Watt v State of New South Wales

1. [1]

   At approximately 9am on 1 October 2009, the plaintiff, Adam Watt, whilst on remand within the Metropolitan Reception and Remand Centre (“MRRC”) at Silverwater Correctional Complex, was attacked by another prisoner who hit him over the head twice with a sandwich press contained in a pillowcase. This assault occurred in the common area of Pod 12 (“the Pod”) within the MRRC and was captured on closed-circuit television (“CCTV”). The plaintiff sustained serious injury in this attack, including a brain injury, a fractured skull and injury to the cervical and lumbar spine.

2. [2]

   The plaintiff, by Statement of Claim filed 22 May 2012, has sought to recover damages for his injury from the defendant, the State of New South Wales (“the State”), as the authority responsible for the administration and operation of prisons in NSW.

3. [3]

   The State has admitted that it owed a duty of care to the plaintiff, but denies any breach of that duty. A causation issue also arises. Further, there is an allegation of contributory negligence. The State also relies upon the provisions of s 54 of the Civil Liability Act 2002 (NSW) (“CLA”) as providing a complete defence to the claim.

4. [4]

   It is common ground that the plaintiff’s claim is subject to the provisions of the CLA, including Parts 2 and 2A, which includes s 54.

5. [5]

   For the reasons which follow, I am of the view that the plaintiff is entitled to succeed on his claim, and that he is entitled to an award of damages undiminished by any form of contributory negligence.

The Plaintiff’s Claim

1. [6]

   The plaintiff’s Statement of Claim contained preliminary matters with respect to the defendant’s liability to be sued pursuant to s 5 of the Crown Proceedings Act 1988 (NSW) (“CPA”), the fact that at the time he suffered injury he was a person in custody pursuant to the Crimes (Administration of Sentences) Act 1999 (NSW) (“CAS Act”), and that he was held at the relevant time at the defendant’s correctional centre, the MRRC. None of these matters were put in issue.

2. [7]

   The Statement of Claim then pleaded that the assailant, Django O’Hara (“O’Hara”), was also a person in custody held at the MRRC at the relevant time.

3. [8]

   The circumstances surrounding the assault were outlined in this way:

4. [9]

   A number of particulars of the defendant’s pleaded duty of care followed in the next paragraph. It was alleged that the State had a duty to: provide safe premises; maintain appropriate supervision of prisoners; investigate anti-social behaviour; provide segregated custody for persons likely to suffer injury from other prisoners; segregate violent or unmanageable prisoners; and monitor the activities of prisoners to ensure they do not carry items which could be used as weapons. Each of these can be properly understood as identifying the nature and content of the duty of care pleaded.

5. [10]

   Particulars of breach of duty which are lead against the State may be grouped into the following six broad categories:

   1. (1)

      failure to separate O’Hara from the plaintiff after an alleged initial altercation/attack on the plaintiff by O’Hara before the primary attack complained of;

   2. (2)

      failure to have regard to O’Hara’s criminal record and poor custodial record in determining not to isolate O’Hara from the plaintiff after the alleged initial altercation;

   3. (3)

      failure to investigate and remove the item (the sandwich press in a pillowcase) which O’Hara was carrying in the first altercation, which was then placed under a table tennis table in the Pod and ultimately used as a weapon in the attack which caused the plaintiff significant injuries;

   4. (4)

      failure to protect the plaintiff from a risk of serious injury, in circumstances where a warning had allegedly been provided by the Australian Federal Police (“AFP”) to the Corrective Services authorities about threats made against the plaintiff. This was also pleaded as a failure to follow directives and/or protocols relevant to when threats are made against a prisoner;

   5. (5)

      failure to place O’Hara in segregated custody; and

   6. (6)

      failure to restrict the plaintiff’s movements to areas where he would not be approached by prisoners with a history of violence and/or anti-social behaviour.

6. [11]

   In oral submissions, the plaintiff did not put the case that the State had been negligent by merely placing O’Hara in a remand centre as a sentenced prisoner. Rather, it was put that the decision to place O'Hara into the Pod was a flawed decision which was made without due attention to the taking of any steps to ensure the protection of the other inmates in the Pod.

7. [12]

   Further, it was said that the execution of that decision was itself negligent, because at the very least all Corrections officers who worked in the Pod at all times needed to be aware of O’Hara's history of a propensity to violence in the event of any situation of conflict. The officers on duty that day did not have any knowledge about O’Hara’s background.

Defence

1. [13]

   In its Defence to that Statement of Claim, which was filed on 28 March 2014, the State admitted that it was capable of being sued pursuant to s 5 of the CPA. It was also admitted that both the plaintiff and O’Hara were persons in custody for the purposes of the CAS Act at the relevant time.

2. [14]

   It admitted that an assault was perpetrated on the plaintiff by O’Hara on 1 October 2009 by the use of a sandwich press in a pillowcase as a weapon.

3. [15]

   The State, while accepting that it owed a duty of care to the plaintiff at all times whilst he was in custody, namely one to take reasonable care to prevent reasonably foreseeable harm or injury to him, submitted that the scope of the duty owed to the plaintiff is to be assessed in light of the circumstances in an individual case. In this case, the State denied that it was liable to the plaintiff for any injury, loss or damage he sustained as a result of the attack. It denied each particular of breach of duty particularised by the plaintiff.

4. [16]

   As well, the State submitted that it is a public or other authority as defined by s 41 of the CLA, and accordingly any functions required to be exercised by it were limited by the financial and other resources that are reasonably available to it for the purpose of exercising those functions: CLA s 42.

5. [17]

   As to the whole of the Statement of Claim, the State pleaded the provisions of Pts 1A, 2, 2A and 7 of the CLA. On the application of Pt 2A, the State submitted that it is a “protected defendant” and the plaintiff was at the relevant time an “offender in custody” within the meaning of s 26A(1) in Pt 2A. The State accordingly submitted that the provisions of Pt 2A would govern the plaintiff’s claim.

6. [18]

   The State did not admit that any injuries sustained by the plaintiff had resulted in a degree of permanent impairment that is at least 15%, as required by s 26C of the CLA.

7. [19]

   The State, in reliance on Part 7 of the CLA, submitted that if any damages were found to have been suffered by the plaintiff, the injury to the plaintiff occurred following his engagement in conduct constituting a “serious offence” within the meaning of s 54 of the CLA, a provision which precludes recovery of damages by “criminals”.

8. [20]

   The State submitted that the assault on the plaintiff, which caused the relevant injury, occurred after he had an earlier altercation with O’Hara (at about 08:44, approximately nine minutes before the subject assault) in the plaintiff’s cell in the Pod. It was said that during this altercation the plaintiff assaulted O’Hara and placed him in a “choke-hold”, using such a degree of force that O’Hara was close to losing consciousness. A further confrontation is then said to have occurred at approximately 08:46 whereby the plaintiff is said to have threatened O’Hara, although this confrontation was not itself relied upon as a serious criminal offence.

9. [21]

   The State submitted that during these two incidents the plaintiff committed a serious offence, and that his conduct “constituted an extreme provocation of O’Hara to commit the assault on the plaintiff, in all the circumstances”. Further, the alleged actions of the plaintiff towards O’Hara were said to have contributed materially to the risk of injury or damage to the plaintiff, pursuant to the requirements of s 54(1)(b) of the CLA.

10. [22]

    The State also pleaded a defence of contributory negligence, alleging seven particulars of such contributory negligence. Broadly, it submitted that the plaintiff contributed to any injury, loss and damage he may have suffered through:

    1. (1)

       his alleged involvement in altercations with O’Hara before the assault;

    2. (2)

       his alleged failure to advise the defendant of any risk to him at any time during his incarceration, including at any time on 1 October 2009 prior to the assault;

    3. (3)

       his failure to inform the defendant of any concerns he held about his safety; and

    4. (4)

       his failure to seek protection or segregation after the earlier altercations with O’Hara on 1 October 2009 at 08:44 and 08:46.

11. [23]

    Finally, it was submitted that the plaintiff’s conduct constituted a voluntary assumption of risk on his part in relation to the assault that occurred, and that in those circumstances the defendant owed him no duty of care.

The Incident

1. [24]

   Contemporaneous corrections centre incident reports and the CCTV footage of the principal incident, satisfy me that the following events occurred on 1 October 2009.

2. [25]

   At 08:53, O’Hara came down the stairs from the upper level of cells and approached the plaintiff, who was seated at a table in the Pod “day room” or common area from behind. O’Hara was holding a pillowcase with a metal sandwich press concealed inside. He then swung the pillowcase and hit the plaintiff over the head, knocking him to the floor in an apparently unconscious state. O’Hara then hit the plaintiff over the head with the sandwich press in the pillowcase a second time, as he lay on the floor.

3. [26]

   O’Hara was only prevented from striking the plaintiff a third time by the intervention of another inmate (Visser) who lifted a chair and pointed it in the direction of O’Hara in the manner of a lion tamer. Another inmate (Youseff) then struck Visser several times to the side of the face prior to staff arriving to respond to the incident.

4. [27]

   The plaintiff was completely unaware of O’Hara’s approach prior to his being struck. No warning of any kind was given.

5. [28]

   One of the two Corrections officers on duty, Aaron Howard, wrote in his Incident Report that he immediately responded to the Pod when he saw O’Hara swinging a green pillowcase. After observing the plaintiff on the ground with O’Hara standing over him, he then saw O’Hara then turn his attention to Visser, who picked up a chair.

6. [29]

   Officer Howard then “called response to G12”, instructed O’Hara to drop the pillowcase, removed the pillowcase with the sandwich press inside it and secured it in the interview room near the Pod exit holding cage. He made his way back to the plaintiff and called an ambulance. He also instructed all inmates to return to their cells (a “lock in”), and they complied.

7. [30]

   Another officer in the Pod’s staff kitchen, Kenneth Randall, also saw the four inmates involved in the melee. He told Youseff to “back off” and then grabbed Visser, escorting him to the inmate kitchen.

8. [31]

   O’Hara and Youseff were then escorted from the scene and placed on 14 day Segregation Orders. O’Hara was placed on a Mandatory Notification Form and secured in a safe cell in D Block under constant camera observation, to be reviewed by the Mental Health Team.

9. [32]

   The plaintiff, after receiving emergency treatment by Justice Health for his head injuries, was taken by ambulance to Auburn Hospital. He returned to the MRRC on the evening of the same day and was placed in the main clinic under medical observation. He was then returned to hospital on 3 October 2009 for surgery.

10. [33]

    No Corrections officers were injured in the incident. Auburn Police were notified and attended the MRRC to interview a number of inmates and staff.

Incidents before the Assault

1. [34]

   The principal incident was the final event in a sequence of three between O’Hara and the plaintiff on that morning.

2. [35]

   The evidence demonstrates that there were two earlier incidents on the same morning. The accounts of those incidents, including who was said to be the aggressor differed in the evidence.

3. [36]

   It will be convenient to refer to the first incident as the “cell altercation” because it was said to have occurred in the plaintiff’s cell. The second incident is best described as “the confrontation” because no actual violence was used.

4. [37]

   The plaintiff provided a version of events of the cell altercation to Senior Assistant Superintendent Timothy Bridge on 3 October 2009 whilst he was still in the MRRC clinic. He told Mr Bridge that he wanted O’Hara to stop hiding drugs and drug paraphernalia in the common areas, as it was making the sweepers (including himself) “not look good” and bringing them under “suspicion”. The plaintiff alleged that O’Hara had assaulted and blackmailed or “stood over” another inmate with whom he was friendly, Visser, while Visser was in his cell. O’Hara allegedly gave Visser a note with his bank details on it and told him to place $10,000 in O’Hara’s bank account or else he would “deal” with him.

5. [38]

   The plaintiff said that on the morning of 1 October 2009, O’Hara had come into his cell on the bottom landing of the Pod, approached the plaintiff and threatened him with a gaol-made weapon which had been concealed in his sock. O’Hara allegedly threatened to stab the plaintiff in retaliation for the plaintiff acting as Visser’s “bodyguard”. The plaintiff then grabbed O’Hara and placed him in a choke-hold to restrain him in order to remove the weapon from him. The plaintiff said they struggled for a short time which caused O’Hara to briefly lose consciousness from lack of oxygen. The plaintiff stated that he then pushed O’Hara from his cell into the day room. The plaintiff left the cell and also went to the day room.

6. [39]

   The plaintiff’s evidence-in-chief is set out in his statement, which became an exhibit. In that statement he gave this version:

7. [40]

   There is no difference of substance between the reasonably contemporaneous account given by the plaintiff and the account set out in his evidence.

8. [41]

   The account of the confrontation is to be found in the oral evidence and from what can be seen on the CCTV footage of the common area of the Pod. The plaintiff in his statement said that he heard O’Hara in a loud voice threaten him after coming quickly down one set of stairs. At the time O’Hara came down the stairs he was carrying a weapon which was a sandwich press in a pillowcase. The plaintiff says that O’Hara again threatened him, in the full sight of the officers in the Pod, who intervened. The plaintiff says that the Pod officer instructed him to shake hands with O’Hara and for each to tell the other that the issue was over. This occurred, and O’Hara returned upstairs to his cell.

