PRISONERS RIGHTS TH E C IV IL LIA B ILITY O F PRISO N A U TH O R ITIES

Transcription

1 PRISONERS RIGHTS TH E C IV IL LIA B ILITY O F PRISO N A U TH O R ITIES From the time a prisoner is incarcerated in an Australian prison there are a m ultiplicity of ways in which he may suffer injury while serving his sentence - he may be assaulted by a prison officer or another prisoner, be injured in a prison workshop, suffer from food poisoning, be injured due to the defective state of the prison premises, or suffer harm in various other ways. A prisoner seeking redress for such occurrences obviously faces a number of hurdles which in some cases may be virtually insurmountable. Examples are the difficulties of proof of the relevant facts, conspiracies of silence on the part o f prison officers, official pressure not to "cause trouble", denial of access to legal advice, etc. The purpose of this short note is to give a brief outline of the ways in which the prison authority may be held c iv illy liable for injuries suffered by prisoners and so make at least a small contribution towards surmounting the last of the hurdles mentioned above. G EN ERA L PRINCIPLES That part of the c iv il law which regulates claims by one person against another for damage caused to the former by the latter is known as the law of torts. Common examples of torts are negligence, nuisance, trespass, libel and slander, assault and battery. These terms all have fa irly precise legal meanings. The most important for present purposes is negligence, which w ill be looked at in some detail. Negligence lia b ility in the law of torts is founded upon the imposition of a duty of care. The nature of this duty has been defined in a leading judgement in the following way: a person must take reasonable care to avoid conduct which may foreseeably injure his 'neighbour1. A person's 'neighbour' in law is one who is so closely and directly affected by the conduct that he ought reasonably to have been in the contemplation of the actor as being so affected when directing his mind to the conduct called into question. 32 The duty is broken when the actor fails to measure

2 up to the standards of the mythical 'reasonable man'. The situations which may fall w ithin this principle are legion, and are not easy to categorise. It is sufficient to say here simply that in general terms if the 'neighbour' test is satisfied and the actor has not behaved as would a reasonable man - and these are admittedly matters to be decided by the court on an essentially subjective basis - then he is liable for the harm caused by his conduct. The application of this test to the activities carried out by prison authorities has not always been clear cut. In a case decided in N.S.W. in 1900, a prisoner sued the Crown as prison authority when he was injured when a gauge on a steam engine which he was working inside the gaol, burst and splintered him with glass. Darling J. decided that in the 'public interest' no such action should be allowed. "I can conceive nothing more disastrous to the public interests than to allow actions of this description. Every sentence would be followed by an action. One prisoner complaining of the quality or quantity of his food, another of his cell being damp or cold, another that his bedding was insufficit.m, another that he had unduly to undergo punishment w ithin the gaol for alleged misconduct. 1n fact, there would be no end to the matters which would give rise to actions against the authorities, and these cases would have to be determined by juries, many of whom, if of opinion that the prisoner had suffered some injury or inconvenience, would award damages against the Government, or the Comptroller-General of Prisons, or perchance, the governor of the gaol; thus, in effect, taking the management of our gaols out of the hands of skilled o ffic ia ls, some of whom have given much anxious thought to the question of how best to manage prisons, not merely for the safe custody of prisoners but for their well being on their discharge, and replacing this management by the uncertain, unstable and unskilled management o f the jury-box. It is obvious to me that public officers connected with the gaols of the colony could not discharge their duty freely if the Government and they themselves were not protected by a positive rule of law from being harrassed by action, or what is perhaps more important, the fear of action in respect of the mode in which they discharged the duties imposed upon them." Q uite apart from the fact that juries now very rarely hear c ivil actions, this particular point of view happily no longer prevails. It has now been judicially recognized that ordinary principles of negligence lia b ility are to be applied in this situation as in any other. The following discussion 33

3 is not by any means intended to be an exhaustive exposition of the law but rather it seeks simply to serve as a guide to the many and varied ways in which such lia b ility may be held to arise. THE PRISO N A U TH O R ITY AS C U STO D IA N As a general rule in the law of negligence, one person is not under a duty to control the conduct of another. There are various exceptions to the rule, best rationalised by saying that there need be a 'special relationship1 between the two in order to make the one responsible for the other. Examples may be that of school authority and pupil, hospital and patient, parent and child in some circumstances, perhaps driving instructor and pupil. The relationship between a prison authority and its prisoners is the example with which this note is presently concerned This 'special relationship' may give rise to lia b ility on the part of the authority either to a prisoner for fa iling to exercise care for his safety or to others for failing to control a prisoner and prevent him from causing harm. An.example of the former case is the recent decision in Dixon v State of Western Australia where the p la in tiff prisoner was assaulted with a pick handle by another inmate who had a history of mental instability. It was held that the prison department had failed to take reasonable care for the p la intiff's safety on account of its failure to control his attacker and deny him access to potentially dangerous weapons. The p la in tiff had depended for his safety on care being taken by the prison authority. The latter type of case is illustrated by the English case of Home O ffice v Dorset Yacht Co. Some borstal boys were working on an island in a harbour in the custody and under the control of three prison officers. When night came the officers retired to bed, leaving the boys to their own devices. Not unnaturally they attempted to to sail away on a yacht moored o ff the island and collided with another yacht owned by the plaintiffs while doing so. It was held that the failure of the officers to exercise proper control and supervision over the boys amounted to a breach of a duty of care owed to the p laintiffs. It was said that the events which happened constituted the very kind o f thing which the officers ought to have seen to be likely. The possible lengths to which this type of case could be taken are certainly interesting to contemplate. These two cases simply provide examples of the various ways in which a prison authority may be held liable in negligence on account of its position as the custodian of prisoners. respects is, however, also relevant. 34 Its position or status in other

