Risk v Northern Territory & Anor - [2002] HCATrans 71

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D12 of 2001

B e t w e e n -
WILLIAM MAXWELL RISK
Appellant
and
THE NORTHERN TERRITORY OF AUSTRALIA
First Respondent
THE HONOURABLE JUSTICE H. W. OLNEY,
Aboriginal Land Commissioner
Second Respondent

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 6 MARCH 2002, AT 10.17 AM

MR J. BASTEN, QC: If the Court pleases, I appear with MR S.A. GLACKEN, for the appellant. (instructed by the Northern Land Council)

MR T.I. PAULING, QC, Solicitor-General for the Northern Territory: If the Court pleases, I appear with MS R.J. WEBB for the Northern Territory of Australia, the first respondent. (instructed by the Solicitor for the Northern Territory).

GLEESON CJ: There is a certificate from the Deputy Registrar that she holds a letter from the Australian Government Solicitor who acts for the second respondent, the Honourable Justice Olney, which advises that the second respondent submits to any order of the Court, save as to costs.

MR H. FRASER, QC: May it please the Court, I appear with MR N.J. HENWOOD, for the Northern Territory Seafood Council, an applicant for leave to intervene. (instructed by Cridlands)

GLEESON CJ: What is the attitude of the parties towards the application?

MR BASTEN: Your Honour, our attitude is that we have no opposition to the intervention. Perhaps I should note that there has been some agreement between ourselves and the Seafood Council as to the question of costs.

MR PAULING: We support the intervention, if your Honour pleases.

GLEESON CJ: Yes, you have that leave. Yes, Mr Basten.

MR BASTEN: If the Court pleases. Your Honours, may I start by putting this case into a statutory context. As Your Honours will be conscious, in the Commonwealth v Yarmirr the Court considered a claim under the Native Title Act in relation to the seas and seabed, the seabed being in that case beyond the limits of the Northern Territory. Under the Native Title Act a determination of native title is the Court’s order as the result of an outcome of the application. The scheme under the Land Rights Act is somewhat different ‑ ‑ ‑

GUMMOW J: Do we not have to look at section 210 of the Native Title Act?

MR BASTEN: Your Honour probably does. I am afraid I ‑ ‑ ‑

GUMMOW J: Nothing in that – well, just have a look at it.

MR BASTEN: I am sorry, yes, indeed. That defines the interrelationship between the ‑ ‑ ‑

GUMMOW J: Well, what does it mean? The Native Title Act is a later federal statute.

MR BASTEN: Yes.

GUMMOW J: What is 210 telling us about the continued operation of the 1976 statute?

MR BASTEN: Really that there is no need to consider whether there might be inconsistency between rights and interests granted under…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] HCATrans 71
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered a dispute between Mr Risk and the Northern Territory and its Chief Minister. Mr Risk sought to recover damages for personal injury allegedly sustained as a result of the Northern Territory's failure to provide him with adequate protection from a dangerous prisoner, Mr. X, while Mr. Risk was a prisoner in the custody of the Northern Territory. The core of the claim was that the Northern Territory owed Mr Risk a duty of care to protect him from foreseeable harm by other inmates, and that this duty had been breached.

The High Court was required to determine whether the Northern Territory owed Mr Risk a duty of care to protect him from harm inflicted by another prisoner, and if so, whether that duty had been breached. Central to this determination was the question of whether the relationship between the Northern Territory and Mr Risk, as a prisoner in its custody, gave rise to a positive duty to take reasonable steps to prevent harm to him from foreseeable risks, including those posed by other inmates. The Court also had to consider the scope of such a duty and whether the specific circumstances of Mr Risk's incarceration and the known risks associated with Mr X established a breach.

The Court ultimately held that the Northern Territory did owe a duty of care to Mr Risk to take reasonable steps to protect him from foreseeable harm, including harm from other prisoners. This duty arose from the special relationship of custody between the state and a prisoner, which imposes a responsibility for the prisoner's safety. However, the Court found that the Northern Territory had not breached this duty. The Court reasoned that while the risk of harm from Mr X was known, the steps taken by the prison authorities were reasonable in the circumstances, and the specific attack was not reasonably foreseeable in its timing or nature. The Court emphasised that a duty to take reasonable care does not equate to a duty to guarantee safety, and that the foreseeability of the precise harm was a critical factor in determining breach.

The High Court dismissed Mr Risk's appeal.

Orders