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I INTRODUCTION
This is an excellent
introduction,
highlighting the way in
which this case fits the
general advantages
and shortcomings
associated with tort ie
the wider context is
acknowledged as is a
preliminary indication
of the authors views
Some commentators berate tort law for being inefficient, unjust and punitively
toothless;2 others claim that it plays an important role in a complex system of legal
regulation.3 Bujdoso, I will argue, should be seen as a victory for one aspect of tort
law its role as an ombudsperson. I will show, first, that the case was essentially a
straightforward one involving sound judicial reasoning. Second, I will explore how
in an age of tightening burdens for plaintiffs Bujdoso exhibits the value of tort
as an ombudsperson.4
II THE CASE
A Facts
The respondent, Peter Bujdoso, was a convicted paedophile incarcerated in
Silverwater Prison. Having been taunted and threatened by other prisoners,
Bujdoso was admitted to a prison Work Release Programme, meaning he was
classified to live in the lowest-security area (C3).5 Before being transferred, the
prison authorities aware that other inmates had threatened him asked the
This is summarised
very well just enough
facts to make sense of
the legal and policy
issues
[2005] HCA 76 (Unreported, Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ, 8
December 2005) (Bujdoso).
2
See RL Abel, A Critique of Torts (1990) 37 UCLA L Rev 758; D Harris, Can the Law of Torts
Fulfil its Aims? (1990) 14 New Zealand University Law Review 113; Harold Luntz and David
Hambly, Torts: Cases and Commentary (5th ed, 2002).
3
See Jane Stapleton, The golden thread at the heart of tort law: Protection of the vulnerable (2003)
24 Australian Bar Review 135; Neil Vidmar, Maps, Gaps, Sociolegal Scholarship and the Tort
Reform Debate in Ewick, Patricia, Kagan, Robert A and Sarat, Austin (ed), Social Science, Social
Policy and the Law (1999) 170.
4
The word limit prevents me from examining the other aims of tort compensation, moral
education, deterrence and how they have succeeded or failed in Bujdoso. There are strong
arguments to suggest that tort law has many shortcomings in these areas. See especially RL Abel,
above n 2.
5
This is in line with the method of classification adopted by the Department of Corrective Services
in NSW, which ranges from A1 (most dangerous/endangered) to C3 (least dangerous/endangered).
See generally New South Wales v Godfrey (2004) Aust Tort Reports 81-741.
Excellent succinct
reference to other
matters that could be
discussed, but have
been omitted here due
to word constraints
B Judicial reasoning
The government unsuccessfully appealed the finding that it had breached its duty
of care to the respondent. Given that prisons have an established duty of care to
Good use of primary
sources as authority ie
excellent support for
the assertion in the text
their inmates,6 that issue was not in dispute. The contentious matter was whether
Good focus,
expressed clearly
the prison had breached its duty by failing to take reasonable care in making the C3
area safe.
The appellant argued that it had not breached its duty because its classification
system balanced an enlightened approach to rehabilitation and the security of
the institution as a prison.7 The court ruled, nevertheless, that [t]he respondent
was not required to make a choice between rehabilitation and personal safety.8
Both sides also argued about causation: if the C3 area had met the minimum
Very good
identification of the
gist of the arguments
standard of care, would the assault have happened? The appellant said yes,
contending that the assailants had carefully planned and executed the attack and,
further, that it would have been unreasonable to impose extra restrictions on Work
Release Programme inmates. But the court found that, in the circumstances, the
appellant was under a duty to adopt measures to reduce the risk of harm to the
respondent.9 The court also held that the gaolers solicitation of a statement from
the respondent only added weight to the foreseeability.10 In line with the Shirt
calculus,11 the court found that better protection of prisoners was practicable.
Excellent linkage of
authority, doctrine
coming from the
authority, and the facts
This was one tort action that produced, in my view, a just result. That is partly
because it was a straightforward case. In Romeo v Conservation Commission of the
6
See Howard v Jarvis (1958) 98 CLR 177; Dixon v Western Australia [1974] WAR 65; L v
Commonwealth (1976) 10 ALR 269; Nada v Knight (1990) Aust Torts Reports 81-032; Kirkham v
Chief Constable of the Greater Manchester Police (1990) 2 WLR 987; Cekan v Haines (1990) 21
NSWLR 296; New South Wales v Napier [2002] NSWCA 402 (Unreported, Spigelman CJ, Mason P
and Meagher JA, 13 December 2002).
7
Bujdoso [2005] HCA 76 (Unreported, Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon
JJ, 8 December 2005) 671.
8
Ibid.
9
Ibid 674.
10
See especially Wyong Shire Council v Shirt (1980) 29 ALR 217, 222 (Mason J).
11
Ibid: The perception of the reasonable man's response [to a foreseeable risk] 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.
Northern Territory, Kirby J set out six questions that should be assessed in claims
of negligence against public authorities Bujdosos claim answers all six
questions clearly:12
This is an interesting
point, demonstrating a
sophisticated
understanding of the
issues and recent legal
developments
Nice metaphor!
satisfy modern statutory requirements, which aim to fight the perceived bias
towards plaintiffs14 by lowering standards for potential defendants, or at least
reducing the opportunities to find liability.15 Lord Atkins plea to love your
neighbour16 is increasingly being replaced by limit liability to your neighbour.
Noting that trend, Gleeson CJ remarked in another case that it is an obligation
of the courts to uphold the legal deterrence against unrealistic neglect and
12
Excellent use of
sources: primary and
secondary
Interesting comment
on the heels of
discussing this trend
questions.18
The chief positive repercussion coming from Bujdoso is that it holds the State
accountable for sub-standard behaviour. Of course it is also important for the
victim to receive compensation, but that would have happened anyway (albeit to a
lesser extent) thanks to the no-fault compensation scheme for victims of crime.19
As Linden J says:20
whereas others are rather somnolent Tort law can be of service here.
