State of NSW v Bujdoso

[2005] HCATrans 375

[2005] HCATrans 375

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S397 of 2004

B e t w e e n -

STATE OF NEW SOUTH WALES

Applicant

and

PETER ANDREW BUJDOSO

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 27 MAY 2005, AT 10.20 AM

Copyright in the High Court of Australia

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MR P.R. STERNBERG, for the applicant.  (instructed by Crown Solicitor for New South Wales)

MR J.J. GRAVES, SC:   May it please the Court, I appear with my learned friend, MR R.J. DE MEYRICK, for the respondent.  (instructed by T.D. Kelly & Co)

McHUGH J:   Mr Graves, we might hear from you first.  The Court of Appeal does not seem to have dealt with the question of causation, for a start.  It is a rather important question in this case, is it not?

MR GRAVES:   Your Honours, respectfully we would disagree with that in the sense that, in our submission, although there is not an express finding made by Justice Ipp, in whose reasons Justices Sheller and McColl agreed without saying more, it is plain, in our submission, that his Honour from first to last was directing himself to the submission that was made by the plaintiff below as appellant recorded at page 37 of the application book in paragraph 9 of his Honour’s reasons, where his Honour records in relation to the principal issue that he sets out on page 36, paragraph 3:

The appellant argues that his Honour should have held that, by providing only minimal supervision of the inmates in the Units, the respondent breached the duty of care it owed the appellant and, thereby, caused the appellant to suffer the injuries that were inflicted upon him.

McHUGH J:   Yes, I appreciate that, but at page 50 the Court of Appeal said that there had been a breach and it said:

The respondent had reduced to one the number of guards . . . it took no additional steps to protect him . . . and did not even provide the appellant with a more secure lock on his door.

Did not the issue of causation require an identification of the breach or breaches and then a determination as to whether or not, if those breaches had been remedied, the respondent would have suffered the injuries in any event?  These people were out to get him.  They turn up with balaclavas and what seems to be the equivalent of iron bars in a prison setting.

MR GRAVES:   And not so much as even a secure lock is provided on his door in a prison context.

McHUGH J:   That may be and that may well be a breach, but the question was that the court should have made a determination as to whether or not that would have protected this ‑ ‑ ‑

MR GRAVES:   In the context of the submission with which his Honour was dealing and their Honours adopted, in our submission, Justice Ipp in paragraph 64 in effect accepted the plaintiff’s submission and found the causal nexus, where he says at line 25:

Nothing was done.  In my view that was negligent.

In our submission, it is in context a finding of breach and causal nexus.  In any event, if your Honours are ‑ ‑ ‑

HAYNE J:   Does it follow that Justice Ipp’s judgment is to be read as saying that reducing to one the number of guards on duty was a cause of the plaintiff’s injury?  If that is so, does that not demonstrate (a) the importance of the case; and (b) does it not direct attention to the significance of the causation conclusion that is buried in the few words to which you have referred?

MR GRAVES:   Justice Hayne, the causal link, with great respect, when one goes to paragraph 64, if nowhere else, is patent, having regard to the nature of the deficiencies in the system employed at this correctional centre in which what was common ground the duty of care had to be discharged.  Any one or more or all alone or in combination, it is plain, in our submission, as day if they had been followed would have protected the plaintiff on the occasion of an attack in a correctional institution.

McHUGH J:   That submission conceals an error.  The error is the words “on that occasion”.  It is a question as to whether his damage would have been prevented, not whether it would have been prevented on this occasion.  The might have got him the next day or the day after.

MR GRAVES:   Your Honour, what I meant by “on this occasion” is in this way, namely at night in his room with the only prison officer rostered in this area ignorant of the fact of the risks the higher authorities in the prison are aware the plaintiff is under, absent any prison officer to supervise or provide a measure of retardation, if you like.  What was involved here, we all recognise, is that those prisoners who attacked the plaintiff were able to do so because of their understanding of the almost certain fact that they were not going to be detected. 

