Eastment v State of Queensland [2017] QDC 201

DISTRICT COURT OF QUEENSLAND CITATION: Eastment v State of Queensland [2017] QDC 201 PARTIES: PHILLIP JOHN EASTMENT (plaintiff) v STATE OF QUEENSLAND (defendant) FILE NO/S: 3376 of 2016 DIVISION: Civil PROCEEDING: Claim ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 31 July 2017 DELIVERED AT: Brisbane HEARING DATE: 1 and 2 March 2017 and 11, 12, 13 and 14 July 2017 JUDGE: Kefford DCJ ORDER: The plaintiff’s claim is dismissed. CATCHWORDS: TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – BREACH OF DUTY - CAUSATION - where the plaintiff worked at a correctional centre – where the plaintiff was injured in an incident with a prisoner at the correctional centre – where there was no written record of the prisoner displaying agitation two days prior to the incident – whether the prisoner was agitated – whether the failure to produce a written record of the agitation was a breach of the duty, owed by the defendant, to the plaintiff – whether the failure to produce a written record was causative of the plaintiff’s injury LEGISLATION: Evidence Act 1977 (Qld), s 92, S 102 CASES: Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28, applied Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; [1986] HCA 20, applied Commonwealth v Connell (1986) 5 NSWLR 218, cited Czartyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14, applied -- 1 of 30 -- 2 Fitzgerald v Penn (1954) 91 CLR 268; [1954] HCA 74, applied Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18; [1956] HCA 42, applied Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11, applied Lusk v Sapwell [2012] 1 Qd R 507; [2011] QCA 59, applied McLean v Tedman (1984) 155 CLR 306; [1984] HCA 60, applied March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12, applied Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268, applied State of New South Wales v Bujdoso [2005] HCA 76, considered State of New South Wales v Napier [2002] NSWCA 402, applied Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12, applied COUNSEL: G R Mullins for the plaintiff B F Charrington for the defendant SOLICITORS: Maurice Blackburn for the plaintiff Crown Law for the defendant Introduction [1] The plaintiff claims $675 000 damages resulting from an incident at the Maryborough Correctional Centre during which a prisoner (referred to herein as “prisoner X”) physically assaulted the plaintiff. The plaintiff alleges that the defendant was negligent and in breach of the implied term of the contract of employment of the defendant. [2] It is admitted that prisoner X assaulted the plaintiff. However, the defendant denies liability. [3] There is no dispute about the quantum of the plaintiff’s damages should the court find the defendant liable. -- 2 of 30 -- 3 Background [4] The defendant employed the plaintiff as a custodial corrections officer at the Maryborough Correctional Centre. [5] On 6 March 2009, prisoner X attended a committal hearing at the Maryborough Magistrates Court. He was charged with assaulting Officer Ledgard (a custodial corrections officer) at the Maryborough Correctional Centre on 14 October 2008. The assault involved spitting on Officer Ledgard. [6] Officer Linnenlucke was a custodial corrections officer who gave evidence at the hearing. In a statutory declaration dated 8 May 2012, Officer Linnenlucke says that during the course of the committal hearing, prisoner X became agitated and yelled at her that she was a “lying cunt”.1 [7] In her evidence during this trial, Officer Linnenlucke said that as she was giving evidence on 6 March 2009, prisoner X: (a) appeared to be angry with her evidence; (b) was standing and moving from side to side; (c) had a demeanour that was “not as bad, but maybe very close to” his behaviour in an incident on 1 October 2008 when he kicked open his cell door and was walking toward her and another officer angrily;2 and (d) displayed behaviour that caused her to be concerned for her safety when she returned to the Maryborough Correctional Centre later that day.3 [8] Officer Linnenlucke gave evidence that on her return to Maryborough Correctional Centre, she informed her supervisor, Peter Dunlop, of her concerns about prisoner X in terms of his “attitude and aggressiveness in the Court room”.4 She also says she informed Michael Lyness,5 an intelligence officer, of her concerns for the safety of herself and other officers that deal with prisoner X in the unit.6 1 Exhibit 12 [5]. 2 T3-6/L1-11. 3 T3-8/L1-47. 4 T3-7/L11-13. 5 Mr Lyness was known as Mr Clarey when employed at Maryborough Correctional Centre – T4- 68/L37-46. 6 T3-7/L13-25. -- 3 of 30 -- 4 [9] There were two systems for the recording and dissemination of information relating to prisoners’ behaviour. The first was the Intel system and the second was the Integrated Offender Management Strategy (“IOMS”) system. [10] Information about prisoner X’s demeanour was not recorded on the Intel or IOMS systems and was not the subject of any handover advice to the custodial corrections officers managing prisoner X. [11] The plaintiff did not work on Friday, 6 March or Saturday, 7 March 2009. He commenced work at about 6.45 am on Sunday, 8 March 2009, at which time he was rostered to work in Secure 9 with custodial corrections officer Darryl Gleich.7 [12] At the start of their shift, the plaintiff and Officer Gleich undertook their usual “walk through”8 to ensure that prisoners were well. They observed prisoner X during the walk through and his demeanour appeared “fine”.9 The plaintiff and Officer Gleich then attended their morning briefing with their supervisor, David Keen. No reference was made to the prisoner.10 [13] If there were “any issues” raised about a prisoner in the morning briefing, it was the plaintiff’s ordinary practice to look up the prisoner in the IOMS system after the morning meeting.11 [14] No issues were identified on this occasion. The plaintiff and Officer Gleich proceeded to undertake the unlocking of the units.12 At about 7.35 am, the plaintiff and Officer Gleich completed the unlock of Secure 9.13 [15] That morning, Officer Gleich was asked by an unidentified prisoner to unlock the supply cupboard in the laundry so that the prisoners could get some sugar.14 Officer Gleich unlocked the cupboard. Prisoner X then walked past the plaintiff toward the laundry. Prisoner X entered the laundry area.15 He then began repeatedly punching Officer Gleich about the head.16 7 T1-38/L22-40. 8 T1-39/L4-9. 9 T1-39/L10-13. 10 T1-39/L15-24. 11 T1-39/L28-33. 12 T1-40/L5-15. 13 Incident Report for Incident on 8 March 2009 - Exhibit 1 Tab 5 p 11. 14 T1-41/L11-15. 15 T1-41/L44-45. 