Case Note Bujdoso: Excellent Paper 1 1

CASE NOTE: NEW SOUTH WALES V BUJDOSO

New South Wales v Bujdoso1 placed custodial institutions and their Excellent, engaging
start
Very good classification systems under a microscope. It was clear to the court that a duty of
identification early on
of what was at issue in care must be found,2 however the issue at trial was whether the prison was in
the case and what was
not breach of its duty of care to a prisoner who was assaulted whilst in custody, given
he was housed in a low security prison where the risk of assault was extremely
low.3 The decision heightens the tension surrounding the balance between Excellent focus on
one of the significant
individual prisoner safety and protection, and the establishment of an environment concerns coming from
the case
that promotes rehabilitation.

I FACTS AND CLAIMS

Convicted sex offender Bujdoso progressed through a classification
The facts are
summarised very well:
system4 to become eligible for enrolment in a work scheme program and thus
getting to the crux of
the case housed in the lowest security section of Silverwater Prison. He was taunted by
other prisoners5 and prison authorities became aware of threats made to his safety
by other inmates.6 They located weapons and had ‘actual knowledge that the
(respondent) was at risk’.7 However, the ‘C3’ prisoners residing with Bujdoso in
the Units at Silverwater were considered as low risk with respect to attacking other
prisoners in this manner.8

Bujdoso suffered a severe beating by two inmates with iron bars on the
night of 21 September 1991, which he claims could have been prevented had the
Excellent way of
weaving the legal issue authorities exercised ‘reasonable care so as to control the conduct of third persons
into the facts and claim
as to prevent them from intentionally harming the other’.9 The respondent claims

Use the full names of

1
[2005] HCA 76.
the authors for this
2
RP Balkin and JLR Davis, Law of Torts (3rd ed, 2004) 222.
citation 3
New South Wales v Bujdoso [2005] HCA 76 [42].
4
As classified under Reg 8 of the Prisons (General) Regulation 1989 (NSW) made under the
Correctional Centres Act 1952 (NSW).
5
New South Wales v Bujdoso [2005] HCA 76 [9].
6
Ibid [35].
7
Ibid [36].
8
Ibid [42].
9
Ibid [45].
 Case Note Bujdoso: Excellent Paper 1 2

Excellent reference to his injuries were foreseeable10 and preventable had the authorities at Silverwater
leading case
Prison enacted ‘closer and more frequent checking of prisoners; better and stronger
locks and doors…and, relocation of the respondent closer to the prison officer’s
station’11 – that is, ‘precautions to avoid the risk of harm’.12 The defendant

Excellent, succinct
appealed on the grounds that these were not reasonable precautions at the time
foundation laid for the
ensuing discussion
given the low risk of assault, and that a breach of duty was found or assessed
retrospectively, and was therefore misguided.13

II THE SCOPE OF A DUTY OF CARE

There was no objection to the decision that a duty of care was owed.14 This
Good focus and use of
relevant authority
is established in Howard v Jarvis15 and has been articulated a number of times.16 In This use of authority is
excellent ie the gist of
State of New South Wales v Napier Mason P articulates the existence of a ‘special
17
the reasoning is
highlighted (and what
relationship’ between warden and inmate in which authorities have ‘assumed respected
commentators have to
control’,18 since prisoners are ‘deprived…of (their) normal means of self- say is incorporated
well)
protection’19 and ‘personal liberty’.20 Therefore, prison authorities must ‘exercise
reasonable care’ to avert potential harm21 on their behalf, ‘protect(ing) prisoners
from dangers to which imprisonment makes them particularly vulnerable, such as
Excellent point of great assault’.22 Authorities must also assess and undertake further preventative measures
significance in the
present case (such as extra supervision) for those prisoners at higher risk of suffering injury.23
However, the precise scope of a prison’s duty and ‘the nature and extent of that

10
Ibid [50] as established in Wyong v Shirt (1980) 146 CLR 40, 43.
Good use of the most
11
Ibid [51]. significant authority
12
Wrongs Act 1958 (Vic) s 48. relevant to this case
13
New South Wales v Bujdoso [2005] HCA 76 [41].
14
Ibid [32].
15
Howard v Jarvis (1958) 98 CLR 177 [183].
16
Francis Trindade and Peter Cane, The Law of Torts in Australia (1st ed, 1985) 407; Egerton v
Home Office [1978] Crim LR 494; Anderson v Home Office (1965) Times, 8 October; L v Good use of a text: but
Commonwealth of Australia (1976) 10 ALR 296, 274; New South Wales v Godfrey (2004) Australian watch out for the most
recent editions of texts
Torts Reports 81-741 [27] (Heydon JA).
Excellent use of
17
[2002] NSWCA 402 [75].
relevant sources
18
Ibid.
19
New South Wales v Bujdoso [2005] HCA 76 [45].
20
Howard v Jarvis (1958) 98 CLR 177, 269, 273.
21
New South Wales v Bujdoso [2005] HCA 76 [45].
22
Trindade, above n 16, 407.
23
Egerton v Home Office [1978] Crim LR 494.
 Case Note Bujdoso: Excellent Paper 1 3

duty in particular circumstances’24 has been a contentious legal issue and is worth
consideration here.
Excellent linkage

