and let him continue in the present custody arrangements.” (T176.13-18)

116. In my view, there are a number of problems with this answer apart from the infelicitous use of the pronoun “we”. The information was not “very scant”, it was indeed quite specific. It may have been second hand, but it was overheard by someone trustworthy who quickly and responsibly reported it. The fact that the plaintiff had been in custody without incident and thought he did not need protection is irrelevant where the basis for the planned assault was made so clear – i.e. it had been found out what he was in custody for and it was different to what the inmates had previously thought. A sensible analysis of the situation should have worked this into the plan of action given the timing of the threat (three days his after conviction), and the nature of the risk.

117. Ms Downes is of the view that OP085 mandated further action and that action should have been looking for a change in the placement of the prisoner. I accept her opinion and the reasoning for it. Regardless of whether OP085 mandated the action, reasonable care in the circumstances required it.

118. In dealing with the issue of whether there should have been an entry in the OIMS, Mr Kelaher thought there were too many rumours that are perpetuated in correctional centres to justify alerts for everything and “if it was a credible threat, we probably would have made other arrangements to separate the inmate anyway” (T183.34-35).

119. Ms Downes countered that it should have been treated as a credible threat and arrangements made to move the plaintiff. She explained that movement was facilitated by the plaintiff being a remand bed placement because they can go anywhere where there is a remand bed without much difficulty and without attracting negative attention. Mr Kelaher revealed another mistaken assumption at this point, that being that he thought that the plaintiff had already been sentenced.

120. Ms Downes noted (T192) that most decisions that are made about inmates are made unilaterally, and prison officers and general managers do not routinely consult prisoners about decisions affecting them. Obviously ss 10 and 11 of the Crimes (Administration of Sentences) Act provide for this to occur.

121. The experts discussed the distinction between protection and segregation, Mr Kelaher explaining that segregation did not necessarily have a stigma because:

“…You can be segregated for a lot of reasons, because of your offences, because of severe threats for your own protection. But it might also be because they’re disrupting the good order of the facility too and they’re a threat to staff. Now, in that case I don’t think other inmates would see that as a stain. But because of their offences or because it was a protection mode of segregation then I think the taint would go with them.” (T214.29-34).

122. Mr Kelaher said that he remained concerned that the information would “follow the plaintiff” (that he had been segregated and transferred) and so he would end up on protection, although Mr Kelaher did not explain why this would be so and did not state this as a probability. Mr Kelaher also noted that all inmates have a right to appeal any protective custody order made without their agreement.

(iv) Experts’ views on the application of OP061 and OP085

123. On the second day of the concurrent evidence, Mr Kelaher adopted the view put forward by counsel for the defendant that OP061, “Segregation and Protection” was only directed to prisoners who were already in protective custody. This interpretation was based on what was, in my view, a misreading of the heading to paragraph 5.2 of the Policy dealing with “Segregation of inmates on a protective custody direction”. Ms Downes took the view, from 34 years of experience in its application and the application of Corrective Services New South Wales Custodial Policy and Procedures Manual Section 14 (to be read in conjunction with OP061), that in fact OP061 applies to any persons who are to be considered for segregation or protection. Her view coincides with that of Mr Deal (T146.19-24).

124. I consider the interpretation put forward by counsel for the defendant and adopted by Mr Kelaher to be wrong. Paragraph 5.2.3 of OP061 makes it clear that it is dealing with circumstances where a segregated custody direction is to be “raised”. The heading to 5.2 is simply referring to the potential for the segregation process to also involve inmates who happen to be on protection. As made clear in 5.1 of the Policy, and the main heading “SEGREGATED CUSTODY PROCEDURES” , followed by the words in bold “the following procedures are to be followed when an inmate is placed in segregated custody” makes it clear that the policy and its requirements is of general application.

125. There was also examination by the defendant’s counsel about paragraph 5.5 of OP061 titled “Separation of inmates under threat”. It was suggested that where the policy stated that an inmate was “considered under threat from another inmate”, the policy required the identity of the potential assailant inmate to be known. Mr Kelaher agreed with that, but Ms Downes disagreed. Mr Kelaher also maintained the view that if the threat was not “a valid substantiated one”, paragraph 5.5 of the policy does not need to be followed. Ms Downes pointed out that nowhere in the policy does it say that the inmate who is the potential assailant needs to be identified or that the evidence of a threat needs to be “substantiated”.

