State of NSW v Jones

[2000] NSWCA 178

CITATION:	State of NSW v Jones [2000] NSWCA 178
FILE NUMBER(S):	CA 40989/98
HEARING DATE(S):	06/07/00
JUDGMENT DATE:	18 July 2000
PARTIES :	State of New South Wales - Appellant Stephanie Kay Jones - Respondent
JUDGMENT OF:	Giles JA at 1; Brownie AJA at 2; Einstein J at 30

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	6603/97
LOWER COURT JUDICIAL OFFICER :	Boland ADCJ

COUNSEL:	Mr J.E. Maconachie QC/Mr P.J. Saidi - Appellant Mr P.W. Bates - Respondent
SOLICITORS:	Mr I.V. Knight - Crown Solicitor - Appellant Thomson Rich O'Connor, Sydney - Respondent
CATCHWORDS:	Held: on the facts, no breach of duty of care towards prisoner injured whilst attempting to escape from police custody
CASES CITED:	The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40, at 47 to 48 Kirkham v Chief Constable of the Greater Manchester Police [1992] WLR 987 Smith v Leurs (1945) 70 CLR 256 at 262 L v Commonwealth (1976) 10 ALR 269 Thomas v Corrective Services Commission of New South Wales (unreported, NSWCA, 20 December 1989) Howard v Jarvis (1958) 98 CLR 177 at 183 Cekan v Haines (1990) 21 NSWLR 296 at 297 Reeves v Metropolitan Commissioiner of Police [1999] 2 WLR 363 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at 478 Dorset Yacht Co Ltd v Home Office [1970] AC 1004 Thorne v Western Australia [1964] WAR 147 Rigg v State of New South Wales (1993) Aust Torts Reports 81-230
DECISION:	1. Appeal allowed with costs; 2. Judgment of the District Court set aside. In lieu thereof, judgment entered for the defendant with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40989/98
DC 6603/97
GILES JA
BROWNIE AJA
EINSTEIN AJA
Tuesday, 18 July 2000

STATE OF NEW SOUTH WALES v JONES
JUDGMENT

1    GILES JA: I agree with Brownie AJA.

2    BROWNIE AJA: The respondent was injured on 29 May 1990, when she jumped out of a window, and fell to the ground below. She successfully sued the appellant on the basis that police personnel, for whose conduct the appellant was vicariously responsible, breached a duty of care that they owed to her, arising from a group of circumstances, principally that she was in police custody at the time; she was an Aboriginal, aged 18; she was a heroin addict who had had a heroin injection about an hour before the fall; and she was “in great fear of incarceration at Mulawa” prison.

3 The appellant does not contest that those for whom it is responsible owed the respondent a duty of care, and the parties agreed that the measure of that duty of care was as described by Mason J, as he then was, in The Council of the Shire of Wyong v Shirt (1980) 146 CLR, 40 at 47 to 48:-

“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”

4    The first question for decision is whether the duty of care was breached in the circumstances of this case.

5    The respondent had led a deprived and unhappy life, and by May 1990, she was addicted to heroin. Her habit cost her about $400 to $600 per day, and she funded that habit by stealing. That brought her to the attention of the police attached to the Anti-theft Squad, including particularly Senior Constables Rayment and McKellar, each of whom had arrested her on various occasions. Some time before 29 May 1990, the respondent failed to appear at court on various charges, and warrants were issued for her arrest. On that day other police arrested her on those warrants, and took her to the Kings Cross Police Station. At the request of Mr Rayment, Mr McKellar and Constable Smyth (who was “on loan” to the Anti-theft Squad for a few days) went to the Kings Cross Police Station, where they picked up the respondent, telling her that they proposed to take her back to the Anti-theft Squad office, which was situated in Campbell Street, Surry Hills, and that they would then take her to the Sydney Police Centre, also located in Campbell Street, to be charged.