9. [42]

   Although the plaintiff did not see what happened to the weapon, the CCTV clearly shows a fellow inmate, to whom O’Hara had handed the pillowcase, quickly throwing the pillowcase, containing a heavy weight (obviously the sandwich press) under the ping pong table which was in the general area of the Pod. It was removed by that same inmate a short time later.

10. [43]

    The plaintiff said that he sat down at the table to speak to other inmates. He was soon struck from behind. He has no recollection of this assault, and his next recollection is being in the ambulance to Auburn Hospital.

11. [44]

    O’Hara was not called to give evidence. No explanation was given for the fact that he was not called. The Court was informed from the bar table, without objection, that O’Hara was in custody at the time of the hearing serving a sentence for the assault on the plaintiff. The Court was told that the sentence would expire on 25 November 2019. O’Hara was first eligible for parole on 25 May 2017, but parole had not been granted. As O’Hara was in custody at the time of hearing, his attendance could have been procured by the issue of the appropriate warrant by the Court upon the request of the solicitors for the State. There was no evidence that such warrant had ever been applied for by the State.

12. [45]

    When O’Hara was interviewed by Mr Bridge and Senior Corrections Officer O’Brien two days after the incident on 3 October 2009, he gave a version of events as to why he had assaulted the plaintiff. Unsurprisingly, this version portrayed the plaintiff as the aggressor.

13. [46]

    O’Hara, when describing the cell altercation, said that he went to the “four-out cell” on the bottom landing in the Pod to get a cup from the sweepers housed in the cell. Upon entering this cell, he was set upon by the plaintiff apparently without reason, who punched him several times to the head and placed him in a chokehold, which nearly caused him to lose consciousness. He thought that someone then came into the cell during the incident and helped him get out of the cell. Based on an interview with another inmate, Youseff, Mr Bridge was of the view that it was Youseff who had assisted O’Hara. It is also appropriate to note that Youseff was not called to give evidence and no explanation was given as to why that was so.

14. [47]

    O’Hara, referring to the confrontation, said that at some point after that first incident in the plaintiff’s cell, he was involved in the confrontation with the plaintiff in the Pod common area, which he referred to as the day room. This was broken up by Corrections officers, who made O’Hara and the plaintiff shake hands. O’Hara said he went to the top landing and the plaintiff called to him from the lower level words to the effect: “Don’t worry, as soon as they go I am going to kill you properly”. He said that he then attacked the plaintiff because he feared for his life and said: “…I was going to kill him first before he got to me”.

15. [48]

    O’Hara also said that he was being “set up” and that the interview was “not a confession”, and refused to answer any more questions about the incident.

16. [49]

    Youseff was also interviewed after the incident. After initial reluctance to discuss the matter, he stated that he heard noises that sounded like a fight and some “choking noises” coming from the bottom four-out cell in the Pod, but was prevented from entering the cell by Visser, who was standing outside the cell door. After a short time, he pushed past Visser and entered the cell, where he observed the plaintiff holding O’Hara in a choke-hold. O’Hara was nearly “out of it” and he told the plaintiff to let him go. He intervened and assisted to break the plaintiff’s hold of O’Hara and helped O’Hara leave the cell.

17. [50]

    Youseff said he later saw O’Hara approach the plaintiff with a pillowcase in the day room and start arguing. Youseff stated that he pushed O’Hara away and took the pillowcase, throwing it under the ping pong table. The officer then approached and made the plaintiff and O’Hara shake hands. He said that after O’Hara went to his own cell, he heard the plaintiff making threats towards O’Hara about “killing” him. Shortly after that, he saw O’Hara come down the stairs carrying a pillowcase and move quickly towards the plaintiff, hitting him over the head. Youseff admitted that he became involved and punched Visser in the head three times before officers stopped the fight.

18. [51]

    Visser was also interviewed, and told the officers that the plaintiff was a “nice person” and a “gentleman”, while O’Hara was a “psychopath” and “stand over person who preyed on the weak in the Pod” in relation to threatening other inmates and attacking them in order to obtain their “buy-ups”. He felt that if he had not intervened and prevented O’Hara from continuing his assault on the plaintiff, the plaintiff would have likely been killed by a third blow to the head. Visser was not called to give evidence and no explanation for his absence was given.

19. [52]

    Two contemporaneous case notes written by two MRRC staff on 2 October 2009, which were part of Exh HH, recorded that each writer had noticed red marks around O’Hara’s neck. Ms Elayne Bell wrote that she asked O’Hara if he had attempted to harm himself and he stated that the plaintiff had attempted to choke him. Dr Darren Nicholls, a clinical psychologist at the MRRC, also recorded his observation of red marks on O’Hara’s neck. O’Hara told Dr Nicholls that someone had tried to strangle him when he was having his morning coffee.

The Cell Altercation - Discernment

1. [53]

   The first altercation took place out of sight of either of the corrective officers who were on duty in the Pod on that morning. There is no CCTV of the incident although O’Hara is seen on the CCTV to enter the plaintiff’s cell with him at about 8:44:30 and then leave the cell about one minute later.

2. [54]

   The plaintiff was the only witness who gave an account in sworn evidence (through his statement) as to what actually happened. The detail of this explanation is at [37] to [39] above.

3. [55]

   There is independent reliable evidence that red marks were observed on O’Hara’s neck on 2 October 2009. These were explained in two different ways by O’Hara: first, by saying that the plaintiff had attempted to choke him; and, secondly, by saying that someone (whom he did not identify) tried to strangle him when he was having his morning coffee.

4. [56]

   By the following day, O’Hara gave a much more extensive version portraying the plaintiff as an unprovoked aggressor, who first punched him several times to the head and then placed him in a chokehold. But before this interview was concluded, O’Hara declined to answer any further questions. No injuries were observed on O’Hara which may have been caused by being punched in the head.

5. [57]

   The accounts of Visser and Youssef shed little light on the first episode.

6. [58]

   In particular, the issue is whether during the first altercation, the plaintiff as an unprovoked aggressor, assaulted O’Hara by placing him in a chokehold, or whether the plaintiff was responding to an impending attack upon him by O’Hara who was armed with a “shiv”.

7. [59]

   The precise time of this first event is unclear. The second event, being the confrontation in the Pod, occurred at about 08:46:13 on the CCTV footage. It concluded at 08:46:50 when O’Hara and the plaintiff shook hands. The third event, the assault, occurred at 08:53:39, that is, about seven minutes after the confrontation.

8. [60]

   The evidence suggests that the first event in the plaintiff’s cell was at a somewhat earlier time, although that time is not really established. On no account of the circumstances did the plaintiff and O’Hara enter the cell together at the same time. That being so, the CCTV footage at 08:44:30, which shows the plaintiff and O’Hara entering the plaintiff’s cell together, cannot be footage of the first incident. The footage does not reveal any apparent animosity between the plaintiff and O’Hara at that time.

9. [61]

   On the plaintiff’s account, O’Hara was carrying a shiv and he defended himself from any possible attack by putting O’Hara into a headlock in order to force him drop the weapon. This would not constitute a serious offence for the purposes of Part 7 of the CLA.

10. [62]

    It was submitted by the State that this account was uncorroborated and, in particular, that the shiv which the plaintiff claim O’Hara was carrying, was never found. However, the evidence of Mr Howard, who was one of the two officers on duty in the Pod at that time, was that no search was ever undertaken for the weapon. No doubt this was because he was unaware of anything occurring in the plaintiff’s cell. The first inkling he had on that day of any disharmony between the plaintiff and O’Hara was the second event, which is the confrontation referred to earlier.

11. [63]

    It was also submitted that the Court would not accept the plaintiff’s version of what occurred because he was a less than satisfactory witness. This submission may be accepted without needing to discuss the reasons in detail as to why he was a less than satisfactory. No doubt that was in part because of his brain injury. But, on the other hand, the accounts relied upon by the State are unsworn, and given in circumstances where O’Hara was giving a self-serving exculpatory account of how his significant assault of the plaintiff came about. There is no reason to think that he was telling the truth. Importantly, however, the State did not call O’Hara as a witness to verify his account. It proffered no explanation for such a failure. Given the nature of his evidence, and the relevance of it to the defence mounted by the State, I infer that any evidence which he would have given would not have assisted the State: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

12. [64]

    The independent observations of what appeared to Dr Nicholls and Ms Bell to be red marks do not enable any distinction to be drawn between the two versions of how those marks came to be on O’Hara’s neck. The marks corroborate both versions of events, rather than one or the other.

13. [65]

    Ultimately, the State’s submissions call upon the Court to accept part of the plaintiff’s evidence, that is, that he placed O’Hara into a chokehold, but not that part of his evidence about his reason for doing so, and what led up to that occurring. I am not prepared to accept this submission. I am persuaded that, notwithstanding some reservations about the plaintiff’s evidence, on the balance of probabilities it is more likely to be the correct account. There are a number of reasons for this.

14. [66]

    First, there was no suggestion that at any time whilst he was in custody, the plaintiff was at any time reported as being, or else was regarded as, an aggressive individual. The evidence did not reveal any internal disciplinary charges or other reports related to aggression.

15. [67]

    On the other hand, as the material with respect to O’Hara later demonstrated, he was an unpredictably aggressive individual, with a belligerent attitude and a consistent record of using violence against any perceived opponent. It is far more likely that O’Hara would be the aggressor in any confrontation in the cells than the plaintiff would be.

16. [68]

    Secondly, the two events which followed this first event were both occasions where O’Hara was the aggressor, either threatening or else using violence. In my view, this lends support to the conclusion that in their interactions O’Hara was the violent aggressor rather than the plaintiff.

17. [69]

    Thirdly, if the account of O’Hara was correct, namely one of unprovoked aggression by the plaintiff, I think that it would be unlikely, as discussed above, that there would have been the further episode where O’Hara at 08:44:30 would have entered the plaintiff’s cell with him as shown on the CCTV footage. However, the plaintiff, having disarmed O’Hara using his undoubted martial arts skills, would have had no ongoing concern about any risk in such a situation from O’Hara. On the other hand, it is unlikely that O’Hara would readily have accompanied the plaintiff into the cell if he was at any ongoing risk of harm from the plaintiff.

18. [70]

    Finally, I am not prepared to entirely dismiss the oral and written evidence of the plaintiff as having no weight whatsoever, particularly in light of my conclusion with respect to O’Hara’s evidence in circumstances where the State failed to call him or explain his absence.

19. [71]

    It follows that I am satisfied that the plaintiff defended himself against an unprovoked armed attacked upon him by O’Hara, and that he did not commit any offence at all, let alone a serious offence.

The Confrontation – Discernment

1. [72]

   The confrontation was the second of the three earlier described events. At [37]-[39] above, I described the account given by the plaintiff. At [46]-[48] above, I have described the account given by O’Hara.

2. [73]

   The CCTV footage captures this confrontation, although there is no audio component. However, Mr Howard, one of the officers on duty in the Pod at the relevant time, gave evidence that his attention was drawn to an area which was eight to ten metres from the officer’s station and where he saw the plaintiff and O’Hara in close proximity to each other. Mr Howard had no recollection of what verbal exchange took place. He said that he observed the two inmates shake hands, after which they went their separate ways.

3. [74]

   In cross-examination, Mr Howard agreed that when he saw the confrontation, O’Hara was moving forward towards the plaintiff, who was walking backwards. That evidence is borne out by the CCTV footage.

4. [75]

   Although Mr Howard did not see if O’Hara was carrying anything, he clearly was. He had an object wrapped up in a pillowcase. I infer from the next event that it was a sandwich maker which he had concealed intending to use it if the occasion permitted. However, during the confrontation another inmate took the item from O’Hara before he could use it and threw it under the ping pong table in the middle of the common area in the Pod. This occurred a very short distance away from Mr Howard, who did not notice what happened. He did not observe the pillowcase at any later time, although it was plainly visible on an otherwise entirely clear floor. In my view, on the evidence about the visibility from the office area in the Pod, the pillowcase was visible to Mr Howard and his fellow officer. It was placed just under the table at the end nearest the office area.

5. [76]

   Having regard to the nature of this confrontation and what appears on the CCTV, I prefer the plaintiff’s evidence when he says that it was the Corrections officer who directed him to shake hands, rather than the two inmates doing so voluntarily to that given by Mr Howard.

6. [77]

   In my view, the extent of O’Hara’s aggressive behaviour to the plaintiff at the time, deterred only by the intervention of another inmate, the physical stances of the two inmates and the movements of the Corrections officer, make it most unlikely that O’Hara would have voluntarily and without any direction have offered an apparent sign of peace. The later assault adds strength to that conclusion.

Plaintiff’s History Prior to the Assault

1. [78]

   The plaintiff was born in 1967 and was aged 41 at the time of the attack.

2. [79]

   He attended primary school and secondary school in Balgowlah in the Northern Beaches area of Sydney, graduating from Year 12 in 1983.

3. [80]

   The plaintiff’s history is one of a variety of business ventures, some seemingly more successful than others.

