To segregate or not to segregate, that is the question – O’Connor v GEO Group Australia Pty Ltd [2019] NSW 202

On 23 May 2012, the plaintiff, an inmate at Parklea Correctional Centre, was viciously assaulted by other inmates in his cell, resulting in the plaintiff sustaining significant head injuries. The plaintiff brought a claim in negligence against the private managers of the corrections facility, on which liability was heard and determined before Justice Lonergan in the Supreme Court of NSW.

 

Background facts

On 14 May 2012, the plaintiff was found guilty by a jury of a number of offences including sexual assault causing grievous bodily harm, choke to commit an indictable offence and various break and enter and property offences. The plaintiff was held on remand awaiting sentencing at Parklea Correctional Centre (the facility), which was managed by GEO Group Australia (GEO).

On 17 May 2012 the Nursing Unit Manager at the facility reported to senior staff that she was told by another inmate, referred to as AB, that he overhead a group of inmates discussing a plan to bash an inmate named Calum or Caleb, because they had found out he was on trial for rape.

This information triggered some enquiries by Mr Halliwell, the operations manager and Mr Deal, the intelligence manager, who determined that the inmate the subject of the ‘proposed’ attack was the plaintiff. Further enquiries were conducted, but at no time was the plaintiff transferred from the facility or placed in segregation or protective custody.

On 23 May 2012, the plaintiff, whilst in his cell, was viciously assaulted by 3 inmates, sustaining significant injuries to his head after being repeatedly beaten with an electric sandwich maker. The plaintiff’s injuries included multiple skull fractures and a traumatic brain injury.

Issues to be determined

The issue of liability was solely determined in these proceedings.

The plaintiff framed his claim in negligence arguing that:

  1. he was not advised of the nature and source of the threat;
  2. he was required to sign a form preventing his removal to segregation;
  3. private managers took no action to ensure that he was not assaulted and allowed a number of prisoners to have unsupervised and unobserved access to his cell; and
  4. GEO breached its duty of care in failing to adequately investigate and act on intelligence that its officers had received to the effect that the plaintiff was likely to be assaulted.
GEO denied that it was negligent, arguing that the information obtained in respect of the threat of assault was a “hearsay rumour” and “could not legitimately be described or would not qualify as intelligence”, thereby only requiring certain limited action.

Judgment

Lonergan J handed down his judgment on 5 March 2019, in which she made a finding of liability against GEO.

Nature and scope of duty of care between a prison authority and inmate

Lonergan J referred to numerous authorities which support the well-established principle that there is a special relationship between prison authorities and inmates under its care.

In relation to the scope of that duty, his Honour referred to remarks by Mason P in State of NSW v Napier:

‘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 terms of the nature of the special relationship, Lonergan J compared a prison to that of a shopping centre noting that unlike a shopping centre where people lawfully resort, in a prison the prison authority has the care, custody and control of persons involuntarily held there. The relationship is characterised as one where the authority takes custody of a person which deprives them of his or her ‘normal power of self-protection or to subject him to association with persons likely to harm him, [and] is under a duty to exercise reasonable care so as to control the conduct of third persons as to prevent them from intentionally harming the other’ (see Professor Prosser commentary in Restatement of Torts).

Lonergan J also noted that this special relationship is recognised in the facility’s Operating Manual Policy which states that the facility ‘owes a duty of care to prevent injury to inmates and Staff arising from assaults.’

It was determined that GEO as a prison authority had a duty of care to take reasonable care to prevent harm deliberately and unlawfully inflicted by others and the issue to be determined was whether reasonable care was taken.

Was the harm not insignificant and reasonably foreseeable?

There was little dispute in this matter regarding the issue of foreseeability and the significance of the harm, with Lonergan J accepting that:
  1. it was clear on the evidence that the risk was foreseeable as there was information provided to GEO that inmates had been overheard discussing an attack on an inmate, identified as the plaintiff; and
  2. it is widely known that assaults occur in prison and that they can cause serious injury or be fatal.

Did GEO exercise reasonable care in protecting the plaintiff against the risk of harm?

The parties relied on both expert and lay evidence in respect of the precautions/steps taken by GEO and its employees and what is deemed to be reasonable in the circumstances.

The evidence heard before Lonergan J largely centred on whether:

  1. the information received by GEO in respect of a possible attack on the plaintiff was “information” or “intelligence”;
  2. a reasonable response to the information would have been to place the plaintiff in segregation, protective custody or transfer him to a different facility.
The plaintiff’s expert, Ms Downes asserted that the plaintiff should have been segregated or transferred for his own protection, which would not have attracted the stigma of protective custody nor would it have attracted much attention as the plaintiff was there on remand. Ms Downes also referred to GEO’s operations manuals which provided for this approach to be adopted but noted that this was not followed. Additionally, Ms Downes opined that GEO should have:
  1. advised the plaintiff of the nature, origin and reason for the threat, being other inmates’ knowledge of his conviction for sexual offences;
  2. should not have given any consideration to the plaintiff’s relative physical fitness, size and ability to defend himself when considering an appropriate response to the threat;
  3. had more adequate supervision in the wing at the time of the attack including real time supervision of the CCTV cameras, which would have observed unusual activity by prisoners around the time of the attack; and
  4. considered the information received as “intelligence” and passed it onto staff to aid them in fulfilling their responsibility for the safety and security of the plaintiff.
GEO’s expert, Mr Kelaher provided evidence which supported GEO’s contention that it undertook all reasonable steps to protect the plaintiff from the risk of harm including:
  1. by investigating and interviewing relevant people, including the plaintiff and AB; and
  2. offering for the plaintiff to be removed from general population.
Further, Mr Kelaher asserted that the information did not rise to the level of “intelligence” therefore submitting that there was no basis for the transfer to another facility or into segregation.

Lonergan J preferred the opinion of Ms Downes on the issue of segregation and transfer, determining that the failure to segregate and transfer the plaintiff was a necessary condition of the occurrence of the harm.

It was accepted that GEO’s negligence was not that it failed to do anything in response to the information, but that ‘the steps that were taken were simply inadequate and showed a lack of insight into the immediacy of the threat and obvious reasonable precautions that could have been taken to avoid the risk’.

Lonergan J was critical of GEO, stating that they did not give adequate consideration and analysis as to the context in which the threat arose (being shortly after the plaintiff was convicted) and whether or not the plaintiff should be placed in segregation.  She held that the burden of taking such precautions was minor and that GEO had the power to put the plaintiff into segregation with or without his consent.

Implications

Prison authorities must be aware that they owe inmates a specific duty to exercise reasonable care to prevent harm deliberately and unlawfully being inflicted by others on inmates in their care, custody and control.

As illustrated by this case, in fulfilling this duty, authorities need to consider a range of factors and need to act in a manner which is deemed to be reasonable and appropriate in that specific context and having regard to the special circumstances of the prison environment.

Contributors

Sophie Cooper Lawyer