126. I reject as strained and unnecessarily restrictive the interpretation argued for by counsel for the defendant and adopted by Mr Kelaher, and accept Ms Downes’ interpretation that OP061 would validly apply to the plaintiff’s circumstances.

127. It was suggested by counsel for the defendant that OP085 only applied to inmates upon their reception into Parklea. He argued this based on the wording of paragraphs 5.2 and 6.3 of the Policy placed under the heading “Preventive”

“5.2 Any inmate who is received at Parklea and has been identified as having safety or association concerns is to have a risk assessment.”

…

“6.3 Any inmate that has been identified as vulnerable or at risk from another inmate at Parklea must be separated immediately and housed in the Segregation Unit on a Non-Association order, until a suitable placement and management option can be formulated and actioned.”

128. Ms Downes was of the view that whilst expressed in terms of reception, it must be applied more generally because threats or risk from another inmate can arise at any time. Mr Kelaher adopted the defendant’s counsel’s suggested interpretation as confined to requirements upon reception only.

129. I reject the overly literal interpretation argued for by counsel for the defendant and adopted by Mr Kelaher. If that interpretation was correct, it would mean that assaults that occurred after reception or threats learnt of after reception would not be actioned and “preventive” measures would not be pursued. Clearly there is focus on turning minds to this issue on reception of a new inmate, but it defies common sense to have the operation of those preventive measures to stop as soon as the inmate has had his reception process completed.

130. Ms Downes relied on breaches of OP061 and OP085 as further support for her opinion that GEO was negligent. The policies are not protocols, and whilst they provide some shape to what a proper response to the information about the threat to the plaintiff should have been, they are not decisive on their own, and breaches of them will not automatically result in a finding of breach of duty.

131. There was examination about whether the information should have been placed into the Offender Inmate Management System (“OIMS”) as an alert about the plaintiff, Ms Downes holding the view that it should have been because it would have made the officers who were managing the plaintiff more alert – as would a briefing to the wing officers (T260). Mr Kelaher on the other hand was concerned that the information was not validated, and may not be relevant and there was a risk that it could be clumsily discussed by less experienced correctional officers. Ms Downes did not agree this was an issue.

132. Mr Kelaher agreed that the Officer in Charge (“OIC”) in Unit 2B should have been notified by word of mouth but not in OIMS (T267) because of the risk of misuse or misinterpretation of the information. There appears to be no evidence that the OIC of Unit 2B was informed, however for reasons that I will explain, that failure is not determinative of liability.

133. Ms Downes explained that the distinction between intelligence and information in the context of this case is an artificial one because:

“…There are many occasions in the correctional centre when you are managing prisoners where you have to rely on information to take care of them and intelligence has to go through a lengthy process … and to me to make sure that you are – that you are making sure that – that you are taking care of somebody and protecting their safety, it doesn’t have to be absolutely verified, gold-plated intelligence.” (T276.34-40).

134. Mr Kelaher explained the basis for his contrary position:

“…I really do think information similar to the way this came to light really needs to be analysed properly and confirmed before you really go too much further with it because, as I said before, if an inmate didn’t like another inmate, they could just pass on information very similar to the way the information came across and my learned expert there suggests that the inmate should be separated. I think it would just go – it would just create that many separation issues within the department. Given they were trying to establish at the time that there’s so many inmates going on protection is a real major concern for the department at the time and I think, you know I guess just limiting it. The information needed to be established and verified that it was substantial, to act any further on it” (T276.44-50,T277.1-4).

Decision

135. As required by s 5B(1) of the Civil Liability Act, to find the defendant negligent in failing to take precautions against a risk of harm, the risk must be foreseeable, that is, it is a risk of which the defendant knew or ought to have known. The risk also must be “not insignificant” and one that a reasonable person in the defendant’s position would have taken precautions against in the circumstances.

136. Clearly here the risk was foreseeable as a generality, and known because there was information provided that it had been overheard that inmates were planning to bash an inmate identified as the plaintiff. The risk was not insignificant and precautions needed to be taken. It was widely known that assaults occur in prison and that they can cause serious injury or be fatal.

137. The main area for debate, particularly on the expert evidence, is whether the steps taken by the defendant were sufficient precautions to take against the risk of harm (s 5B(2) Civil Liability Act). In analysing this question, I am required to consider the probability that the harm would occur if care were not taken, the likely seriousness of the harm, and the burden of taking precautions to avoid the risk of harm. The fourth matter addressed in s 5B(2)(d), the social utility of the activity that created the risk of harm, is not relevant to my determination here.