6    By this time Mr McKellar and the respondent were on reasonably friendly terms. She called him Andrew, and he called her Steph, an abbreviation of her given name, Stephanie. Mr McKellar and Ms Smyth said, and the respondent did not deny, that whilst at Kings Cross Police Station, whilst in the car on the way from there to the Anti-theft Squad office, and whilst in that office, the respondent appeared to be calm, and normal. Mr McKellar did not think it was necessary to handcuff her at any stage, and he was attempting to gain her co-operation.

7    When the three of them arrived at the Anti-theft Squad office, Mr Rayment was present, dealing with two other prisoners. After a time he left, with those prisoners, and the respondent remained there with Mr McKellar and Ms Smyth. The latter two were engaged in attending to certain paper work. The respondent sat on a chair, on the other side of a desk from Mr McKellar, who offered her a drink. At her request, he dialled the telephone number of a Ms Simmat, whom the respondent described as her guardian, and the respondent spoke to Ms Simmat for about ten minutes, apparently normally. Mr McKellar apparently knew Ms Simmat, referring to her as Ann.

8    When the respondent finished the telephone call, she sought and obtained the permission of Mr McKellar to smoke a cigarette, and then to walk about the room. She stood for some little time in front of a wall where photographs, or “mug shots” were displayed, and then suddenly ran to an open window, and jumped out. It seems that she repented of her decision very late, and tried to restrain herself, before falling to the ground. It was then about 8 pm, and dark outside. The respondent did not at the time appreciate that the window was a considerable height above ground level, although she had been in the office at least once before. Campbell Street is located on a slope, so that whilst the respondent and the two constables had entered the building at street level from Campbell Street, and remained on that same floor level, the Anti-theft Squad office was located well above ground level.

9    Until the respondent ran towards the window, the three constables (including Mr Rayment, who had then left) had noticed nothing unusual about her. The learned trial Judge, Boland ADCJ, rejected a case advanced by the respondent that she was at the time intoxicated by heroin, but found that her cognitive functions were impaired by the lingering effects of the heroin taken about an hour before the fall.

10    About two weeks before 29 May 1990, Madeleine Dumas, a foster sister of the respondent, died from an overdose of heroin and Rohypnol, and at about the same time a close friend of the respondent named Martelle also died from an overdose of heroin. These deaths had upset the respondent. Cheryl Dumas, a sister of Madeleine Dumas and another foster sister of the respondent, was a prisoner at Mulawa as at 29 May 1990. There was no suggestion that any of the constables were aware of any of these circumstances, or of a suggestion, dealt with below, that Cheryl Dumas blamed the respondent for the death of Madeleine Dumas.

11    The respondent said that she was looking at the photos and smoking, and that she went over to the open window to blow the smoke out. In evidence, she denied that she was trying to escape, but gave no clear evidence as to how she came to go through the window and fall. In cross-examination she said that “it just happened”.

12    Immediately after the fall, Mr McKellar asked the respondent why she jumped, and she replied that she thought she might end up going to Mulawa, and didn’t want to, because she might get bashed by other prisoners there.

13    Some three months later, she was interviewed by a Sergeant Hames, and signed a statement in his notebook:-

“I was picked up by the Police on Tuesday night up at the Cross, Andrew and the lady [Constable Smyth] came and took me back to the Ani-Theft Office, we were sitting down waiting to finish the paper-work, then I started thinking I was going to Mulawa I was looking out the window behind Andrew then I saw the other window was open, I thought it wasn’t all that far so I jumped out.”

14    On an arbitration hearing prior to the trial, when the respondent gave evidence, she was asked why she went out the window, and replied: “Didn’t want to go to gaol. Didn’t want to hang out for heroin. Didn’t want to get bashed up by my sister”.