4 THE PRISO N A U TH O R ITY AS OCCUPIER O F PREMISES The lia b ility of an occupier of premises in negligence provides an example of a somewhat specialised application of the general 'neighbour' principle set out earlier. The basis of lia b ility here stems from the occupier's responsibility for the defective state of the premises themselves. The prison authority is, of course, the occupier of the prison buildings. Thus its obligations flowing from this fact need to be determined. The extent of the lia b ility of an occupier of premises depends upon the status of the entrant. The two most important categories of lawful entrants (it is unnecessary to discuss trespassers in the present context) are invitees and licensees. The distinction between an invitee and a licensee lies in the fact that an invitee is a person in whose presence the occupier has some material interest while a licensee is merely permitted to be there. The reason why it is important to distinguish between these classes of entrants is that the measure of the duty owed by the occupier to each is different. There must be something more than a mere invitation extended to the entrant for him to be an invitee. There must be on the part of the occupier an expectation or hope of a material advantage from entry by the visito r. Thus a person invited to enter for social purposes is a licensee. It is d iffic u lt to decide how direct the material interest in the occupier must be. There is a great deal of case law on the point which is not really consistent. Applying the test, such as it is, to the prison authority/prisoner relationship, it is hard to decide what the status of a prisoner would be. There is no, or only minimal, material advantage to the authority in his presence, yet he is hardly simply permitted to come upon the prison premises. The fact that a prisoner has no choice in the matter suggests that the duty owed to him could not be less than that owed to an invitee. A mere licensee is free to make up his own mind whether or not he w ill enter the premises and on this account the duty owed to him is less onerous. Once a visitor has been classified as an invitee, the occupier's duty towards him is to use reasonable care to prevent damage from unusual danger of which he knows or ought to know. The constituent elements of the duty have acquired certain rather precise and technical meanings but put simply, if the occupier should have taken steps to guard against the likelihood of an invitee suffering injury from the faulty state of the premises - e.g. loose tiles on the roof, an unfenced pit near a pathway, a defective staircase - and failed to do so, he is liable for the consequent damage suffered. 35

5 The duty owed by an occupier to a licensee is not so extensive. It is to warn of concealed dangers or traps known to the occupier. This is a more limited duty than that owed to the invitee. The danger or trap must be concealed as opposed simply to being 'unusual1 and it must be actually known to the occupier as opposed to being discoverable by the exercise of reasonable care. Thus in this case the occupier w ill often be able to avoid lia b ility by pleading that the defect in question was obvious to all concerned, or that he did not in any event know about it. If this issue came before the courts it is quite likely that in view of the difficulty in applying the established principles of occupiers lia b ility to the type of case under consideration, they would simply decide the case on the ordinary principles of negligence which have already been examined. TH E PRISO N A U TH O R ITY AS EM PLO YER Vicarious lia b ility covers the situation where one person or body is held to be legally responsible for conduct committed by another although is not himself at fault. The normal relationship giving rise to such lia b ility is that of employer and employee. The employer w ill be vicariously liable for the torts of his employees provided they are committed in the course of their employment. Thus the prison authority w ill have to answer for the torts of its employees provided this 'course of employment' test is satisfied. The determination of which acts are in the course of employment and which are outside it is a familiar problem in the realm of vicarious lia b ility. The solution is said to lie in the distinction between unauthorised acts committed w ithin the sphere of the employment and acts right outside the sphere of the employment which the employee is not employed to perform. That this may be an elusive distinction is amply indicated by the wealth of case law on the subject. If, for example, a prison officer committed the tort of assault on a prisoner (there is no reason why one act should not amount both to a crime and a tort) the prison authority would be vicariously liable provided this conduct could be characterised as an unauthorised mode of doing an authorised task in maintaining order, discipline, e tc., in the prison. On the other hand if, for example, a prison officer negligently ran down a prisoner working outside the prison while on his way home from work it would be hard to say that the negligent driving was in the course of the prison officer's employment. In many situations it w ill be hard to say on which side of the line the case falls although the principle is easy enough to state. 36

6 Once it has been established that the tort injuring another has been committed by an employee, and this is in the course of his employment, then anyone so injured may recover from the prison authority - the employer - whether he be a prisoner, another prison officer or an outsider. As a final point, it should be realized that there is no reason- why the employee guilty of negligence, assault, etc. should not himself be sued. The fact that another is vicariously liable does not in any way preclude the actual perpetrator of the relevant act from being sued. However, the prison authority would, of course, be certain to have the funds to meet any award of damages. If it is held liable in this way it is, incidentally, entitled to recover a full indemnity from the employee concerned...stephen Todd. * ****** * N O BIAS PLEASE,....W E RE M IDDLE CLASS On Friday 13 Feb. the Solicitor General of W.A. M i. R.D.W ilso n, Q.C. addressed the W.A. Law Summer School on the topic of "The Jury System in Relation to white collar crimes". As part of the argument reflecting his dissatisfaction with the present jury system, he had this to say, "Now bear in mind the random nature of the selection process by which the jury panel is constituted and the impact upon that process of the extensive exemptions applicable in many cases to better educated members of the jury, and you have a mental picture of an average jury. In the recent conspiracy trial here in Perth, I was struck by the overall youthful ness of the jury with the majority clearly under thirty, (this he apparently deduced from the fact that he could only observe one pair of ears among the jurors, the rest being hidden by hair - Ed.).... perhaps in contrast to the ordinary class of crime, the outcome may threaten an accused with a verdict reflecting a blue-collar bias against w hite-collars." ******** 37