4. [81]

   After secondary school, he commenced work as a landscaper between 1983 and 1985, and in 1985 began to run his own business (Watts Waterproofing). Watts Waterproofing secured large waterproofing contracts, including the successful tender for the waterproofing of the Australian National Maritime Museum in Darling Harbour.

5. [82]

   In 1989, the plaintiff moved to Japan, where he lived for about 10 years until returning to Sydney in 1999. In Japan, he was a full-time karate student. He successfully obtained his 4th Dan black belt and became a professional fighter, competing in karate, kickboxing and boxing.

6. [83]

   The plaintiff was, on the evidence, highly proficient in those pursuits. He achieved second place at the World Karate Championships and won four World Kickboxing titles during this period.

7. [84]

   Whilst in Japan, the plaintiff also commenced a business relationship with an individual referred to as “Master Ishii”. The plaintiff became one of the Principals of the Development Team which, under Master Ishii, established a global kickboxing tournament named “K1”. K1 is now the largest and most prestigious world kickboxing competition in the world. There are approximately 20 K1 tournaments per year, with the final held in Japan.

8. [85]

   Upon his return to Sydney in 1999, the plaintiff pursued his interest in boxing and won the Australian Oceania South Pacific Heavyweight Title. He also fought for the World Title in 2002 (on an “undercard”, which is a boxing bout before the main event) in a match contested by the world famous heavyweight boxer, Mike Tyson, in Glasgow, Scotland. The plaintiff’s ultimate oral evidence was that he was paid $50,000 for this fight.

9. [86]

   The plaintiff began another business venture in 1999, when he opened and operated the Seido Gymnasium in Manly. He continued in this venture until 2005.

10. [87]

    In about 2005, the plaintiff began another business venture. With a business partner named Guy Leach, another well-known Australian athlete, he formed a vitamin company called Excel Vitamins (“Excel”). This business continued until 2008.

11. [88]

    At about the same time (2005), the plaintiff acquired the exclusive South Pacific rights for Satellite Newspapers Pty Ltd (“Satellite”), a company which offered exclusive distribution of digital newspapers through a physical kiosk system, whereby purchasers would enter into a kiosk, electronically select their desired city and the newspaper they wanted from that city and then print that paper. Satellite was listed on NASDAQ and involved the digital printing and distribution of the top 200 newspapers globally. The plaintiff negotiated the inclusion of newspapers published by News Limited (now News Corp Australia) and Fairfax in the papers which Satellite distributed. The plaintiff resigned from the steering committee of Satellite in 2007.

12. [89]

    In about 2005 the plaintiff also formed another company, Tough Guy Pty Ltd (“Tough Guy”). Tough Guy managed Australian and world champion boxers (including negotiating contracts and broadcasting rights), and also managed events involving boxing and kickboxing throughout NSW. The plaintiff sourced sponsors for these events, including Fox Sports, Channel 9, Ford Motors and the Sydney Casino.

13. [90]

    In 2006, the plaintiff hosted a weekly half-hour television show on Foxtel, which ran for one year. He also commentated on national, international and world title contests for Sky Channel and Fox Sports.

14. [91]

    In 2007, he secured the Australian distribution rights for a weekly one-hour program entitled “KO TV”, which continued on Sky Channel until 2008. He would buy content and on-sell it for a profit to Sky Channel.

15. [92]

    A letter to the plaintiff dated 15 August 2007 from the Programming Manager for Sky Channel, Mathew Brooks (marked Exh NN) indicated that feedback from viewers had been extremely positive and the audience had continued to grow. The letter stated that Sky “look[ed] forward to continuing this prosperous relationship”.

16. [93]

    In 2007, the plaintiff created a new company called Global News Express Pty Ltd (“Global News Express”) after resigning from Satellite Newspapers. Global News Express entered into a joint venture (named I-Source) with Dubai World Central and Excel, which Guy Leach had been continuing.

17. [94]

    Global News Express was authorised to sell advertising for and on behalf of a number of newspaper publishers, including Associated Newspapers Ltd (publishers of The Daily Mail and The Mail on Sunday).

18. [95]

    On 9 September 2008, the plaintiff, on behalf of Global News Express, also signed a non-binding Letter of Intent with a Thai company, Aksornsobhon Co. Ltd, with the view of establishing a joint venture to service the expatriate market in Thailand.

19. [96]

    In 2008, the plaintiff’s company, Tough Guy, entered into a contract with Channel 10, which was a joint venture between Channel 10 and Golden Gloves International to produce monthly boxing events to be televised on Channel 10. Tough Guy owned 50% of that joint venture. The arrangement was that Channel 10 would pay for all expenses, and would retain the rights to local content, while Tough Guy would hold the rights to international distribution.

20. [97]

    The plaintiff was arrested on 25 September 2008 by the Australian Federal Police (“AFP”) and charged with the Commonwealth offence of conspiracy to import a commercial quantity (210 kilograms) of pseudoephedrine, a chemical precursor to the drug methamphetamine, contrary to ss 307.11(1) and 11.5(1) of the Criminal Code Act 1995 (Cth) (“the conspiracy charge”). He was also charged with the State offence of aiding and abetting the supply of pseudoephedrine, being not less than the large commercial quantity applicable to that prohibited drug, contrary to ss 25(2) and 27 of the Drug Misuse and Trafficking Act 1985 (NSW) (“the drug supply charge”).

21. [98]

    His trial, with his co-accused Radoslav Spadina, was to commence in the Supreme Court on 4 March 2013, and had an estimate of five months.

22. [99]

    At the time of his arrest, the plaintiff was living in a rented apartment in Manly after selling his home for $700,000.

23. [100]

    He was remanded in custody on that date and was thereafter variously held in Silverwater, Long Bay and Parklea prisons. He arrived at the MRRC on 1 October 2008.

24. [101]

    He was held in custody at the MRRC until 9 December 2009, several months after his assault by O’Hara.

25. [102]

    Although the detail is not particularly clear, it seems that, at least in the MRRC after 1 October 2008, the plaintiff taught several forms of martial arts, particularly kickboxing, to some of the inmates.

26. [103]

    Whilst in custody, the plaintiff did not have any record of prison offences relating to violence, nor did the evidence suggest that he conducted himself in any physically violent way.

27. [104]

    Price J of this Court held on 12 December 2012 that he was satisfied on the basis of medical evidence that the plaintiff was unfit to stand trial for those two charges: see R v Watt [2012] NSWSC 1574.

28. [105]

    Pursuant to Div 6 of the Crimes Act 1914 (Cth), Price J was later required to determine whether a prima facie case had been established with respect to the plaintiff’s guilt on the conspiracy charge: see s 20B(3) of that Act. On 16 December 2013, Price J found that a prima facie case was established on that charge and ordered that the plaintiff be released on a three-year bond (until 15 December 2016), subject to conditions in respect of treatment, rehabilitation and good behaviour: R v Watt [2013] NSWSC 1896.

29. [106]

    Some time after his release in on bail in May 2010, the plaintiff was charged with a further offence of conspiracy to murder, but the NSW Director of Public Prosecutions did not proceed with any trial of the plaintiff for that offence.

30. [107]

    The drug supply charge against the plaintiff was withdrawn on or about 16 December 2013.

O’Hara’s History Prior to the Assault

1. [108]

   In order to consider the issue of whether there has been a breach of duty, it is important to have an understanding of O’Hara, his character and behaviour prior to the assault, and what Corrective Services know about him.

2. [109]

   O’Hara was born on 19 November 1975.

3. [110]

   The evidence before the Court showed that O’Hara had an extensive history of criminal convictions and offences whilst in custody.

4. [111]

   Before his commission of the offence for which he was in custody at the time of the attack, O’Hara’s history was one of extensive criminality, which commenced when he was only 13 years of age.

5. [112]

   On 5 March 1995, O’Hara, then aged 19, along with two co-offenders attempted to break and enter into premises in Roseville. In the course of this attempted break and enter, O’Hara shot and killed an armed private security guard, Mr Michael Fennell, who was guarding the premises.

6. [113]

   On 11 December 1996, O’Hara was convicted of murder and sentenced by Sully J to imprisonment for 12 years and 10 months, with a non-parole period of 8 years and 10 months. His Honour held that O’Hara had fired his weapon at the victim “with reckless indifference to human life, rather than with a positive intent to inflict grievous bodily harm.”

7. [114]

   He was first eligible to be paroled on 30 March 2006, but parole was refused. His head sentence for the offence of murder was due to expire on 30 March 2010, which was about six months after he assaulted and injured the plaintiff. This expiry date took into account extensions to his original sentence because of crimes he committed whilst in custody, and for which he received sentences of imprisonment.

8. [115]

   O’Hara’s criminality whilst in custody includes offences of assault, stealing, assault Police, assault a prison officer, malicious damage, escape from lawful custody, assault occasioning actual bodily harm and other lesser offences.

9. [116]

   There was substantial documentary evidence before the Court that O’Hara was notorious amongst Corrections staff for being a violent, aggressive and unpredictable inmate.

10. [117]

    Whilst in custody, O’Hara demonstrated aggression and violence. He assaulted a prison officer, made threats to officers and the families of officers, and perpetrated violent assaults on other prisoners. He was also punished in custody for other offences, including fighting, interfering with correctional centre CCTV cameras, failing urine tests and possessing or creating prohibited goods. He was held in segregation as a result of aggressive and violent behaviour for 1,694 days (which is over 4½ years), and was also punished by being locked in his cell for 78 days. Further, O’Hara had 133 days off amenities, and 23 months of no contact visits.

11. [118]

    Before perpetrating the assault on the plaintiff on 1 October 2009, O’Hara had committed a number of serious assaults on other inmates. The details of some of the most serious assaults are set out below in chronological order:

    1. (1)

       On 11.45am on 31 January 1996, O’Hara entered the cell of an inmate named Julian Playford with two other inmates (Raymond Merritt and Tarkan Tuncbilek). O’Hara had brought an electrical cord into the cell in his pocket.

    2. (2)

       On 31 May 1996, O’Hara was convicted of two charges of assault occasioning actual bodily harm for this attack and sentenced to 12 months’ imprisonment. The sentences were increased to 18 months following an appeal;

    3. (3)

       On 20 March 1997, O’Hara climbed into another prison yard and fought with another inmate (Tuiletufuga). Officers intervened and when the incident began to appear to be serious they were forced to fire a warning shot;

    4. (4)

       In 1998, O’Hara assaulted a Senior Correctional Officer, Dennis Ryan, while on segregation in the Multi-Purpose Unit (“MPU”);

    5. (5)

       On 25 November 2000, O’Hara assaulted another inmate (Eberlin). The victim refused to name him or pursue charges;

    6. (6)

       On 12 June 2008, O’Hara was involved in altercation with another inmate. Witnesses stated that he was armed with a metal bar and a shiv. He was transferred to Goulburn Correctional Centre on 18 June 2008 as a result of this incident, but was not charged as the victim refused to cooperate with Police and requested that no action be taken;

    7. (7)

       On 22 January 2009, whilst O’Hara was in Pod 10 of the MRRC, he assaulted another inmate (Burnett) on F Block of the MRRC by punching him in the face three to four times. Burnett sustained extensive facial injuries in the attack and was taken to hospital. He identified O’Hara as his assailant the following day and stated that O’Hara had taken his television from his cell. When he asked for it back he was punched in the face several times by O’Hara. Burnett refused to request Police intervention and appeared “very fearful” of O’Hara. As noted in an incident report form, no charges were laid against O’Hara due to a lack of evidence. Inmate Burnett was moved to Pod 15 for his safety.

    8. (8)

       On 26 January 2009, another report of an assault perpetrated by O’Hara was made by an inmate named Owen, and medical attention was provided to him at the MRRC clinic. There were no witnesses to this assault.

12. [119]

    Further, in September 2008, O’Hara assaulted an inmate at Goulburn Correctional Centre. Intelligence at the time, as recorded in a document dated 7 November 2008 suggested that this assault was in self‑defence, as the other inmate was a member of a faction of inmates that intended to harm O’Hara. O’Hara received a three month segregation order for this assault.

13. [120]

    It is convenient to now address O’Hara’s history of behavioural problems and violence in some detail.

14. [121]

    In a letter dated 13 May 1999 from the secretary of the Serious Offenders Review Council (“SORC”) to the Chief Executive Officer of Corrections Health Service at Long Bay Gaol, the SORC noted serious concerns about O’Hara and requested that he be psychiatrically assessed as a matter of urgency. The letter revealed that O’Hara had reported hearing auditory hallucinations in the form of voices telling him to kill someone. The letter further noted that a number of “disturbing reports” had been received concerning O’Hara’s “aggressive behaviour” at Lithgow Correctional Centre, including his levelling of abuse and threats at Corrections staff. Staff had reported that O’Hara told them he could “arrange to have their houses firebombed and their families raped and killed.” Two shivs had been found in searches of O’Hara’s cell.

