The GEO Group Australia Pty Limited v O’Connor

GLEESON JA: I agree with White JA.

WHITE JA: This is an application for leave to appeal from orders of the Common Law Division (Lonergan J) of 5 March 2019. The respondent (Mr O’Connor) is a plaintiff in proceedings in the Common Law Division in which he claims damages from the applicant (GEO) as a result of injuries he sustained when on remand awaiting sentence at Parklea Correctional Centre (“Parklea”) on 23 May 2012. He was assaulted by three other inmates and sustained significant head injuries. GEO was the private manager of Parklea. Mr O’Connor alleged that his injuries were the result of GEO’s having breached its duty to take reasonable care for his safety. An order had been made that the issues of liability and damages be determined separately. Pursuant to that order the hearing before the primary judge was limited to the issue of liability.

The relevant orders of the primary judge were that:

In substance the primary judge answered the question whether the defendant was liable to pay damages to the plaintiff for injuries he sustained in the affirmative.

GEO initially filed a notice of appeal purporting to appeal as of right. Belatedly, it filed an application for leave to appeal. Leave to appeal under s 103 of the Supreme Court Act 1970 (NSW) was not opposed and it is appropriate that leave be given.

For the reasons which follow, I propose that the appeal be dismissed with costs.

Mr O’Connor was arrested on 19 February 2011 on charges that included attempt to choke with intent to intimidate and aggravated sexual assault. He was received at the Metropolitan Remand and Reception Centre at Silverwater on 21 February 2011. After completing an Intake Screening Questionnaire he was classified as being able to be placed in any correctional centre with beds designated for inmates on remand. There were no special management or placement directions recorded on the classification.

On 6 March 2012 he was transferred to Parklea. Ms Downes, an expert witness engaged by Mr O’Connor’s solicitors with extensive experience in the management of correctional centres and whose evidence was accepted by the primary judge, said that although Mr O’Connor was remanded in custody for a sexual offence, it was not an offence that would normally require placement in any form of protective custody.

On 14 May 2012 after a trial before a jury, Mr O’Connor was found guilty of offences, including attempting to choke the victim with intent to intimidate and sexual intercourse with the victim causing actual bodily harm in circumstances of aggravation. He was returned to Parklea to await sentence.

At about 1.20 pm on 17 May 2012 the Nursing Unit Manager at Parklea, a Ms Bidart, was approached by a different inmate (“AB”) who said he wanted to discuss a conversation he had overheard, but did not want to discuss with officers in the unit in which he was housed. AB said that he could not talk to the officers because he did not want other inmates to know that he had handed over information on them. AB said to Ms Bidart words to the effect of:

AB was not able to tell Ms Bidart the full name of the inmate at risk, but said that he thought it was “Caleb” and said words to the effect that:

Ms Bidart’s assessment of AB’s credibility was such that she took his statement seriously. She was employed by Justice Health, not GEO, but nothing turns on this. She contacted the Operations Manager, Mr Glenn Halliwell immediately. She deposed that she told Mr Halliwell of the report she had been given, namely that:

Mr Halliwell said that he would contact the “intel officer [Intelligence Officer] and talk to the inmate.”

Mr Halliwell’s recollection of his conversation with Ms Bidart was that she said to him words to the effect:

Mr Halliwell ascertained that the inmate in question was most likely to be the respondent (Caleb O’Connor). He did so by reference to Mr O’Connor’s records which included the offences with which he had been charged, as well as his position in working in the metal shop in the Industries section within Parklea, and his name.

It is unlikely that Ms Bidart told Mr Halliwell that she had “overheard conversation” from an inmate as she had not. The information she conveyed was not as a result of her overhearing a conversation, but the result of what she had been told by AB about what he had overheard.

Mr Halliwell and an Intelligence Manager who reported to him, a Mr Deal, spoke to Mr O’Connor. Mr Halliwell deposed that a conversation to the following effect took place:

Mr O’Connor appeared genuinely surprised and bemused upon hearing that he might be at risk of attack.

