Case Note Bujdoso: Good Paper 1

CASE NOTE: NEW SOUTH WALES V BUJDOSO

I Introduction
Unfortunately, while
this may have been In line with the increasing trend to find in favour of the plaintiff, where liability of
correct when this
article was written, this public authorities is involved,1 the High Court (‘the Court’) held that the appellant
is no longer the case:
authorities must be (‘the State’) was in breach of its duty of care to the respondent (‘Bujdoso’), a
used carefully, and
accurately reflect the prisoner detained at its Silverwater Prison, where he was assaulted by other
argument or assertion
that is being made prisoners. The Court’s reasoning, principles and ultimately its decision in New
South Wales v Bujdoso2 were logical in light of the well-established common law
It would be preferable
to give the gist of this principle.3 However, this paper proposes that despite this, some aspects of the case
principle early on, as
this statement on its were not accorded as much weight as they perhaps should have been. Given that
own is a little thin
public policy was relevant to the Court’s decision, significant implications arise
regarding prison administration, prisoners themselves and the wider community Interesting introduction
that could be made
upon prisoners’ release. more precise

This is not in fact the

‘context’, rather ‘The
II Context: Material Facts and Procedural History
Case’’
Bujdoso was a ‘rock spider’.4 As such, and as was well known to the State, ‘there Insert comma
5
was a potential that [he] could be subjected to physical violence’. In fact he was at
increased risk of harm and had received numerous threats and taunts from other
prisoners at each of the prisons he had been sent to, yet he did not wish to be
placed under protection.6 Instead, he wished to achieve a C3 classification7 so that
he could participate in Silverwater’s work release programme and enjoy its many

1 This needs updating or

See, eg, Paul Donohoe, ‘Trends in Liability of Public Authorities in Tort’ (2000) 40 Plaintiff 21,
21-26. checking for accuracy
2
[2005] HCA 76 (Unreported, Cleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ, 8
December 2005).
3
Referred to later in the paper.
4
Term used in prison in reference to prisoners convicted of sexual assaults on minors.
5
Bujdoso v State of New South Wales [2004] NSWCA 307 (Unreported, Sheller, Ipp and McColl
JJA, 30 August, 10 December 2004) [63] (Ipp JA in reference to the judgment of trial judge Cooper
DCJ).
6
Sex offenders are sometimes placed in protective custody. See, eg, Bujdoso v State of New South
Wales) [10] (Ipp JA).
7
C3 classification is the ‘lowest’ category of the three main classifications of prisoners. They are
prisoners who, in the opinion of the Director-General, need not be confined by a physical barrier at
all times and who need not be closely supervised. Previously Reg 8 of the Prisons (General)
Regulation 1989 (NSW). See now Crimes (Administration of Sentences) Regulation 2001 (NSW),
Reg 22. The prison’s work release programme was offered to prisoners in this category, as part of
‘enlightened modern penology requir[ing] that emphasis be placed upon rehabilitation. See New
South Wales v Bujdoso [41].
 Case Note Bujdoso: Good Paper 2

benefits. The State did re-classify him, despite the fact that this programme
involved the lowest degree of supervision and protection in the prison system.

Good summary of
important facts
The means of controlling C3 prisoners where Bujdoso was accommodated was
This is a little cryptic,
based on a system of trust and incentive, which, arguably, had been satisfactory in and could be explained
more fully
the past.8 Indeed the trial judge stated that this was a ‘reasonable conclusion’ for
prison authorities to have reached; he agreed that C3 prisoners ‘could be trusted not
to inflict an assault upon a fellow inmate’ given that they ‘were trusted to go out
into the community’.9 The State was not held liable at trial.

On appeal to the New South Wales Court of Appeal,10 Bujdoso’s appeal was
Sentence fragment – allowed. Ipp JA reasoning that ‘[t]he system of trusting the C3 prisoners had not
rephrase
always worked’.11 Importantly, His Honour also reasoned that the State ‘had actual
knowledge that [Bujdoso] was at risk’ but that ‘[n]othing was done’12 – that is, that
no ‘additional steps’13 were taken to protect him. This constituted a failure to have
taken reasonable care. The State was accordingly found to be negligent.

Is this a subsection? Appeal to the High Court – the Court’s reasoning

The Court rejected the State’s principal submission that it had implemented a
satisfactory and ‘reasonable system of incarceration which balanced two,
sometimes competing objects, an enlightened approach to rehabilitation, and the
security of the institution as a prison’.14 It reasoned that Bujdoso was not ‘required Or ‘should not be’
required?
to make a choice between rehabilitation and personal safety.’15 It was concluded
This statement is a
little unclear that although a prison ‘is under no greater duty than to take reasonable care’, the
‘content’ of the duty is particular to prison authorities.16 Reasons for this
conclusion were the vulnerability of prisoners, particularly of paedophiles, and that

8
As argued by the State. See, eg, New South Wales v Bujdoso [37].
9
New South Wales v Bujdoso [32] (quoting the judgment of trial judge Cooper DCJ).
10
Bujdoso v State of New South Wales.
11
Ibid [64].
12
Ibid.
13
Ibid.
14
New South Wales v Bujdoso [37].
15
Ibid [39].
16
Ibid [44].