15. [122]

    The results of a psychiatric assessment are detailed in a report to the SORC dated 30 June 2000. Dr Ricardo Farago found that O’Hara did not suffer from a mental illness as defined in the Mental Health Act 1990 (NSW), but found that at the time of his offence, he may have met the criteria for the diagnosis of Substance Use Disorder. Dr Farago opined that he currently met the criteria for a diagnosis of Borderline Personality Disorder. He noted that O’Hara:

16. [123]

    In December 2003, O’Hara entered into the Violent Offenders Therapeutic Program (“VOTP”). However, he was discharged from VOTP prematurely in December 2003 due to a “clash in personality” between himself and the VOTP psychologist and because he was “disruptive” to other inmates in the program.

17. [124]

    O’Hara later re-entered VOTP in January 2005, but was again discharged before successful completion of the program in June 2005 due to threats he made against staff and other inmates and the “minimal therapeutic gains” made since he commenced in the program. A progress report dated 15 June 2005 by the VOTP therapist, noted that O’Hara had remained “defiant in his attitude and behaviour” and demonstrated a number of behavioural issues, such as a “sense of entitlement” and “negative attitudes towards police [and] corrections officers”. The report further noted that O’Hara was “controlling and manipulating other inmates on the unit and in group.”

18. [125]

    Minutes of a meeting of the SORC on 20 March 2007 record the following observations:

19. [126]

    A memorandum dated 13 June 2008 from Peter Latimer (General Manager, Cessnock Correctional Centre) to Don Rodgers (Deputy Commissioner), noted that O’Hara had been segregated on 31 May 2008, following a search of his cell, when he “became abusive and threatened the safety of other inmates within the wing”. The memorandum noted that after he was interviewed by SORC on 10 June 2008, O’Hara was reclassified on the SORC’s recommendation, and was transferred to Maximum Security. He was involved in altercation with another inmate, Murphy, within a one-hour period of being placed in Maximum Security. Inmate witnesses reported that O’Hara was the instigator and was armed with a metal bar ripped from a kitchen sink and a shiv (obtained from other inmates). A subsequent search located both items. Mr Latimer’s recommendation in that memorandum that O’Hara be transferred to Goulburn Correctional Centre was approved.

20. [127]

    A fax from Area Manager 3, Chris Roe to Mr Latimer provided further detail of the altercation between O’Hara and inmate Murphy, and noted Mr Roe’s opinion that “O’Hara represents a danger to the good order and discipline and to other persons within this Centre”. He recommended that O’Hara be placed in segregation until his removal from Cessnock to Goulburn Correctional Centre.

21. [128]

    In a subsequent SORC document dated 25 June 2008, it was recommended that O’Hara be regressed from a “C1” security classification to “B”. O’Hara was informed that this reclassification recommendation was approved on 10 July 2008.

22. [129]

    O’Hara’s security classification remained “B” pursuant to a later SORC recommendation on 18 November 2008, which was approved by the Commissioner on 2 December 2008. He was then transferred from Goulburn to the MRRC as part of an indigenous inmate rotation plan.

23. [130]

    A SORC report prepared by SAS Tim Bridge (Intelligence Manager, MRRC), addressed to Mr Ma’atusi (Mac) La’Ulu (General Manager, MRRC) dated 23 January 2009, noted that O’Hara’s last offence in custody recorded was on 28 August 2008, and that O’Hara spent most of his time alone in his cell. The report noted, however, that it was alleged by others that O’Hara assaulted one inmate for his TV (the Burnett incident), and alleged by another inmate that O’Hara was “standing over” inmates.

24. [131]

    The report further notes that when O’Hara was questioned by SAS Bridge on 23 January 2009 about the alleged assault on inmate Burnett, he spoke openly about his belief that being held in a maximum security centre was continuing to make him a “product of circumstances”. The report also noted that O’Hara seemed to be “confused” and “agitated” and that he “refused on occasion to answer general questions about his feelings and current demeanour”. The interview was terminated early due to O’Hara’s anger, agitation and disorientation. The following general comments were made in the report:

25. [132]

    The report ultimately made the following two recommendations:

26. [133]

    An email from Mr Greg Turner (Manager of Offender Services Programs, Silverwater) to Mr La’Ulu on 4 February 2009 further reflects the concerns held about O’Hara:

27. [134]

    A letter from Mr John Harrison (Area Manager, D Block) to Mr La’Ulu on February 2009 recommended that O’Hara be continued in segregation for a period of 3 months because he “remain[ed] a threat to the personal safety of staff and the good order and security” of the MRRC.

28. [135]

    A Risk Assessment Worksheet and Report prepared by Mr T King of the Corrections Intelligence Group (“CIG”) on 18 February 2009 for the Assistant Superintendent of the CIG assessed O’Hara’s level of risk of violence and intimidation as “High” and noted the following:

29. [136]

    The same analyst from the CIG, Mr King, also prepared a Validation Assessment Report on the same date (18 February 2009). This Report recommended that O’Hara be validated as a candidate for the Security Threat Group Intervention Program, given his overall risk assessment rating of “HIGH”, and set out the conclusions:

30. [137]

    O’Hara was moved to the Pod on 7 April 2009. Case notes from April 2009 to September 2009 show that he appeared “behaviourally settled” and more “responsive” in meetings with Corrections staff. There had been no issues with his daily management, although he occasionally appeared “bored”, “flat” or “disinterested” and was having difficulty sleeping.

31. [138]

    Notes of a meeting on 11 August 2009 record that O’Hara had recently been engaged in a urinalysis substitution. This suggests that O’Hara was continuing to use drugs and making attempts to avoid detection. The note also recorded that at the SORC meeting in late July, O’Hara had taken a confrontational stance and had failed to advocate his case. A psychologist, Dr Nicholls, was asked to help O’Hara “…manage his anger”.

32. [139]

    Minutes from another meeting of the SORC in September 2009, however, record that O’Hara’s “attitude” was “belligerent” and that he was “unstable and needs to comply with [MRRC] routine”. This remark seems to be a reference to his failures to comply with the urinalysis requirements. He did not give a sample when required on or about 10 September 2009.

33. [140]

    Evidence before the Court also showed that a variety of active security alerts were attached to O’Hara’s name in the years before the assault, including up to and including September 2009. In September 2009, some of the alerts attached to O’Hara were:

34. [141]

    Counsel for the State in oral submissions submitted that while O’Hara was “not some angel”, in the months before the attack he had been behaviourally settled and “keeping himself separate from the politics of the gaol”. To a significant extent, that seems to be so. However, the Corrections staff did not remove any of the alerts, nor did any notes suggest that O’Hara had reformed his character or behaviour. All that had occurred was that, as it seems to me, O’Hara was attempting to satisfy demands being placed upon him to achieve his release at the planned time.

35. [142]

    It is abundantly clear to me that O’Hara was a murderer who was well-known within the NSW Corrections system to be a highly dangerous prisoner with a long history of over 14 years in custody of violent and intimidatory behaviour. Despite some apparent de-escalation in O’Hara’s behaviour in 2009, the security alerts were attached to his inmate profile and continued to reflect the high level of danger he posed to other inmates and staff. He was by no means a reformed man during that year. Nor could it reasonably be thought that he would not revert to being aggressive and belligerent when he wanted to be.

Medical Evidence

1. [143]

   The attending ambulance record from 1 October 2009 indicates that the plaintiff lost consciousness for three to four minutes after he was attacked. He also suffered a deep laceration and 100-200ml haemorrhage from his right temporal region and ear wound. At the time the plaintiff was assessed he was “alert” but “confused”.

2. [144]

   At Westmead Hospital, a CT scan of the plaintiff’s brain and cervical spine identified no significant intracranial pathology or skull fracture. A scalp haematoma was observed over the posterior left frontal bone. The plaintiff was discharged to the Silverwater Hospital Wing, and sent to Auburn Hospital on 3 October 2009, for surgery. He remained in the hospital for several days for post-operative care.

3. [145]

   Dr O’Neill and Dr Sutton, both consultant neurologists at St Vincent’s Clinic, prepared a joint report on 14 September 2017. Dr Sutton assessed the plaintiff on 7 September 2017, and had previously assessed the plaintiff in 2012 and 2013. Dr O’Neill had assessed the plaintiff in late 2012.

4. [146]

   Both experts agreed that the plaintiff had sustained a closed head injury in the assault of 1 October 2009. Both also agreed that this head injury was of enough severity to cause loss of consciousness for up to 4 minutes, the scalp haematoma and a reduction in the Glasgow Coma Scale (GCS) to 14.

5. [147]

   It was also agreed that there was never a formal assessment of post-traumatic amnesia. However, both experts agreed that it appeared that the plaintiff was aware of day-to-day events from some time after his presentation at Westmead Hospital. Dr Sutton thought that any period of possible retrograde amnesia was undefined or “minimal”, whereas Dr O’Neill was not convinced that the plaintiff had experienced any retrograde traumatic amnesia. Both doctors agreed that subsequent radiological studies of the plaintiff’s brain showed no evidence of intracranial trauma.

6. [148]

   The experts took different views as to whether the plaintiff had continued to suffer from any injuries.

7. [149]

   Dr Sutton opined that the closed head injury was of enough severity to result in “traumatic brain injury”, and noted that there was evidence of ongoing symptoms consistent with that diagnosis from as early as 19 October 2009 when the plaintiff was assessed by a psychiatrist, Dr Allnutt, and on 18 December 2009, when the plaintiff was assessed by Dr Fairhall, the Neurosurgical Registrar at Prince of Wales Hospital. Dr Sutton felt that there was continuing impairment of cognition to a degree which would prevent the plaintiff from returning to pre-injury work capabilities. He also was of the view that the plaintiff was suffering continuing “post-concussion syndrome in the form of headaches, dizziness and photophobia”.

8. [150]

   While Dr O’Neill did not dispute the possibility that the head injury was severe enough to potentially cause some impairment to the plaintiff’s “mental status”, he noted that in a previous neuropsychological assessment conducted by Dr Rawlings (neuropsychologist) on 9 August 2011, there was:

9. [151]

   Dr Sutton accepted that there may have been a genuine lack of effort contributing to the poor results obtained by Dr Rawlings, but nevertheless believed that there were significant psychiatric co-morbidities that may have contributed to this initial poor performance on neuropsychological assessment.

10. [152]

    Drs Sutton and O’Neill agreed that there the plaintiff had demonstrated psychiatric symptoms. However, both believed that these symptoms did not arise from a brain injury as a result of the assault. Instead, they agreed that symptoms were reactive to circumstances leading up to the plaintiff’s incarceration as well as following the assault. Both experts agreed that this matter needed to be assessed separately by a psychiatrist, but noted that on 16 December 2016, a psychiatrist (Dr Skinner) had found that the plaintiff’s presentation had improved since his original assessment in March 2013.

11. [153]

    Dr O’Neill could not exclude the possibility that the plaintiff had suffered some cognitive impairment as a consequence of the closed head injury on 1 October 2009.

12. [154]

    As to whether the plaintiff had suffered ongoing symptoms of epilepsy, Dr Sutton opined that, on balance, the reported seizures were most likely “psychogenic non-epileptic seizures”. Dr O’Neill agreed. However, Dr Sutton did not completely discount the possibility of true post-traumatic seizures because some of the “seizure” events were associated with nocturnal incontinence, one event (on 30 March 2012) was associated with personal injuries (suffering a knee injury after falling in the street), and in light of the abnormal EEG report of February 2011 as reported by Dr Whyte. Dr Sutton noted that at the time of his consultation with the plaintiff on 7 September 2017 there had been no such “seizure” events for several years.

13. [155]

    On hearing loss suffered by the plaintiff, Dr Sutton was of the view that the head injury could have caused neural damage to the cochlear nerve, and Dr O’Neill felt that there had been a conductive hearing loss as a consequence of the assault. Drs O’Neill and Sutton agreed that the issue of hearing loss should be separately assessed by an ear, nose and throat (“ENT”) specialist.

14. [156]

    Both doctors agreed that there was no evidence of any continuing significant disturbance of speech, balance, tremor or diplopia (double vision).

15. [157]

    Drs O’Neill and Sutton noted that the history previously obtained by Dr Sutton and by psychologist Mr Stoker revealed that the plaintiff had an extensive documented history of “significant previous head injuries”. The conclave report noted that the plaintiff reported suffering a fracture of his right eye socket and being knocked-out at the age of 6 after being kicked by a horse.

16. [158]

    A number of incidents from the plaintiff’s past vocation as a boxer and kick‑boxer were also noted, including:

    1. (1)

       five losses in his kick-boxing career from 1992 to 2002 due to knock-out, and three losses due to technical knock-out;

    2. (2)

       four occasions of being knocked-out whilst competing in boxing between 1996 and 2000; and

    3. (3)

       facial trauma and fracture of the floor of the left orbit sustained whilst sparring on 21 April 2000.

17. [159]

    The experts agreed that these (apparently asymptomatic) previous head injuries would have to be taken into account in any final assessment of possible mental and/or cognitive impairment.

18. [160]

    Drs Sutton and O’Neill also expressed views on the plaintiff’s prognosis, employment prospects and treatment options. Dr Sutton thought that any possible treatment for a traumatic brain injury would be a matter for a rehabilitation physician with expertise in brain injuries, whilst Dr O’Neill did not believe there were any substantial treatment services that could currently be offered to the plaintiff.

