Another tough day at the office for an assaulted correctional officer

Corbin v State of Queensland [2019] QSC 110

Ryan J

FACTS

The Plaintiff, a correctional officer, claimed damages against the State of Queensland for personal injuries sustained when assaulted by a defiant prisoner who was directed to cease smoking. The State of Queensland defended the claim.

The Plaintiff began training as a prison officer by completing a ten-week training course in 2008.

The Plaintiff agreed that his training concerned officer safety, where he was taught to be vigilant at all times in dealing with prisoners. He agreed that the training included for officers to expect changes in the prisoners’ temperament. [7] – [9].

However, the Plaintiff did not agree that officer safety was a large part of it. He did not agree that he was trained in a ‘buddy system’ to work with another corrective services officer (‘CSO’). He also claimed to not be taught to keep his co-worker in his line of sight. [9] – [10].

Events of 10 October 2013:

On 10 October 2013, the Plaintiff was assaulted by a young offender, Prisoner X, in the common area of unit S5. [14], [22].

Prisoner X was 29 years old when he was afforded protection prisoner status. He transferred from the Brisbane Correctional Centre to Wolston Correctional Centre. His previous convictions were for mostly drug and property offences, as dealt with in the Magistrates Court. He arrived on 12 April 2013 and assaulted Mr Corbin within six months of his arrival. [21].

Prisoner X was playing cards with seven other prisoners at the table closest to the Plaintiff’s desk. Prisoner X was smoking, which was not permitted conduct in the centre. [24].

The Plaintiff told Prisoner X to put the cigarette out. He thought Prisoner X obeyed this instruction but later saw them leading back in their chair and blowing cigarette smoke up to the ceiling. The Plaintiff perceived this as disrespect and kept his eyes on Prisoner X while entering the workstation into the common area. He did not confirm if his CSO partner was still at the workstation. [24]

The Plaintiff informed Prisoner X that surveillance had recorded the breach, instructing them to pack up the cigarettes and go outside. Prisoner X resisted their authority. The Plaintiff raised his voice and re-asserted his authority by repeating himself. [25]

Prisoner X then assaulted the Plaintiff by hitting him repeatedly on the left side of the head and face. The Plaintiff was knocked to the ground and may have been briefly unconscious, suffering heavy blood loss. [26] – [27]

The Plaintiff thought his CSO partner had been at the desk when he approached Prisoner X. However, he did not hear his CSO partner notify that he was leaving the unit to take the bins out. The Plaintiff claims that, had he known he was the only prisoner officer in the unit, he would not have confronted Prisoner X. He claims that he would have called for extra assistance in removing Prisoner X from the unit. [28] – [29]

Aftermath: [38]

The Plaintiff bled profusely from his mouth, where his lip was lacerated, and his teeth were damaged and loose. There was also a diagnosed injury to his infraorbital nerve that caused painful sensations. He developed abnormal movement symptoms and a developed stutter where the cause is uncertain, but expert opinion suggests that they were precipitated by the assault. The Plaintiff developed and continues to suffer from Post-Traumatic Stress Disorder.

ISSUES

If the State was aware that the risk Prisoner X posed to the prison officers was over and above the expected present risk in the prison environment, then the Queensland Corrective Services owes a duty to take reasonable measures to avoid the risk of harm, in addition to existing supervision measures. This duty is non-delegable but not strict. [92] – [95]

However, the Plaintiff must show that:

  • the defendant ‘unreasonably failed’ to take measures to protect the Plaintiff from foreseeable risk of injury; and
  • if the reasonable measures had been taken, the Plaintiff would not have suffered the injury [95]

JUDGMENT

Foreseeability [82] – [95]

Was the assault upon the Plaintiff ‘reasonably foreseeable’? At common law, breach is not established with the benefit of hindsight but what the reasonable person should have done. [96] – [97]

‘Remarkable’ prisoner [72] – [118]

[106] Was X a ‘remarkable’ prisoner? A ‘remarkable prisoner’ poses a risk that other prisoners at the correctional centre did not pose.