This needs some
elaboration, as the
case of Wyong
provides an approach
to breach, to be
applied to the facts
III
This could be clearer
Greater precision
regarding the focus of
the case would be
helpful, ie breach
issues, as opposed to
matters that were a
‘given’, such as duty
(discussed here)
There is too much
summarising of the
reasons for the
decision: more time
spent on the critique of
the most important and
interesting reasons is
needed
It would also be
worthwhile highlighting
differences between
the duty and breach
issues
Use AGLC for citations
Case Note Bujdoso: Good Paper 3
the State knew of specific threats to Bujdoso.17 The duty was expressed as a duty to An indication of one’s
point of view with
‘reduce the risk of harm’.18 Established common law from other jurisdictions19 was respect to these issues
and the reasoning
cited with approval, as was the principle from Wyong Shire Council v Shirt,20 could be usefully
woven into this
in…(specify) discussion, so it
which determined the breach. No novel issues needed to be addressed. amounts to more than
a summary (albeit a
good summary). While
such a critique is
Existing Law offered later, a few
critical remarks here
Existing common law authority included varying outcomes relating to prison would be helpful
liability, yet, of the cases in which liability had not been imposed, the type of injury
More care is needed
in the circumstances had not been reasonably foreseeable.21 This was not here regarding what
specific authorities
stand for
persuasive in Bujdoso, given that circumstances were such that ‘[t]here was more
than a mere foreseeable risk of injury’.22 The Court also distinguished the case
This should be
from others, at times more convincingly than at others.23 developed more fully in
the text: it is an
interesting start to a
critique, but it is
Another principle drawn upon was the United States’ standard of care relating to somewhat incomplete
loco parentis, whereby if dangerous conduct of third persons is foreseeable, one
‘must use care to restrain th[is].’24 Such a duty was further implied given that the
conditions of the Restatement of Torts25 were possibly satisfied. Australian
Perhaps reorganise
precedent was also cited in relation to duty of care in prison environments,26 and this to highlight the
Australian references
particularly, concerning prisoner supervision.27 Similarly, the English position28
was referred to – the standard of ‘greater care and supervision, to the extent that is
17
Ibid.
18
Ibid [47]. Note this clarification of the duty as compared with the State’s confused notion of a duty
to prevent an attack. Ibid at [42].
19
That of the United States and the United Kingdom. See footnotes 24-30.
20
Wyong Shire Council v Shirt (1980) 146 CLR 40, 47-48.
21
See, eg, Howard v Jarvis (1958) 98 CLR 177.
22
New South Wales v Bujdoso [50].
23
Contributory negligence was not an issue: although material facts were similar to those of Steele v
Northern Ireland Office [1988] 12 NIJB 1, that prisoner deliberately participated in optional exercise
against the authorities’ advice and thus was found to have contributed to his injury. However it was This consideration
less clear as to whether remedial measures would have been too costly in this case as they were in requires greater clarity
Cekan v Haines (1990) 21 NSWLR 296, given that in Bujdoso, there was a lack of empirical
evidence supporting this view.
24
Harper, James and Gray, The Law of Torts, 2nd ed (1986), Vol 3, s18.7, cited in New South Wales v
Bujdoso [45].
25
Cited from the Restatement of Torts [45]. The conditions were that ‘the actor (a) knows or has
reason to know that he has the ability to control the conduct of the third persons, and (b) knows or
should know of the necessity and opportunity for exercising such control.’
26
Howard v Jarvis; Cekan v Haines; New South Wales v Napier [2002] NSWCA 402, [75]. This
precedent was followed to determine that a duty was owed in Bujdoso.
27
Cekan v Haines.
28
As given by Halsbury’s Laws of England, 4th ed reissue, Vol 36(2), para 565.
 Case Note Bujdoso: Good Paper 4

reasonable and practicable, being required’29 of a prison to a prisoner known to be

particularly vulnerable.30 Clearly Bujdoso was a member of such a class31, so this
was another relevant, logical principle for the Court to have adopted.