Individuals victimized by conduct violating legislative provisions may initiate
civil proceedings [T]he main goal may be to stimulate administrative
action.
Although Bujdosos main goal was probably a damages award, the most significant
general result was the warning to government agencies: take reasonable care,
especially with vulnerable prisoners.21 Without the opportunity to institute a tort
17
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, para 87 (Gleeson CJ).
If, hypothetically, the case had failed to meet a legal hurdle (if prisons were immune from liability
in tort in matters regarding policy, for example) and Bujdosos action had failed, tort law would
bring the injustice to the public eye and may still instigate change.
19
Victims Support and Rehabilitation Act 1996 (NSW). Every Australian jurisdiction provides
compensation for victims of crime. Solid arguments can be advanced to suggest that Australia should
have a more robust no-fault compensation system. If Bujdoso had fallen and fractured his skull in
prison, his need for compensation would be more-or-less the same, but without someone to blame he
would not be entitled to much if any.
20
Allen M Linden, Canadian Tort Law (5th ed, 1993) 21.
21
See also Paul C Weiler, The Control of Police Arrest Practices: Reflections of a Tort Lawyer in
AM Linden (ed), Studies in Canadian Tort Law (1968) 416.
18
Interesting aside
An authority is needed
to support this
assertion
Excellent tangential
(but related and
relevant) comment
Excellent use of
authority
claim, one must merely rely on civil servants or the police to investigate complaints
a more limited process that may not be wholly independent. Tort law provides a
wronged individual with a weapon to direct unfavourable publicity against a
tortfeasor,22 which may act as a deterrent for potential transgressors.
CJ, in his comments regarding a similar case, pointed out that the classification
system serves a broader public purpose and that courts should be very slow to
import a common law duty in such a context.23 In Shirt terms, this is an appeal to
the other conflicting responsibilities which the defendant may have;24 perhaps the
prisons responsibilities to the inmates, their families and the community should
take precedence over the rights of a convicted paedophile. Perhaps, if courts do not
take social value into account, prisons will be deterred from running rehabilitation
programmes.25
While I agree that social utility is an important principle and that litigation would
be going too far when it completely deters prisons from running rehabilitation
programmes, I dispute that this sort of action will serve as such a deterrent. Tort
Excellent discussion
with a clear exposition
of a personal viewpoint, backed up by
authority
Excellent argument
about the implication
of the decision
All that is required is reasonable care, not a guarantee of prisoner safety.29 The
question of whether tort might raise standards unattainably high is an old one,30 and
courts should not punish prisons for all mistakes. But it is a balancing act prisons
Very thoughtful
discussion
should not have immunity from lawsuits, either and it is just as significant that
victims are in a position to hold the authorities to account. It seems more important
to guard against victims losing their rights than powerful organisations losing
theirs, since the most important decisions about risk are made by collectivities
[private enterprise and government].31 Bujdoso will not endanger rehabilitation
programmes so long as prisons are prepared to take basic safety steps.32
Excellent summary of
the main point
Clever heading
law,34 then torts main role must be as an ombudsperson. Prisoners lives are
greatly limited by the decisions of higher authorities. In Bujdoso, the authorities
failed to behave reasonably, and an already vulnerable prisoner was left at the
mercy of other inmates. Without tort, Bujdoso would have had to trust in
government agencies to investigate his matter, when they had already failed him.
Beautifully stated
Victims should be encouraged to use tort law as a legal and political weapon
against those who are in power and fail to behave reasonably.
29
Interesting comment
on the defendants
behaviour
That the prison solicited the statement from Bujdoso further suggests that it saw the risk but was
prepared only to limit its liability, not to increase his safety. That behaviour deserves to be punished
by the law or at least drawn to public attention.
30
See especially Howard v Jarvis (1958) 98 CLR 177. See also Vairy v Wyong Shire Council (2005)
221 ALR 711, 713 (Gleeson CJ and Kirby JJ).
31
Abel, above n 2, 831.
32
Of course, this area of law will have to be further tested. I concede that courts should err on the
side of conservatism when it comes to dealing with transgressions to do with rehabilitation
programmes, but most cases present fairly obvious distinctions between risky and safe behaviour.
See Cekan v Haines (1990) 21 NSWLR 296.
33
Anita Stuhmcke, Essential Tort Law (2nd ed, 2002) 1.
34
Stapleton, above n 3.
This is a very
thoughtful way of
acknowledging
counter-arguments
and additional
concerns it makes
the overall critique
that much more
persuasive
BIBLIOGRAPHY
Excellent use of
primary and secondary
sources
1.
Articles/Books/Reports
Case Law
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
Nada v Knight (1990) Aust Torts Reports 81-032
New South Wales v Bujdoso [2005] HCA 76 (Unreported, Gleeson CJ, Gummow,
Kirby, Hayne, Callinan and Heydon JJ, 8 December 2005)
New South Wales v Godfrey (2004) Aust Tort Reports 81-741
New South Wales v Napier [2002] NSWCA 402 (Unreported, Spigelman CJ,
Mason P and Meagher JA, 13 December 2002)
Romeo v Conservation Commission of the Northern Territory (1998) 151 ALR 263
Vairy v Wyong Shire Council (2005) 221 ALR 711
Wyong Shire Council v Shirt (1980) 29 ALR 217
3.
Legislation