19. [161]

    Both experts felt that the plaintiff would not be capable of returning to his previous employment pursuits, which were entrepreneurial or based on media engagement, but agreed that he was capable of his current part-time work at a gym and in the digital media business owned by his cousin. Neither doctor felt prepared to opine on whether the plaintiff had suffered an impairment of his earning capacity, and thought this would be a matter for an occupational or rehabilitation physician.

20. [162]

    It was finally agreed that the plaintiff did not require any domestic assistance or assistance with property maintenance.

21. [163]

    A joint expert report was also prepared by Drs Scoppa and Howison, consultant ENT specialists, on 27 September 2017. Dr Scoppa had performed assessments of the plaintiff in August 2010, August 2012 and September 2017, whilst Dr Howison had assessed the plaintiff in December 2012. As a result of the conclave, both doctors came to an agreement in respect of all assessments of injuries, and on all other issues.

22. [164]

    Both doctors agreed that, during or as a direct consequence of the assault on 1 October 2009, the plaintiff had sustained mixed hearing loss in the right ear, severe tinnitus secondary to the right hearing loss, dizziness, facial numbness and facial scarring. Jaw pain suffered after the assault had subsequently resolved. Further, the plaintiff suffered left sensorineural hearing loss that was not attributable to the assault and was of unknown origin.

23. [165]

    The doctors agreed upon percentages for whole-person impairment (“WPI”) in respect of each injury suffered by the plaintiff, in accordance with Workers Compensation Guidelines, as follows:

    1. (1)

       hearing loss and tinnitus in the right ear – 10% WPI;

    2. (2)

       severe tinnitus secondary to right hearing loss – 3% WPI;

    3. (3)

       dizziness – 0% WPI (as no objective evidence of vestibular impairment);

    4. (4)

       facial numbness anterior to the right pinna – 3% WPI; and

    5. (5)

       facial scarring – 3% WPI.

24. [166]

    Dr Scoppa and Dr Howison agreed upon a total adjusted WPI of 16%. They also noted that they found no evidence of any pre-existing condition related to any of the assessed impairments. It is clear that this WPI did not take into account, or have regard to, the left sensorineural hearing loss.

25. [167]

    As to further treatment, they agreed that the plaintiff would require a hearing aid for the right ear indefinitely, and that he required ongoing treatment of the severe tinnitus with Tinnitus Retraining Therapy.

26. [168]

    On the issue of impairment of earning capacity, it was agreed that the plaintiff’s earning capacity was not impaired on the basis of his assessed ear, nose and throat impairments.

27. [169]

    Dr Skinner and Dr Allnutt, both senior consultant forensic psychiatrists, prepared a joint psychiatric report dated 16 October 2017. Dr Skinner had assessed the plaintiff in April 2013 and December 2016. Dr Allnutt had assessed him on two occasions in late 2009, and on two further occasions in August and September of 2017.

28. [170]

    Drs Skinner and Allnutt agreed that the plaintiff suffered a brain injury (a neurocognitive disorder) and a psychiatric injury (a trauma-related mental condition) as a consequence of the assault on 1 October 2009. They agreed that the trauma-related mental condition which continues to be suffered by the plaintiff is either a post-traumatic stress disorder (PTSD) or adjustment disorder with anxiety. It was also agreed that there is no evidence of any pre-existing psychiatric condition experienced by the plaintiff prior to 1 October 2009.

29. [171]

    On the issue of future ongoing treatment, both expert psychiatrists agreed that the plaintiff should continue to see his general practitioner, and that this general practitioner should refer him to a psychiatrist for specialist psychiatric assessment and management. It was also agreed that the plaintiff should see a psychologist for input to assist with strategies in managing his symptoms of anxiety and his cognitive difficulties. The plaintiff might need treatment with anti-depressant medication to minimise anxiety symptoms.

30. [172]

    Dr Allnutt considered that the plaintiff would need to see the psychiatrist monthly for six months and then at intervals recommended by the psychiatrist according to his clinical needs; and that he should see a psychologist weekly to fortnightly for six to 12 months.

31. [173]

    Dr Skinner noted that the plaintiff had seen a psychiatrist at the Brain Injury Clinic, and that further psychiatric treatment should be coordinated with treatment by the Brain Injury Clinic. She considered that the plaintiff would probably need to see the psychiatrist monthly for six months and then at less frequent intervals as determined by the treating psychiatrist. He might need to see a psychologist for six to 10 sessions to assist with anxiety management strategies.

32. [174]

    On the issue of employment and earning capacity, Drs Skinner and Allnutt agreed that the plaintiff’s psychiatric injury:

33. [175]

    They agreed that the impairment to his earning capacity is “less than a total impairment”, and considered that the assessment of his impairment and any restrictions on his returning to work should be carried out by an occupational therapist.

34. [176]

    Neither party put any assessment of the plaintiff by an occupational therapist before the Court, although there were reports put before the Court from a number of rehabilitation specialists.

Duty of Care Owed by the State to Prisoners

1. [177]

   The State admitted that it owed a duty of care to the plaintiff to take reasonable care to prevent reasonably foreseeable harm or injury to him. It was submitted that the scope and content of that duty was affected by the broad range of actions, functions and duties which the defendant was obliged to perform, and that any duty of care owed to an inmate at any time should be assessed by reference to the circumstances that may exist in any individual case.

2. [178]

   At common law, it is well-settled that prison authorities owe a general duty to exercise reasonable care for the safety of prisoners held in their custody. This duty extends to an obligation to take reasonable care to prevent harm arising from the unlawful activities of other prisoners: New South Wales v Bujdoso [2005] HCA 76; (2005) 227 CLR 1; Howard v Jarvis [1958] HCA 19; (1958) 98 CLR 177; Ellis v Home Office [1953] 2 All ER 149; L v Commonwealth of Australia (1976) 10 ALR 269; Cekan v Haines (1990) 21 NSWLR 296 at 297, Kirby P.

3. [179]

   The basis of the common law duty of care is the special relationship which exists between prisoners and prison authorities stemming from the degree of control exercised by prison authorities, and the corresponding vulnerability of prisoners: State of New South Wales v Napier [2002] NSWCA 402 at [75], Mason P, affirmed in Bujdoso at [32].

4. [180]

   The existence and content of the duty of care was discussed by the High Court in Bujdoso. The Court said this at [44]:

5. [181]

   The State further submitted that the scope and content of the duty of care owed to the plaintiff is impacted by the status of the MRRC as a public or other authority, as defined by s 41 of the CLA. Accordingly, functions required to be exercised by it are limited by the financial and other resources that are reasonably available to it for the purpose of exercising those functions, and that the general allocation of those resources is not open to challenge by a plaintiff: CLA s 42.

Breach of Duty: General Principles

1. [182]

   In determining whether a prison authority has complied with its duty of care, it is relevant to determine whether it knew or ought to have known of the risk that the prisoner might be assaulted by other inmates, and the extent of that risk: Bujdoso at [47]; Ellis v Home Office at 161; Ralph v Strutton [1969] Qd R 348 at 356-358; L v Commonwealth at 273-274.

2. [183]

   As previously noted, these proceedings are subject to the CLA. Section 5B of the CLA is directed to breach of duty: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 84 ALJR 19 at [13].

3. [184]

   I have given comprehensive consideration to the relevant principles underpinning the proof of a breach of a duty of care in other judgments which it is unnecessary to repeat here: see Benic v State of New South Wales [2010] NSWSC 1039; Garzo v Liverpool/Campbelltown Christian School Limited & Anor [2011] NSWSC 292; King v Watson Sydney Local Health Network [2011] NSWSC 1025.

4. [185]

   However, by way of summary, I note the following:

5. [186]

   The plaintiff bears the onus to prove on the balance of probabilities that his injury could have been avoided by some reasonably practical alternative course of conduct which the defendant should have taken. Hence, s 5E of the CLA provides that the plaintiff always bears the onus of proving any fact relevant to the issue of causation.

Expert Evidence on Breach of Duty

1. [187]

   Each party engaged an expert witness in management and operations of correctional centres. These experts expressed opinions on whether, in the context of reasonable prison management strategies and procedures, there could be said to have been any act which fell below reasonable standards, or whether there was any unreasonable failure to act.

2. [188]

   Mr William Allgood was retained by the plaintiff, while Mr Noel Taylor was retained by the State. Mr Allgood and Mr Taylor participated in an expert conclave on 28 September and 5 October 2017 and prepared a joint report in response to questions posed for comment (“the Joint Corrections Expert Report”).

3. [189]

   The two experts generally disagreed on whether the defendant had responded appropriately to the threat posed by O’Hara.

4. [190]

   The experts agreed that the SORC would have been responsible for the recommendation to place O’Hara in the Pod in the MRRC. That recommendation would need to have been endorsed by the Commissioner and approved by the General Manager of the prison. In order to make such a recommendation, the SORC would have considered O’Hara’s past progress and incident reports and his preparation for release requirements.

5. [191]

   Mr Allgood was of the view that O’Hara’s placement with remanded inmates including first-time offenders (such as the plaintiff) in the Pod was a “flawed decision” due to his known behaviours and past involvement in “standing over and assaulting other inmates”. He believed that first-time inmates, including the plaintiff, are “easy target[s] for a predatory prisoner” such as O’Hara.

6. [192]

   Mr Taylor, however, noted that it is a common practice across various Australian jurisdictions to place a “small number of settled, sentenced inmates” with remand inmates to facilitate their adjustment to institutional life. He was of the opinion that the documentation on O’Hara showed him to have had issues in the early part of his long sentence, but that he appeared to have been “settling” in the months or year prior to the assault on the plaintiff. He believed that it was not possible to comment on the decision to place O’Hara in the Pod without the profiles of other inmates in the Pod at the time, so as to know whether they were mostly young first-time offenders or middle-aged repeat offenders.

7. [193]

   Mr Allgood accepted that this was not an uncommon practice, but said that, in general, sentenced inmates placed with remand inmates are those who are required as essential workers with “little or no management concerns”. In his view, O’Hara could not have been properly regarded as a trustworthy, settled or predictable inmate.

8. [194]

   Mr Allgood went on to say that although the placement of O’Hara may have been beneficial to his release, there may have been “insufficient consideration given to the safety and wellbeing of other inmates in the Pod”. Mr Taylor felt that the documentation could not support such a belief of insufficient consideration by the SORC in its decision-making and recommendations.

9. [195]

   The experts were not asked to address this question in the light of oral evidence given by Mr La’Ulu, who, as was said at [130], the General Manager of the MRRC during 2009. Mr La’Ulu is a very experienced Corrections officer who has worked in the prison system in NSW since March 1985. At the time he gave evidence, he was employed in the role of Governor of the Long Bay Hospital cluster.

10. [196]

    Mr La’Ulu explained that from time to time sentenced prisoners towards of their sentence would be accommodated at the MRRC for various reasons including to facilitate contact with their family. However, he said that prisoners were not held at the MRRC as a long term option because the MRRC was considered as a “placement gaol”.

11. [197]

    Mr La’Ulu also explained that for inmates such as O’Hara, whose custody was overseen by SORC, whilst SORC made recommendations about where an inmate should be held, it was a matter for the Commissioner for Corrective Services to make a decision about where the inmate would be kept. He agreed that it was uncommon for sentenced inmates to be held at the MRRC for as long as 12 months.

12. [198]

    In a memorandum of 7 October 2009, Mr La’Ulu noted that O’Hara’s placement “… in the MRRC as a sentenced inmate was only to facilitate his management plan prior to his LRD [latest release date] 30 March 2010”. He also noted that O’Hara had been managed:

13. [199]

    In cross-examination, Mr La’Ulu was taken to a CIG Validation Assessment Report dated 18 February 2009. He was uncertain as to whether that document itself would have been made available to the Corrections Officers responsible for placing O’Hara into the Pod, but he said that the information in it, including the underlying facts recorded about an inmate’s history, was highly relevant, was open to staff to view, and that staff making the decision with respect to the placement of O’Hara into the Pod would have been aware of it. He indicated that he did not know whether the information had been taken into account, but that the information would have been provided to the relevant managers. He added “… we all knew the history of O’Hara”.

14. [200]

    The contents of the Validation Assessment Report, relevantly, are set out in at [136] above.

15. [201]

    Noted above with respect to the memorandum of 7 October 2009, is the record made by Mr La’Ulu that during 2009, O’Hara had been “managed on a plan”. In cross-examination he was asked about that plan. He said it would be a written plan which would involve him not participating in any behaviours which would result in him being placed in segregation. He said that the management plan dealt specifically with O’Hara and the needs which had to be addressed. The following exchange then took place:

16. [202]

    Mr Allgood noted that he was of the view that an altercation would not, in the normal course of managing a unit such as the Pod, warrant a lockdown. However, he noted that when viewing the CCTV footage of the earlier incident at 08:46, O’Hara approached the plaintiff while clearly holding a pillowcase containing a weighted object, and that an officer was in “very close proximity”. He believed that the officer would have been “well placed” to observe O’Hara carrying this weapon, and that it would not be unreasonable to expect that officer to take action to locate and remove a weapon held by a known aggressor such as O’Hara. The item was placed under the table tennis table in “reasonably clear view” and “would have been easily located by a search team (or a lesser search by immediate staff) and the subsequent attack avoided”.