[107] – [150] There was consistency between witnesses who worked at the correctional centre during the relevant time regarding the general characters of younger prisoners. Young prisoners tend to use drugs and challenge authority, where they were in protection due to their disruptions in mainstream prison units. They were generally not as easy to manage as the older prisoners. There was also consensus that prisons were generally more violent places than they once had been. [151] – [152]

The Court concluded that Prisoner X attributed the same characteristics as the categorical proportion of younger prisoners and hence was unremarkable. However, the Court contended that the relevant question is not the remarkableness, but whether the foreseeable risk required his management under an Intensive Management Plan (‘IMP’) [153]

Management using IMP [72] – [118]

The Court commented that while a level of violence is foreseeable within the demographic of prisoners, the assaults by prisoners upon prison officers are less common.

The Court found that an opinion that Prisoner X ought to be subjected to an IMP had suffered on its factual basis. The plaintiff’s expert understanding of the correctional centre cohort as ‘more compliant and cooperative’ was inconsistent with evidence presented by those with relevant experience. For his opinion to carry persuasive weight, it needed to be based on evidence about the composition of the correctional centre in 2013, or at minimum, based upon the changes in prisoner demographics. [207]

The plaintiff’s expert had also mistaken that Prisoner X was required to complete the rehabilitative program offered to him. There was no oral evidence about the program, its purpose, or exclusivity. There was no evidence that Prisoner X was required to complete it, and his refusal had no consequence to his management or placement. Although it may have been to his detriment to not participate from a parole perspective, Prisoner X perceived it to be no assistance since he had outstanding charges. Thus, the Court held the commentator to treat Prisoner X’s refusal to participate in the program offered to him as an act of defiance, and therefore indicative of a posed risk, was not addressed by management [208]

The Court was satisfied that management tools were deployed. Prisoner X was ‘breached’ for having a lighter in his possession. When Prisoner X turned up to a cell door in only his underwear, the CSOs required all prisoners to remain at their doors until Prisoner X dressed himself properly to incite negative peer response to prevent repeated behaviour. After being late for an industry parade, he was sent back to his unit but later permitted to attend work. All the ringleaders in the unit were dispersed. [210]

Breach of Duty [212] – [236]

Would a reasonable employer have managed Prisoner X by way of an IMP? [216] – [233]

Although the Court found that Prisoner X posed a higher risk of violence than the stereotypical protection prisoner, he was one of many prisoners to pose the risk. The Court was not satisfied that the risk of Prisoner X assaulting prison staff arose to such an extent to require management by IMP. Although Prisoner X’s behaviour was trying with a ‘poor attitude’ and ‘unfiltered’ mouth who continued to challenge authority, he had not threatened or attempted to intimidate. [218] – [219]

The Court held it was reasonable for the Defendant to treat Prisoner X’s history of using threats and taunts towards staff as empty expressions of immaturity without consequent action. It was reasonable for the Defendant to observe Prisoner X’s behaviour at the correctional centre before deciding whether he required special management. [222]

Thus, the Court held that a reasonable employer would not have managed Prisoner X using an IMP upon admission or prior to his assault upon the Plaintiff. [233]

Were the defendant’s policies inadequate? [224] – [235]

The Court did not find that the defendant failed to take precautions. [235]

Rather, the Court theorised that the Plaintiff probably heard his partner declare that he was going to put the bins out. However,  the Plaintiff was probably triggered by Prisoner X’s conduct to such an extent that he forgot about being alone in the unit momentarily. [234]

Under the stress of this litigation and compulsion to succeed, the Court theorised that Mr Corbin has tailored some of his evidence to his perceived advantage. This condition is reflected in psychiatric evidence reporting that the Plaintiff has been extremely stressed and distressed by this litigious process. [233]

Did the defendant breach the duty it owed to the Plaintiff? [236]

The Court was not persuaded that a reasonable employer would have managed Prisoner X using an IMP.