15    The last sentence, and the explanation given immediately after the accident, refer to a threat made by Cheryl Dumas to “bash up” the respondent, because Cheryl Dumas thought that the respondent had not done enough to prevent the death of Madeleine Dumas, who had overdosed in the presence of the respondent. However, the respondent denied being in great fear, or even fear. Her evidence is not entirely easy to reconcile, as a whole, but she said that she “was not really worried”, and that she expected that she and Cheryl Dumas, as sisters, would be able to work things out.

16    Boland ADCJ found that the respondent had no intention to escape (when dealing with a separate ground of defence, based upon the proposition that since the respondent was attempting to escape from lawful custody, there was a defence of illegality), but found that the respondent was “a scared young Aboriginal woman, in great fear of incarceration at Mulawa”.

17    Viewing the matter objectively, it seems quite clear that, in the moments before she jumped, the respondent did intend to jump out the window, and to escape. What is not clearly established is the totality of her state of mind at that time.

18    Assuming that there was a foreseeable risk of injury arising from the fact that the respondent might attempt to escape, the critical question is what the reasonable person would do by way of response to that risk. The respondent had not attempted to escape before, although she had been arrested many times; she seemed to the police personnel concerned to be normal, and co-operative. Ms Smyth, whose evidence her Honour accepted, said that the respondent jumping out the window “was the furthest thing from my mind”, that the conversation between Mr McKellar and the respondent was “a very comfortable situation”, and that the conversation “seemed normal to me”; and she said that the respondent was “acting in a normal manner, very quiet”.

19    She told Mr McKellar that she did not want to go to Mulawa, but that falls short of providing a basis for a finding that the respondent was in great fear of incarceration there, and it does not, either by itself or in conjunction with the other circumstances, justify the view that Mr McKellar or Ms Smyth should have appreciated that she was about to attempt to escape. One ought not to overlook the circumstance that even the respondent herself did not think of attempting to escape, until she acted on the spur of the moment.

20    The learned trial Judge rejected the contention, made at the trial, that the police should have kept the respondent in handcuffs. This finding was plainly correct. Apart from any other consideration, depriving a person of liberty is of itself a serious infringement of that person’s ordinary rights, and the courts ought not to countenance further physical restraints, such as handcuffs, without this being shown to be somehow necessary. The respondent pointed to a variety of circumstances said to cumulatively justify the view that Mr McKellar and Ms Smyth ought to have kept the respondent under closer scrutiny, so that one or other of them could have seized her, to prevent her from “exiting” through the window.

21    She pointed to her Aboriginality. That is, of course, a matter calling for care on the part of police and prison personnel having an Aboriginal person in custody.. As the evidence showed, such a person is at greater risk than others of deliberate self harm, particularly when left alone in a cell; but that is a far cry from the circumstances of this case where the respondent and the two constables, one of whom she knew by his first name, and who knew her just as well, were present in what seems to have been an ordinary office, and where, over a period of perhaps three quarters of an hour, the three of them remained together, without any sign that there was any problem likely to eventuate. In a practical sense, the two constables treated her not as a member of a race, personally unknown to them, but as a person known well to Mr McKellar, and treated by both the constables as a known individual, with known characteristics. It is not to be forgotten that Mr McKellar knew a good deal of her history. On the respondent’s own evidence, she did not do or say anything which would have caused concern to the constables, either in that she might deliberately cause harm to herself, or that she might escape. Indeed, she never did intend to harm herself, and her evidence was that she did not intend to escape, until moments before she ran to the window. At the time, it was dark outside, but she did not appreciate that, it seems, until she reached the window. It seems, too, that it was only then that she realised that the window was considerably above ground level, and that she tried to restrain herself, but at a time when it was already too late. It seems to me that it is difficult indeed to criticise either of the constables for failing to visualise that the respondent did not know that it was dark outside, or that the Anti-theft Squad office window was situated so far above ground level that it would be very unsafe to jump out of the window.