16 T1-42/L1-2. -- 4 of 30 -- 5 [16] The plaintiff entered the laundry and observed prisoner X punching Officer Gleich’s head numerous times with a closed fist. The plaintiff directed prisoner X to stop. Prisoner X failed to comply with the direction and the plaintiff intervened to protect Officer Gleich.17 [17] Prisoner X then turned his attention to the plaintiff. Officer Gleich attempted to exit the laundry, but prisoner X was still striking him. The plaintiff then positioned himself between prisoner X and Officer Gleich. Prisoner X began striking the plaintiff with a closed fist.18 [18] During the course of the incident, prisoner X swung punches at the plaintiff and said words to the effect:19 “I’m going to fucking kill you. I told you someone would pay for this.” [19] In due course, assistance arrived and prisoner X was brought under control and apprehended. The case [20] The plaintiff’s pleaded case is heavily predicated on the occurrence of an event on 6 March 2009. It is alleged that, during a committal hearing at the Maryborough Magistrates Court on 6 March 2009, prisoner X: (a) yelled at Officer Linnelucke that she was a “lying cunt”; (b) yelled aggressively at Officer Linnenlucke for a period of time; (c) behaved sufficiently aggressively for the Magistrate to be required to stop the proceeding to calm prisoner X down, before allowing Officer Linnenlucke to proceed with the remainder of her oral evidence; (d) displayed a threatening demeanour; (e) issued threats (that have never been particularised) to Officer Linnenlucke; and 17 T1-42/L14-17. 18 T1-42/L26-44. 19 T1-42/L46-47. -- 5 of 30 -- 6 (f) caused Officer Linnenlucke to be concerned for her safety and the safety of other officers. [21] The plaintiff’s pleaded case builds on those events and claims that: (a) Officer Linnenlucke reported what she had witnessed of prisoner X’s demeanour and conduct at the committal hearing, namely displays of aggression and the issuing of threats, to Mr Lyness and Officer Dunlop; (b) Mr Lyness imparted that information to the secure accommodation manager (Mr Paul Rosolen) and the Assistant General Manager (Mr Mark Spehr); and (c) particular action should have been taken in response to Officer Linnenlucke’s information. [22] In final submissions, the plaintiff’s focus was, instead, on the defendant’s admission that Officer Linnenlucke told Mr Lyness20 that prisoner X was agitated at the committal hearing.21 [23] In general terms, the plaintiff’s case is that: (a) it was reasonably foreseeable that, if prisoner X was agitated (or upset) at the committal hearing, given his violent history (particularly in respect of assaulting custodial corrections officers), the custodial corrections officers supervising prisoner X on a day-to-day basis may be exposed to a risk of injury in the days following the committal hearing; (b) a reasonable response to the risk of injury was to advise the plaintiff and his fellow custodial corrections officers that prisoner X had been agitated etc.; (c) despite Officer Linnenlucke’s report to Officer Dunlop and Mr Lyness, no employee of the defendant prepared a written case note or other report, nor did they advise the custodial corrections officers at Secure 9 of the concerns of Officer Linnenlucke; (d) had the concerns of Officer Linnenlucke been conveyed to the supervisor of Secure 9, Mr David Keen, on 8 March 2009, those concerns are likely to have 20 Mr Lyness was known as Mr Clarey at the time. 21 Plaintiff’s Outline of Argument at Trial p 4 [16] – [18]. -- 6 of 30 -- 7 been forwarded onto the plaintiff and Officer Gleich through the handover report or IOMS system; (e) had the plaintiff been aware of Officer Linnenlucke’s concerns about the behaviour of prisoner X at the court hearing of 6 March 2009, he is likely to have approached the management of prisoner X differently on 8 March 2009, in that he would not have allowed prisoner X to enter the laundry to confront Officer Gleich in a confined space; and (f) the incident would then have been avoided.22 [24] The defendant’s case is that: (a) there is insufficient evidence for the court to find, on the balance of probabilities, that prisoner X behaved in a manner, at the court hearing of 6 March 2009, that warranted any action to alert officers at the Maryborough Correctional Centre of his behaviour; (b) no breach of duty occurred as the foreseeability of any risks of injury was adequately addressed as: (i) prisoners generally, and prisoner X specifically, posed a foreseeable risk of injury within a High Security Correctional Centre such as Maryborough; but (ii) the absence of any adverse behaviour by prisoner X at the committal hearing, his behaviour subsequent to that hearing and his conduct in the months following his assault on Officer Ledgard, placed that risk at no special level, having regard to his classification; and (c) even if an employee of the defendant prepared a written case note or other report, or advised the custodial corrections officers at Secure 9 of the concerns of Officer Linnenlucke, there is no basis for a conclusion that an intervention by the plaintiff before prisoner X reached the laundry would have prevented the assault. 22 Plaintiff’s Outline of Argument at Trial pp 1 – 2 [1]. -- 7 of 30 -- 8 [25] The issues for determination are: (a) whether there is sufficient evidence for the court to find, on the balance of probabilities, that prisoner X behaved in a manner at the court hearing of 6 March 2009 that warranted any action to alert officers at the Maryborough Correctional Centre of the behaviour; (b) whether there was a breach of the defendant’s duty of care, which requires consideration of: (i) whether it was reasonably foreseeable that the plaintiff would be exposed to a risk of injury from an assault by prisoner X in the days following the committal hearing and whether that risk was at a special level that required additional action; and (ii) if it was reasonably foreseeable that the plaintiff was at risk of injury, whether it was a reasonable response to that risk to convey the information that prisoner X was agitated (or aggressive etc.) to the plaintiff and his fellow custodial correction officers through the IOMS system and/or handover notes; and (c) whether the incident would likely have been avoided if the plaintiff been advised through the IOMS system, or from handover notes at the morning briefing, or otherwise, of prisoner X’s conduct at the committal hearing. The evidence of prisoner X’s behaviour and demeanour on 6 March 2009 [26] The only evidence adduced by the plaintiff in relation to the occurrence of the event at the committal hearing was the combined oral and documentary evidence of Officer Linnenlucke. [27] The plaintiff tendered a statutory declaration given by Officer Linnenlucke.23 As is mentioned in paragraph [6] above, in her statutory declaration, Officer Linnenlucke says that during the course of the committal hearing, prisoner X became agitated and yelled at her that she was a “lying cunt”.24 She says that prisoner X became very 23 Evidence Act 1977 (Qld), s 92. 