Causation  [237] – [282]

The Court summarised key leading authorities considered in the present case:

  1. statutory provisions require a different approach to the common law approach (Inghams v Tat [2018] QCA 182), where the causal determination is divided further into elements of factual causation and scope of liability
    1. factual causation – requires proof that the defendant’s negligence was a necessary condition of the occurrence of particular harm, i.e. a condition that must be present for the occurrence of particular harm (Strong v Woolworths (2012) 246 CLR 182)
    2. scope of liability – policy considerations inform the judgment of this element, i.e. whether legal responsibility should attach to the defendant’s conduct (Strong v Woolworths (2012) 246 CLR 182)
  2. there may be more than one set of necessary conditions for a particular harm to occur. For example, the Defendant’s negligent act or omission, which is necessary for completing a set of conditions that jointly suffice to account for the harm occurring, will meet the test of factual causation in section 305D(1)(a). In this case, the Defendant’s conduct may be described as contributing to the harm: Strong v Woolworths;
  3. Factual causation is not proven by:
    1. recognising that changing the circumstances in which the injury occurred might have made a difference; Adeels Palace (2009) 239 CLR 420.
    2. pointing to possibilities that may have eventuated under different circumstances; Adeels Palace (2009) 239 CLR 420.
  • pointing out the relevant duty of care was to take reasonable steps to prevent violent assault, where the damage sustained by the Plaintiffs was “the very kind of thing” which the relevant duty obliged Adeels Palace to take reasonable steps to prevent – this obscures the need to prove causation. Rather, this observation may be relevant to assessing the scope of liability instead.

The ‘but for’ test of factual causation was not established in Adeels Palace. Since the absence of security personnel was not a necessary condition of the occurrence of the harm, it was not satisfied. The question then was whether the [the equivalent of s 305D(2)] applied. Section 305D(2) applies to an exceptional case where the ‘but for’ test cannot be established. Whether section 305D(2) is engaged depends upon whether, and to what extent “established principles” countenance departure from the “but for” test of causation.

The Court must consider whether or not, and why, responsibility for the harm should be imposed upon the negligent party. However, to hold the Defendant responsible in negligence if not providing security was not a necessary condition of the occurrence of the harm but providing security might have deterred or prevented its occurrence is contrary to established principles – as in Adeels Place [239(l)] – [240]

Other cases that the Court reviewed but were non-determinative in the discussion include:

  • Greenway [2017] QCA 103 – McMurdo JA applied the “but for” question under section 305D(1)(a) by first asking how the discharge of the defendant’s duties would have made a difference to the respondent’s experience. The defendant’s exercise of reasonable care required taking necessary steps to protect the Plaintiff from ongoing exposure to the potential of further harm by the young offender. In that case, at its highest, the psychiatric evidence provided no more than a possibility that, if the breach had not occurred, then the PTSD would not have occurred. Thus, causation had not been [242] – [245]
  • Tabet v Gett [2010] HCA 12 – submitted by the Plaintiff: causation at common law requires the plaintiff to prove that the more probable inference is that a defendant’s negligence caused the harm. [256]
  • New South Wales v Bujdoso [2005] HCA 76 – submitted by the Plaintiff: the Plaintiff is not required to prove that, if it were not for the Defendant’s negligence, his safety would have been guaranteed. In Bujdoso, the plaintiff prisoner was situated in a dangerous environment due to layout and absence of prison officer. Reasonable measures that could have been undertaken included: more frequent checking of the prisoners, stronger locks and doors, checking for weapons, relocation of the plaintiff to a room close to the prison officer’s room to reduce the risk of assault; better surveillance, where it had previously been effective in preventing other unacceptable activities of prisoners within that unit. [263] – [264]
  • Leeder v The State of Western Australia [2008] WASCA 192 – submitted by the Plaintiff as analogous to case: held that the prison officers had successfully sued the State in negligence [262] In Leeder, a prisoner officer working in the detention unit was not told about the prisoner’s aggressive behaviour the day before and was consequently assaulted. The reasonable care of the plaintiff required the defendant to inform about the prisoner’s behaviour so that he could assess the situation. Without the evidence that the cautionary measures would not have prevented the assault, then causation is established where the defendant’s breach of duty caused the plaintiff’s injuries. [265]
  • Eastment v State of Queensland [2018] QCA 253: submitted by the Plaintiff as not analogous to case, where the prison officer was not successful. The Defendant submitted that the State was under a duty to impose a regime of ‘normal control and supervision’ upon Prisoner X where there is no knowledge of requiring additional measures. [92], [262]

