Rolls v Attorney General of the Cook Islands [1991] CKHC 3; HC Civil Case 036 of 1989 (1 June 1991)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)

PLAINT NO. 36/89

BETWEEN:

JOAN ROLLS
of Arorangi, Rarotonga, Married Woman
Plaintiff

AND:

THE ATTORNEY-GENERAL OF THE COOK ISLANDS
for and on behalf of the Department of Corrective Services, Rarotonga
Defendant

Mr. Gibson for the Plaintiff
Mr. Appleby for the Defendant

Date of Hearing: 29 November 1990
Date of Judgment: June 1991

JUDGMENT OF DILLON J.

The Plaintiff, Mrs. Joan Rolls, is described as a Married Woman. However, at all relevant times she was a widow.

The pleadings consist of a Statement of Claim; a Statement of Defence; an Amended Statement of Claim; and an Amended Statement of Defence. Counsel however have prepared and presented an "Agreed Statement Facts and agreed Documents to be Produced", which document conveniently sets out in chronological order the sequence of events leading up to the incident which gives rise to this claim, and to certain subsequent events which are relevant to consider. It will be convenient if the agreed Statement is out in full.

"Agreed Statement of Facts and Agreed Documents to be Produced

1. THAT the Crown is bound by the Crown Proceedings Act 1950 (New Zealand) as applied in the Cook Islands by virtue of Section 350) of the Cook Islands Act 1915. Section 6 of the Crown Proceedings Act states:

"6. Liability of the Crown in tort - (1) Subject to the provisions of this Act and any other Act, the Crown shall be subject to all those liabilities in tort in which, if it were a private person of full age and capacity, it would be subject -

(a) In respect of torts committed by its servants or agents;

(b) In respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer; or

(c) In respect of any breach of the duties attaching at common law the ownership, occupation, possession, or control of property:

Provided that no proceedings shall lie against the Crown by virtue of Paragraph (a) of this subsection in respect of any act or omission of a servant would apart from the provisions of this Act have given rise to a cause of action in tort against the servant or agent of his estate.

(2) Where the Crown is bound by a statutory duty which is binding also upon persons other than the Crown and its officers, then, subject to the provisions of this Act, the Crown shall, in respect of a failure to comply with that duty, be subject to all liabilities in tort (if any) to which it would be so subject if it were a private person of full age and capacity.

(3) Where any functions are conferred or imposed upon an officer of the Crown as such either by any rule of the common law or by statute, and that officer commits a tort while performing or purporting to perform those functions, the liabilities of the Crown in respect of the tort shall be such as they would have been if those functions had been conferred or imposed solely by virtue of instructions lawfully given by the Crown.

(4) Any enactment which negatives or limits the amount of the of any Government Department or officer of the Crown in of any tort committed by that Department or officer shall, in the case of proceedings against the Crown under this section in respect of a tort committed by that Department or officer, applying in relation to the Crown as it would have applied in relation to that Department or officer if the proceedings against the Crown had been proceedings against the Department or officer.

(5) No proceedings shall lie against the Crown by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process.

Cf. 1910 no. 54, ss. 39(c), 4: Crown Proceedings Act 1947, s.2 (U.K.)

2. THAT the prisoner Tepamarangi Auemaemae ("the Prisoner") was in the legal custody and control of the servants of the Department of Corrective Services ("the Department") by virtue of sections 5(1) and 10 of the Prisons Act 1967 and Regulations 11, 13, 20 and 2 of the Prison Regulations 1968.

3. THAT the Crown is liable for the tortious acts of the servants of the Department.

4. THAT the Prisoner having already been convicted of a number of offences and sentenced on 13 February 1986 to 9 months imprisonment on two charges of burglary (refer to Police Department and Court records annexed in the agreed bundle of documents ("the bundle of documents") marked "A" and "B" respectively). Both these sets of records however are incomplete.

5. THAT the prisoner escaped from lawful custody on Saturday 26 July 1986 when on a work party he left his assigned area of work. On 12 September 1986, the Prisoner was convicted in respect of one charge of escape from lawful custody, one charge of theft and seven charges of burglary. The Prisoner was sentenced to a further term of 3 month imprisonment followed by 2 years probation to be served on the Island of Mitiaro (refer to document marked "C").

6. THAT the Prisoner was convicted on 1 October 1987 on charges of theft and breach of Probation. The Prisoner was sentenced to a term of two years imprisonment.