Mr O’Connor was not told that the reason he might be at risk of attack was that it had been reported that other inmates had recently learned of the offences for which he was in custody. That would be relevant to Mr O’Connor’s assessment of whether he might be subject to attack and should have been relevant to GEO’s assessment of that risk and how to respond to it.

Mr Halliwell deposed that he returned to the Clinic and spoke again with Ms Bidart and asked her to identify the inmate from whom she had heard the information, so that that inmate could be spoken to in order to try to find out what the information was about.

Ms Bidart identified AB and said:

Mr Halliwell was unable to speak with AB at that time as AB had already returned to his cell and Mr Halliwell considered that his safety could be put at risk if he were to interview him then.

In the meantime, Mr Deal continued his interview with Mr O’Connor. Mr Deal asked Mr O’Connor whether he had ever been threatened with physical harm by another inmate. Mr O’Connor said that had never happened. He had been locked up for over 16 months and at Parklea for over two months and never had any sort of drama. Mr O’Connor said “Listen, I’m not going anywhere.” Mr Deal asked whether Mr O’Connor had noticed any changes in the way other inmates had been relating to him or changes in their behaviour. Mr O’Connor said he had not. Mr Deal said that Mr O’Connor should immediately contact one of the officers if he had any concerns or issues. Mr O’Connor said he had no problems.

Mr O’Connor was provided with a form to complete called an “Inmate Request Form”. He wrote:

Mr Deal stated against a box headed “Decision”:

Mr Deal had not been told that the stated reason for the potential attack was that other inmates had found out the charges (or possibly convictions) for which Mr O’Connor was in custody.

Mr Deal observed that Mr O’Connor was relatively tall and muscular with a reasonably assertive demeanour who appeared to be able to look after himself physically and was unlikely to be bullied or stood over by other inmates. Mr Deal arranged for an increased level of surveillance in the Industry Section at the time of musters and movement of inmates to their cells. He observed nothing untoward. The heightened level of surveillance continued into the next week and was still in place on Wednesday, 23 May 2012 when the attack occurred.

Also on 17 May 2012 Mr Halliwell provided a report to the General Manager of Parklea, Mr Peter Ma’a, as follows:

On Friday 18 May 2012 Mr Halliwell spoke to AB. Mr Halliwell gave evidence that although he did not recall precisely what was said, the gist of the conversation was:

The assault on Mr O’Connor occurred in his cell between 1.41 and 1.48 pm on 23 May 2012. Inmates left the doors of adjacent cells open. This blocked CCTV camera vision down the corridor. Mr O’Connor was bashed in the head with a sandwich maker. He was found by a staff member at 1.48 pm.

On 24 May 2012 Mr Halliwell provided a further report to Mr Ma’a. He summarised matters contained in his earlier report of 17 May and continued:

Mr Halliwell did not give evidence of AB’s having told him on 18 May that AB was not aware if any direct threats had been made against Mr O’Connor. AB had reported threats about a person whom the prison authorities identified as Mr O’Connor .

Mr O’Connor adduced expert evidence through Ms Lee Downes. From about 1989 to 2013 Ms Downes had been employed by Corrective Services (NSW), first as a correctional officer and later through every custodial rank, including Deputy Superintendent (Security Manager) and Superintendent (General Manager). She later held higher positions involving the oversight of security and operations of correctional centres for women and men on a regional basis and was later appointed Assistant Commissioner, Security and Intelligence.

Ms Downes opined that following Ms Bidart’s report to Mr Halliwell of the information received from AB, O’Connor should have been moved into segregated custody and transferred for his own protection. This would have been in accordance with GEO’s own operating manuals.

The primary judge summarised the authorities in relation to the duty of care owed by a prison authority to take reasonable care for the safety of prisoners against the risk of harm being inflicted by other prisoners (New South Wales v Bujdoso (2005) 227 CLR 1; [2005] HCA 76 at [32] and [45]-[46]; Price v State of New South Wales [2011] NSWCA 341 at [35]; Proprietors of Strata Plan 17226 v Drakulic (2002) 55 NSWLR 659; [2002] NSWCA 381 at [85]). The primary judge correctly observed that Mr O’Connor’s pleading did not accurately characterise the duty of care owed by a prison authority for the safety of an inmate and said “[t]here is no duty to ensure the safety of an inmate, only to take reasonable steps or precautions” (at [16]).