Prison authorities must exercise reasonable care to prevent inmates

sustaining harm,25 however authorities are not expected to ‘guarantee’26 the safety
of prisoners. Their duty of care has not been found to extend to the anticipation of
The relevant case law
Excellent exposition of spontaneous attacks, or the protection of citizens attacked by escapees,27 however it is expertly woven
current law together here to set up
is their duty to demonstrate ‘reasonable care’28 to ‘reduce the risk of harm’ to those the parameters of the
contentious issues for
in their custody.29 Consequently, since authorities exercised no measures of this the court – importantly,
the use of this authority

This is a good way of

kind,30 the High Court was correct in finding Silverwater authorities in breach of is not overdone

adding one’s own view

their duty, and thus ‘negligent’.31
Nicely added emphasis

Notably, the duty of a custodial institution is not waived by an inmate

signing a document declaring acceptance of known risk and responsibility for
himself.32 The High Court correctly found this in fact illuminated the authorities’
awareness of Bujdoso’s heightened risk of sustaining assault.33

Excellent heading: it
III WYONG’S BALANCING ACT nicely encapsulates
the discussion that
Whilst ‘C3’ prisoners were deemed far less likely to act violently,34 an follows
Excellent statement,
backed up by authority improbable risk does not constitute an unforeseeable one.35 The risk was not ‘far-
fetched or fanciful’36 given the previous attack and the knowledge of threats. The
probability and gravity of the risk occurring was high relative to the low burden of

This needs to be a
24
Reconciliation and Social Justice Library Royal Commission into Aboriginal Deaths in Custody
fuller citation National Report Volume 1 – Duty of Care Towards those in Custody
25
L v Commonwealth of Australia (1976) 10 ALR 296, 272.
26
New South Wales v Bujdoso [2005] HCA 76 [51].
27
Egerton v Home Office [1978] Crim LR 494; New South Wales v Godfrey (2004) Australian Torts
Very good use of
Reports 81-741 and Anderson v Home Office (1965) Times, 8 October all found no duty of care. footnotes to add to the
28
‘…recognised by law, requiring conformity to a certain standard of conduct for the protection of text, beyond citations,
others against unreasonable risk.’ John G. Fleming, The Law of Torts (9th ed, 1998) 115. without turning them
29
New South Wales v Bujdoso [2005] HCA 76 [47]. into arguments that
30
Ibid [48]. should in fact be in the
text
31
‘…conduct falling below the standard demanded for the protection of others against unreasonable
risk of harm.’ Fleming, above n 28, 117.
32
New South Wales v Bujdoso [2005] HCA 76 [39].
33
Ibid [48].
34
Ibid [32].
35
As established in Wyong Shire Council v Shirt (1980) 146 CLR 40, 47.
36
Ibid.
 Case Note Bujdoso: Excellent Paper 1 4

taking alleviating measures.37 For this reason the High Court correctly applied the Excellent use of lateral
and original thinking:
Wyong ‘calculus’. Recent amendments to the Wrongs Act 1958 (Vic) which now
38 39
the use of an important
source (Wrongs Act)
require a foreseeable risk to be ‘not insignificant’ would be likely to bear little that would not often be
seen to be immediately
significance to this case’s outcome since, despite the test of reasonable relevant

foreseeability being narrowed, the attack would still be considered within the scope
of a ‘not insignificant risk’.