7. THAT the Prisoner escaped from the Arorangi Prison ("the Prison") at approximately 1 pm on Thursday the 19th day of November 1987 when he was told by a Prison Officer to get some arrowroot, from the Prison plantation. He was unaccompanied on this task and that when carrying out this task the Prisoner escaped. On 27 February 1988 he was convicted of one charge of escaping from lawful custody, one charge of unlawfully found on the premises and eleven charges of burglary including the Plaintiff's house. In respect, the burglary of the Plaintiff's house which occurred on the evening of the escape the Plaintiff was entertaining friends inside her house. The Prisoner waited until the Plaintiff's friends had left and she had gone to sleep. The Prisoner entered the house through an unlocked window. He stole foodstuffs valued at $7.00. The Police cannot locate their file of this incident. The prisoner, was sentenced to 3 years imprisonment on all charges to be served concurrently followed by two years probation (refer to bundle of documents marked "D").

8. THAT a week later on 25 November 1987 the Prisoner again broke into the Plaintiff's house. This time the Plaintiff was not at home. Upon returning to her house the Plaintiff found that the lock on her door had been broken and the door bolted from the inside, the prisoner having made his escape through the window. Although a complaint was made to the Police the Prisoner was not charged with any offence. Fingerprints were taken in respect of this incident which matched these taken on the break-in of 19 November 1990. Apart from the fingerprint records, the Police cannot locate their respect of this complaint. The fingerprint records are kept on a separate file to the normal police file.

9. THAT the Prisoner escaped from Prison on 4 April 1988 at about 11.30 pm after two of the three duty officers left their posts early. The remaining duty officer left open the Prisoner's cell door when accompanying a cellmate to the toilet. The officer then went outside the compound to answer the telephone and left the main security grill door open. This security door is the entry point to the Prison and is to be locked at all times. The Prisoner escaped through the open doors. On 25 1988 the Prisoner was convicted of one charge of escaping from lawful custody, one charge of unlawful taking, one charge of attempted burglary, one charge of entering with intent, one charge of theft and eleven charges of burglary. The Prisoner was sentenced to two years imprisonment and to serve 6 months in maximum security (refer to bundle of documents marked "E").

10. THAT the Prisoner escaped from the Prison on 10 June 1989 when, at some time after 9 pm on this evening, the Prisoner was left unguarded when on kitchen duty. The Prisoner escaped by either scaling the fence, going through a hole in the fence or working out of the Prison yard through the front gate which was left open. [Counsel agree that if the method of escape is material as to a finding of negligence ie: whether scaling the fence, going through a hole in the fence or working out the open grill gate after being left unguarded then evidence can be brought by either party as to the method of escape.] The Prisoner walked to the main road and decided that he would go to the Plaintiff's residence at Blackrock and rape her. The Prisoner waited outside the complainant's house until she went to sleep. The prisoner climbed up to the toilet window of the complainants house kicked it open and entered. He went straight to the kitchen and removed a packet of chewing gum, a packet of milk and a plate of shellfish. He took these outside and left them on the verandah floor. The defendant went back into the house through the back door which he had open from inside. The defendant wanted to have sexual intercourse with the complainant. The defendant removed a kitchen knife from a cupboard inside the kitchen and stuck it inside his trousers. The defendant walked to the complainant's bedroom, removed a towel from a chair and covered his head. The defendant removed his trousers and while holding the knife in his left hand climbed on top of the Plaintiff. As the Plaintiff struggled and screamed the Prisoner struck her on the face with a clenched fish about four to six times. The Prisoner threatened the Plaintiff by pointing the knife at her chest and at the same time forced her legs apart and attempted to have sexual intercourse with her until he climaxed. The prisoner fled the scene soon after the spent the night in the bushes close to the Prison boundary. At about 7.50 a.m. on Sunday 11 June 1989, the defendant returned to the Prison and gave himself up to the Prison officers refer to bundle of documents marked "F").

11. THAT the kitchen is located adjacent to the dining room at the Prison.

12. THAT on 27 July 1989 the Prisoner whilst being held in Maximum security was allowed out into the yard to assist a Prison Officer to make a broom. The Prisoner was then left alone whereupon he scaled the fence and escaped (refer to bundle of documents marked "G").

13. THAT on 12 December 1989 the Defendant was convicted of one charge of attempted rape, two charges of escape from lawful custody, 14 charges of burglary, two charges of theft and two charges of unlawful taking (refer to bundle of documents marked "H"). The prisoner was sentenced to 9 years imprisonment and detained in maximum security for not less than 2 years.