22    The respondent pointed to the fact that she was a heroin addict, and had had a heroin injection about an hour before falling. (It may be that the injection was taken more than an hour before the fall, but this does not matter.) Associate Professor Christie and Dr Sivawright gave evidence, accepted by the learned trial Judge, of the effects of heroin upon an addict such as the respondent. As already noted, her Honour rejected the proposition that the respondent was intoxicated by heroin at the time of the fall. The two experts spoke of the possibility that the respondent was in a state of diminished cognitive functioning at the time of the fall. It may be that the finding that the respondent was (as distinct from might have been) so affected is not justified by the evidence, but, again, it does not matter, for the evidence does not justify the view that any of the police personnel concerned ought to have perceived this state of diminished cognitive functioning. Someone expert in the field might have detected the subtle diminution in function described by these expert witnesses, but the constables then present did not, and on the evidence, they cannot be criticised for not doing so.

23    Next, the respondent contended that the constables should not have permitted the respondent to walk about the office without restraint, and that one of them should have remained physically close to her, and between her and the open window, in case she should have decided to attempt to escape through that window; and this contention was buttressed by the further submission that they should not have allowed the window to remain open.

24    As noted above, the respondent did not give thought to attempting to escape until she acted on the spur of the moment, so that the criticism offered on behalf of the respondent amounts to the proposition that the constables should have expected that the respondent might do something, not then contemplated by her, and should have then responded to that possibility. Statistical evidence demonstrated that over a period of some thirty nine months between 1993 and 1996 (that is, after the respondent’s injury) there were 156 reported incidents of attempts to escape from custody, of which only five involved an attempt to escape through a window or a skylight; and during this period the average number of prisoners charged was 8,459 per month. This unchallenged evidence seems to form a sufficient basis for the conclusion that reasonable people in the positions of the constables might have regarded it as unlikely that the respondent would attempt to escape through the window; and this view is reinforced when one contemplates the height of the window above ground level, the conduct and attitude of the respondent at the Kings Cross Police Station, during the journey from that station to the Anti-theft Squad office, and whilst in that office. It seems to me that, in a practical sense, if one of the constables had contemplated the possibility that the respondent might attempt to escape from the office, the probability was that she would do so through the doorway, rather than the window, and, practically speaking, both the constables were in a position to be likely to be able to stop her from escaping through the doorway.

25    The respondent also relied upon various instructions given to police personnel generally, and binding upon them as police. Generally speaking, those instructions demonstrated that the risk that some Aboriginal people were likely to deliberately injure themselves, or to commit suicide, had been foreseen, and that the relevant authorities had directed the attention of police personnel to steps to be taken to prevent this kind of event happening. However, that is not this case.

26    The respondent also relied upon the circumstance that, contrary to the previous experience of Ms Smyth at another police station, the respondent was not placed in a dock at the Anti-theft Squad office. There was no dock there, but the respondent contended that in the absence of a dock, in which the respondent might have been restrained, Mr McKellar and Ms Smyth should have exercised greater vigilance over her movements, in effect so as to be able to restrain her from running to and jumping out of the window.

27    All this must be judged against the standard of care, which is one of reasonableness. Mr McKellar was in charge of the events in question; he knew the respondent reasonably well; he judged that there was nothing unusual about the situation calling for the imposition of restraint upon the movements of the respondent within the Anti-theft Squad office, except to the extent mentioned; he was trying to secure her co-operation; and he and Ms Smyth had paper work to attend to, before they were in a position to take the respondent to the Sydney Police Centre, to be charged.

28    In my judgment, no breach of the duty of care has been demonstrated, so that the appeal should be allowed, and it is unnecessary to consider the other defences raised by the appellant.

29    I propose the following orders:-

1. Appeal allowed with costs.
2. Judgment of the District Court set aside. In lieu thereof, judgment entered for the defendant with costs.

30    EINSTEIN AJA:

The Proceedings

31    This is an appeal from the decision of her Honour, Acting Judge Boland given on 2 October 1998.

32    The proceedings concerned a claim for damages for personal injuries sustained by the respondent on 29 May 1990 when she fell from a window to the concrete footpath at premises occupied by the New South Wales Police at 105-113 Campbell Street, Surrey Hills ["the premises"]. The respondent is a young indigenous Australian woman who at the date of the incident was aged 18 years old and addicted to heroin.