24 Exhibit 12 [5]. -- 8 of 30 -- 9 aggressive, was making threats against her, was yelling loudly and that the Judge stopper her evidence while prisoner X was calmed down.25 [28] The weight to be attached to such a statement (if any) shall be determined by all the circumstances from which an inference can reasonably be drawn as to the accuracy or otherwise of the statement, including its contemporaneousness.26 [29] The first occasion when Officer Linnenlucke provided a written account of the events of the committal hearing27 was in the statement declared by her 3 years and 2 months after the event.28 Her account is also recorded in a file note taken by a lawyer at Crown Law a few days earlier.29 [30] In her oral evidence, Officer Linnenlucke could not recall any insults being yelled at her.30 She could not recall yelling by prisoner X.31 She could not recall the proceeding being stopped to allow him to be calmed down.32 At no stage has Officer Linnenlucke been able to recall the nature of any threats made against her or anyone else by prisoner X. [31] The court had the benefit of an audio recording of the committal hearing. There is no yelling or threats by prisoner X on the audio recording. There is also no evidence of the proceedings being stopped by the Magistrate so that prisoner X could be calmed down.33 [32] During cross-examination, Officer Linnenlucke admitted that the reason for the absence of threats on the audio recording of the committal hearing34 was that no threats were made.35 [33] The plaintiff accepts that Officer Linnenlucke’s recollection of the events is likely to be incorrect. Her version is inconsistent with the record of the hearing.36 The plaintiff 25 Exhibit 12 [5]. 26 Evidence Act 1977 (Qld), s 102. 27 T3-10/L41-45. 28 Exhibit 12. 29 Exhibit 16. 30 T3-14/L30-36. 31 T3-14/L38 - T3-15/L9. 32 T3-15/L11-17. 33 Exhibit 26 Tab 21. 34 Exhibit 26 Tab 21. 35 T3-36/L30-36. 36 See Exhibit 26 Tab 21. -- 9 of 30 -- 10 submits, however, that it does not follow that nothing happened to cause Officer Linnenlucke to have serious concerns for her own safety. The plaintiff relies on the following matters as providing possible explanations for the inconsistency: (a) First, the recorded transcript does not include the full record of the events as they unfolded.37 The plaintiff submits that it may be that the exchange referred to in Officer Linnenlucke’s statutory declaration occurred after the recorded transcript. The plaintiff submits that the exchange at the start of the transcript suggests that something occurred before the commencement of the transcript. The plaintiff also submits that there is a possibility that something happened after the end of the recording, as the court was not adjourned. Officer Linnenlucke gave evidence that she could not recall whether she left the courtroom after her evidence.38 (b) Second, the plaintiff submits prisoner X had good reason to be agitated. The election by the Crown to proceed by way of summary trial, rather than presenting an indictment in the District Court, had significant consequences for prisoner X. It denied prisoner X the opportunity to make an early plea and thereby reduce the period of time to be spent in jail.39 (c) Third, the plaintiff submits that the fact that prisoner X called out “Yeah. I fuckin’ sneezed, man” during the committal hearing is evidence of his agitation.40 (d) Fourth, the plaintiff submits that the events that occurred on 8 March 2009 confirm he was upset by what happened at the committal hearing. (e) Fifth, and the plaintiff submits, most importantly, that the defendant admits41 that Officer Linnenlucke told Mr Lyness that prisoner X was agitated at the committal hearing. The plaintiff submits that the only explicable reason for that complaint is that Officer Linnenlucke had concerns about prisoner X’s 37 See Exhibit 26 Tab 20 p 858. The plaintiff submits that the exchange at lines 38 to 45 suggest that something occurred before the commencement of the transcript. The plaintiff also submits that there is a possibility that something happened after the end of the recording as the court was not adjourned. 38 T3-9/L1-3. 39 Exhibit 26 Tab 20 pp 875 – 879. 40 Exhibit 26 Tab 20 p 860. 41 Paragraph 9, Third Further Amended Defence of the Defendant. -- 10 of 30 -- 11 behaviour and she believed that someone should be informed so that action might be taken. [34] I consider Officer Linnenlucke’s evidence of aggressive or threatening behaviour, or of a level of agitation that warranted special action, to be unreliable as: (a) Officer Linnenlucke conceded that the audio recording of the committal hearing42 showed her statutory declaration to be “wrong”;43 (b) having listened to the audio recording of the committal hearing:44 (i) I am not persuaded that the exchange, referred to in Officer Linnenlucke’s statutory declaration, occurred at anytime during the hearing; (ii) while prisoner X may have had good reason to be agitated, I am not persuaded that there was anything more than a low level of agitation displayed at the hearing, if that. His comment “Yeah. I fuckin’ sneezed, man” was not said with excessive volume or force. At most, it conveyed mild frustration, but it seemed to me to be no more than a dispassionate explanation by prisoner X of his conduct. In the recording, prisoner X can also be heard speaking, in what I regard as a calm manner, with his solicitor.45 When asked whether he had anything he wished to say in answer to the charge, he again calmly answered, “Oh, yeah, well, I’m not guilty of this”. During observations of the Magistrate about his concerns in relation to a bail application, prisoner X whispers to his solicitor, “Don’t worry about it. I’m not going to get it”46; (c) although the defendant admits47 that Officer Linnenlucke told Mr Lyness that prisoner X was agitated at the committal hearing, I am not satisfied, on the balance of probabilities, that Officer Linnenlucke reported, or held, genuine 42 Exhibit 26 Tab 21. 43 T3-18/L40 – T3-19/L21. 44 Exhibit 26 Tab 21. 45 Exhibit 26 Tab 21 at approximately 48 minutes. This conversation occurred at the point of the transcript Exhibit 26 Tab 20 p 875 at lines 1- 3. 46 Exhibit 26 Tab 21. 47 Paragraph 10 of the Third Further Amended Defence of the Defendant. -- 11 of 30 -- 12 concerns about her safety, or that of other officers, at the time of her return to the Correctional Centre. Mr Lyness’ evidence was that Officer Linnenlucke had not reported safety concerns.48 Officer Linnenlucke was familiar with, and accustomed to complying with, the systems for reporting breaches by prisoners against the good order of the prison and recording behavioural changes in prisoners.49 She does not suggest that Mr Lyness informed her that a written record of her views was unnecessary. Officer Linnenlucke had ample opportunity, on 6 March 2009, to make a record of her concerns had there been anything that required reporting.50 I am not satisfied that her failure to make a note was the consequence of any negligence, inadvertence or carelessness on her part, as opposed to the absence of observable agitation or genuine concern; (d) the statutory declaration of Officer Linnenlucke51 and the file note of the conversation with her52 were not contemporaneous, coming into existence 3 years and 2 months after the event; (e) Officer Linnenlucke eschewed cogent recollection of the content of her discussions with Mr Lyness and Mr Dunlop;53 and (f) the highest Officer Linnenlucke could state matters in relation to the accuracy of her statutory declaration was that it was her belief that it was true and correct at the time of her declaration.54 However, as noted in paragraph [34](a) above, Officer Linnenlucke has now accepted the inaccuracy of paragraphs 5 and 6 of her statutory declaration. Her evidence, during re- examination, that the evidence in her statutory declaration remains true to the best of her recollection55 is untenable. [35] There are also other matters that highlight the unreliable nature of Officer Linnenlucke’s evidence. 