17. [203]

    He also noted that it appeared that the Corrections officers were not aware of the standover tactics being used by O’Hara. Mr Allgood was of the opinion that this demonstrated a “very clear management deficiency” in the staff’s responsibility to “be aware of any underlying issues and concerns” in the Pod.

18. [204]

    Mr Taylor stated that he would likely have separated O’Hara and the plaintiff after the earlier incident and spoken to them separately to test what was being said and ascertain any remaining issues. He also observed that a “lockdown” may be an option after a serious incident has occurred, or lingering security concerns exist after an incident. However, he disagreed with Mr Allgood’s opinion that the earlier incident warranted a lockdown, as the inmates had shaken hands, “indicating [that] all was okay”. Mr Allgood in turn rejected the view that the inmates shaking hands indicated that there was no security threat, and stated that in his experience, such actions were a “‘seen to be done action’ by inmates with little positive effect.”

19. [205]

    Mr Taylor emphasised his view that there was nothing to indicate a suspicion of weapons being present at the time of the earlier incident, and that it was only after the assault had occurred that the sandwich press could be labelled a weapon. He believed that before that time it “remain[ed] a potentially misplaced kitchen item”. He noted examples of water bottles, cakes of soap, tables and chairs and other prosaic items being utilised as weapons by “inventive” inmates.

20. [206]

    Mr Taylor said that the sandwich press in the pillowcase could have been viewed merely as a kitchen implement being returned to the kitchenette after an inmate took it into his cell for personal use the night before. He noted that while this is not a permitted practice, it is known to occur. Ultimately, he accepted that the sandwich press ought to have been retrieved and removed from the common area in the Pod. He said:

21. [207]

    While Mr Allgood rejected the proposition that it would be likely that a sandwich press would be returned to the kitchenette in a pillowcase, Mr Taylor noted that inmates typically conceal items, and are not permitted to have bags, so often carry items in pillowcases.

22. [208]

    Mr Allgood further noted that a number of other preventative actions that were not taken, including that no additional staff were requested. Mr Taylor rejected the idea that the number of staff in the Pod was inadequate, observing that the ratio in the Pod of 1 officer to 25 inmates (2 officers to approximately 50 inmates) is an accepted norm in maximum security correctional units. As this was a workers’ pod, it was clear he said that there were sufficient officers present in the Pod.

23. [209]

    He noted that an officer in the Pod had been promoted to a Senior Correctional Officer, denoting a recognised level of experience. It was Mr Allgood’s view that, because the officer was experienced, more effective preventative action should have been pursued.

24. [210]

    Mr Allgood was of the opinion that, had the officers in the Pod placed the inmates in a yard in order to search the common area of the Pod, located and removed the weapon and interviewed the inmates as a “follow up action”, the likelihood of the plaintiff being assaulted would have been eliminated. This was based on the assumption that O’Hara would have been relocated to other accommodation after the weapon was found and inmates interviewed about his standover activities. He stated that area clearances for the purposes of a search are part of prison routine and not particularly disruptive.

25. [211]

    Mr Taylor merely noted that he would not support a lockdown of the Pod, as lockdowns may merely postpone impending conflict and indeed ignite tensions by precipitating unrest. He suggested that it was unfair to view the incident with hindsight, and that if prisons “erred on the side of caution, on unknown factors at the time”, most would be in lockdown “all the time”, leading to more unrest and violent incidents. He also believed that Mr Allgood was overlooking the threat that the plaintiff posed to the security of the Pod and O’Hara, and saw those activities as the “primary problem”.

26. [212]

    Mr Allgood accepted that the sandwich press in the pillowcase under the ping pong table may not have been seen by the officer on duty, Mr Howard, while he was concentrating on the potential physical conflict. However, he said that after the officer observed the aggressive approach of O’Hara towards the plaintiff at 8.46am, the officer should have taken immediate action to look around and search the area, which would have allowed him to “easily” locate the weapon which was in view under the ping pong table.

27. [213]

    If the weapon was located at that time, it would have enabled the weapon to be photographed in situ, bagged and treated as evidence and placed in a secure location for forensic inspection. If it was instead located at a later point (such as after a lockdown or vacating the inmates from the area), all efforts could then be made to identify the source and owner of the weapon and appropriate action taken to remove the offender who had placed it there.

28. [214]

    As noted in [138] above, Mr Taylor accepted that, if seen, the sandwich press in the pillowcase ought to have been promptly removed and secured.

29. [215]

    The plaintiff alleged that he was told by prison authorities of a “death threat” against him in or about July or August 2008, some two to three months before his assault. This was disputed by the defendant. There was considerable contested evidence about this issue.

30. [216]

    This issue can be put to one side, as I am not satisfied that the evidence of such a threat against the plaintiff’s life was at all persuasive. Even if there was, some persuasive evidence of that threat, taken at its highest, there was no evidence at all that O’Hara in any way made, or caused to be made, or was related to any such threat.

31. [217]

    The relevance of the plaintiff’s evidence of that threat, and the actions which were said to have accompanied it, remains because it impacts upon the assessment of the credibility of the plaintiff as a witness and the reliability of his evidence generally.

Breach of Duty - Discernment

1. [218]

   The plaintiff identified the risk of harm referred to in s 5B as being the risk of the plaintiff suffering physical harm and consequential injury, loss and damage as a result of being assaulted by another inmate whilst a remand prisoner.

2. [219]

   The first matter to be determined, per s 5B(1)(a), is whether the State had actual knowledge of such risk, or whether it ought to have known of that risk.

3. [220]

   The plaintiff contended that the State had received from the AFP a report that he was the subject of a death threat whilst in custody. It is clear from the evidence of Mr Paul Watt from the AFP (“Mr Watt”) that he received information that there had been a threat against the plaintiff and another prisoner. Mr Watt did not understand that O’Hara had anything to do with the threat. Although Mr Watt passed the information on appropriately to the relevant AFP officer, the evidence does not establish that the Corrections authorities were notified in terms of that “death threat”. The plaintiff’s evidence which was relied upon as corroboration, and which dealt with an incident where he was allegedly surrounded by a group of tactical operative staff of the Corrective Services and removed to a separate location, was quite unconvincing. In light of the conflicting evidence, I do not accept it.

4. [221]

   I therefore am not satisfied that the plaintiff has made out foreseeability on the first ground.

5. [222]

   The second basis upon which the plaintiff seeks to establish the necessary foreseeability is in submitting that the State had actual knowledge of O’Hara’s propensity to assault other prisoners, thereby causing him physical harm and consequential injury and loss. The evidence overwhelmingly demonstrates that the State was well aware of O’Hara’s personal characteristics. At the time of the assault, he was serving a sentence for the murder of a security guard. His conduct whilst in custody, as the material between [116] and [140] shows, was of a violent and aggressive kind. Security alerts remained in place even though in the seven to eight months prior to the assault, O’Hara had not physically assaulted anyone. O’Hara was accommodated in the Pod, as was the plaintiff.

6. [223]

   In those circumstances, I am satisfied that the risk posed by O’Hara’s propensity to violence against other inmates, and therefore the risk of harm to the plaintiff described above at [218], was known to the State. If those risks were not, they certainly should have been. The plaintiff has accordingly satisfied the foreseeability criterion in s 5B(1)(a) of the CLA.

7. [224]

   I should also note, in this regard, that Mr La’Ulu, a very senior officer of Corrective Services, agreed that there was a risk of O’Hara standing over or assaulting other inmates.

8. [225]

   The Court must also be satisfied that the risk of harm was not insignificant: CLA, s 5B(1)(b). I am so satisfied. As I have said, O’Hara’s history was one of actual, not merely threatened, violence. Victims of his assaults in custody sustained physical injuries including burn injuries and extensive facial injuries requiring medical treatment. These assaults were perpetrated on occasions without the use of a weapon, or else whilst O’Hara was armed with weapons such as a shiv, a metal bar and an electrical cord. O’Hara’s conduct of assaulting or threatening violence to other inmates was not at all infrequent or rare.

9. [226]

   Because of the risk of serious injury being inflicted on a victim by O’Hara, and because his conduct in so doing was not infrequent, I am satisfied that the risk of harm was not insignificant as that term is used in s 5B(1)(b) of the CLA.

10. [227]

    The third matter which must be addressed and of which the Court must be persuaded is that the State failed to take precautions which a reasonable person in the State’s position would have taken.

11. [228]

    The defendant’s final written submissions gave the sense that it regarded some of the claims for particular breaches of duty as falling outside the plaintiff’s Statement of Claim of 22 May 2012. As well, the State seemed to submit that the plaintiff’s Statement of Claim was defective as a pleading for not articulating clearly the cause of action as required by the CLA. However, the State’s submissions addressed each of the matters that are considered below, which having regard to the evidence was called and admitted as part of the trial. This is not a matter for a technical or narrow view to be taken and a decision can be made by reference to the facts as they emerge: Water Board v Moustakas [1988] HCA 12; (1994) 180 CLR 491 at [14] per Mason CJ, Wilson, Brennan and Dawson JJ; Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658; Leotta v Public Transport Commission (NSW) (1976) 50 ALJR 666 at 668.

12. [229]

    The first particular of breach of duty raised by the plaintiff was that the placement of O’Hara into the MRRC, and particularly in the Pod, was negligent. The plaintiff submitted that this was demonstrated, having regard to O’Hara’s background and history whilst in custody, by the fact that:

    1. (1)

       The evidence of Mr Howard, who it may be recalled was one of the officers on duty in the Pod, was that he was unaware of any of the background or history of O’Hara, because the Pod officers did not have access to the records of the Corrections Services from the Pod office;

    2. (2)

       The management plan which was formulated for O’Hara’s detention in the Pod related only to his behaviour, but according to Mr La’Ulu, did not address the safety of the other inmates. He agreed that nothing was done to secure the protection of the other inmates in the Pod from O’Hara;

    3. (3)

       There were other alternatives available for the placement of O’Hara. At the time of the assault, he held a “B” classification, which meant that he could not have any form of pre-release externally (because such programs were not available at the MRRC or whilst he was a B classification). Put differently, part of the pre-release program which was recommended for O’Hara as part of his management plan could not be provided at the MRRC, yet he was kept there rather than at another correctional centre.

13. [230]

    I accept that the mere placement of a sentenced offender with a remand prisoner was not negligent, as the State submitted. That it because, as each of the experts agreed, the housing of a small number of settled inmates with remand prisoners was a commonplace practice.

14. [231]

    However, having regard to O’Hara’s history and background, I do not accept Mr Taylor’s evidence that O’Hara could be regarded as an appropriate inmate to hold in the Pod with remand inmates. On this issue, I prefer the evidence of Mr Allgood, that O’Hara did not meet the requisite criteria for placement in the Pod. This decision, which I regard as unreasonable, was compounded by the failure to provide the requisite information to the Pod officers about O’Hara and his history. That information was freely available within the Corrections Services database. As the exhibits show, many staff had access to O’Hara’s history. No evidence was adduced by the State to explain or justify the failure to provide the Pod officers with this material. Clearly, Mr La’Ulu thought that they ought to have that material, because he considered that the officers’ response to the altercation would have included their knowledge of O’Hara.

15. [232]

    The State in its defence against allegations of breach of duty of care relied upon the provisions of s 42 of the CLA. It was said by the Court of Appeal in Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserves Reserve Trust v Thompson [2012] NSWCA 340 at [46] (Hoeben JA, Meagher JA and Tobias AJA agreeing) that where a government authority, here the State, wishes to rely upon the provision of s 42, it is essential that it lead:

16. [233]

    Hoeben JA concluded that without “that basic material”, a court has nothing upon which to apply the principles in s 43 of the CLA: [46].

17. [234]

    Here, the position is exactly the same. The State led no evidence of any kind necessary to enable the Court to apply s 42. I should add that it also made no submissions at the end of the proceedings inviting the Court to apply the principles in s 42.

18. [235]

    It follows that I am satisfied that the plaintiff has proved a breach of duty by the State in the first respect relied upon.

19. [236]

    The second particular of breach of duty relied upon by the plaintiff was the failure of the Pod officer to see and remove the weighted item concealed within the pillowcase, which at the time of the confrontation was placed under the ping pong table by an inmate after being handed it by O’Hara.

20. [237]

    The altercation and what preceded it is captured on the CCTV footage. O’Hara came downstairs carrying a weighted item in the pillowcase. This item was used by one of the experts, Mr Allgood, to describe the item being carried. In other words, it appeared to be an item of some weight concealed in the pillowcase. From its appearance and all of the surrounding circumstances, including but not limited to the small number of items in a gaol which could be used as weapons, I am satisfied that the weighted item was in fact the same item later used as a weapon to attack the plaintiff.