33    The claim was brought by the respondent in negligence on the basis that the appellant had a "special" duty of care to persons, particularly Aboriginal persons, when they are in police custody. The appellant admitted that it had a duty of care for persons in police custody but denied any breach of that duty of care.

34    The respondent's case before the trial judge alleged that the appellant knew, or ought to have known, of the respondent's unusual physical, mental and emotional state whilst in custody and that persons of her racial origin have great fear of custody. Answers supplied to particulars requested by the appellant disclosed that the respondent alleged that she had told a Police Officer when taken into custody that she had self administered heroin. Further answers given to particulars on the respondent's behalf denied that she was, at the time of the incident, either attempting to exit through the window; and/or to escape through the window.

35    Early in her judgment the trial judge identified the issues to be decided on liability as follows:

(a) Did the police have a "special" duty of care to look after the respondent whilst she was in their custody?
(b) Did the police have a proper system to supervise the respondent whilst she was in their custody was there a defect in that system?
(c) Did the police know, or should they have known, that the respondent was intoxicated from self administration of heroin, and if yes, did they take any adequate steps in those circumstances for her safety?
(d) Did the police know, or should they have known, that the respondent held fears for her own safety if she was incarcerated?
(e) If there was a defect in the system, or a failure to take reasonable care for her safety, did such defect or failure cause the respondent's injury?
(f) Did the respondent know what she was doing when she went out the window; or
(g) Was the respondent injured in the illegal act of escaping lawful custody?
(h) If the respondent was engaged in any illegal act, does such illegality negate any duty of care?

36    During the proceedings before the trial judge it was that acknowledged by the respondent's counsel that the respondent had contributed to her injuries when she went out the window at the premises.

The Grounds of Appeal

37    The appellant which is the State of New South Wales relied in the Amended Notice of Appeal upon eight grounds of appeal.

38    The first ground of appeal challenges her Honour’s finding that the respondent did not have the requisite intention to escape from lawful custody. The challenge is upon the basis that the finding is against the greater weight of the evidence in the case; is inconsistent with an overwhelming body of evidence and is glaringly improbable having regard to the facts and evidence presented in the case.

39    The second ground of appeal challenges her Honour’s finding that the respondent's cognitive function was affected by the residual effects of the respondent's self administration of heroin (if by this it was meant by her Honour that this led to a greater likelihood of the respondent leaving the room in which she was located ). The challenge is upon the basis that the finding is against the greater weight of the evidence in the case; is inconsistent with an overwhelming body of evidence and is glaringly improbable having regard to the facts and evidence presented in the case.

40    The third ground of appeal challenges the finding that the respondent was more likely than not suffering some degree of impairment of judgment on the evening of the incident by reason of her relatively recent self administration of heroin. The challenge is upon the basis that this finding was against the evidence and the weight of the evidence.

41    The fourth ground of appeal challenges the holding that the cause of the respondent sustaining her injuries was a failure on the part of the appellant, by and through its servants and/or agents, to take reasonable care for the respondent's safety.

42    The fifth ground of appeal asserts that upon application of correct legal principle, there was no causation between the plaintiff exiting the window of the police station in which she was located and any failure on the part of the appellant's servants and/or agents to take reasonable care, or any causation leading to the respondent's sustaining the injuries.

43    The sixth ground of appeal asserts that her Honour’s assessment of contributory negligence to an amount of 30 percent was inadequate given the facts and circumstances of the case.

44    The seventh ground of appeal challenges the finding that the appellant was in breach of the duty of care owed to the respondent.

45    The eighth ground of appeal challenges the failure by her Honour to find that the defence of voluntary assumption of risk was established.