It is common ground that the primary judge accurately stated the nature of the duty of care. GEO stressed that there was no absolute duty to safeguard a prisoner, but that the duty of care required what was reasonable in the circumstances. The primary judge acknowledged this and reasoned accordingly.

The primary judge referred to the evidence of Ms Bidart’s report to Mr Halliwell and GEO’s responses to that report as described above. Her Honour referred to evidence given by Mr Ma’a observing, correctly, that Mr Ma’a’s evidence (referred to below at [88]-[93]) dealt in generalities and did not address why he did not respond to Mr Halliwell’s note in his report of 17 May 2012 that the offences with which Mr O’Connor was charged increased the risk of his being targeted by other inmates. Her Honour found that when Mr Halliwell and Mr Deal spoke with Mr O’Connor, neither understood accurately the source of the information that had been conveyed to Mr Halliwell by Ms Bidart, that is, not that she had overheard a conversation between inmates, but she had been told by AB of what he had heard (Judgment [58]). The primary judge also observed that Mr Halliwell and Mr Deal proceeded on an assumption that the attack would only take place in Industries on that day, rather than really examining the nature of and reason for the threat (Judgment [58]).

The primary judge observed, correctly, that Mr O’Connor was not told the reason for the concern that he might be assaulted (Judgment [59]), namely, that other inmates had become aware of the nature of his charges for which he had been convicted on 14 May 2012.

The primary judge found that the evidence given by Mr Halliwell and Mr Deal was frank and truthful. Mr Halliwell gave evidence that he believed that he would have told Mr O’Connor that the reason behind the overheard planned assault was that other inmates had become aware of his crimes. However, the primary judge noted that Mr Halliwell conceded that he could not confirm that he did so tell Mr O’Connor, and there was nothing in his report or his statement recording that he had done so (Judgment [64]-[65]). Mr Deal in cross-examination said that all that he told Mr O’Connor was that he could possibly be at risk. The primary judge found that neither Mr Halliwell, nor Mr Deal, nor any other employee or agent of GEO, told Mr O’Connor of the reasons stated to be behind the overheard planned assault (Judgment [67]).

The primary judge summarised the expert evidence given by Ms Downes, retained by Mr O’Connor and Mr Colin Kelaher, retained by GEO. The primary judge summarised the reports and oral evidence of both experts. For reasons she articulated the primary judge preferred the evidence of Ms Downes. Critically, Ms Downes was of the opinion that Mr O’Connor should have been segregated and transferred for his own protection. Moving Mr O’Connor into segregated custody would not have any stigma attached since he was a remand prisoner and could easily be shifted. It would be different if he were placed in protective custody to which stigma attaches (Judgment [75]).

Ms Downes was also of the opinion that the decision not to segregate Mr O’Connor was contrary to GEO’s own operating manuals (OP061 and OP085). Section 5.5.1 of OP061 stated that an inmate who is under threat because he was considered to be under threat from another inmate or inmates was to be separated from possible contact with other inmates. Clause 6.3 of OP085 stated that any inmate identified as vulnerable or at risk from other inmates must be separated immediately and housed in the Segregation Unit on a Non-Association order until a suitable placement and management option could be formulated and actioned (Judgment [77]-[79]). Ms Downes was critical of the responses of Mr Halliwell and of Mr Deal in that they were distracted by what in her view was a false distinction between information received being classified as “information” as opposed to “intelligence” (Judgment [84] and [85]).

The primary judge referred to the main points made by Mr Kelaher in his reports. Her Honour recorded that he placed emphasis on problems associated with being placed on protection and that it would be unfair to Mr O’Connor, whose sexual offending did not involve a child and who was not an informer, to be placed in protective custody (Judgment [92]). (Ms Downes did not suggest that he should be.)

The primary judge noted that Mr Kelaher placed great emphasis on concerns that unsubstantiated information and misinformation can be unreliable and cause management issues if all of it is acted upon. The primary judge noted that Mr Kelaher stated that the intelligence manager (in this case Mr Deal) had a responsibility to investigate and interview the relevant people. Mr Deal only interviewed Mr O’Connor and did so at a time when AB had not been interviewed by Mr Halliwell.