IV CLASSIFICATION SYSTEM FLAWS

Effective consideration This decision effectively undermines classification systems and the
of some of the
decision’s implications
authorities that rely solely upon them. Silverwater regarded classification as ‘a
virtually infallible solution.’40 However, ‘[classification] does not take into
account…that there will always be present even in the most open of correctional
setting a hard core, recidivist element.’41 In order to function appropriately,
classification systems require balancing ‘competing objects’42 which were not
nurtured with enough care by Silverwater.43 Evidence for the appellant states
‘once…through to…a work release program, there is an inferred
expectation…[prisoners] will require minimal supervision”.44 However, the fact
that inmates had ‘passed through various tests’45 does not negate that they are or
once were ‘violent to the core’.46
Once again, this is a
very good heading
V REHABILITATION AND RESPONSIBILITIES
Rehabilitation is emphasised in ‘enlightened modern penology’,47 which is
See over
not to be discredited. It is suggested ‘prison rehabilitation…has been greatly

37
So low that measures to alleviate such risk had previously been in operation – a reduction of Very good use of
patrolling officers occurred in 1990, see New South Wales v Bujdoso [2005] HCA 76 [34]. detailed facts to
38
Wyong Shire Council v Shirt (1980) 146 CLR 40, 47-48. illustrate this point
39
Wrongs Act 1958 (Vic) s 48(2).
40
New South Wales v Bujdoso [2005] HCA 76 [48].
41
Ibid [31].
42
Ibid [37].
43
There appeared no regard for prisoner’s safety, Ibid [34] per Ipp JA.
44
Ibid [31].
45
Ibid [32].
46
Ibid [19].
47
Ibid [40].
 Case Note Bujdoso: Excellent Paper 1 5

Excellent focus on this revived’,48 which is welcomed by prisoners who have a ‘sincere desire’ for
issue – arguably
undermined by the treatment, such as Bujdoso.49 He valued the opportunity to earn income through the
decision
work scheme to repay his mortgage.50

Freedom in low security prisons presents opportunities such as

participation in work scheme programs, which enhance the capacity for
rehabilitation ‘in theory’.51 However ‘inmates have repeatedly turned openness into
a license to exercise their thuggish natures’.52 Rather than reintegrate prisoners to
Care should be used
with this source, to society, ‘the new freedoms led to numerous assaults’.53 Authorities claim further
make sure it is
applicable here supervision of C3 prisoners would have been counter-productive to their
rehabilitation. While they agree that ‘supervision was minimal’, they claim this
was ‘appropriate’ given the detainees’ classification status.54

As was noted in Godfrey,55 benefits of classification and rehabilitation,

This is an excellent such as preparation for release, ‘must be…balanced against the prisoner’s conduct,
use of another case to
illustrate this point particularly dangerousness’ but also against a prisoner’s vulnerability. Silverwater
relied on the classification of prisoners as low risk, disregarding the implications
for prisoners of high vulnerability to attacks being housed in the Units.56 Prisoners
should ‘not [be] required to make a choice between rehabilitation and safety’.57
This is what authorities expected of Bujdoso, since they claim exclusion from the
work program was necessary to ‘eliminate risk’.58

48
Mark Findlay, ‘The ‘demise of corrections’ fifteen years on: any hope for progressive
Excellent use of a
punishments?’ (2004) 16(1) Current Issues in Criminal Justice 57, 70. secondary source
49
New South Wales v Bujdoso [2005] HCA 76 [39].
50
Ibid [38].
51
Paul Tuns, ‘Don't make us get tough: Corrections Canada clings to rehab theory despite obvious
failures’ The Report Newsmagazine (1999) 26(41) 29.
52
Ibid.
53
Ibid.
54
New South Wales v Bujdoso [2005] HCA 76 [32].
Excellent use of this 55
New South Wales v Godfrey (2004) Australian Torts Reports 81-741 [79].
recent authority, which 56
with inadequate locks, housed furthest from the guard, with ‘substantial periods…(where) the
also raised
classification issues
prisoners were left entirely alone’, see New South Wales v Bujdoso [2005] HCA 76 [34].
57
New South Wales v Bujdoso [2005] HCA 76 [39].
58
Ibid [43].
 Case Note Bujdoso: Excellent Paper 1 6

VI CONSEQUENCES
This is a first-rate A potential ramification of this decision is the elimination of work schemes
discussion of a
possible effect of the and the replacement of low security prison environments with more ‘repressive
case: the implications
of the decision regime[s]’, since prisons may be inclined to operate ‘in a defensive frame of
mind’59 given the breach finding. This is undesirable given the merit of
rehabilitation schemes.60 In light of these public policy considerations, I propose

Good – offering a the reasonable precautions necessary to ensure the safety of each prisoner must be
thoughtful perspective
on how the decision considered on an individual case basis. The court’s correct finding of a duty here
should be used
should be contextualised with the particulars of this case61 and not necessarily lead
to tightened security at the cost of beneficial rehabilitation and classification
schemes.