46    The course taken on the hearing of the appeal was for submissions to be taken on the threshold issues of duty of care and breach and of causation. Depending upon the court's decision in relation to the grounds of appeal dealing with these matters, the other grounds of appeal may or may not fall away. As will appear from the reasons for judgment given by Brownie AJA with whose reasons Giles JA agrees, and from the reasons given below, in the events which have happened it has become unnecessary for submissions to be taken on the remaining grounds of appeal.

The appropriate analysis of the evidence and of the trial Judge’s findings

47    In a very carefully considered and detailed judgment the trial judge examined the many particular matters falling for consideration in this extremely sensitive case. In my view Brownie AJA has in his reasons for judgment correctly analysed the factual circumstances to be discerned from a careful examination of the evidence before the trial judge and has correctly analysed the trial Judge’s findings of fact. Whilst I agree with the judgment of Brownie AJA, given the particular sensitivity and importance of the issues before the Court it is appropriate that I express my own views in particular on some of the legal issues which arise and to a lesser extent, upon the application of the principles to the facts.

Identifying the existence and content of any relevant duty of care

48    The trial judge appeared to accept and seek to apply the principle set out in Kirkham vs Chief Constable of the Greater Manchester Police (1992) WLR 987 that "when a person is detained in custody by police or prison authorities there is a duty upon the person having custody of another to take all reasonable steps to avoid acts or omissions which he could reasonably foresee would be likely to harm the person for whom he is responsible".

49    In Smith v Leurs (1945) 70 CLR 256 at 262 Dixon J remarked that it was ‘exceptional to find in the law a duty to control another’s actions to prevent harm to strangers.’ It is equally exceptional to find in the law a duty to control another actions to prevent harm to themselves. However, in the context of the lawful detention of one person by another’s person both duties obtain. Custodial authorities owe a duty to a person they detain to take reasonable care to protect that person from injury caused by third parties: L v Commonwealth (1976) 10 ALR 269, Thomas v Corrective Services Commission of New South Wales (Unreported, NSWCA, 20 December 1989), and from injury caused by themselves, whether by accident Howard v Jarvis (1958) 98 CLR 177 at 183) or deliberately: Cekan v Haines (1990) 21 NSWLR 296 at 297, Reeves v Metropolitan Commissioner of Police [1999] 2 WLR 363.

50    The principle was expressed in the following terms by Dixon CJ, Fullagar and Taylor JJ, in Howard v Jarvis at 183:

"In arresting and detaining Jarvis [Constable Howard] was no doubt acting lawfully and properly and in the due execution of his duty, but he was depriving Jarvis of his liberty, and he was assuming control for the time being of his person, and it necessarily followed, in our opinion, that he came under a duty to exercise reasonable care for the safety of his person during the detention."

51    And it is not without significance in relation to the present proceedings to also draw attention to their Honours emphasis at 185 that the case before the High Court was of a spectacular calamity

"It is one of that not uncommon class in which very grave damage would not or might not have ensued if a precaution, trifling in itself, had been taken or had been more thoroughly taken. In such cases it is specially necessary to be on one's guard lest too high a standard of care be applied"
[emphasis added]

52    The imposition of a duty of care on custodial authorities in favour of persons detained is, as Brownie AJA has noted, uncontroversial. However, the determination of the scope of a duty of care is a matter separate from its existence: Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at 478 per Kirby J, at 487 per Hayne J). In argument, Mr Bates for the respondent submitted that the scope of the duty of the appellant in this matter extended to taking reasonable precautions to prevent the respondent suffering injury while attempting an escape. This he contended, was a duty, owed to any person held in custody, whatever their ethnicity or the extent of their sobriety. The duty was a fortiori, in his submission, when the respondent was an Aborigine, a known drug user and had expressed a reluctance to be further detained in the form of the respondent’s comment that she did not want to go to Mulawa Women’s Correctional Centre. In this way, Mr Bates’ submission may be thought to have moved away from that put to the learned trial judge (and recorded by her on the first page of her judgment) that ‘the defendant has a special duty of care to persons, particularly Aboriginal persons, when they are in police custody.’