Mr Kelaher rejected an opinion of Ms Downes that unnecessary attention was drawn to Mr O’Connor by his being interviewed in the Industry manager’s office which may have led other inmates to consider that he was informing. Mr Kelaher said that Mr O’Connor was not placed at increased risk because the physical layout of the gaol was such that the interview could not be seen by other inmates. The fact that his name was called over the loudspeaker would not draw negative attention to him as that was something done when inmates were required for legal visits and for other similar matters. The primary judge accepted Mr Kelaher’s opinion on this point (Judgment [74] and [99]).

The primary judge referred to some incorrect assumptions that Mr Kelaher had made, including that it was Mr O’Connor who said that the threat of assault was “just pigeon yard talk”. From that, it appeared that Mr Kelaher believed that Mr O’Connor had been made aware of the asserted reason for assault (Judgment [102]). Ms Downes and Mr Kelaher produced a joint report in which they agreed that Mr O’Connor should have been advised of “the nature of the threat and the basis on which it was made” (Judgment [104]). Mr Kelaher agreed in joint evidence that a reasonable correctional facility should have informed Mr O’Connor about the reasons stated to be behind the overheard threat to bash him, being information about his crimes (Judgment [105]). The primary judge noted the difference of opinion as to whether it was reasonable to “force” protective custody, segregation or transfer on Mr O’Connor. This question was largely academic given that Mr O’Connor was not given the information as to the reason for the threat of assault.

As to Parklea’s operating manual OP085, the primary judge found:

The primary judge observed that on the second day of concurrent evidence Mr Kelaher adopted views put forward by counsel for GEO that OP061 and OP085 had a restricted interpretation such that they did not apply to Mr O’Connor’s circumstances. Mr Kelaher adopted the view that OP061 was only directed to prisoners who were already in protective custody and that OP085 only applied to inmates at the time of their reception into Parklea. The primary judge rejected both of these interpretations and, necessarily, Mr Kelaher’s adoption of them.

The primary judge concluded:

Grounds 1-4 of the notice of appeal challenged the primary judge’s finding that GEO was in breach of its duty of care by not imposing segregated custody on Mr O’Connor and transferring him to another correctional institution because, so it was said, the General Manager of Parklea, Mr Ma’a, had no power under the Crimes (Administration of Sentences) Act 1999 (NSW) (“the Act”) either to order segregation or transfer.

Ground 5 asserted that the primary judge failed to deal with or provide reasons as to why GEO was obliged to segregate and/or transfer Mr O’Connor in circumstances where he had clearly expressed his opposition to any such suggestion. That ground is manifestly untenable. Her Honour provided detailed reasons for her conclusion.

Grounds 6 and 7 asserted that the primary judge “erred in conflating what had occurred in relation to the respondent’s conviction of sexual offences with what was known to the appellant of those matters at the time”, specifically, she erred in concluding that the fact of his conviction was known to other prisoners prior to his assault and erred in concluding that other inmates had just learnt of the true nature of his crimes. GEO submitted that there was no reliable basis for such a conclusion.

As explained in GEO’s written submissions, ground 8 was in substance that it was not put to Mr Ma’a in cross-examination that Mr Ma’a should have formed the opinion to exercise his discretion to segregate Mr O’Connor or to effect his transfer from Parklea, assuming (contrary to GEO’s submission) that Mr Ma’a had such a power.

Ground 9 was that:

Ground 10 was not pressed.

It was not a ground of appeal that the primary judge erred in preferring the opinion of Ms Downes to that of Mr Kelaher. Nor was there any challenge to the admissibility of Ms Downes’ opinions.

Ground 1 was:

This ground of appeal did not identify any specific error. As explained in GEO’s written submissions, this ground of appeal invoked grounds 2, 3 and 4. Those grounds were:

GEO submitted that had it taken the steps that the primary judge found it was required to take in discharge of its duty of care, it would have been acting contrary to statute by exercising powers it did not have.