14. THAT on Friday 13 April 1990 the Prisoner escaped at about 6.50 pm after cutting through the mesh of the Maximum Security cell. During the day of the escape officers on duty did not carry out checks of the Maximum Security Block nor were there any officers in the guardroom at the time of escape. That on 15 June 1990 the Prisoner was convicted of one charge of escaping from lawful custody, two charges of burglary and one charge of attempted burglary. The Prisoner was sentenced to a further one year on his existing term (refer to bundle of documents marked "I").

15. THAT in relation to the escape of 26 July 1986 no documents have been provided or located by the Department to indicate whether a report was made or disciplinary action taken against the Prison Officers responsible.

16. THAT in relation to the escape of 19 November 1987 no documents have been provided or located by the Department to indicate as to whether or not disciplinary action was taken against the Prison Officers responsible.

17. THAT in relation to the escape of 4 April 1988 disciplinary action was taken against the officers on duty all of whom were found to be guilty of either improper conduct or negligence (refer to bundle of documents marked "J").

18. THAT in relation to the escape of 10 June 1989 a complaint was made by the Director of Corrective Services dated 22 June 1989 that one of the officers on charge that night was negligent, careless, indolent, inefficient or incompetent (refer to document marked "L"). This complaint was not acted on and this fact referred to on page 6 of the Ministerial Select Committee of Inquiry into Prison Administration dated 30 September 1989 (refer to page 6 of document marked "Q").

19. THAT in relation to the escape of 27 July 1989 disciplinary action was taken against the officers responsible who were found to not have complied with the discharge of their duties and were negligent (refer to bundle of documents marked "M").

20. THAT upon the escape of the Prisoner on 27 July 1989 the Prison Authorities checked on the Plaintiff's house and the following day the Prison Superintendent rang the Plaintiff to advise her of the escape.

21. THAT in relation to the escape of the Prisoner on 13 April 1990 disciplinary action was taken against the officers responsible who were found to be, inter alia, negligent or in breach of their duties (refer to bundle of document marked "N").

22. THAT the bundle of documents marked "0" are the Probation Reports prepared in respect of the Prisoner. Upon sentencing the Prisoner the Probation reports are provided to the Prison.

23. THAT there has been the following reports made in respect of the Prison.

1. Report of the Commission of Inquiry into Prison Administration dated 5 June 1976.

2. Report of the Ministerial Select Committee to Inquire into Prison Breakouts dated the 28th day of December 1978.

3. Report of Committee of Inquiry (April and May 1984).

4. Report of Commission of Inquiry Department of Corrective Services Rarotonga (1-4 March 1988) (refer to document marked "P").

5. Report on Arorangi Prison Facilities dated 17th May 1988.

6. Report of Ministerial Select Committee of Inquiry into Prison Administration dated 30 September 1990 (refer to documents marked "Q") which refers to escape of 10 June 1990.

DATED at Rarotonga this 27th day of November 1990.

"B.J. Gibson"

Counsel for the Plaintiff

"J. Appleby"

Counsel for the Defendant"

Before moving away from this Agreed Statement, I refer specifically to clause 10, which did not specify just how the Prisoner had escaped. Counsel agreed at the hearing "that the Prisoner escaped through a hole in the fence".

It is on the basis of those facts that the Plaintiff claims to have suffered pain, injury, loss of enjoyment of life, and damage, which she specified as mental suffering and distress; emotional suffering and distress; and physical injury in particular facial bruising. Pleading that the damage suffered and the injuries sustained were caused by the negligence of the Defendant, the Plaintiff claimed:

General Damages	80,000
plus Aggravated Damages	20,000
a total of :	$100,000

together with interest and costs

SUMMARY OF AGREED STATEMENT OF FACTS

It will be appreciated from the Agreed Statement of Facts, that the Prisoner who was in he acknowledged legal custody and control of the Department of Corrective Services, "left" the Prison where he was detained on four separate occasions prior to the incident on 10 June 1989; on the occasion of the incident and then on two separate occasions subsequently. I say "left" advisedly as the circumstances of each of these incidents certainly do not warrant the connotation of "escaping" which implies a form of cunning or skill. A consideration of each of these occasions reveals no cunning or skill was employed by the Prisoner. The descriptions of the incidents I have extracted from the Agreed Statement as follows:

(1) 26 July 1986 -

"... when on a work party he left his assigned work area of work."

(2) 19 November 1987 -

"... when he was told by a Prison Officer to get some arrowroot from the Prison plantation. He was unaccompanied on this task and ... escaped."

(3) 25 November 1987 -

"... a week later ... the Prisoner again broke into the Plaintiff's house." (The Prisoner for unstated reasons was not charged and there are no details as to how he left the prison.)