48 T4-75/L1-16. 49 Exhibits 13 and 14. See also T3-19/L23 – T3-21/L14; T3-22/L33 – T3-23/L23; T3-24/L1 – T3- 27/L6; T3-29/L31 – T3-36/L11. 50 T3-37/L30-34. 51 Exhibit 12. 52 Exhibit 16. 53 Exhibit 15; T3-12 lines 22 – 25; T3-13 lines 13 – 20. 54 T3-9/L38–39. 55 T3-40/L47. -- 12 of 30 -- 13 [36] First, Officer Linnenlucke claims that in March 2009 she was not aware of the need to complete either a case note or an officer report.56 There is, however, evidence of an extensive history of Officer Linnenlucke reporting positive and negative matters (of a significantly more trivial nature than the alleged event) in case notes on the IOMS system, as well as a history of her reporting prisoner breaches of the good order of the prison.57 [37] Secondly, in her oral evidence, Officer Linnenlucke suggested bodily movement by prisoner X that she intimated, but did not state outright, caused her concern. This apparently involved prisoner X watching Officer Linnenlucke and prisoner X moving from side to side to an unspecified degree while Officer Linnenlucke gave evidence against him.58 It is difficult to accept Officer Linnenlucke’s evidence as, just moments earlier, she was unable to answer whether prisoner X was sitting or standing. This is also the first time Officer Linnenlucke mentioned such conduct.59 [38] Third, Officer Linnenlucke was plainly a reluctant witness. This reluctance was understandable given the extent to which the audio recording rendered her account of the event, described in her statutory declaration, inaccurate. Officer Linnenlucke claimed that the reluctance related to concerns she held about her tenure,60 but several employees gave evidence for both parties in the proceeding; and Officer Linnenlucke conceded that her employer had not applied pressure or made adverse comment.61 Further, since giving the account described in her statutory declaration, Officer Linnenlucke had been appointed to the role of Acting Supervisor.62 [39] As regards agitation (and indeed non-verbal aggression), on the balance of probabilities, I am not satisfied that there was any agitation displayed by prisoner X on 6 March 2009 because: (a) Officer Linnenlucke’s evidence on this issue was vague and generally unreliable; 56 T3-9/L5-14. 57 Exhibits 13 and 14. 58 T3-8/L17-34. 59 See Exhibit 12 and the file notes of conversations with Officer Linnenlucke – Exhibits 15 and 16. 60 T3-39/L22. 61 T3-39/L14-20. 62 T3-39/L13-15. -- 13 of 30 -- 14 (b) there is nothing in the recording of the committal hearing that is suggestive of agitation on the part of prisoner X;63 (c) it was the uncontroverted evidence of Mr Hunter that there was no agitation (or aggression) displayed by prisoner X. Mr Hunter was a custodial corrections officer who, on 6 March 2009, escorted prisoner X to and from the committal hearing.64 He recalls escorting prisoner X.65 He regarded prisoner X’s demeanour as his “standard quiet” demeanour: prisoner X was not displaying any signs of agitation or aggression. Mr Hunter had seen prisoner X before and was familiar with his normal demeanour.66 Mr Hunter impressed me as a strong witness with a clear recollection: he had a cogent basis for remembering prisoner X’s presentation that day, given the rarity of his escort duties;67 (d) there was uncontroverted evidence of regular inspections being carried out on prisoner X by a senior police officer while prisoner X was in the watchhouse (after the hearing and before his return to Maryborough Correctional Centre).68 Those records do not record any adverse behaviour of agitation or aggression. I accept the evidence of Mr Hazelton that any signs of aggression or agitation would have been noted in the record;69 and (e) the evidence of Mr Smith (given orally in a forthright manner), and his contemporaneous note of his assessment of prisoner X,70 suggests the absence of any aggression or agitation by prisoner X during his assessment on his return to the Maryborough Correctional Centre.71 On 6 March 2009, Mr Smith was employed in the role of welfare officer at the Maryborough Correctional Centre.72 In that role, he assessed prisoners returning from court, including with respect to issues of self-harm, distress from the court proceedings or “anything like that”73 (which, having regard to the balance of 63 Exhibit 26 Tab 21. 64 T4-20/L28-40. 65 T4-20/L42-45. 66 T4-21/L1-15. 67 T4-22/L1-20. 68 Exhibit 26 Tab 23. 69 T4-28/L37 – T4-29/L2 and T4-32/L1-14. 70 Exhibit 18. 71 T4-6/L33-42. 72 T4-2/L46-47. 73 T4-4/L29-33. -- 14 of 30 -- 15 his evidence,74 I regard as including any agitation or aggression on the part of the prisoner that may pose a risk to others). That assessment included questions designed to reveal whether there was any adverse reaction to the court appearance.75 Mr Smith recalled the assessment and that there was nothing remarkable or extreme about the nature in which prisoner X presented: prisoner X sat calmly during the interviews with his head “sort of bowed”.76 The contemporaneous file note made by Mr Smith is consistent with his recollection of the interview. It records that prisoner X “did not present any at risk indicators at the time of interview. No further action was required”.77 [40] I am not satisfied that there was any aggressive, threatening or agitated behaviour by prisoner X, at the court hearing of 6 March 2009, sufficient to give notice that an assault upon an officer by prisoner X was imminent. I am also not satisfied that Officer Linnenlucke held genuine concerns for her safety or that of other officers. Breach of duty General principles [41] An employer owes an employee a duty to exercise reasonable care to avoid exposing the employee to unnecessary risk of injury.78 The duty is not absolute: the employer is not the insurer of the safety of the employee.79 The duty encompasses an obligation to take reasonable steps to provide a safe system of work.80 [42] An employer will be vicariously liable for the negligent acts of its employees where the conduct of the employee was within the scope of the employee’s employment.81 [43] An employer is bound to have regard to a risk that an injury may occur due to inattention or misjudgement by an employee in performing his or her allotted tasks. The employer’s obligation extends to establishing, maintaining and enforcing a safe 74 See, for example, T4-6/L44 – T4-7/L21. 75 T4-4/L37 – T4-5/L14 and T4-6/L44 – T4-7/L6. 76 T4-5/L26 – T4-6/L42. 77 Exhibit 18. 78 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, 307-8; [1986] HCA 20; Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18, 25; [1956] HCA 42. 79 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, 307 and 314; [1986] HCA 20. 80 Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424, 439; [2004] HCA 28. 