Although not specifically raised in its grounds of appeal, in its written and oral submissions GEO also emphasised the hearsay and imprecise nature of the information it received and emphasised the steps it did take in response to that information, and submitted that no reasonable person in its position would have taken any additional precaution.

Section 10 of the Act, as in force in May 2012, provided:

Section 10(2) empowered the general manager, Mr Ma’a, to exercise the Commissioner’s functions under subs (1) to direct that an inmate be held in segregated custody. He could do so if he were of the opinion that the association of Mr O’Connor with other inmates constituted or was likely to constitute a threat to good order and discipline within Parklea (s 10(1)(c)). The formation of such an opinion did not depend upon Mr Ma’a’s being of the opinion that Mr O’Connor was likely to be assaulted. It was enough to trigger the power to segregate Mr O’Connor from other inmates if he were of the opinion that Mr O’Connor’s association with other inmates constituted or was likely to constitute a threat to good order and discipline.

GEO submitted that because the only suggested threat was against a single inmate the good order and discipline of Parklea was not threatened. That submission is untenable. An assault by one or more inmates against another inmate is plainly contrary to good order and discipline within a prison. Those administering prisons are required to exercise reasonable care to prevent such assaults. Such an assault is inimical to the maintenance of good order and discipline.

Plainly, there was a power to segregate.

Section 15 dealt with the consequences of transferring an inmate held in either segregated or protective custody to another correctional centre. In substance, the general manager of the receiving correctional centre was required to review the segregated or protective custody direction and either revoke it, confirm it, or amend its terms (within 72 hours).

Section 11 dealt with protective custody. It relevantly provided:

Section 12 provided:

An inmate who was placed in segregated or protective custody for more than 14 days could apply to the Serious Offenders Review Council for review of the segregated or protective custody direction (s 19).

Section 232 relevantly provided:

Section 233 provided:

Section 23(1) provided:

The power to transfer under s 23 is also vested in the Commissioner.

Under s 232(3) the Commissioner could delegate his power of transfer under s 23. GEO submitted that there was no evidence that the Commissioner had delegated that power. The power to transfer could be exercised for any reason stated in the order for transfer.

Contrary to GEO’s submission, there was evidence, both as to the practice in relation to the transfer of inmates between prisons and the delegation of the Commissioner’s authority to order such transfers. Not surprisingly, the Commissioner does not consider every transfer. Ms Downes and Mr Kelaher gave the following evidence:

Both Ms Downes and Mr Kelaher assumed that Mr O’Connor could have been transferred had he been placed in segregation. Their assumption was well-based on their experience. Indeed, counsel appearing for the GEO at trial in his questions relating to s 23 of the Act referred to what might be thought to be a notorious fact that it was a common everyday occurrence that inmates would be moved from one correctional centre to another.

I reject grounds 2, 3 and 4 of the notice of appeal, and ground 1 insofar as it is based on those grounds.

Insofar as ground 1 is more widely based, GEO contends that it did not breach its duty of care to Mr O’Connor for the reasons mentioned above at [59], that is, that no reasonable person in GEO’s position would have taken steps in addition to those already taken by GEO by way of precaution, given the “hearsay and imprecise” nature of the information received.

The question of what GEO ought to have done in response to the information was the subject of expert opinion from Ms Downes and Mr Kelaher. The primary judge accepted Ms Downes’ evidence that GEO’s protocols were that Mr O’Connor be moved once he was identified as at risk (see below at [101]). There was no error in the primary judge’s acceptance of Ms Downes’ evidence that once he was so identified, his segregation or transfer was what was required of GEO.

It is simply untrue that the primary judge failed to deal with or provide reasons to explain why GEO was obliged to segregate and/or transfer Mr O’Connor in circumstances where he had clearly expressed his opposition to any such suggestion.

The primary judge provided clear reasons for her conclusion. Essentially, there were two such reasons.