21. [238]

    On any view, what can be seen in the CCTV footage is an item which has the appearance of being able to be used as a weapon. The way in which it was carried by O’Hara, passed to another inmate and then quickly concealed by him, to then be removed, convinces me that it was a weapon, and that it was the sandwich maker later used.

22. [239]

    Mr Howard did not see the weapon at any time. Not when it was being carried, nor as it rested on the floor under the ping pong table. It was not far under the table, nor was it far from the edge of the table. The floor in the Pod was a clean floor. That is, other than tables of various types and chairs, there was nothing else on the floor. The area generally was clean and neat. According to the experts, this is as it should be in a correctional centre, so as to readily enable detection of contraband or other items which ought not be in that area.

23. [240]

    Mr Howard was within a short distance from O’Hara as he descended the stairs carrying the weighted item. I accept the evidence of Mr Allgood, which accords with the other evidence of what could be seen, that he ought to have noticed the item at that stage. Notwithstanding Mr Taylor’s attempt to categorise the pillowcase as being carried for innocent reasons, Mr Howard ought to have identified the item as a potential weapon. As well, as I have said, when the item was placed under the ping pong table it was not hidden, nor was it unobservable. The light coloured pillowcase contrasted with the dark coloured floor so that the item was readily visible. Even though Mr Howard regarded the confrontation between the plaintiff and O’Hara as having been resolved, that did not mean that the ordinary vigilance of a Pod officer with respect to foreign items on the floor of the Pod could or should have been relaxed.

24. [241]

    There was a second officer on duty in the Pod at the time. His name was not established by the evidence. Nor was he called to give evidence. Other material before the Court (including the sketch plan) identified where the Pod officer’s station was. There was evidence describing the view from it. I am satisfied that if an officer was inside that station, the item under the ping pong table would be readily seen and observed. Mr Howard returned to the officer’s station after the plaintiff and O’Hara had shaken hands.

25. [242]

    I appreciate that the CCTV footage does not replicate the view of those standing on the ground floor level of the Pod, because the camera view is obviously from a position which is higher than an ordinary person. Nevertheless, the features of the item which I have described above, its obviousness when it was being carried by O’Hara, and when his fellow inmate placed it on the floor, and its obviousness whilst there all combine to satisfy me that a Pod officer’s acting reasonably could have and ought to have seen the item and acted to confiscate it from O’Hara, or collected it from the floor and retained it for further investigation and dealing with it.

26. [243]

    It follows that I am satisfied that the plaintiff has established a breach of duty in that further respect.

27. [244]

    As the discussion above of the evidence of the experts shows, there were other issues of a potential breach of duty which seem to me, with one exception, to have been discussed under the two breaches which I have determined occurred. The remaining issue discussed by the experts was the adequacy of the response to the alleged death threat. As I am not satisfied that the State had adequate notice of that death threat, no finding of breach can be made.

28. [245]

    In summary, I am satisfied that the plaintiff has proved that the State was in breach of its duty to act reasonably in two respects:

    1. (1)

       It was unreasonable of the State to place O’Hara in the Pod at the MRRC in circumstances where there was no plan to address the safety of the other inmates in the Pod, and when the Pod officers were not provided with any details at all about O’Hara and his background and history; and

    2. (2)

       It was unreasonable of either of the two Pod officers not to observe the pillowcase containing a weighted item being carried by O’Hara, or when it was placed on the floor of the Pod beneath a ping pong table at or around the time of the confrontation between O’Hara and the plaintiff.

Causation

1. [246]

   The plaintiff submitted orally that the particular harm as referred to in s 5D of the CLA was physical harm, namely, damage suffered by the plaintiff by way of the assault which caused a traumatic brain injury, together with the injury to plaintiff’s hearing and consequential psychiatric injury.

2. [247]

   The question for determination is whether the injury to the plaintiff would not have occurred but for the asserted failures on the part the defendant. Put differently, the plaintiff needs to prove that the State’s negligence was a necessary condition of the occurrence of his head injury (and its consequences): see Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 at [18] (French CJ, Gummow, Crennan and Bell JJ).

3. [248]

   In light of the findings of the two breaches of duty summarised above at [245], I regard the issue of causation is relatively straightforward. If O’Hara had not been placed in the Pod, he would not have had the opportunity to assault the plaintiff. That assault was the cause of the plaintiff’s head injury and consequential loss and damage. In this way, O’Hara’s presence, which had the State acted reasonably, would not have occurred, was a necessary condition for the plaintiff’s injury.

4. [249]

   The failure of the Pod officers to observe and remove the weighted item and pillowcase from O’Hara, or from the floor under the ping pong table was also a necessary condition of the plaintiff’s injury. That is because, as earlier indicated, I am persuaded that this was the item actually used by O’Hara to assault the plaintiff and cause his head injury. Had the item been observed and removed by a Pod officer, as it should have been, O’Hara could not have used it to carry out the assault which injured the plaintiff. In that way, the failure was a necessary condition of the injury. The particular harm, which is the focus of s 5D of the CLA, would not have occurred.

5. [250]

   In the result, I am satisfied that causation has been established by the plaintiff with respect to each breach of duty.

Other Defences

1. [251]

   The State relied upon s 54 of the CLA as a basis for denying the plaintiff any entitlement to damages. The onus of proving this section lies on the defendant: see Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204; (2008) 73 NSWLR 241 at [124]-[126]; Croucher v Cachia [2016] NSWCA 132; (2016) 95 NSWLR 117 at [50].

2. [252]

   Section 54 is in the following terms:

3. [253]

   It can be seen from the terms of this provision that, in the circumstances here, the State needs to establish:

4. [254]

   At [71], I held that I was satisfied that the plaintiff did not commit a serious offence during the cell altercation. It follows based on that conclusion that the s 54 defence of the State must fail.

5. [255]

   But the State also fails on s 54 because even if the conduct of the plaintiff was a serious offence, it did not occur at the requisite time, nor has the State shown that the plaintiff’s conduct during the cell altercation materially contributed to his assault.

6. [256]

   Section 54(1)(a) contains a temporal constraint with respect to the injury to the plaintiff. It must occur at the time of the serious offence – which did not happen here – or else “following” the serious offence. Nowhere in the legislation, or in the relevant extrinsic material, is there any reference to this phrase, or this provision. Accordingly, determining the meaning of the word involves a process of conventional statutory construction.

7. [257]

   Recently, in Wheatley v State of New South Wales [2018] NSWCA 315 at [86], McColl JA (with whom Gleeson JA and Simpson AJA agreed) said:

8. [258]

   In my view, the provisions of s 54 were intended to prevent individuals who were injured or suffered loss whilst committing a serious crime, or in its aftermath whilst making their getaway from the scene of their conduct, from undeservedly recovering damages. As the Hon. RJ Carr MP, the Premier of NSW, said in respect of an earlier form of the provision in his Second Reading Speech on 23 October 2002:

9. [259]

   The earlier form of the statutory provision used the phrase: “was, at the time of the incident that resulted in … injury, engaged in conduct…” which amounted to a serious offence. The current statutory provision uses the words: “the injury … occurred at the time of, or following, conduct…” which constitutes a serious offence.

10. [260]

    I can see no difference in substance between their provisions. The purpose of the legislation generally was to preclude criminals, or those engaged in criminal conduct, from making claims for personal injury sustained in the course of the commission of a serious offence. The word “following” means a time which has a close temporal connection to the conduct constituting the serious offence.

11. [261]

    Here, after the cell altercation, the individuals separated and walked away from the cell. At some time later, the plaintiff and O’Hara entered the cell together and again left it. They parted company and were physically separated for an obvious and clear period of time, which was not long. O’Hara went upstairs to his cell, the plaintiff remained downstairs in the common area of the Pod. This was followed by the confrontation, and again a further physical separation of the plaintiff and O’Hara. The assault occurred after that separation.

12. [262]

    Whilst, in a purely chronological sense, the assault followed the cell altercation, those events were so separated by time, intervening interactions and location as to indicate that any conduct of the plaintiff in the course of the cell altercation (assuming it to be a serious offence) had ceased well before the assault. It could not fall within the temporal phrase in s 54(1)(a) of the CLA. The plaintiff’s injury did not occur during or following his conduct. For that reason, the State has not established the second element necessary for the application of s 54 of the CLA to this claim.

13. [263]

    It follows as well, in light of my earlier factual findings, that the State has not proved that element of material contribution. Having regard to the time lapse between the cell altercation and the assault, the events which occurred between the two events, and the absence of any evidence from O’Hara, it is not possible to find the necessary material contribution proved either as a matter of facts which can be found directly from the evidence or indirectly by inference.

14. [264]

    Although the State pleaded a defence of volenti non fit injuria, it made no submissions at the conclusion of the hearing in support of any finding by the Court that the defence had been established. In those circumstances, the State has failed to establish this defence.

Contributory Negligence

1. [265]

   The defendant also pleaded a defence of contributory negligence, alleging seven particulars of negligence.

2. [266]

   Broadly, it submitted that the plaintiff contributed to any damage he may have suffered through his alleged involvement in the cell altercation and the confrontation with O’Hara before the assault; his alleged failure to advise the defendant of any risk to him at any time during his incarceration, including at any time on 1 October 2009 prior to the assault; his failure to inform the defendant of any concerns he held about his safety; and his failure to seek protection or segregation after the earlier incidents with O’Hara on 1 October 2009.

3. [267]

   Any assessment of contributory negligence must be undertaken by reference to s 5R of the CLA. Contributory negligence can be determined at 100% if the Court thinks that it is just and equitable to do so, with the result that the claim for damages is defeated: s 5S of the CLA.

4. [268]

   The effect of s 5R is to require the Court to apply the provisions of ss 5B and 5C of the CLA, notwithstanding the conceptual difficulty which such application involves. The standard of care is that of the reasonable person in the plaintiff’s position: Grills v Leighton Contractors Pty Limited [2015] NSWCA 72 at [161]-[162] (Beazley P, Barrett and Gleeson JJA agreeing).

5. [269]

   The submissions of the State argue that in the circumstances which occurred on the day of his assault, the plaintiff ought to have asked to be put into protection. In so doing the State submitted, he would not have had to nominate O’Hara as the person posing the threat.

6. [270]

   In the course of cross-examination, the plaintiff said that he was reasonably confident of being able to protect himself whilst in custody. Having regard to his physical size and martial arts ability, this was an entirely reasonable view. He said that he was on generally good terms with other prisoners and had not encountered any difficulties with physical conflict up until July or August 2009. There was no evidence that that position changed at any time up to October 2009.

7. [271]

   The plaintiff also said that he had some concerns that other prisoners who were on protection could be police informers. He blamed corrupt police for having him charged with the offences for which he was on remand.

8. [272]

   Even after the assault, the plaintiff refused an offer of protection because he took the view that it was safer for him to remain in the Pod than to be placed into protection. The reasonableness of this opinion was not challenged in cross-examination.

9. [273]

   I see nothing at all unreasonable about the plaintiff failing to ask to be moved to protection after the cell altercation and prior to the assault. On the facts which I have accepted, the plaintiff had been able to defend himself against O’Hara’s aggression. He was reasonable in considering that he could do so again. Putting oneself on protection did not mean that he was completely isolated from all prisoners. The plaintiff, not unreasonably, perceived risks of a different kind if he was put on protection. The State has not persuaded me that the failure of the plaintiff to seek protection amounted to contributory negligence.

10. [274]

    I should note that the State also relied upon the plaintiff’s evidence of being informed of a death threat in July or August 2009, and the circumstances surrounding the provision of that information as providing a proper basis for the plaintiff to have sought protection. The State did not accept that such an event occurred. As I have earlier indicated, I have not been persuaded that such an event occurred, largely because I was not persuaded that the Corrections authorities were warned of the existence of the death threat. They therefore had no reason to take the actions which the plaintiff alleges they did.

11. [275]

    In light of my factual conclusions on this issue, it does not form any basis for a conclusion that, at a time prior to the day of the assault, the plaintiff acted unreasonably in failing to ask to be put on protection or accept any offer of protection.

12. [276]

    No contributory negligence has been proved by the State.

Damages

1. [277]

   Both parties agreed that any award of damages to the plaintiff was to be made in accordance with the provisions of Pt 2A of the CLA. This Part makes particular provision in respect of an award of personal injury damages in respect of an injury to a person received while the person was “an offender in custody”: s 26B of the CLA.

2. [278]

   The plaintiff, because he was in custody on remand awaiting his trial, falls within the statutory definition of “an offender in custody”: CLA, s 26A(1); CAS Act, s 4(1)(a). As well, the State is a protected defendant within the definition in s 26A of the CLA.

3. [279]

   An initial threshold of 15% permanent impairment resulting from the relevant injury is required to be established before any damages can be awarded: CLA, s 26C.

4. [280]

   The State conceded in final written submissions that the evidence demonstrated that this threshold had been passed, and that, if the plaintiff was successful on liability, it was open to the Court to make an award of damages in his favour.

5. [281]

   The award of damages for non-economic loss is restricted by the provisions of s 26I of the CLA to the maximum amount a worker would be entitled to under the provisions of Pt 3 of the Workers Compensation Act 1987 (NSW) (“WCA”), as in force when the injury occurred – here, 1 October 2009: CLA, S 26I(2).