(4) 4 April 988 -

"... the Prisoner escaped after two of the three duty officers left their posts early. The remaining duty officer left open the Prisoner's cell door ... and left the main security grill door open. ... The Prisoner escaped through the open doors."

(5) 10 June 989 - (the basis of the claim)

"... the Prisoner was left unguarded ... escaped by ... going through a hole in he fence ..."

(6) 27 July 989 -

"... the Prisoner whilst being held in Maximum Security was allowed out ... was then left alone whereupon he scaled the fence and escaped."

(7) 13 April 1990 -

"... the Prisoner escaped ... after cutting through the mesh of the maximum security cell ... officers on duty did not carry out checks ... nor were there any officers in the guardroom at the time of escape."

That one prisoner could escape from legal custody on seven separate occasions defies comprehension; that this Prisoner could repeatedly continue to escape without even the most elementary measures being implemented by the Department to secure him, and the people and property of Rarotonga, is now the basis of his claim by the Plaintiff.

SUMMARY OF AGREED DOCUMENTS

As one would expect, the regularity of this Prisoner's escapes, together with the associated burglaries and thefts, resulted in both internal prison investigations and external investigations. I have been referred to two of these reports, although between June 1976 and June 1990 a total of six investigations have been undertaken and reports compiled.

I refer firstly to the report on the Commission of Inquiry into the Department of Corrective Services dated 4 March 1988. The enquiry had been set up because four inmates had escaped from the prison between 23 June 1987 and 25 January 1988. These inmates included the prisoner who attempted to rape the Plaintiff in a subsequent escape. The report considered the circumstances of each of those four prisoners and arrived at the following conclusion:

"2.2 Comment

(a) The Commission felt that the four escapes within the period of seven months signify negligence on the performance of guards duties, the absence of self discipline, and motivation, and the apparent weaknesses in continuous training regarding Prison Officers responsibilities as a whole.

(b) Despite disciplinary actions taken by the Inspectorate Office on those officers who were directly responsible for the security of escapes, our observations indicates the above significations mentioned in 2.2(a)."

Attached to this report are details investigated and conclusions reached on the facilities at the Prison and as a result of the inspections completed on 17 May 1988. These inspections disclosed that:

(1) "... the prison is currently housing approximately twice the number of prisoners for which it was initially designed."

(2) "Cooking and dining facilities ... inadequate."

(3) "Recreational facilities .... inadequate."

(4) "The accommodation for male prisoners was totally inadequate ..."

Such then was the state of the prison in 1988; and the serious absence of self discipline and motivation of prison officers leading to significant negligence in the performance of their duties.

I turn now to consider the Ministerial Select Committee of Inquiry dated 30 September 1989. The full terms of the warrant of appointment are as follows:

"WHEREAS complaints continue to be made to the Government regarding the prison administration, particularly regarding laxity in the custody of inmates lawfully detained in the prison resulting in frequent escapes AND WHEREAS the judicial system requires the confidence of the public at a times in the prison system, NOW THEREFORE I, NGERETEINA TUAKEU PUNA, Minister of Corrective Services DO HEREBY constitute as a Ministerial Committee of Inquiry

GORDON HENRY SAWTELL, Budget Officer

TINA PU'UE-BROWN, Barrister and Solicitor

TERE MATAIO, Chief Executive Officer

RAYMOND STANLEY PRESTON, Motor Vehicle Dealer

to inquire into and report to me by 30 September 1989 as to:

(a) The adequacy of the Arorangi Prison as a prison for inmates;

(b) The reasons for the breakouts from the Arorangi prison;

(c) The recommendations for the action, required to prevent further breakouts;

(d) The administration procedures and personnel requirements of the Arorangi prison and to make recommendations thereon;

(e) The facilities required for proper security and wellbeing of the inmates at Arorangi prison;

(f) The steps that have been taken to carry out the recommendations of previous committees;

(g) Any other matters affecting the sound and proper administration of the Arorangi prison and the detention and welfare of inmates.

By way of introduction to its investigations the Committee commented that it had had the benefit of reading the reports on the earlier inquiries undertaken between June 1976 and May 1988. As a result of considering those five earlier reports it arrived at this somewhat startling conclusion:

"The Committee was able to consider the criticisms and recommendations made by the various committees. In particular the Committee found that in most areas nothing had been achieved or done to improve either the facilities or the administration of the prison services."

This 1989 report then proceeds to set out in some detail its findings and conclusions on each of the seven terms of reference. I refer only to those that have relevance to this claim.

