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Case Note Bujdoso: Excellent Paper 2

CASE NOTE: NEW SOUTH WALES V BUJDOSO1

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

Very good use of


commentators to back
up these assertions

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

respondent to write a statement declaring that he felt he was in no danger. The


respondent was assigned to a C3 room furthest from the warders station; like other
C3 rooms, it had a flimsy lock. One night, between two and four men forced their
way into Bujdosos room and attacked him with iron bars, leaving him with
injuries including a fracture of the skull.
1

First names in full, and


these references need
the pinpoints, or exact
page numbers

[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

Case Note Bujdoso: Excellent Paper 2

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

III A STRAIGHTFORWARD CASE


This is a very wellstated introduction to
the critique, with good
follow-up reasons for
this point of view

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.

Wherever possible, the


CLR citation should be
used for a High Court
decision, as it is
considered
authoritative

Case Note Bujdoso: Excellent Paper 2

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

1. A duty of care was established (duty question).


2. The appellant had a duty to take reasonable care in protecting the
respondent against foreseeable risks (scope of duty question).
3. It was proved that the defendant was in breach of its duty, since the
risk was foreseeable and the counter-measures were practicable
(breach question).
4. The breach caused the plaintiffs damage, since Bujdoso was put at
risk by being left with sub-standard protection (causation question).
5. Although the prison did have some discretion over policy, it did not
have immunity from liability in tort (policy question).13
6. The respondents statement did not relieve the prison of
responsibility (contributory negligence, or voluntary assumption of
risk question).

This is an interesting
point, demonstrating a
sophisticated
understanding of the
issues and recent legal
developments

Bujdoso is an increasingly rare breed of negligence case that is clear enough to

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

(1998) 151 ALR 263, 29.


Cf Dorset Yacht Co v Home Office (1970) 2 All ER 294.
14
Helen Coonan, Insurance Premiums and Law reform Affordable Cover and the Role of
Government (2002) 25(3) University of New South Wales Law Journal 819, 821.
15
See generally Wrongs Act 1958 (Vic); Civil Liability Act 2002 (NSW); Ipp, David et al, Review of
the Law of Negligence Report (2002); Regina Graycar, Public Liability A Plea for Facts (2002)
25(3) University of New South Wales Law Journal 810; Coonan, above n 14.
16
Donoghue v Stevenson [1932] AC 562, 580 (Lord Atkin).
13

Excellent use of
sources: primary and
secondary

The AC citation should


be used for House of
Lords decisions, as
it is considered
authoritative

Case Note Bujdoso: Excellent Paper 2

Interesting comment
on the heels of
discussing this trend

Excellent start: linked


well to earlier
comments and an
excellent signal with
respect to the nature of
the ensuing discussion

unjustifiable omission to act.17 If there is a move to decrease the instances in


which tort law can bite, how can tort keep the neighbours honest?

IV TORT LAW AS OMBUDSPERSON


Part of the answer is exemplified by Bujdoso, which showcases what is arguably
tort laws greatest strength today its capacity to act as ombudsperson. Tort law
still has the power to investigate complaints and bring injustices to the public eye
regardless of whether or not a plaintiffs action can easily pass Kirbys six

Very nicely stated

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

Some government agencies are zealous in the enforcement of their mandates,


This is very good
back-up for the stated
view regarding the
value of the case

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

Case Note Bujdoso: Excellent Paper 2

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.

There is a counter-argument that torts power as ombudsperson becomes too great


when it gives individuals influence over policy matters. For example, Silverwater
Prison should be applauded for attempting to rehabilitate its inmates. Spigelman
Different sides to the
argument are
considered very
thoughtfully here
acknowledging
counter-arguments
adds great depth to the
critique

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

law, as an ombudsperson, is concerned with improving standards to protect the


vulnerable if an activity cannot live up to a safe standard, then let it be
terminated.26 But there should be no conflict between prisoner safety and
rehabilitation.27 The Work Release Programme, for instance, could still be run
successfully with the added provisions of proper locks on doors, checking for
weapons and more guards on duty. Human beings, even in custody, said Kirby P,
are entitled to respect for their basic individuality and dignity.28
22

Linden, above n 20, 24.