81 Commonwealth v Connell (1986) 5 NSWLR 218, 221. -- 15 of 30 -- 16 system of work: it includes a duty to take account of the possibility of an employee’s negligence, inadvertence and carelessness in carrying out their work.82 [44] In State of New South Wales v Napier [2002] NSWCA 402, with respect to the content of the duty in the context of a prison authority, the New South Wales Court of Appeal observed at [73] – [75]: “As regards personal injury, certain relationships generate a duty of reasonable care that is so well recognised that citation of authority is unnecessary. These include occupier: lawful entrant and employer: employee. A subset of the latter relationship is “the duty on those responsible for one of Her Majesty’s prisons … to take reasonable care for the safety of those who are within”. The control vested in a prison authority is the basis of a special relationship which extends to a duty to take reasonable care to prevent harm stemming from the unlawful activities of third parties … In speaking of control, I emphasise the right to control (see Proprietors of Strata Plan 17226 v Drakulic [2002] NSWCA 381 at [75] per Heydon JA who states that (in this context) a “gaoler has control over prisoners even if those prisoners are running amock (sic) and injuring the plaintiff, because the gaoler has the right to control the dangerous prisoners”).” (citations omitted) [45] The High Court also made a number of pertinent observations with respect to the duty in the context of a prison in State of New South Wales v Bujdoso [2005] HCA 76 at [44]: “It is true that a prison authority, as with any other authority, is under no greater duty than to take reasonable care. But the content of the duty in relation to a prison and its inmates is obviously different from what it is in the general law-abiding community. A prison may immediately be contrasted with, for example, a shopping centre to which people lawfully resort, and at which they generally lawfully conduct themselves. In a prison, the prison authority is charged with the custody and care of persons involuntarily held there. Violence is, to a lesser or a greater degree, often on the cards. No one except the authority can protect a target from the violence of other inmates. Many of the people in prisons are there precisely because they present a danger, often a physical danger, to the community. It is also notorious that without close supervision some of the prisoners would do grave physical injury to other prisoners. The respondent here did not simply rely upon the notorious fact that prisoners convicted of sexual offences against minors are at greater risk than other offenders: he proved that the appellant knew that he had been threatened and taunted by other prisoners, on that account, albeit to a somewhat lesser extent at Silverwater Prison than he might have been in the other institutions in which he had been imprisoned.” 82 McLean v Tedman (1984) 155 CLR 306, 312-3; [1984] HCA 60; Czartyrko v Edith Cowan University (2005) 214 ALR 349 at 353 [12]; [2005] HCA 14. -- 16 of 30 -- 17 [46] In determining whether there has been a breach of duty, the Court must apply the test in Wyong Shire Council v Shirt (1980) 146 CLR 40, 47 - 48; [1980] HCA 12, namely: “In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not farfetched or fanciful is real and therefore foreseeable but, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remained to be considered with other relevant factors.” [47] Foreseeability of risk of injury in the context of breach of duty is determined by enquiring whether it “was reasonably foreseeable as a possibility that the kind of carelessness charged against the defendant might cause damage of some kind to the plaintiff’s person or property”.83 Was there a reasonably foreseeable risk of injury from an assault by prisoner X? [48] In final submissions, the plaintiff relied on his allegations that Officer Linnenlucke had fears or concerns for her safety following her experience at the committal hearing and that she reported those concerns to Mr Lyness and Mr Dunlop at the Correctional Centre following her return.84 The plaintiff submits that his case succeeds on breach of duty based on the defendant’s admissions that: (a) it was reasonably foreseeable that, if prisoner X was agitated (or upset) at the committal hearing, given his violent history (particularly in respect of assaulting custodial corrections officers), the custodial corrections officers supervising him on a day-to-day basis may be exposed to a risk of injury in the days following the committal hearing; and 83 Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268, 296. 84 Plaintiff’s Outline of Argument at Trial p 14 [56]. -- 17 of 30 -- 18 (b) a reasonable response to that risk was to advise the staff at Secure 9, through the handover notes, IOMs system, case notes, officer report or otherwise, of Officer Linnenlucke’s concerns. [49] Prisoner X had an extremely violent history. It included violence against custodial corrections officers. On 6 March 2009, he was in court for spitting on a custodial corrections officer. He had previously tried to strangle a custodial corrections officer at Capricornia Correctional Centre.85 The defendant acknowledges that prisoners generally, and prisoner X specifically, posed a foreseeable risk of injury within a High Security Correctional Centre such as Maryborough.86 [50] I accept that it was reasonably foreseeable that, if prisoner X had expressed upset (or displayed agitation) about something that occurred at the hearing, custodial corrections officers with the day-to-day control of the prisoner may be exposed to a risk of injury. [51] However, I am not satisfied, for the reasons outlined in paragraphs [26] to [39] above, that prisoner X was upset or agitated during the course of the committal hearing, or that he was aggressive, made threats or otherwise behaved in a way that would have heightened the need for reporting. Was the risk such that it required additional action? [52] The Maryborough Correctional Centre is a High Security prison, designed to accommodate a large number of problematic individuals. The risk of violence is inherent and cannot sensibly be eradicated. [53] The defendant had an extensive system in place to minimise the risk of harm to custodial corrections officers.87 The system included: (a) an extensive training regime in relation to vigilance against the risk of assault by prisoners;88 85 Exhibit 22. 86 Written Outline of the Defendant’s Submissions p 21 [60]. 87 T3-55/L12 – T3-69/L30. 88 T1-61/L41 – T1-62/L15; Exhibit 26 Vol 2 Tab 15 pp 536-561. -- 18 of 30 -- 19 (b) an extensive training regime in relation to officer safety and security and dealing with aggressive offenders89 and situations of force;90 (c) an extensive training regime in relation to the training of officers in recording threats against officers and adverse behavioural changes;91 (d) a system requiring two officers to work in close proximity of each other at all times;92 (e) continuing “on the job” training, requiring completion of the Certificate III in Corrections;93 (f) constant monitoring of relevant areas by CCTV;94 (g) a system for responding to incidents of violence, including the aid of response teams as occurred in the present case;95 (h) a detailed assessment process, regularly reviewed, for the proper classification of prisoners’ accommodation;96 (i) an assessment process, conducted by a specialist area (psychological services team), for prisoners returning from court to ensure their accommodation classification remains apt and that their mental health needs are met;97 (j) a documented process for dealing with situations of threats, threatening behaviour and aggression toward officers, by way of breach proceedings, safety orders and detention;98 (k) a system for dealing with, and informing staff of, current issues relevant to prisoner behaviour, via handover notes and morning briefings;99 and 89 Exhibit 26 Vol 2 Tab 15 pp 536-561. 