Ideally this decision will serve an objective of tort62 in that it upholds a Good use of a
commentator as
authority to support
standard of prison accountability, forcing prisons to monitor the programs they this

have in place and retain adequate security rather than rely solely on problematic
and ‘risky’63 classification systems to abolish risk of harm to vulnerable prisoners.
Given the gross negligence demonstrated in this particular case, it should not
‘heighten tension between…policies [of rehabilitation] and a common law duty’.64
Excellent focus on the Instead this decision should urge prisons to supplement classification systems with
potential effect of the
case individual assessment of inmates.65

VII TORT’S PURPOSE V NO FAULT COMPENSATION

Tort’s purpose has been defined as a mechanism whereby losses are
regulated and compensation for injuries may be awarded.66 If this is its sole
purpose however, it is misguided to suggest that compensation should be only

59
New South Wales v Godfrey (2004) Australian Torts Reports 81-741 [77] (Heydon JA).
60
Ibid [78].
61
Heightened risk of prisoner; lack of any security whatsoever; foreseeability of risk.
62
Balkin, above n 1, 7.
63
New South Wales v Godfrey (2004) Australian Torts Reports 81-741 [77].
64
Ibid [80].
65
see New South Wales v Bujdoso [2005] HCA 76 [31].
66
Fleming, above n 28, 5.
 Case Note Bujdoso: Excellent Paper 1 7

available to ‘those who can provoke emission of a tort’.67 Professor Harold Luntz
advocates alternative compensation schemes such as ‘Criminal Justice
Compensation’,68 which permit recovery from the state for ‘injuries sustained each
year which are deliberately inflicted by assailants…not…‘accidents’’.69 However,
there are limitations to the capacity of claims made by prisoners under this

Original approach to
scheme.70 Nonetheless, they arguably present an alternative for plaintiffs like
the case, noting the
pros and cons of a tort Bujdoso. Such schemes are also promoted by Luntz on the basis that ‘liability
claim in this context
insurance’ defeats the contention that tort law functions to ‘deter unsociable
conduct’.71 However, a decision such as Bujdoso affects prisons nationwide. Its
wider implications are an example of the law of torts functioning ‘as a kind of
social engineering’72 and an important regulator of conduct.

Although this VIII CONCLUSION

conclusion could be a
little more detailed, it is Without cases such as this one, there is no impetus provided for prison
excellent as it neatly
draws together what authorities to ensure they maintain a reasonable standard of care. In this regard, I
the case stands for
and endorses the believe the objective of tort to ‘provide redress (and) to set standards’73 has been
ability of this kind of
case and decision to
deliver positive
satisfied by the decision in Bujdoso.
outcomes

Bibliography

Excellent use of 1. Articles/Books/Reports

primary and secondary
sources
Balkin, R P and Davis, J L R, Law of Torts (3rd ed, 2004)
Findlay, Mark ‘The ‘demise of corrections’ fifteen years on: any hope for
progressive punishments?’ (2004) 16(1) Current Issues in Criminal Justice 57
Fleming, J G, The Law of Torts (9th ed, 1998)

67
Harold Luntz and David Hambly, Torts: Cases and Commentary (5th ed, 2002) 100.
68
Ibid 73.
69
Ibid.
70
Victims Compensation Act 1996 (NSW) s.24(4).
71
Luntz, above n 67, 100.
72
Cecil Wright, ‘Introduction to the Law of Torts’ (1942) 8 Cambridge Law Journal 238, 243.
73
Luntz, above n 67, 100.

Excellent
Case Note Bujdoso: Excellent Paper 1 8

Luntz, Harold and David Hambly, David, Torts: Cases and Commentary (5th ed,
2002)
Reconciliation and Social Justice Library Royal Commission into Aboriginal
Deaths in Custody National Report Volume 1 – Duty of Care Towards those in
Custody
RP Balkin and JLR Davis Law of Torts (3rd ed, 2004)
Trindade, Francis and Cane, Peter, The Law of Torts in Australia (1st ed, 1985)
Tuns, Paul ‘Don't make us get tough: Corrections Canada clings to rehab theory
despite obvious failures’ The Report Newsmagazine (1999) 26(41) 29
Wright, Cecil, Introduction to the Law of Torts (1942) 8 Cambridge Law Journal
238

2. Case Law

Anderson v Home Office (1965) Times, 8 October

Egerton v Home Office [1978] Crim LR 494
Howard v Jarvis (1958) 98 CLR 177
L v Commonwealth of Australia (1976) 10 ALR 296
New South Wales v Bujdoso [2005] HCA 76
New South Wales v Godfrey (2004) Australian Torts Reports 81-741
Wyong v Shirt (1980) 146 CLR 40

3. Legislation

Correctional Centres Act 1952 (NSW)

Victims Compensation Act 1996 (NSW)
Wrongs Act 1958 (Vic)