53    In support of his submission that custodial authorities owed to a person detained a duty to take reasonable care to prevent a person suffering injury while attempting to escape, Mr Bates referred to no authorities where such a duty was found to have existed. My own researches have disclosed none. In Dorset Yacht Co Ltd v Home Office [1970] AC 1004 the House of Lords refused to strike out a claim arising from loss alleged to have occurred when seven juvenile detainees escaped from custody and commandeered a boat in making their escape from the Island on which they were being housed. While the House of Lords was able to conceive of a duty owed on the part of the Home Office to the yacht owners in the subject circumstances and perhaps to the owners of other types of property which could foreseeably be used by an escapee, Lord Diplock (at 1070) was careful to negative any general duty on the part of authorities to prevent escape.

54    In Thorne v Western Australia [1964] WAR 147 the plaintiff was attacked by a prisoner (the plaintiff’s estranged husband) who had escaped and prior to his escape made specific threats against the plaintiff. Negus J was of the opinion that no breach of a duty had been made out and appears to have proceeded on the assumption that a duty did, in fact, exist. While his Honour does not appear to have expressly alluded to the precise content of the duty which his Honour found existed, that duty appears to have been regarded as requiring reasonable measures to ensure that a prisoner does not escape when that prisoner has made explicit threats against another person. If so the decision is, to my mind, consistent with the later authority of Dorset Yacht Co v Home Office and the assumption is correctly made.

55    However, a duty on behalf of custodial authorities to take reasonable care to prevent an escape by prisoners which extends in scope to third parties who’s person or property may be damaged by an escapee is plainly far removed from a duty owed to a person attempting to escape, to exercise reasonable care to ensure that such a person does not injure himself or herself in the course of an attempted escape. To my mind, it cannot be correct that a custodial authority is burdened with the latter duty . This is because I cannot conceive of any content which such a duty may be said possess consistent with a custodial authorities other responsibilities. Faced with such a duty, how is a custodial authority to act? It is not sufficient to say that a custodial authority must exercise reasonable care, for that merely phrases the question another way and the problem persists: in what manner may a custodial authority discharge its duty to exercise reasonable care. Is the custodial authority to facilitate the ease and safety of escape? Such a notion is clearly absurd. Is the custodial authority, in the hope of deterring escape, to make it so treacherous that any person who escaped would be sure to be unsuccessful and be injured? Such a holding would be draconian indeed and would unduly fetter the proper discretion of a custodial authority to choose the level of security appropriate in all the circumstances. Because I am unable to give the duty contended for duty any meaningful content, I am driven to conclude that it is a duty unknown to the law.

56    The duty agitated by the appellant before the learned trial judge was, as her Honour expressed it, ‘a special duty of care to look after [the respondent] whilst she was in their custody.’ To my mind, the inherent flexibility contained in the standard of care required by the law of negligence - ‘reasonableness’ - obviates the need for any a special or higher duty of care to be cast on police and other custodial authorities in relation to any particular group of prisoners.

57    As Mahoney JA (as his Honour then was), pointed out in Cekan v Haines (supra at 313) the standard of reasonableness is not a fixed formula. It is a formula applied in all the circumstances, the most important of which are those specified in the judgment of Mason J (as he then was) in Wyong Shire Council v Shirt and extracted in the judgment of Brownie AJA in this case. Applying the second of the considerations there set out - the probability of the risk occurring - it may be thought that in the case of incarceration of members of particular groups of persons, a disposition to custody may obtain which would lead a reasonable person to exercise a higher standard of care than would otherwise be the case. But this would not always be so and for both the reasons given below and for the reasons given by Brownie AJA, no breach of duty has occurred in this case.