They were minimum release classification prisoners.  They were about to secure their early release.  They were out on work release during the day, and yet this attack was perpetrated inside a correctional institution in New South Wales.  Why?  Because the prisoners knew they could get away with it.  Every one of the matters taken collectively or separately in 64 is not only a statement of the failure but implicit in it as a matter of common sense is the nexus between that failure and the damage he suffered in the circumstances in which he suffered it.  There is no doubt, in our submission, about the correctness of this decision, although we of course concede the language of the decision could have been better expressed in respect of the finding.

McHUGH J:   You also have to deal with the questions of standard of care which the applicant relies on.

MR GRAVES:   Standard of care was common ground in this case, both at trial and in the Court of Appeal.  It is the standard of care to which his Honour refers at page 37 of the application book in paragraph 7 of his judgment at about line 21, referring to the reasons of Justice Mason in State of New South Wales v Napier.  This statement controlled the trial and controlled the appeal, namely ‑ ‑ ‑

McHUGH J:   No, that is a question of duty.  It is a duty to take reasonable care, but the standard of care that reasonableness requires is a different concept.  There is a duty to take reasonable care for a child in school, but the standard required to discharge that duty will vary depending upon the age of the child, whether it is a four‑year‑old or a sixteen‑year‑old.

MR GRAVES:   Your Honours, the standard cannot have been met.  Justice Ipp was entirely correct, in our submission, when one has regard again to paragraph 64 on page 50.

HAYNE J:   What, the bare fact that there was an attack in prison demonstrates want of reasonable care?

MR GRAVES:   No, the facts, Justice Hayne, that in relation to this prisoner it was known that in the prison system within any institution in New South Wales he was at risk, that in fact he was at risk of physical injury in this particular institution, the fact that measured against the duty nothing was done, not a thing was done, to protect him from what the authority and its employees knew was inevitable unless he was protected.

HAYNE J:   The mirror of that submission is that reasonable care required that this man be kept in a cell, not in a unit, and that he be kept in a high security facility.  That is a large consequence.

MR GRAVES:   We, with respect, disagree.  The consequence of what I said a moment ago is that the plaintiff be kept overnight after his return from work in a room that was secure.

HAYNE J:   Commonly called a cell.

MR GRAVES:   A room that was secure, a room that had a secure lock on it, Justice Hayne, the door to which could not be opened with a jemmy or a bar.  One has to look at the facts of this particular case.  The plaintiff, as your Honours know, was insistent as he saw his own interest in being in this classification and in this part of the prison.  That being so, the presence of a guard or guards, the presence of a secure lock on the door, the diligent searching of the prisoners as they return into this area of the prison from the factory where bars and suchlike were present, any one or more of these things would have, on the evidence, provided protection for the prisoner overnight in his room in this prison.

McHUGH J:   But the appeal, quite apart from the causation issue, does raise the question whether prison authorities can in New South Wales continue to allow particular categories of prisoners to progress through the classification system despite the possibility of increased risk of injury to certain people as they progress through it.

MR GRAVES:   With respect, Justice McHugh, the trial and the appeal did not throw that up.  What the trial and appeal threw up was that a particular prisoner of the classification which he sought was negligently unprotected.  That is all it does.  On another day in another case, your Honour, that may be a relevant question to be agitated and determined by this Court, but in this case on these facts what operated to cause the plaintiff’s damage was common or garden acts or omissions of negligence, palpable acts of negligence by failing to take any measure to protect this person whom all concerned knew to be at risk.

The other question that may be interesting is not, in our submission, dispositive of this matter.  There is no special leave point in this case, in our respectful submission.  They are our submissions.

McHUGH J:   Thank you.  We need not hear you, Mr Sexton.

There will be a grant of special leave in this matter.  Mr Sexton, how long will this matter take?

MR SEXTON:   We would expect it to be disposed of in a day, your Honour.

McHUGH J:   Do you agree with that, Mr Graves?

MR GRAVES:   Yes, I do.

AT 10.33 AM THE MATTER WAS CONCLUDED