Seeing as it is not
‘novel’, some Consequently, there existed already well-established principles upon which the
discussion as to why
the HC is dealing with case could be decided, bearing in mind especially that it was not novel.
it would be useful

Adequacy and appropriateness of the Court’s reasoning

Why? Undoubtedly, the abovementioned are sound, long-standing and well-established
principles relevant to this case, thus the Court’s reference to and application of
them was a logical means of reaching its decision. Equally it appears to have been
a reasonable finding that a prison authority cannot be relieved of the duty of care it
owes to a prisoner – a duty is owed no matter how a prisoner is classified or what

Good: this is important.

the applicable programme.32 Indeed the existence of the duty was not in question,33
It should have been
noted earlier to bring but rather the standard of care, or as the Court expressed it, the ‘content’34 of the
the discussion into
greater focus duty.

How far does the scope of duty – of a prison towards its inmates – extend?
?
The court’s reasoning was not, in the writer’s view, consistently sound or balanced What is meant here?

in its evaluation of factors35 which influence the reasonable person’s response to a

risk.36 The judgment referred to these factors from Wyong. Balancing these factors
As well as, on the
relates to both the magnitude of and the degree of probability of the risk.37 In other side of the
‘ledger’, matters such
Bujdoso no expert evidence was adduced concerning the cost involved in as practicable
precautions etc
implementing an ‘effective’38 system. Thus it appears that the Court went further
than it should have in finding that the cost must not have been so great so as to

29
Ibid.
30
Ibid.
31
See, eg, Bujdoso v State of New South Wales [10] (Ipp JA).
32
I.e. whether ‘participating in the Programme or…a differently classified prisoner.’ See New South
Wales v Bujdoso [50].
33
The State ‘had not at the trial disputed that a duty was owed.’ See New South Wales v Bujdoso
[32].
34
New South Wales v Bujdoso [44].
35
These factors include ‘probability’, ‘expense’, ‘difficulty’ and ‘inconvenience.’ See Wyong Shire
Council v Shirt, 47-48.
36
A risk that is of the kind that is reasonably foreseeable in the circumstances. Ibid.
37
Ibid. Both of these factors were found to be significantly high in Bujdoso.
38
See, eg, New South Wales v Bujdoso [50].
 Case Note Bujdoso: Good Paper 5

have been a significant burden.39 Was it not just as open to the Court to have found
Even re locks?
that the cost would have been considerable?

The Court’s approach was arguably flawed considering that, realistically, some
sort of altered system40 was required, rather than such simple measures as the
This is interesting but it
still has to be replacement of doors and locks, to significantly ‘reduce the risk of harm’41 to the
measured against what
is ‘reasonable’ class of persons of which Bujdoso was a member. This may have necessitated State
or nation-wide systematic modifications.42 If such a degree of change were
necessary, the cost might well have been very significant.43 Yet such measures
were unknown and undefined by evidence. Hence it was inappropriate for the
Court to have made an assumption in the absence of such evidence. Furthermore,
the Court appeared to be dismissive of the State’s argument that an attack may not
have been preventable in any case, in circumstances where assailants were
‘desperate’44 to attack.

The Court may also have given insufficient weight to the system of classification
as an effective means of prisoner control, barely appearing to recognise the I take this point – but it
of was certainly
45
significance such a system and the policies underlying it. Under this system, acknowledged and
evident in the
eligible C3 prisoners were ‘about as low a risk of committing further offences in or reasoning

out of gaol as could be estimated’.46 Naturally, it would appear that the degree of

39
New South Wales v Bujdoso [49]. This conclusion might have been avoided by means of more
This is more relevant
to a duty question, thorough preparation by the State’s solicitors, who also appeared to have underemphasised salient
which was satisfied features of the case such as inherent restriction of the State’s autonomy, which may well have
clearly here strengthened the State’s case.
40
Such as that described in Cekan: perhaps surveillance cameras, extra warders, extra guards, a Good use of the
footnote to elaborate
restructuring of the cells or even of buildings would be required to ‘effectively’ decrease the risk of on these important
harm to prisoners. factors
41
New South Wales v Bujdoso [47].
42
Referred to by Paul Donohoe, ‘Trends in Liability of Public Authorities in Tort’ (2000) 40
Plaintiff 21, 21-26.
43
See, eg, Wyong Shire Council v Shirt.
44
New South Wales v Bujdoso [42] citing trial judge Cooper DCJ.
45
In the context of modern penology. As a policy based on rehabilitation and preparation for release
into society, such a system incorporates the lowest appropriate level of security. See Crimes
(Administration of Sentences) Regulation 2001 (NSW), Reg 22. See also New South Wales v
Godfrey [2004] NSWCA 113 (Unreported, Spigelman CJ, Sheller and McColl JJA, 10 February, 7
April 2004) [77] in which objectives of the system are cited, as set out in the relevant Classification
Manual. They include assistance in the preparation of prisoners for earliest proper release, prisoner
protection, prisoner welfare needs and those of his/her family and the opportunity to develop
educational and employment potential.
46
Bujdoso v State of New South Wales [44] citing trial judge Cooper DCJ.
 Case Note Bujdoso: Good Paper 6

vulnerability ought to be carefully considered as a further criterion for eligibility,

given that reduced supervision is an inherent element of such classification.
Perhaps then, the negligence lies here, in the classification process. Accordingly
more emphasis could have been placed on this, rather than on the inadequacy of the
system of trust and incentive47 which did appear to have operated satisfactorily48
for prisoners who were not at heightened risk of attack.