90 Exhibit 26 Vol 2 Tab 10. 91 Exhibit 26 Vol 1 Tab 8 pp 95 – 115. T1-25/L7-25. 92 T1-24/L44 – T1-25/L5; T1-61/L34-39; T1-65/L24-28. 93 T1-30/L11-22. 94 T1-35/L29. 95 T1-25/L27-33. 96 T4-79/L35-37. 97 T4-4/L8 – T4-5/L14 and T4-6/L44 – T4-7/L6. 98 T1-30/L30 – T1-32/L19. 99 T1-35/L42-47; T1-36/L22-41; T5-6/L44 – T5-7/L17. -- 19 of 30 -- 20 (l) a system for recording historical material relating to prisoners, including any history of violence, on the IOMS system, which is available to all custodial officers.100 [54] I am satisfied that the system of work provided by the defendant, as described in paragraph [53] above, was (and is) a reasonable response to the general risk associated with prisoner violence. There is no breach occasioned by a failure to provide a safe system of work.101 [55] Compliance with the system does not necessarily, of itself, demonstrate a discharge of the duty of care if the risk of prisoner violence is, for some reason, heightened. [56] In terms of any heightened risk of violence posed by prisoner X’s history, I am not satisfied that there was any breach occasioned by an alleged failure to inform the plaintiff that prisoner X had a known propensity for violence102 as: (a) prisoner X’s history was documented on the IOMS system, to which the plaintiff had full access; (b) the plaintiff conceded he knew prisoner X to have been generally violent,103 and that prisoner X was frequently mentioned adversely on behavioural grounds.104 The plaintiff had worked in prisoner X’s unit without incident on four or five previous occasions;105 (c) it was not suggested to any witness that the handover notes and morning briefing session, designed to deal with current issues, should have been used to provide information to officers that prisoner X had spat on an officer five months earlier; or challenged two officers five months earlier; or seriously assaulted an officer in Rockhampton more than a year and a quarter earlier. The practicality of providing such advice was not traversed in the evidence; and 100 T1-28/L45 – T1-29/L7 and T5-6/L37-42. 101 Fourth Further Amended Statement of Claim [22(a)]. 102 Fourth Further Amended Statement of Claim [22(c)]. 103 T1-69/L43. 104 T1-44/L8-20. 105 T1-67/L33 – T1-69/L41. -- 20 of 30 -- 21 (d) the provision of information suggesting prisoner X posed a heightened risk because of history would have contradicted the current information that was to be gleaned from the positive steps in prisoner X’s conduct and behaviour, as identified by a qualified panel of experts only six weeks earlier.106 [57] In terms of the heightened risk otherwise alleged by the plaintiff, for the reasons outlined in paragraphs [26] to [39] above, I am not satisfied, on the balance of probabilities, that there was a heightened risk that warranted special action. In particular, I am not satisfied that there was any breach occasioned by: (a) a failure to provide the plaintiff and Officer Gleich with information that prisoner X demonstrated an agitated, threatening or aggressive demeanour at the committal hearing.107 I am not satisfied that there was behaviour by prisoner X that required special mention; (b) a failure to inform the plaintiff that prisoner X had issued threats against Officer Linnenlucke.108 Officer Linnenlucke disavowed such threats and conceded her account of threats was wrong;109 (c) a failure to ensure prisoner X was appropriately assessed after his return from the committal hearing.110 There was an assessment process, designed by the psychological services team, which involved a member of the psychological services team interviewing the prisoner on his return. If problems such as severe agitation or risk to staff were identified, the prisoner would be placed in the detention unit.111 I am satisfied that prisoner X was appropriately assessed by Mr Smith under the prescribed system.112 No challenge was made to the veracity of his assessment. The conclusions reached by Mr Smith are unequivocally supported by the observations of Mr Hazelton (referred to in paragraph [39](d) above) and Mr Hunter (referred to in paragraph [39](c) above); 106 Exhibit 22. 107 Fourth Further Amended Statement of Claim [22(b)]. 108 Fourth Further Amended Statement of Claim [22(d)]. 109 T3-36/L30-36. 110 Fourth Further Amended Statement of Claim [22(e)]. 111 T4-38/L33 – T4-39/L20. 112 See the reasons in paragraph [39](e) above. -- 21 of 30 -- 22 (d) a failure to place the prisoner in detention after his return from the committal hearing.113 There is no evidentiary foundation for this allegation, having regard to Officer Linnenlucke’s disavowal of her statutory declaration and the weight of evidence of prisoner X’s demeanour at the watchhouse, on the journey to the Maryborough Correctional Centre and during the interview with Mr Smith; (e) allowing the prisoner to mix in the general area without giving information about agitation or threats to Linnenlucke or about the need for special arrangements for restraint by a number of officers.114 As already indicated, I am not satisfied that there were any threats, nor a level of agitation that required reporting. No evidence was adduced, or attempted to be adduced, that prisoner X’s high security classification was wrong. Ms Weigel, who was part of a review panel that assessed prisoner X in January 2009, was not challenged about the classification of prisoner X as high (as opposed to maximum) security.115 The plaintiff did not adduce any expert evidence about the need for these further measures.116 Even if there had been a level of agitation at the committal hearing, I am not satisfied that, by 8 March 2009, there was a need for heightened supervision or restraint as: (i) on the day after the committal hearing, Saturday, 7 March 2009, prisoner X was acting normally;117 (ii) it was the evidence of both the plaintiff and Officer Gleich that prisoner X appeared to be normal on the morning of the assault - not agitated or aggressive - until very shortly before the subject assault;118 and (iii) the CCTV footage of the day room for the unit in which prisoner X was detained119 does not reveal any obvious aggression or agitation 113 Fourth Further Amended Statement of Claim [22(f)]. 114 Fourth Further Amended Statement of Claim [22(g)]. 115 See Exhibit 22 and her evidence T4-78/L1 – T4-86/L6. 116 Expert evidence of that nature was referred to in Leeder v The State of Western Australia [2008] WASCA 192, [41] – [42]. 117 T1-98/L11-30. 118 T1-39/L10-13; T1-70/L20-47 and T1-94/L7-27 and T1-97/L15 – T1-98/L7. 