The first, was that Mr O’Connor’s resistance to being moved was not based upon being given the information that had been provided to Mr Halliwell, namely, that other inmates had learned of the nature of his charges that increased the risk of his being targeted. The primary judge said:

A second reason was the primary judge’s acceptance of Ms Downes’ opinion that irrespective of Mr O’Connor’s position, he needed to be protected from the threat by being segregated and then transferred for his own protection. The primary judge preferred the opinion of Ms Downes over that of Mr Kelaher on the issue of segregation and transfer (Judgment [138]). Her Honour accepted Ms Downes’ evidence that inmates are not routinely polled on transfer issues and that there were “persuasive and cogent reasons why segregation and transfer was the proper course.” In this paragraph the primary judge accepted Ms Downes’ reasons for the opinion that she expressed.

Grounds 6 and 7 are not easy to understand, but they were explained in GEO’s written submissions as follows:

As I understand the submission, it is that the relevant question was not what information was provided to GEO about the risk to Mr O’Connor, but whether Mr O’Connor had established on the balance of probabilities that in fact other inmates had previously been ignorant of the charges that Mr O’Connor faced and of which he was convicted, but had learned of those charges.

These grounds are misconceived. It is possible that Mr O’Connor was assaulted for reasons unrelated to what AB overheard and conveyed to Ms Bidart. It is possible that no other inmate knew of the nature of the charges that Mr O’Connor faced and of which he had been convicted. That is irrelevant to what, in the exercise of reasonable care, GEO should have done in response to the threat of which it was informed.

Ground 8 was:

As explained in GEO’s written and oral submissions, this ground was not that there could be no claim that Mr Ma’a negligently failed to exercise his statutory powers if there had been no administrative law challenge to the exercise of his delegated statutory power. Rather, it was said that counsel for Mr O’Connor did not cross-examine Mr Ma’a to challenge him on his failure to order the segregation and arrange for the transfer of Mr O’Connor.

The primary judge said:

Mr Ma’a provided a statement that was primarily in response to Ms Downes’ first report. In her first report Ms Downes had expressed the opinion (at [66]-[70]) that:

In response Mr Ma’a, in his statement said:

Mr Ma’a did not otherwise respond to Ms Downes’ opinion.

Mr Ma’a did not address her opinion that the circumstances warranted Mr O’Connor being placed in segregated (as opposed to protective) custody.

As noted above, the primary judge was critical of Mr Ma’a’s evidence in that Mr Ma’a did not address why he did not respond to Mr Halliwell’s report that Mr Halliwell felt that the offences Mr O’Connor was charged with increased his risk of being targeted (Judgment [40]). There was no evidence that he went through the considerations in OP061, which he regarded as the only relevant policy, contrary to the unchallenged finding of the primary judge that OP085 was also relevant and more relevant. The primary judge said that there was no evidence that he went through the considerations in OP061 paras 5.1 and 5.3 in considering Mr O’Connor’s position, having regard to the information given to him in Mr Halliwell’s report (Judgment [43]).

The only other matter put forward by Mr Ma’a in his report dealing specifically with the position of Mr O’Connor was in response to paragraph 68 of Ms Downes’ report (quoted above at [88]).

Paragraph 68 of Ms Downes’ report dealt with whether Mr O’Connor should have been placed in protective custody, rather than segregated custody. Mr Ma’a did not respond to Ms Downes’ opinion about his being placed in segregated custody. His response to paragraph 68 of her report is quoted at [89] above.

Mr Ma’a rejected the notion that Mr O’Connor should have been placed in protective custody, but that was not the basis upon which there was a finding of negligence.

Mr Ma’a’s failure to address the claim that Mr O’Connor should have been placed in segregated custody pending transfer raised a Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 inference against GEO that no additional evidence Mr Ma’a could give would support GEO’s case (Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419 per Handley JA).

Counsel for Mr O’Connor was not required to cross-examine Mr Ma’a about evidence that Mr Ma’a did not give, but which he could be expected to have given if it would have advanced GEO’s case.

In its submissions on ground 9 GEO contended that there was a volume of information that comes into GEO’s possession in its management of Parklea in terms of intelligence or information that needs to be considered. Much of that intelligence or information cannot be verified. Some of it is conveyed mischievously in an attempt to achieve a prisoner’s own wishes, such as to arrange for himself to be transferred or to arrange for another prisoner to be transferred. Mr Deal said that prisoners could be unreliable and invent a range of reasons, including mischievous and malevolent reasons. Mr Deal said:

He said that he received “numerous tip-offs everyday” although not all related to the risk of assault. Both Mr Ma’a and Mr Kelaher referred to there being a high volume of unsubstantiated information or rumours deliberately spread for mischievous purposes.