New South Wales v Godfrey (2004) Aust Tort Reports 81-741, paras 79-80 (Spigelman CJ).
24
Wyong Shire Council v Shirt (1980) 29 ALR 217, 222 (Mason J).
25
See Francis Trindade and Peter Cane, The Law of Torts in Australia (3rd ed, 2001) 442-3.
26
See Stapleton, above n 3.
27
See Bujdoso [2005] HCA 76 (Unreported, Gleeson CJ, Gummow, Kirby, Hayne, Callinan and
Heydon JJ, 8 December 2005) 671.
28
Cekan v Haines (1990) 21 NSWLR 296, 305 (Kirby P).
23

CLR citation should be


used

Excellent argument
about the implication
of the decision

Case Note Bujdoso: Excellent Paper 2

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

V CONCLUSION: RIGHTS FOR THE WRONGED

Excellent summary of
the main point

Clever heading

In fundamental terms, tort law exists to protect rights.33 But it is especially


important that the law protects the rights of those who are most at risk of being
wronged including prisoners. If protection of the vulnerable is at the core of tort
Excellent use of this
authority

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

Case Note Bujdoso: Excellent Paper 2

BIBLIOGRAPHY
Excellent use of
primary and secondary
sources

1.

Articles/Books/Reports

Abel, RL, A Critique of Torts (1990) 37 UCLA L Rev 758


Coonan, Helen, Insurance Premiums and Law reform Affordable Cover and the
Role of Government (2002) 25(3) University of New South Wales Law Journal
819
Davies, Martin and Malkin, Ian, Torts (4th ed, 2003)
Graycar, Regina, Public Liability A Plea for Facts (2002) 25(3) University of
New South Wales Law Journal 810
Harris, D, Can the Law of Torts Fulfil its Aims? (1990) 14 NZUL Rev 113
Ipp, David et al, Review of the Law of Negligence Report (2002)
Linden, Allen M, Canadian Tort Law (5th ed, 1993)
Luntz, Harold and Hambly, David, Torts: Cases and Commentary (5th ed, 2002)
Morison, WL and Sappideen, C, Torts: Commentary and Materials (8th ed, 1993)
Morris, Negligence in Tort Law With Emphasis on Automobile Accidents and
Unsound Products (1967), 53 Va. L. Rev. 899
Stapleton, Jane, The golden thread at the heart of tort law: Protection of the
vulnerable (2003) 24 ABR 135
Stuhmcke, Anita, Essential Tort Law (2nd ed, 2002)
Trindade, Francis and Cane, Peter, The Law of Torts in Australia (3rd ed, 2001)
Vidmar, Neil, 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
Weiler, Paul C, The Control of Police Arrest Practices: Reflections of a Tort
Lawyer in AM Linden (ed), Studies in Canadian Tort Law (1968) 416
2.

Case Law

Cekan v Haines (1990) 21 NSWLR 296


Dixon v Western Australia [1974] WAR 65
Donoghue v Stevenson [1932] AC 562 (Unreported, Lord Buckmaster, Lord Atkin,
Lord Tomlin, Lord Thankerton and Lord Macmillan, 26 May 1932)
Dorset Yacht Co v Home Office (1970) 2 All ER 294
Howard v Jarvis (1958) 98 CLR 177
L v Commonwealth (1976) 10 ALR 269
Kirkham v Chief Constable of the Greater Manchester Police (1990) 2 WLR 987

Case Note Bujdoso: Excellent Paper 2

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

Civil Liability Act 2002 (NSW)


Victims Support and Rehabilitation Act 1996 (NSW)
Wrongs Act 1958 (Vic)

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