6. [282]

   The parties are agreed that, pursuant to s 66 of the WCA, the plaintiff would be entitled to an award of $71,500 based upon a WPI of 35%, being the figure determined by the Approved Medical Specialist, Dr Ivan Lorentz.

7. [283]

   The plaintiff claims an additional sum for pain and suffering in accordance with s 67 of the WCA. He submits that the Court should award the maximum available amount of $50,000.

8. [284]

   The State submits that because s 67 of the WCA has been repealed, and because the plaintiff did not make a compensation claim under the WCA prior to 19 June 2012, no amount can be awarded by the Court for the plaintiff’s claims.

9. [285]

   I reject that submission. The repeal of s 67 of the WCA was made by cl 13 of the Schedule 2.1 of the Workers Compensation Legislation Amendment Act 2012 (“the 2012 Amending Act”).

10. [286]

    The terms of that Act significantly amended the provisions of s 66 of the WCA, and repealed s 67. It introduced a different scheme for the assessment of lump sum compensation. Schedule 12 of the 2012 Amending Act, which deals with the savings and transitional provisions, provides in cl 15 that the amendments with respect to lump sum compensation contained in the 2012 Amending Act do not apply to a claim made before 19 June 2012. This is wholly consistent with the provision of s 26I(2), which was introduced by the 2012 Amending Act. The obvious purpose was to direct attention to the Regulation in place at the relevant time, namely when the injury occurred.

11. [287]

    It follows that in my view the plaintiff is entitled to an allowance for pain and suffering as part of his non-economic loss calculated by reference to the maximum of $50,000 which was in place on 1 October 2009. The plaintiff submits that the Court would award him the maximum sum. However, in my view such an award would not be in accordance with the relevant Regulation or authorities. The State submits that a sum of $15,000 would be an appropriate award, but this does not in my view adequately reflect the extent of the pain and suffering endured by the plaintiff which is not intended to, or reflected in, the degree of WPI. But that seems to be the approach adopted by the State ($15,000 being 30% of the maximum amount of $50,000).

12. [288]

    In my assessment, a sum to reflect the plaintiff’s pain and suffering as permitted in accordance with s 67 of the WCA as it existed on 1 October 2009 is $30,000.

13. [289]

    The total of the award for the plaintiff for non-economic loss is:

    1. (1)

       Permanent Impairment (WCA, s 66): $71,500.

    2. (2)

       Pain and Suffering (WCA, s 67): $30,000.

14. [290]

    Although the Court is engaged upon an assessment of damages by reference to the provisions of Pt 2A of the CLA, Pt 2 of that Act continues to have application, although it is subject to Pt 2A.

15. [291]

    Pt 2A is silent on the question of whether a court can order interest to be paid on any damages which it assesses. Section 18, which is to be found in Pt 2, is directed towards that issue.

16. [292]

    Section 18(1)(a) of the CLA precludes a Court from ordering the payment of interest on non-economic loss. It seems to me that this applies to the assessment set out above and prevents the award of any interest on the amount of $101,500.

17. [293]

    The parties are agreed on out of pocket expenses as follows:

    1. (1)

       Past out of pocket expenses: $25,209.89.

    2. (2)

       Future out of pocket expenses: $37,467.87.

18. [294]

    This is the area of damages which is significantly in contest between the parties. Any assessment of past and future economic loss is constrained by the provisions in Division 3 of Part 2A of the CLA. The principal provision is to be found in s 26E which provides as follows:

19. [295]

    In awarding any damages for loss of future earning capacity, the Court is obliged to ignore any earning capacity after a plaintiff turns 65 years old: s 26F of the CLA.

20. [296]

    The remaining provision of Division 3, namely s 26G, is not applicable in the circumstances here, because the plaintiff is not a person in respect of whom a future parole date has been fixed.

21. [297]

    At [80]-[96] above, I have set out in some detail the evidence of the plaintiff’s activities in the years leading up to his arrest in September 2008. He was exercising his earning capacity in a wide range of business ventures, from some of which he was intending to obtain a return on capital investment through being rewarded for such risk as he was prepared to accept.

22. [298]

    Undoubtedly, some of his ventures were more successful and longer lasting than others. Some were little more than well-intentioned prospects, which never proceeded past the concept stage. Others were more developed. Naturally, where a person chooses to exercise their earning capacity in that way, their actual income, and their return on their ventures, will fluctuate, sometimes, to a marked degree. It is unfair to value their earning capacity at either the highest or else the lowest point in their period of earnings because to do so would be to risk either over-compensating or else undercompensating the plaintiff, thereby being potentially unfair to the State.

23. [299]

    These conclusions are reinforced by the evidence of the plaintiff’s net weekly earnings in the financial years between 1 July 2000 and 30 June 2007. His average net weekly earnings in any one year in that period ranged from $101 to $1,980. In the five year period up to 30 June 2005, the plaintiff’s average net weekly earnings was $1110. By reference to the records of the Australian Bureau of Statistics set out in Tables of the kind ordinarily referred to in this Court for ease of assessment of damages, the gross average weekly earnings for adult males in Australia (“AWE”) as at 30 June 2005 was $1125. After provision for income tax, this is equivalent to average net weekly earnings $900 per week.

24. [300]

    This short exercise demonstrates that during these years the plaintiff’s earning capacity exceeded the AWE by about 25%. However, as is apparent from the evidence, the plaintiff’s average net weekly income in the two year ending 30 June 2007 was considerably less than the previous five years, and considerably less than the AWE.

25. [301]

    The plaintiff submitted that I should regard these years as being a period when particular businesses were being established when it might be expected that income would be reduced in the expectation of greater income in the future. The State submits that these periods reflect accurately the plaintiff’s capacity to earn income, which was very low.

26. [302]

    I am not persuaded that either of these submissions is wholly correct. What the Court is assessing is the monetary value of the plaintiff’s earning capacity. The value takes into account the years of plenty and the fallow years. It is my assessment is that an accurate assessment of the plaintiff’s earning capacity is a figure of about 25% above the AWE figure but he is likely to receive that income about 75% to 80% of the time. Applying a broad brush approach to this assessment, I have concluded that a not unreasonable figure, which adequately reflects all of the fluctuations, is to value the plaintiff’s lost earning capacity as equivalent to the AWE from time to time.

27. [303]

    In arriving at this valuation, no allowance is made for any potential capital return on investments made into new businesses. Whilst I acknowledge that the nature of the plaintiff’s work prior to his entering custody would suggest that there was a real possibility that such financial benefits could accrue, the evidence is not sufficiently certain to enable any real value to be attributed to such prospects.

28. [304]

    The plaintiff was released from custody on bail in May 2010. He remained at liberty thereafter, although the charges against him were not finally disposed of before the end of 2013. The basis for their final disposition was a finding by Price J that there was a prima facie case against the plaintiff. But in accordance with the principles described in R (Cth) v Sharrouf (No. 2) [2008] NSWSC 1450 at [41], this is not a finding of guilt. That is because the evidence for the Crown is taken at its highest, and the credibility or reliability of any witness, or of their evidence, is not assessed.

29. [305]

    The plaintiff made it plain that it was his view that he was not guilty of the offences with which he was charged. There was no evidence placed before this Court on the question of whether or not he was guilty. The Court received no submissions on the issue. The significance of this is that the Court, when determining past economic loss, is not able to conclude that the plaintiff would have been convicted and spent time serving a sentence of imprisonment. It is sufficient for the Court to make a finding of when the plaintiff would have been likely to be released from custody, and resumed the exercise of his economic capacity.

30. [306]

    In my view, having regard to the nature of the charges, the likely trial dates and a reasonable estimate of the length of the trial, which was a relatively complex one, I think that the plaintiff would have recommenced the exercise of his economic capacity after his release from custody and re-established his life by taking up his business interests again, gradually working them back to a reasonable level of activity by about 1 July 2012.

31. [307]

    Put differently, I am satisfied that from about that date, the plaintiff would, if not for his injuries, have been earning the AWE. As at that time, the AWE was $1473. After tax was deducted, the plaintiff would have earned (on average) $1135 per week.

32. [308]

    The plaintiff has retained a residual capacity, although it may only be exercised on a part-time basis, and with a reasonably accommodating employer. In my view, the value of the plaintiff’s residual earning capacity is about $20,000 a year. That is a gross figure (which since that time has been just about at or else below the income tax threshold). It is a reasonable measure of the residual capacity.

33. [309]

    Accordingly, I conclude that the plaintiff’s past lost capacity was in the sum of $735 net per week from 1 July 2012 until the date of this judgment.

34. [310]

    That assessment has been made without reference to the provisions of s 26E of the CLA which is set out above at [294]. As the legislation stood on 1 July 2012, s 35 of the WCA fixed the maximum amount of weekly benefits payable at $1838.70. The plaintiff’s loss of earning capacity was significantly less.

35. [311]

    Approached in this way, the provisions of s 26E are readily attended to and applied. However, in 2012, by reason of the introduction of the 2012 Amending Act, the substance of s 35 (with some minor amendments) became s 34 of the WCA. There was no amendment at that time of s 26E(2) so as to adjust the section number. The plaintiff submits that this is a mere slip or technical error by the Parliament, which the Court should ignore, by treating s 26E(2) as referring to s 34 of the WCA.

36. [312]

    The State submits that s 26E(2) should be applied in its terms. It submits that s 35 of the WCA provides a formula by which the weekly payments which may be made to an injured worker are to be determined. That is correct, but applying the section in its terms does not result in a figure which represents the maximum amount of weekly compensation payable. One figure is the ceiling of the amount calculated by reference to the formula. The other figure is the calculation of the rate which is payable as weekly benefits to a worker under the legislation.

37. [313]

    Section 26E(3) refers to a process of indexation by which the maximum weekly compensation amount is increased for the future to reflect an appropriate adjustment by way of indexation over time.

38. [314]

    The words in s 26E(2) do not suggest that the maximum weekly compensation amount is the figure which exists from time to time, so that when considering the past, there is a rolling assessment, every time the rate is changed to reconsider the relevant maximum amount.

39. [315]

    If that was to be the way the provision ought to be approached, then one would expect the words “from time to time” to be appear in the section. They do not. This suggests that, at least in this case and for injuries sustained before the commencement of the 2012 Amending Act, the correct approach to this potentially confusing legislation is to examine the legislative provisions which fixed the maximum amount of compensation as at the time the injury was sustained. This is consistent with the approach of the legislation to the amounts of lump sum compensation.

40. [316]

    The end result in this case is that for past economic loss, that is the loss accumulated from 1 July 2012 to the date of judgment, the plaintiff is entitled to recover that loss at the rate of $735 per week.

41. [317]

    The plaintiff is entitled to interest on that sum in accordance with s 18 of the CLA.

42. [318]

    It is now necessary to address future loss of earning capacity. The terms of s 26E interpreted as I have suggested do not require any adjustment to be made by reference to the lost earning capacity which I assessed.

43. [319]

    However, the provisions of s 13 of the CLA continue to apply. I am satisfied that had the plaintiff not been injured he would have continued to earn a weekly amount of at least the equivalent of the AWE from the variety of businesses in which he was involved. Although the plaintiff had a prospect of doing better than that, the percentage possibility of such prospect cannot be determined on the evidence before the Court. However, having regard to the plaintiff’s past history of working and engaging in business ventures, there is only a relatively small risk, the percentage possibility of which I assess as 15%, that he would earn less than the AWE during his working career up to the age of 65. He has a residual earning capacity of $400 per week.

44. [320]

    I have made the same assumptions in making an assessment of these matters as I did for past economic loss. I have factored into the assessments the fact that in some of the businesses which the plaintiff may have engaged in, his reputation may have been damaged by the events surrounding his arrest and remand in custody. However, the longer the period after the plaintiff’s release, the less that effect will be.

45. [321]

    The plaintiff was born in 1967 and will turn 65 in 2032, namely a further 14 years. The plaintiff is entitled to future economic loss for that 14 year period at the present AWE, less the value of his residual earning capacity.

46. [322]

    That sum will need to be subject to a deduction of 15% to represent the possibility of adverse events causing an interruption to the exercise of that earning capacity.

47. [323]

    The parties ought calculate the total of these amounts and bring in short minutes to reflect these findings.

Costs and Other Orders

1. [324]

   I can see no reason why the State should not pay the plaintiff’s costs. However, in the event that agreement cannot be reached, I will allow the parties the opportunity to make submissions about an appropriate costs order.

2. [325]

   Counsel will therefore be required to bring in short minutes which:

Orders

1. [326]

   The Court orders:

   1. (1)

      Verdict and Judgment for the plaintiff against the defendant in a sum to be calculated;

   2. (2)

      Counsel to confer and agree upon the appropriate short minutes of order;

   3. (3)

      Stand proceedings over to 2.00pm on Friday 1 February 2019 for the making of final orders and the determination of any outstanding issue as to costs;

   4. (4)

      Liberty to either party to apply to the Court on 24 hours’ notice.