In any event, the prison classification system was not given due consideration. The
This is an interesting
criticism; it would, imposition of such a high standard of care will have potential implications for
however, be more
persuasive if prison administration, prisoners, their families and the general community,49 upon
somewhat greater
acknowledgement was prisoners’ release. Policy considerations should not be dismissed lightly in the
made of what was
missing in the
response, and the fact
formulation of the reasonable person’s response to a risk50 nor in the formulation of
he was in the State’s
care and was bashed the proper standard of care. Consequently it is reasonable to assert that the Court’s
severely
approach regarding these issues was disappointingly superficial.

Conclusion
Why? The implication It is interesting that the Court gave leave to appeal. A possible explanation for this
is that it should not
have done so. Was
this the intention? This
is the broader ramifications carried by decisions such as these concerning public
is a little cryptic
policy. However, the case was viewed by the appeal courts as relatively
Perhaps say, ‘no novel
straightforward – it involved no novel issues. Hence it appears that the nine judges legal principles’?

Good who found against the State were correct in law to the extent that they applied well-
established common law principle given the evidence before them. At times,
however, less emphasis was given to public policy considerations than might have
been appropriate. This leads one to wonder whether a different decision might have
resulted had the State adduced adequate evidence of the financial burden of
‘effectively’ addressing prisoner safety. Yet in light of the absence of such
evidence by the State, the way was clear for the court to adopt existing common
This ties nicely to the law principles, and hence to dismiss the appeal. Thus the plaintiff again succeeds.
introduction; however,
this is not wholly
accurate. Once again,
be careful with the
correctness of a
47
statement (ie that it is Ibid [42}; ibid at [49].
still convincing or valid 48
See New South Wales v Bujdoso [37] in relation to the State’s principal submission.
even after changed 49 Use AC citation for
legal principles)
Ibid [43]; ibid at [19]; footnote 46. House of Lords
50
See Wyong Shire Council v Shirt, 47-48; Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294 decisions as it is
concerning the extent of the importance of public policy (in relation to the borstal system). considered
‘authoratitive’
 Case Note Bujdoso: Good Paper 7

Bibliography This is fine: however,

additional secondary
sources and primary
sources (such as
relevant legislation)
would have helped add
1. Articles / Books / Reports depth to the paper
Not necessary in the
bibliography Butterworths, Concise Australian Legal Dictionary, 3rd ed (2004).
Donohoe, Paul, ‘Trends in Liability of Public Authorities in Tort’ (2000) 40
Plaintiff 21.
Citation is not AGLC Halsbury’s Laws of England, 4th ed reissue, Vol 36(2), para 565.
compliant
Harper, James and Gray, The Law of Torts (2nd ed 1986) s18.7.
Luntz, Harold and Hambly, David, Torts Cases and Commentary (5th ed 2002).

2. Case Law
Bujdoso v State of New South Wales [2004] NSWCA 307 (Unreported, Sheller, Ipp
and McColl JJA, 30 August, 10 December 2004).
Cekan v Haines (1990) 21 NSWLR 296.
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 (Gleeson CJ, Gaudron,
McHugh, Gummow, Kirby, Hayne and Callinan JJ, 5 December 2002).
Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294.
Howard v Jarvis (1958) 98 CLR 177.
New South Wales v Bujdoso [2005] HCA 76 (Unreported, Cleeson CJ, Gummow,
Kirby, Hayne, Callinan and Heydon JJ, 8 December 2005). These cases are in the
CLR and have been for
New South Wales v Godfrey and Godfrey [2004] NSWCA 113 (Unreported, years: be careful to
Spigelman CJ, Sheller and McColl JJA, 10 February, 7 April 2004). update citations/
references
New South Wales v Napier [2002] NSWCA 402 [75].
Steele v Northern Ireland Office [1988] 12 NIJB 1.
Pyrenees Shire Council v Day [1998] HCA 3 (Unreported, Brennan CJ, Toohey,
McHugh, Gummow and Kirby JJ, 14 December 1998).
Wayne Kenneth Bennett v Minister for Community Welfare [1992] HCA –
BC9202656 (Unreported, Mason CJ, Deana, Toohey, Gaudron and McHugh JJ, 25
June 1992).
Wyong Shire Council v Shirt (1980) 146 CLR 40.

3. Legislation
Crimes (Administration of Sentences) Regulation 2001(NSW), Reg 22.

4. Other Sources
Class notes and Legal Method and Reasoning Reading Guide – eg ‘Negligence
Overview’.