119 Exhibit 2. -- 22 of 30 -- 23 on the part of prisoner X as he approached the laundry immediately prior to the assault upon Officer Gleich; (f) a failure to provide further prison officers at the time,120 for the reasons provided in paragraph [57](e) above; (g) a failure to warn Officer Gleich and/or the plaintiff to be on guard and not to let themselves be cornered in a confined space.121 Officer Gleich was the only one alone in the laundry with prisoner X and he confirmed he was aware of the need for precaution in confined spaces. For the reasons already provided, I am not satisfied that there was anything that occasioned a need for further warning; (h) a failure to warn, in the morning briefing, of potential danger, the need for careful monitoring and the need for special precautions.122 This alleged failure appears to be dependent upon, and connected to, the allegation of adverse behaviour by prisoner X at the committal hearing. I am not satisfied that there was any such adverse behaviour. I am also not satisfied that a warning was required, or that there was a need for special precautions, for the reasons already provided. The need for a special regime is also not supported given: (i) the findings in Exhibit 22, being the report prepared in January 2009 as part of a review of prisoner X’s classification; (ii) the evidence referred to in paragraph [57](e) above; (iii) the evidence of Officer Keen that it is not unreasonable to expect that a prisoner who has been to court would display a level of agitation, but that agitation of itself is not necessarily noteworthy: it is common to see agitated prisoners;123 and (iv) the evidence of Mr Spehr that the case notes, with respect to the behaviour of prisoner X, indicated that his behaviour was within the 120 Fourth Further Amended Statement of Claim [22(h)]. 121 Fourth Further Amended Statement of Claim [22(i)] and [22(j)]. 122 Fourth Further Amended Statement of Claim [22(l)]. 123 T2-14/L33 – T2-15/L10. -- 23 of 30 -- 24 range of a prisoner who should be housed in the general population.124 There were a couple of adverse case notes. There was one case note that recorded prisoner X as displaying agitation with another prisoner and then a case note the next day indicating that prisoner X was laughing and joking with the same prisoner.125 [58] The plaintiff also alleges that the breach was occasioned by: (a) a failure to ensure that the information provided by Officer Linnenlucke upon her return was properly distributed to all relevant officers in the prison;126 and (b) a failure by Officer Linnenlucke, Mr Dunlop, Mr Lyness and Mr Rosolen to complete a case note, an incident report or another report and file it on the IOMS system.127 [59] The plaintiff’s final submissions focussed on these alleged breaches. [60] Incident reporting is an important part of the system. It is designed to ensure that information was conveyed to the personnel who would require the relevant intelligence. In this instance, the management of prisoner X on a daily basis rested with the supervisor of Secure 9 and his relevant subordinates. It was critical that those persons had access to relevant information about prisoner X. [61] Multiple witnesses identified the system of work required that, if a person was concerned for their safety or the safety of another officer, an officer’s report should be prepared and delivered to a supervisor. On receipt of an officer’s report, a supervisor would prepare an incident report to be entered into the IOMS system.128 Alternatively, the event would be case noted within the IOMS system and that information is likely to have become part of the handover notes and conveyed to officers as part of the morning meeting. [62] The evidence of Mr Keen was that his primary focus was on staff safety and the good order of the centre. The individual circumstances of a prisoner, the prisoner’s 124 T4-42/L1-6. 125 T4-42/L39-45. 126 Fourth Further Amended Statement of Claim [22(k)]. 127 Fourth Further Amended Statement of Claim [22(m)]. 128 For example, evidence of the plaintiff at T1-25/L10 – 1-29/L25. -- 24 of 30 -- 25 capacity to carry out a threat, his general demeanour, his history of poor behaviour or assaults and the safety of people employed in that environment were important to the decision as to whether to generate an incident report or not.129 [63] Mr Keen observed: “Was there any – if there was a grey area in respect of reporting incidents, was there a particular motto that was followed? - - - Yeah. If in doubt, write it out. If – if you think an incident may have occurred, then an Incident Report should be generated so that it can be investigated.”130 [64] The procedure in place in March 2009 did not require a minute analysis of an event and a careful determination of whether it amounted to a “threat” or absence of a threat. To the contrary, it required careful consideration of the prisoner’s history, the circumstances of any agitation or threat and, most importantly, the concern of the officer for their safety or the safety of other officers. [65] The evidence was largely consistent: if Officer Linnenlucke thought that prisoner X was aggravated and was concerned about her safety or the safety of other officers, the incident should have been reported through an incident report, the IOMS system, a case note or a handover note. [66] The plaintiff submits that the failure by any of Officer Linnenlucke, Mr Lyness, Mr Rosolen and Mr Dunlop to generate an incident report, case note or to otherwise advise the supervisor of Secure 9 that prisoner X had been agitated during the course of the committal hearing, as had been reported by Officer Linnenlucke, such that the information could be passed on to the plaintiff and Officer Gleich through the IOMS system or the handover process, was a breach of the defendant’s protocols and a breach of the defendant’s duty of care.131 [67] The plaintiff’s submission is premised on the basis that: (a) Officer Linnenlucke did not complete a written report when she should have; but (b) Officer Linnenlucke reported her concerns that the prisoner was agitated to Mr Lyness and Mr Dunlop; and 129 T2-7/L4 – T2-8/L40. 130 T2-7/L39-42.A 131 Plaintiff’s Outline of Argument at Trial p 18 [86]. -- 25 of 30 -- 26 (c) neither Mr Lyness nor Mr Dunlop advised the supervisor of Secure 9 of Officer Linnenlucke’s concerns, and they should have.132 [68] As has already been noted in paragraphs [34] - [39] above, I am not satisfied that there was conduct at the committal hearing that required the distribution of information about prisoner X. I regard the evidence of Officer Linnenlucke as unreliable. It discloses no reasonable or rationale basis for her holding concerns for her safety and the safety of her fellow officers. I do not believe that she held safety concerns on 6 March 2009 when she returned to Maryborough Correctional Centre. [69] The defendant has admitted that Officer Linnenlucke told Mr Lyness that prisoner X was agitated at the committal hearing. As I have already noted, in paragraph [33](c) above, I am not satisfied that there was any report by Officer Linnenlucke about concerns for her safety. In this respect, the evidence of Mr Lyness was clear and confident. However, I have doubts about the reliability of Mr Lyness’ recollection that he passed the information about prisoner X’s agitation on to others. When Mr Lyness gave evidence about passing information on to the accommodation manager and the general manager, his evidence commenced with a statement about that being the usual process.133 It seems to me that his recollection, in this respect, was influenced by what he believed he would have done, and was not a clear and independent recollection of what he actually did. Mr Lyness was also more hesitant in the way he gave his evidence about the conversations with others. He admitted that, while he said the accommodation manager was Mr Ingram, it may, in fact, have been Mr Rosolen.134 Mr Rosolen was the accommodation manager at the time.135 Mr Rosolen has no recollection of receiving information from Mr Lyness.136 Mr Spehr was the assistant general manager at the time: he also has no recollection of a conversation with Mr Lyness.137 [70] In terms of the alleged report to Mr Dunlop, Mr Dunlop had no memory of such a conversation. He gave evidence that he did not doubt that the conversation occurred, but I do not accept that this demonstrates the conversation did occur. It is apparent 132 Plaintiff’s Outline of Argument at Trial p 17 [79]. 