The Duty of Care Owed by Corrections Officers Towards Prisoner Inmates

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Duty of care

The preventable death of Indigenous woman Veronica Nelson at the Dame Phyllis Frost Detention Centre in Victoria, has understandably provoked concerns by prisoners (and their loved ones) over their safety whilst in custody.

The law recognises that prison officers owe a ‘duty of care’ to prison inmates, and must act with reasonable care and skill to protect those held in custody from foreseeable harm.

However, the law also contains a number of obstacles when it comes to inmates commencing civil proceedings for injuries sustained in custody arising from the negligence of prison officers.

The Law of Negligence in New South Wales

In NSW, the law of negligence is outlined under both the common law and the Civil Liability Act 2002 (NSW) (‘the Act’). The three elements of negligence are:

  1. A duty of care is owed by one person to another.
  2. The person who owed the duty, has breached their duty of care; and
  3. Damage or injury has been caused as a result of this breach of the duty.

Is A Duty of Care Owed?

The foundational English case of Donoghue v Stevenson, introduced the “neighbour principle” – that we each owe a certain duty of care to prevent unnecessary harm to our neighbours. 

Generally, whether somebody owes duty of care to another depends on the nature of the relationship between people. 

Certain relationships, such as between doctors and patients or parents and children, have a well-recognised relationship where the more “powerful” party owns a duty of care to the “weaker” party. 

The relationship between prison officers and inmates clearly gives rise to a duty of care.  In the 2005 case of New South Wales v Bujdoso, the High Court succinctly articulate the scope of this duty of care:

“The duty on those responsible for one of Her Majesty’s prisons is to take reasonable care for the safety of those who are within, including the prisoners. Actions will lie, for example, where a prisoner sustains injury as a result of the negligence of prison staff; or at the hands of another prisoner in consequence of the negligent supervision of the prison authorities, with greater care and supervision, to the extent that is reasonable and practicable, being required of a prisoner known to be potentially at greater risk than other prisoners; or if negligently put to work in conditions damaging to health; or if inadequately instructed in the use of machinery; or if injured as a result of defective premises.”

When Is This Duty Breached?

Section 5O of the Act stipulates that if a professional acts in a manner which is widely accepted in Australia by peer professional opinion as competent professional practice, they will not be liable for negligence.

This means that actions taken by prison officers that are in line with NSW Custodial Operations Policy and Procedures, are unlikely to amount to negligence.

However, actions which are contrary to operational policies or are otherwise careless towards inmates could constitute a breach of a duty of care.

Section 5B of the Act provides that if an inmate is harmed as a result of actions by prison officers, that liability for negligence requires the harm to have been foreseeable, not insignificant, and to have occurred in circumstances where a reasonable person would have taken precautions. 

Moreover, section 26C of the Act states that no damages will be awards for injuries suffered by prisoners in custody unless the injury results in the death or in a degree of permanent impairment that is at least 15%.

Last year, three New South Wales prison inmates commenced civil proceedings against the NSW government over the physical and sexual abuse they endured by staff and fellow prisoners when they were housed within juvenile correction centres.

Both the direct abuse by prison officers, and the allowance of abuse by fellow prisoners, would constitute a breach of duty.

Were The Harms Caused By Negligence?

Harms covered by negligence generally include personal injury or death, property damage and economic loss (both past and future).

Section 5D of the Act requires:

  • That the negligence was a necessary condition of the occurrence of the harm; and
  • That it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused.

Generally, the more removed (in time and space) the harm suffered is from the person acting negligently, the less likely a successful case of negligence is going to be.

Compensation For Negligence

If a prisoner has been harmed as a result of negligence by prison officers, they may be eligible for “damages” (compensation). However, there are many hurdles to pursuing civil action in NSW.

The Felons (Civil Proceedings) Act requires that a person who is in custody as a result of having been convicted of a serious indictable offence must seek leave from a court before instituting civil proceedings.

Part 2A of Civil Liability Act 2002 (NSW) further outlines a number of complex rules for prisoners claiming compensation for harms suffered whilst in custody. These include:

  • Complex notice and disclosure requirements, which could lead to the matter getting dismissed if not promptly followed.
  • Major limitations on claims for non-economic loss as well as exemplary, punitive and aggravated damages.
  • An entitlement to hold compensation in a separate trust whilst the prisoner is in custody as well as a right to deduct victim support payments from any compensation.
  • A cap on the award of future economic loss to a presumed retirement age of 65 years old.

Section 54 of the Civil Liability Act 2002 (NSW) further limits compensation for death or injury if the harm was suffered by the prisoner whilst they were committing a “serious offence” and their conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage. 

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Jarryd Bartle

Jarryd Bartle is an Associate Lecturer in Criminology and Justice Studies at RMIT University and a consultant for the Bridge of Hope Innocence Initiative, which investigates claims of wrongful conviction and advocates for systemic reform to protect against miscarriages of justice.

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