58    The trial judge also referred to the decision of the Supreme Court of Victoria in Rigg v State of New South Wales (1993) Aust Torts Reports 81 - 230 where the plaintiff was also a teenager when taken into custody and suffered very severe injuries when he attempted to commit suicide. As the trial judge pointed out, the plaintiff in that case had a past history of drug problems and psychiatric treatment and had also previously attempted to commit suicide while in police custody this fact not having been known to the arresting police who were, however, aware of his psychiatric history. On the occasion in question the plaintiff had been calm and cooperative, showing no signs of anxiety, agitation or depression and denied to the attending police officer that he had ever committed suicide.

59    The plaintiff in Rigg was arrested and charged with a co-offender at a small country police station in New South Wales with limited physical facilities. The co-offender was kept in the dock and the plaintiff was placed in the exercise yard where he was left alone for between 10 and 12 minutes.

60    Beach J found that there was nothing which had been sufficient to put the attending police officer on guard about the plaintiff's propensity to commit suicide. His Honour held that to find a breach of duty of care in that case was to impose upon the police "a standard of perfection rather than the standard one would expect of an ordinary police officer placed in the same situation"

61    To my mind it is clear when one stands back from all of the facts the subject of the trial judge's findings in the present proceedings and calmly and carefully examines:

(a) the particular findings as to the state of knowledge which the arresting officers had as to the physical and mental condition and general circumstances of the respondent at the time.

(b) what were and were not the reasonable steps which those arresting officers could have been expected to take, to avoid acts or omissions which they could reasonably foresee would be likely to harm or result in harm to the respondent

(c) the highly unusual action taken by the respondent on the occasion in question

it becomes quite plain that no relevant breach of any duty of care took place.

62    In relation to the trial judge's finding that no or no sufficient supervision of the respondent was undertaken, as Brownie AJA has said, the immediate question which arises is as to precisely what steps in the circumstances, could reasonably have been expected to have been taken by the arresting officers. It seems tolerably clear from the trial judge's findings, that the plaintiff was permitted to move around the subject premises and that both Mr McKellar and Ms Smyth were carrying out their respective tasks without paying very particular or very special attention to what the respondent was doing. The trial judge's reasoning process seems to have been that a particular and special importance required to be attached by the constables to a series of matters which:

(a) ought to have alerted those officers to the need to take special steps to ensure that the respondent did not injure herself whilst in their custody.

(b) did not in fact alert those officers to that need.

63    These matters did not include any finding that the respondent had manifested gross signs of heroin intoxication at the time. These matters did include the detailed circumstances identified in the judgment of Brownie AJA.

64    In my view none of those circumstances justified the trial judge's finding that in the circumstances no or no sufficient supervision of the respondent was undertaken. The circumstances which obtained were extremely unusual. With the benefit of hindsight one can often be excused for elevating into a breach of duty of care, a fact situation which, on careful analysis, simply does warrant such a finding. Here there was no history at all of escape attempts or of a propensity to engage in self harm and even accepting her heroin habit, her aboriginality and her exhibited fear of incarceration, the very notion of reasonable foreseeability by the arresting officers of this respondent having any likelihood in the circumstances of acting in the manner in which she did, seems to me to be misconceived.

65    It might also be noted that in Wyong Shire Council v Shirt (1979) 146 CLR 40 at 47 Mason J noted as one of the factors relevant to a reasonable person’s standards of care ‘any conflicting responsibilities which the defendant may have.’ In this case, the requirement of supervision and restraint of the respondent had to be balanced by the police officers with the necessity to ensure that the custody of the respondent was not overbearing or intimidating. This balancing process can be seen in their decision not to handcuff the respondent; a decision the trial judge specifically approved of. To my mind, the decision of the police officers to permit the respondent a degree of freedom was not inconsistent with the actions of a reasonable police officer, when viewed in the context of these competing demands. For this further reason there was, to my mind, no breach of duty.

66    For those reasons I concur in the proposed orders suggested by Brownie AJA.

******