Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: ZHI MING JIAO v STATE OF NEW SOUTH WALES [2011] NSWCA 232
• Hearing dates: 2 August 2011
• Decision date: 02 August 2011
• Before: Handley AJA at [2]-[16]; Macfarlan JA at [1]; [18]-[19]; [21]; Young JA at [20]

Decision

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: NEGLIGENCE - prison authority - assault by fellow prisoner in visiting area - whether authority in breach of duty - social utility of contact prison visits - no question of principle.
• Category: Principal judgment
• Parties: Appellant - Zhi Ming Jiao; Respondent - The State of New South Wales
• Representation: Counsel: Appellant - M Bateman; Respondent - M Cashion SC and S Finnane; Solicitors: Appellant - Churchill Lawyers; Respondent - Crown Solicitor
• File Number(s): CA 07/265130

Decision under appeal

• Citation: [2010] NSWSC 172
• Date of Decision: 2010-03-16 00:00:00
• Before: Hislop J
• File Number(s): 2007/20280

Judgment

1 MACFARLAN JA : Handley AJA will give the first judgment.

2 HANDLEY AJA : This is an appeal by the unsuccessful plaintiff from the judgment of Mr Justice Hislop who dismissed his action.

3 The plaintiff was assaulted by a fellow inmate of the Metropolitan Reception and Remand Centre at Silverwater during visiting hours on 21 July 2005. He brought his action for damages against the State which is legally responsible for the acts and defaults of the Prison Service and its officers.

4 The assailant, who was waiting in Room 1 at the visitor centre, attacked the plaintiff who was seated with his wife, by punching him about his left eye. The injuries ultimately caused blindness in that eye.

5 The trial Judge described the visiting area and the arrangements for the prison officers responsible for supervising the prisoners and their visitors. Two officers were stationed at a desk facing the four rooms where visitor contact was occurring, another two officers were on roving duty nearby in the outdoor contact area. The Judge also identified the location of the surveillance cameras and the their less than complete coverage of the area.

6 The plaintiff was assaulted by a fellow inmate, also Chinese, who had shared the same cell with him for at least two days before the assault. The plaintiff said that he had not had a problem with his assailant before.

7 The Judge found that the attack occurred suddenly and without warning and there was no opportunity for any one to intervene. There was no reason for the defendant to anticipate this attack. The fact that the assailant walked towards the plaintiff was not a cause for alarm as he could have been going for a cup of coffee. His movements would not have excited suspicion until he commenced to strike the plaintiff.

8 The existence of a duty of care owed by the State to its prisoners was admitted and the State also admitted that the risk of one prisoner assaulting another was reasonably foreseeable. The issue at the trial was whether the State breached its duty to the plaintiff.

9 The Judge identified the issue as being whether the plaintiff had proved that his injury could have been avoided by some reasonably practical alternative system. The failure of the plaintiff to discharge this burden was the ground on which, ultimately, the Judge found a verdict for the defendant.

10 Four matters were relied upon by counsel for the plaintiff at the trial to establish that the injury could have been avoided by a reasonably practicable alternative system. The first related to the electronic surveillance, and the second to a regulation. The latter was not pursued in this Court. The third related to the duties of the prison officers charged with the supervision of the visiting area, and the fourth related to the provision of boxes in which prisoners would be isolated while having visitor contact.

11 The Judge rejected the plaintiff's criticisms of the surveillance system because improved surveillance could not have prevented the plaintiff's injury in view of the suddenness of the assault. He rejected criticisms of the arrangements for the disposition of the four prison officers because even the presence of one or more officers in the room would not have prevented the injury. The assailant acted knowing that he would inevitably be caught. The injury could only have been prevented if an officer was standing between the plaintiff and his assailant. Staffing at that level was of course totally impracticable.