138. I prefer the opinion of Ms Downes over that of Mr Kelaher on the issue of segregation and transfer. I accept the submission of counsel for the defendant that it is not the case that the defendant did “little or nothing” in response to the information provided by AB via Ms Bidart. On the contrary, a number of steps were taken that indicated that the information was taken seriously, including briefing senior, weekend and intelligence team staff, K9 staff, heighted surveillance, a report to the General Manager on 17 May 2012, and discussion after the weekend as to what had been observed. All of this makes it clear that the threat actually was being taken seriously and was not being treated as a mere rumour. However, in my view the steps that were taken were simply inadequate and showed a lack of insight into the immediacy of the threat and obvious reasonable precautions that could have been taken to avoid the risk. Nor was adequate consideration and analysis given to why it was unlikely that there would be “substantiation” or other threats in the past, when the information included that the inmates had just found out the true nature of the plaintiff’s crimes in the context of a jury trial and verdict only three days before the overheard threat.

139. I reject entirely the submission of counsel for the defendant that it would be “wholly unreasonable” and “in blatant breach of the plaintiff’s human rights” to have segregated and moved the plaintiff to a different prison to keep him safe. Not only is there express statutory power to do so (and, significantly, no evidence at all that the person who could do it, Mr Ma’a, ever turned his mind to doing it here), but there was information that supported the validity of such steps.

140. The defendant could then make application for transfer of the plaintiff for the good order of the prison. Section 23 of the Crimes (Administration of Sentences) Act 1999 provides relevantly for the mechanics of this:

23   Transfers from one correctional centre to another

(1)  The Commissioner may order that an inmate be transferred from one correctional centre to another:

(a)   because the correctional centre is being or is about to be repaired, altered, enlarged or rebuilt, or

(b)   because of an outbreak or threatened outbreak in the correctional centre of an infectious disease, or

(c)   because the correctional centre has ceased or is about to cease to be a correctional centre, or

(d)   because the correctional centre is overcrowded, or

(e)   because inmates in the correctional centre need to be separated in compliance with the requirements of the regulations, or

(f)   because of any other reason specified in the order.

…

141. I accept Ms Downes’ evidence that inmates are not routinely polled on transfer issues, and that there were persuasive and cogent reasons why segregation and transfer was the proper course.

142. Counsel for the defendant placed great reliance on Mr Ma’a’s and Mr Kelaher’s concerns that there can be self-serving rumours about potential assaults to create a diversion or attempt to achieve a collateral outcome. That may well be the case, but there is an obligation on the part of the intelligence staff to examine the circumstances of the information and its timing. Mr Halliwell obviously thought it was important and noted in his report his own objectively expressed view that there was an increased risk to the plaintiff of being targeted by other inmates given his crimes.

143. The terms of s 5B(2)(a), assessing the probability that harm would occur, I consider is well-satisfied on both the lay and expert evidence. Assaults in prison are a known part of prison life. The defendant’s own protocols draw attention to the obligation of GEO to protect inmates and staff from assaults. Assaults in prison can be fatal and serious. Mr Kelaher acknowledged that. Mr Halliwell wrote in his report that in his professional view there was increased risk for the plaintiff to be targeted given the nature of his crimes.

144. The burden of taking precautions to avoid the risk was in my view, minor. The segregation and transfer of a remand prisoner is easily accomplished. I accept entirely Ms Downes evidence in that regard. The arguments raised about any segregation and transfer being “unilateral” are irrelevant and a distraction, particularly when the plaintiff was not given adequate information. The arguments raised by Mr Kelaher and Mr Ma’a that there would be a lot of transfers given there can be a lot of misinformation I find to be unpersuasive.

145. Much was made by counsel for the defendant in written submissions about the complexities of the “weighing” task Mr Ma’a had to do in deciding whether the plaintiff should have been placed into segregation and transferred or, if necessary, placed on protection, but there is simply no evidence any such weighing or consideration was ever done regarding the plaintiff.

146. I do not see any particular burden or real risk involved in informing wing staff so that they could keep an eye on the plaintiff, nor do I see any particular burden or risk in placing a notification in OIMS, however I am not persuaded that the failure to record the information about the plaintiff in OIMS was negligent and I accept the submissions of counsel for the defendant in that regard. I am of the view wing staff should have been told and were not, but there is no evidence upon which I can safely conclude that this would have avoided the assault, so nothing turns on this omission and liability of the defendant is not established on either of those grounds.