By reference to Inghams v Tat [2018] QCA 182, the Court held that they should not assume that counselling under the IMP would have been effective on Prisoner X. In Inghams Enterprises v Tat, the plaintiff, a factory worker, was attacked late at night and suffered significant PTSD. At first instance, the defendant was found to be have breached their duty to the plaintiff by failing to educate staff about suspicious behaviour in their company carpark. However, the matter did not succeed on appeal because the judge should not have assumed that the assailant would have acted rationally in response to a request to leave the premises. [247]

The Court was not persuaded that the Defendant’s breach of duty caused the injury to the Plaintiff. There is no valid assumption that it would have worked immediately or that Prisoner X’s attitude would have continually improved rather than fluctuated while subject to the IMP. [249]

Did failing to manage Prisoner X by way of an IMP cause the Plaintiff’s injury? [266] – [275]

The Court was unable to satisfactorily evaluate the likely effect of an IMP. Rather, the Court found that the Plaintiff was fed up with Prisoner X, whose behaviour was defiant and brazen, and therefore did not a secure basis for the conclusion that the defendant’s failure to manage Prisoner X by way of an IMP was a necessary precondition of the occurrence of the injury.  The Court was not persuaded that, given the heated circumstances of the assault, the Plaintiff would have acted any differently knowing that Prisoner X was involved in counselling or subject to an IMP. [275]

Other reasons that the Court that the Court did not consider persuasive included:

  • the plaintiff’s expert’s opinion about the effectiveness of IMPs was expressed in a very general way, and challenged by common sense evidence that (a) some prisoners will not change and (b) the IMP itself cannot achieve anything unless the prisoner who undertakes it is committed to change [266] – [268]
  • evidence that the proposed IMP s were tailored to a prisoner’s circumstances is questionable, since the plaintiff’s expert is not a psychologist and therefore does not persuasively have sufficient experience of the response of a prisoner (like Prisoner X) to psychological engagement to give his opinion weight [269] – [270]
  • There is no evidence of frequency or duration of the counselling, nor when Prisoner X would be likely to have shown the attitude change that the counselling is intended to bring. [271]
  • Even if accepting the plaintiff’s expert evidence that a prisoner’s behaviour would improve under the proposed IMP, the plaintiff’s expert did not specify when the desired outcomes would anticipatorily be achieved. The desired change in Prisoner X’s attitude was unlikely to be rapid. There is no sense of how long Prisoner X would be allowed to engage with his IMP before a decision might be made to remove him from S5.

Would the assault not have occurred but for the failure to take two-officer precautions? [276] – [282]

The Court was not persuaded that but for the Plaintiff’s CSO partner’s assumed actions, the assault would not have occurred. [282]

The Court was not persuaded that the presence of a second officer would have changed the reaction of Prisoner X to the Plaintiff’s approach. At best, their presence may have resulted in fewer blows to the Plaintiff. [281]

Quantum  [283] – [434]

Although the Court was not satisfied that the defendant is liable to the Plaintiff, it is appropriate to assess the quantum of damages.

The Court formed the view that the Plaintiff overstated his movement symptoms to the extent that he asserted that were constant or ever present unless he was lying down. Although the Plaintiff claimed to be hypervigilant at the time of the surveillance recording, the absence of movement symptoms suggests otherwise. The Plaintiff’s PTSD symptoms are not as severe as they once were, but his symptoms are intense enough that finding employment will be difficult. [408] – [411]

The Court determined the quantum of damages as the following:

  • General damages – $34,100
  • Past economic loss – $203,680.
  • Interest on past economic loss – $10,915.
  • Future economic loss – $274,645
  • Past special damages (including interest) – $37,228
  • Future special damages – $15,000

David Cormack – Brisbane Barrister & Mediator

Ramisa Raya – Research Assistant

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