133 T4-70/L26-35. 134 T4-75/L27 – T4-76/L3. 135 T5-2/L46-47. 136 T5-4/L18-20 and T5-9/L31-47. 137 T4-37/L20-25 and T4-53/L25-33. -- 26 of 30 -- 27 from other evidence of Mr Dunlop that his absence of doubt is based on no more than his trust for Officer Linnenlucke’s honesty and that he regularly had similar conversations with other staff members.138 Mr Dunlop’s evidence does not advance Officer Linnenlucke’s untenable evidence. She may honestly believe that her recollection, conveyed over three years after the event, was true and accurate. That does not make her evidence reliable. Given the clear deficiencies in Officer Linnenlucke’s recollection of the events of 6 March 2009, I am not satisfied that she conveyed any information to Mr Dunlop about prisoner X. [71] The remaining issue is whether Officer Linnelucke was negligent in her duties for failing to make an entry into the IOMS system. Vague entries without factual foundation are inappropriate to enter into a prisoner’s record on the IOMS system.139 The system is important: it is used by the sentence management review panel in considering a prisoner’s classification and parole.140 [72] Having regard to Officer Linnenlucke’s: (a) history of reporting behaviour of a trivial nature, both negative and positive, on the IOMS system; (b) demonstrated history of reporting breaches against the good order of the centre, of which she had no doubt her allegation in her statutory declaration constituted; (c) history of concern with this particular prisoner; and (d) view that prisoner X posed a risk to safety, I do not accept that Officer Linnenlucke was not aware or appreciative of the need to document an incident relating to prisoner X, had it occurred. [73] I am not satisfied that there was anything that warranted reporting. [74] I am not satisfied that the evidence demonstrates a breach of duty of care. 138 T4-63/L11-29. 139 T3-72/L40 – T3-73/L30 and T3-74/L38 – T3-75/L2. 140 T3-74/L45 – T3-75/L9. -- 27 of 30 -- 28 Causation [75] The relevant test for causation in the present case is the test imposed by March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12 of common sense and experience. The relevant question, posed in Fitzgerald v Penn (1954) 91 CLR 268 at 276; [1954] HCA 74, is “whether a particular act or omission … can fairly and properly be considered a cause of the accident.” [76] In Lusk v Sapwell [2012] 1 Qd R 507, 523 [76]; [2011] QCA 59, M Wilson AJA observed: “An employer’s duty of care to his or her employee is non-delegable, and a high standard of care is expected. But the duty is not absolute. And in order to succeed in an action for damages for breach of that duty the employee must establish both the breach and that the employer’s conduct materially caused the injury. Where the employer’s negligence consists of an omission to provide certain safeguards, the employee must establish that performance of the duty would have averted the harm.” [77] The onus resting upon the plaintiff is to show that the taking of the relevant step “more probably than not …would have prevented or minimised the injury which was in fact received”.141 [78] In determining causation, it is necessary to consider the alleged breach of duty and, if the breach of duty is an omission, determine whether the plaintiff would have acted differently had the omission not occurred. Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred.142 [79] The plaintiff and Officer Gleich both gave evidence of extra precautions they would have taken if the matters of threats, aggression and agitation (combined with the prisoner’s history) had been made known to them. The plaintiff said that he might have intervened before prisoner X got to the laundry so that Officer Gleich would not be alone in the laundry.143 Officer Gleich said he would have been a lot more wary of prisoner X and would not have been caught in the laundry by himself.144 141 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, 379 [45] and 397 [104]; [2011] HCA 11. 142 Strong v Woolworths Limited (2012) 246 CLR 182, 196 [32]; [2012] HCA 5. 143 T1-48/L29 – T1-49/L10. 144 T1-91/L38 – T1-92/L37. -- 28 of 30 -- 29 [80] Neither precaution establishes that the harm, more probably than not, would have been prevented or the injury minised. [81] The evidence of the plaintiff was that some prisoners would take on 20 officers.145 Prisoner X was a very large man, of immense strength, with a violent history. The CCTV footage showed him aggressively engaging with a group of officers.146 [82] I am not satisfied that an intervention by the plaintiff before prisoner X reached the laundry would have prevented the assault. Had there been such an intervention, the probable course of events would be that the plaintiff would have been assaulted at the time he sought to intervene. [83] The plaintiff submits that the evidence indicated that prisoner X was waiting for an opportunity to confront an officer in a confined space. I do not accept that this has been demonstrated. Any decision by Officer Gleich not to go into the laundry alone was unlikely, in my view, to have deterred this large, powerful and violent man from his intent. The assault is likely instead to have started in the general area. [84] I am also not satisfied that the presence of two officers would have deterred prisoner X. When the assault started, the officers were only about ten metres apart and only a few seconds from each other. [85] As regards the suggestion by Mr Keen, the secure 12-hour correctional supervisor on 8 March 2009,147 that he might have issued a safety order to protect staff, such action was premised on the basis that Officer Linnenlucke held concerns for her safety and the safety of other officers and that there had been threats made.148 I do not accept that such concerns were held or reported, nor that there were any threats made or reported. Further, and in any event, having regard to the evidence of Mr Rosolen,149 in light of prisoner X’s behaviour following his return to the Maryborough Correctional Centre, including on 7 March 2009, it is unlikely that he would have been on a safety order or in the detention unit on 8 March 2009. [86] The plaintiff has failed to establish causation. 145 T1-65/L33-35. 146 Exhibit 2. 147 T2-11/L45-46. 148 T2-12/L21-37. 149 T5-10/L15-31. -- 29 of 30 -- 30 Conclusion [87] For the reasons provided above, the plaintiff’s claim is dismissed. -- 30 of 30 --