147. I accept the evidence of Ms Downes that the failure to watch for and respond to the position of the doors blocking the CCTV vision at around the time of the assault was illustrative of insufficient supervision on the wing, but there is simply no evidence that would permit me to conclude that if the wing staff were made aware, or the staff noticed, by vigilance, that the doors were blocking the CCTV visual access to the corridor, the assault would have been averted. As a result of this, I cannot find these failures were a necessary condition of the harm (s 5D), and so they can be put to one side.

148. I am of the view however that what should have been done, and was required as part of a reasonable response to the risk to the plaintiff, was that after separation of the plaintiff as was initially and swiftly done on the day the information was given, he should have remained segregated and then been transferred. If those steps were taken, he would have avoided the bashing at Parklea the following week at the hands of the three assailants.

141. The principles and considerations set out in s 5C of the Civil Liability Act make no difference to my determination. The “different way” to manage the risk set out in Mr Kelaher’s evidence was simply an inadequate response to the recognised risk that the plaintiff may well be bashed given the nature of his crimes, both as recognised by Mr Halliwell in his 17 May 2012 report, and as conveyed in the information overheard by AB and disclosed to Ms Bidart by AB and that Ms Bidart conveyed to Mr Halliwell.

142. Applying s 5D causation principles, I find that the failure to segregate and transfer the plaintiff was a necessary condition of the occurrence of the harm. It is entirely appropriate for the scope of the defendant’s liability to extend to that harm, given its level of control over the plaintiff, his vulnerability, the known (and acknowledged) increased risk of harm particular to the plaintiff at this time, and the duty of care of prison authorities to take reasonable steps to protect its inmates from criminal assault by other inmates

143. The plaintiff has established liability on the part of the defendant.

Contributory Negligence

152. The defendant alleged that the plaintiff was contributorily negligent in:

1. refusing and/or failing to act upon GEO’s offers of protective custody in circumstances where he had been advised of the rumour of an impending attack upon his person;

2. failing to act upon advice received from GEO’s operations manager in circumstances where the plaintiff well knew that GEO could not provide any absolute guarantee of his personal safety so long as he remained within the general prison population; and

3. failing to take account of his previous experience in custody.

153. Whilst not formally abandoned, only the first point seemed to have been the subject of any evidence. There was no evidence from Mr Halliwell or Mr Deal that they warned the plaintiff in the specific terms set out in (b) above, but even if they did, I have concluded that there is no role at all for contributory negligence to play and so there will be no reduction to the defendant’s liability.

154. I have formed that view because the plaintiff was not provided with the necessary information upon which to make an informed decision as to whether he should be placed in segregation and transferred or placed on protection. Both experts agreed that he should have been told everything that was known. There is no evidence that he was in fact told that the overheard inmates’ attitude to him had been affected by discovering the true nature of his crimes for which he had very recently been tried and found guilty. There is no evidence that the plaintiff understood, or had any basis upon which to understand, that what had been overheard meant that his safety in custody at Parklea had changed. Mr Halliwell wrote in his report of 17 May 2012 that the offences the plaintiff was charged with “increases the risk of being targeted by other inmates”, but there is no evidence that Mr Halliwell, or any other employee or agent of the defendant, shared this knowledge of the increased risk with the plaintiff.

155. Additionally, I accept the evidence of Ms Downes that the signing of the Inmate Request Form, particularly given the evidence of the plaintiff as to the circumstances of its signing, that he did not request it and was given it unasked and told that he needed to sign it, is irrelevant to the proper execution of the defendant’s duty of care to the plaintiff. In my view it does not reduce the defendant’s liability to the plaintiff in the circumstances.

156. No evidence or any written or oral submissions were directed to what is meant by contributory negligence allegation (c). It remains opaque to analysis and so provides no basis upon which to find contributory negligence.

Orders

1. There will be a verdict for the plaintiff on the issue of liability;

2. The defendant is to pay the plaintiff’s costs;

3. The balance of the proceedings is listed for directions before the Common Law Registrar on Monday, 18 March 2019 at 9:00 am.

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Amendments

07 March 2019 - Amendment paragraph 140

Decision last updated: 07 March 2019