GEO submitted that the primary judge failed to have regard to s 5C(a) of the Civil Liability Act 2002 (NSW). Section 5C provides:

GEO stressed that the scope of the duty of care had to be assessed not exclusively by reference to the circumstances of Mr O’Connor’s assault, but against the background of the whole multitude of risks that might or might not crystallise in respect of responses to rumours and overheard conversations.

GEO is correct that s 5C required the primary judge to consider whether the burden of taking the precaution of segregation and transfer, if required to be taken in the case of Mr O’Connor, would mean that similar steps would be required in the case of other overheard threats that would place an unreasonable burden on the management of Parklea and other correctional centres.

But as Ms Downes opined, and as the primary judge found, the operating manuals for Parklea required in the circumstances of this case that once Mr O’Connor was identified as being at risk from other inmates, he needed to be separated.

The contention suggested by counsel for GEO that was accepted by Mr Kelaher at trial that OP085 applied only to inmates from their reception into Parklea was untenable. The primary judge correctly found (Judgment [129]) that although the focus of the policy was on turning minds to the issue of reception of a new inmate, it defied common sense to have the operation of preventative measures stop as soon as the reception process was completed.

No s 5C issue arose. Mr O’Connor’s complaint was not that prison systems were at fault, but rather that the system laid down in the protocols was not complied with.

In oral submissions it was faintly argued that s 5B could not require the taking of the additional precaution of segregation and transfer over and above the steps that were taken because it could not be concluded that it was probable that harm would occur if care were not taken (s 5B(2)(a)). That construction is untenable. If the risk of harm is insignificant then a defendant is not negligent in failing to take precautions against the risk (s 5B(1)(b)). But if the risk is not insignificant, then subs (2) is engaged in determining whether a reasonable person in the defendant’s position would take precautions against the risk. In making that assessment, the court is to consider how probable it is that harm would occur if care were not taken. That may require taking precautions against a risk that is unlikely, particularly where, if the risk eventuates, the harm would be severe, and the burden of taking precautions is not great. The primary judge held that that was the case here. Her Honour’s conclusion was correct.

For these reasons I propose the following orders:

BRERETON JA: I have had the benefit of reading, in draft, the judgment to be delivered by White JA, with which I agree.

GEO was provided with credible information about a specific risk to Mr O’Connor, a prisoner – that he would be assaulted by other inmates – which eventuated and caused harm. Although it must always be borne in mind that the fact that a known risk eventuates and causes harm does not necessarily bespeak negligence, this was a striking case. The credibility of the information provided was supported by the nature of its source and origin (a trusted prisoner relaying information through a nursing unit manager), the detail of the information (in describing the target, the location, the timing, and the rationale for the threat – being the recent discovery of the true nature of his offence), and the internal corroboration obtained (through identifying Mr O’Connor by correlation of his characteristics with those described by the source, and that he had recently been convicted of an offence within the class that, if known, might expose him to risk of assault). The consequences of the risk eventuating could be grave: serious injury, or even death. Neither the risk, nor its consequences, were reduced by the circumstances (invoked by GEO) that the potential aggressors had not been identified, or that this was classified as “information” rather than “intelligence”.

In those circumstances, reasonable care – consistent with GEO’s own policies – required that, for his own protection, Mr O’Connor be segregated from the threat, by one or other of the means lawfully available to GEO for that purpose, namely segregated or protective custody, whether or not with a view to transfer. Proceeding on the basis (as GEO did) that the threat was diminished once the day to which it related had passed, overlooked the obvious, namely that if its implementation was prevented by segregation on that day, it was likely to re-present at the next available opportunity. Reliance on Mr O’Connor not himself being concerned was fraught: he would be the last to discover that others intended to assault him. And his “request” not to be moved was obtained in circumstances where he was not informed of the most significant information, that the threat was associated with recent discovery of the nature of his offence.

I agree with the orders proposed by White JA.