12 The Judge also rejected the plaintiff's case that all visitor contact should have been in boxes. Under the existing arrangements prisoners restricted to boxes for disciplinary reasons were locked in during the visit and segregated from other prisoners. The Judge found however that there was potential for interaction between prisoners on the way to and from a box and the ability to set up an effective system to prevent that had not been canvassed in the evidence.

13 Importantly, the Judge said that the plaintiff called no evidence to establish that the system proposed would be practicable or reasonable or that any other system was appropriate. In fact there was some evidence to that effect, given by a Mr Iverson, to which I will refer in a moment.

14 Assistant Superintendent Hannah, a prison officer with twenty-one years experience, who had been in charge of inmates' visits to the Centre for the previous six years, gave evidence that almost all inmates were on remand. There were some 900 entitled to visits and a maximum of 120 visits a day were scheduled. Every inmate was allowed two one hour visits a week, subject to presently irrelevant exceptions. During those six years there had been 224,640 visits involving an estimated 1,296,000 visitors. During that period there had been six incidents, including that involving the plaintiff, where force had been necessary to restrain or subdue inmates in the visiting area. The other incidents resulted in only minor injuries.

15 The only evidence in support of a universal box system was that given by Mr Iverson. The Judge preferred the evidence of Assistant Superintendent Hannah because of his greater experience and for other reasons. His ultimate conclusion was that it had not been established that the proposed change to box visits was a reasonable practicable alternative. He had regard to the need to balance the benefits of the existing system for the control and good management of the gaol with the limited risk of injury, the improbability that any injury would be serious, the cost of implementing the change and the social utility of the activity that created the risk of harm. In this regard he referred to s 5B(2) of the Civil Liability Act.

16 Miss Bateman has said everything that could be said on behalf of the appellant but has failed to identify any error in the Judge's fact finding or reasoning or any other ground which would entitle this Court to intervene.

17 In my judgment therefore is that the appeal fails and I propose that it be dismissed with costs.

18 MACFARLAN JA : I agree. I would simply add the following. In considering in what way, if any, a reasonable person in the position of the prison authorities would have responded to such risk of injury to the appellant as there was, it is in my view important to take account, as the primary judge did, of the following evidence given by Assistant Superintendent Hannah. At the date of trial Superintendent Hannah was the officer in charge of inmate visits at the MRRC. The following evidence that he gave was, this Court was told, not challenged in cross-examination, nor contradicted by other evidence.

"If say for instance a decision was made to provide all inmates with only box visits then a minimum of 60 boxes would be necessary. The implementation of box visits only would certainly dramatically reduce the need for camera surveillance however other problems arise. That is to say, human contact for inmates with family and friends is an essential ingredient for humanising an inmate[']s time in gaol. The aspect of contact and non-contact box visits are respectively used to provide reward and punishment. My experience is that it is more common than not that inmates with box visits are more agitated and aggressive as a result. Having [in] mind that physical harm and other ill treatment such as possibly the withholding of food is illegal and because an inmate[']s freedom has already been removed then there is very little in the gaol system that enables reward and punish[ment]. Reward basically involves buy-ups, telephone calls and contact visits whilst punishment involves segregation, removal of buy-ups, removal of telephone calls and non-contact visits. Of the rewards contact visits are the most significant. Box visits to my way of thinking is just a further step towards dehumanisation of the inmate. Without contact visits behaviour of inmates would worsen considerably. Without contact visits one of the most significant methods for control and good management of the gaol would be lost. Bearing in mind that problems during contact visits are virtually negligible. I can only imagine the mayhem that would occur with the gaol system if contact visits were removed" (Statement of Gordon Hannah, 10 September 2009 at [15]).

19 This evidence indicated that there was considerable social utility in the activity that allegedly created the risk of harm (see Civil Liability Act 2002, s 5B(2)(d)).

20 YOUNG JA : I agree with both the judgments that have been delivered.

21 MACFARLAN JA : The order of the Court accordingly is that the appeal be dismissed with costs.

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Decision last updated: 09 August 2011