WCRA: violent prisoner & assault on prison officer

Eastment v State of Queensland [2017] QDC 201

Kefford DCJ

The plaintiff claimed for injuries following an assault on 8 March 2009 by prisoner X (who was known to be violent) while working as a custodial officer at the Maryborough Correctional Centre (the centre). The plaintiff’s assault took place when the plaintiff came to the assistance of a fellow correctional officer being assaulted. There was no dispute the assault took place, but the defendant denied it was liable for the assault.

The basis for the claim was that the defendant should have taken preventative action following the conduct of prisoner X at the committal on 6 March 2009. The committal concerned prisoner X and the charge of spitting on a custodial corrections officer.

The alleged conduct the plaintiff relied upon as giving rise to the foreseeable risk of injury was prisoner X became angry and upset in response to the evidence of Officer Linnenlucke at the committal, and that conduct predicated the likely future violent conduct of prisoner X. The plaintiff’s claim was that the centre’s Integrated Offender Management Strategy System (IOMS) ought to have been updated with the risk posed by prisoner X following the committal and that it was not. If the IOMS had been updated, then the heightened risk of prisoner X would have been recorded, and the plaintiff’s assault would have been minimised or prevented.

Hence, much turned on what took place at the committal and the evidence of Officer Linnenlucke.  The initial evidence of what took place was in the form of a statutory declaration by Officer Linnenlucke wherein it stated prisoner X become agitated and yelled at her. The statutory declaration went to depose that prisoner X said that Officer Linnenlucke was a “lying c*nt”, was aggressive, and made threats, so much, so the Judge intervened to stop her evidence while prisoner X calmed down. The statutory declaration was made three years and two months after the event.

The evidence of Officer Linnenlucke was vague. She could not recall being yelled at or the committal being stopped to allow prisoner X to calm down.

The audio recording of the committal was also in evidence. The audio did not support the allegations made, and Officer Linnenlucke conceded in cross-examination that the reason for that was because no threats were made and that her statutory declaration was “wrong”.

Unsurprisingly, Kefford DCJ found the evidence of Officer Linnenlucke “unreliable” and that the statutory declaration was not contemporaneous and in any event, she had conceded it was “wrong”. Her Honour also rejected that Officer Linnenlucke was not aware of the need to complete a case note or officer report for IOMS at the time of the committal because other evidence indicated she had done so extensively with other matters and of more trivial nature.

Her Honour’s view was bolstered by the evidence of Officers Hunter and Smith who did not observe any behaviour of prisoner X which warranted concern at the committal.

Breach of Duty

Her Honour considered the subset of the duty of care arising out of the care of prisoners and those employed to do so:

[44] In State of New South Wales v Napier [2002] NSWCA 402, with respect to the content of the duty in the context of a prison authority, the New South Wales Court of Appeal observed at [73] – [75]:

“As regards personal injury, certain relationships generate a duty of reasonable care that is so well recognised that citation of authority is unnecessary. These include occupier: lawful entrant and employer: employee.

A subset of the latter relationship is “the duty on those responsible for one of Her Majesty’s prisons … to take reasonable care for the safety of those who are within”.

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 … In speaking of control, I emphasise the right to control (see Proprietors of Strata Plan 17226 v Drakulic [2002] NSWCA 381 at [75] per Heydon JA who states that (in this context) a “gaoler has control over prisoners even if those prisoners are running amock (sic) and injuring the plaintiff, because the gaoler has the right to control the dangerous prisoners”).”

(citations omitted)

[45] The High Court also made a number of pertinent observations with respect to the duty in the context of a prison in State of New South Wales v Bujdoso [2005] HCA 76 at [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.”

After considering the authorities, her Honour accepted that for a violent prisoner, that if what was alleged to take place at the committal, did in fact happen, then it was foreseeable; however, because her Honour was not satisfied that it did, there was no need for it to be reported.

In respect to the general risk of violence, because prisoner X was known to be violent, her Honour was satisfied about the other systems and controls and that the risk was addressed and that there were not any “heightened” risks that needed special action. In this respect, her Honour noted the evidence following the committal that it did not reveal conduct that indicated a change in behaviour by prisoner X. Indeed, on the morning of the assault and up to the point shortly before the assault, prisoner X appeared to be not aggressive or agitated.

In the circumstances, breach of duty was not satisfied.

Causation

Given the event took place before the amendments to the Workers’ Compensation and Rehabilitation Act in 2010, causation was determined on the common law. The test of March v E & MH Stramare Pty Ltd (1991) 171 CLR 506[1991] HCA 12  and the question, posed in Fitzgerald v Penn [1954] HCA 74(1954) 91 CLR 268 at 276; [1954] HCA 74, “whether a particular act or omission … can fairly and properly be considered a cause of the accident” was applied.

The plaintiff alleged that if the risk had been known, then he would have intervened before the other officer went into the laundry and was assaulted, alternatively, the plaintiff alleged if more correctional officers were required for the laundry, the assault would not have happened.

Her Honour was not satisfied it would have prevented the assault. The first having been addressed above. As to more officers, her Honour noted prisoner X’s size and history and considered that more officers would not have prevented the prisoner starting the assault.

The plaintiff failed on causation.

David Cormack – Brisbane Barrister & Mediator

Appeal by the plaintiff dismissed:

Eastment v State of Queensland [2018] QCA 253

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