"(a) The adequacy of the Arorangi prison as a prison for inmates

It was evident that there had been no maintenance on the outside fence. There were places where there had obviously been an attempt to cut through and the subsequent repairs had not been done properly. In particular, behind the dining room there was a big patch over the area where inmates had cut through earlier. Repairs carried out on that portion of the fence were very poor. It was also apparent that the inmates were permitted to hang their washing on the fences. It was clear that this practice should cease."

"(b) The reasons for the breakouts from the Arorangi prison

1) The Committee considers that the escapes were made possible by the complete lack of security. It was apparent during the inquiry that many of the inmates that escaped did so because they were not properly supervised. The Committee is satisfied that the root of the problem has been ineffective staff training. Although officers have been issued Acts and Regulations there appears to have been little or no comprehension of their meaning. The general attitude of some members of the staff to their duties and responsibilities has been, to say the least, appalling.

2) The lack of security has been due to the total absence of discipline throughout the Prison staff. Control and effective leadership have been lacking. The disciplinary control of staff has been poor. In many instances, decisive action has not been taken: Recommendations for disciplinary action on many occasions have been ignored. Those that reached the Public Service Commission, the Committee is satisfied, were not dealt with appropriately. The Committee is particularly disturbed that the Public Service Commission failed to take appropriate action concerning a recommendation made by the Director of a serious breach of discipline. The recommendation was made on 22nd June 1989 and the Committee was informed that the matter has not yet been dealt with. The Director is to be commended for his prompt action in reporting to the Public Service Commission (on at least one occasion).

3) From its interviews with some of the prison staff it became obvious to the Committee that the disharmony continues to exist amongst the staff. This disharmony has been reported in earlier enquiries and has been allowed to exacerbate. The Committee believes that the disharmony has contributed to the low staff morale which has resulted in a lazy and sloppy attitude towards their duties.

4) The Committee is satisfied that the Superintendent has failed to exercise the powers conferred on him by law. It appears that the authority has been exercised by the Director unlawfully thereby creating confusion in the chain of command among subordinates thus causing divided loyalties. It has reached the point where some officers have sought direction from the Director and Superintendent while others have approached the First Officer.

5) The Committee is satisfied that the Prison Administration has failed to take adequate follow up action after the breakouts to investigate how each incident occurred, where the security system is inefficient and what steps must be taken to prevent a re-occurrence."

(f) The steps that have been taken to carry out the recommendations of previous committees

Of grave concern is the fact that although a number of recommendations have been made in the past for the improvement of the Prison facilities and the administration of the Prison services these recommendations have been largely ignored. Their non-implementation is attributable to a number of reasons, the most important of which is that the Minister in charge of each Committee appears to have failed to give the necessary direction to the Head of the Prison Service to carry out (where possible) those particular recommendations. The following are examples of non-implementation of earlier recommendations:

(Extensive examples are then quoted referring to each of the 1976 - 1978 - 1979 - 1984 and 1988 reports.)

(g) Any other matters affecting the sound and proper administration of the Arorangi Prison an the detention an welfare of inmates

The poor record of chronic failure in the Prison administration, particularly relating to the escapes over a number of years can be summed up and attributed mainly to the following:

- Lack of adequately trained executive staff.

- Inadequate facilities.

- The increase in the number of inmates who have already served time in NZ prisons and are experienced in subversive activities.

- Unattractive conditions generally e.g. work, grades and salaries, promotion based on favouritism rather than on merit and insecure career opportunities.

This report has highlighted the major areas of concern as well as identifying the many previous valid recommendations made during earlier enquiries over the last 14 years which have not been actioned. No wonder then, that the public has lost faith in the Prison system and is now turning to the Courts for compensation."

This report by the Ministerial Select Committee of Inquiry was initiated by the Minister of Corrective Services by warrant dated 7 September 1989. It followed the attempted rape of the Plaintiff on 10 June 1989. The report therefore is contemporaneous in time and is explanatory of the conditions of the prison and the standards or perhaps more correctly the lack of standards existing at that time.

It is indeed a sad commentary of the conditions existing at the Arorangi Prison when this Committee were compelled to make, among many others, the following observations and comments:

(1) "... the escapes were made possible by the complete lack of security." (The underlining is in the report.)

(2) "... they were not properly supervised."

(3) "of grave concern ... recommendations have been largely ignored."

(4) "Their non-implementation is attributable to ... the Minister(s) in charge ... appear(s) to have failed to give the necessary direction ..."

(5) "The poor record of chronic failure ..."

(6) "... previous valid recommendations made ... over the last 14 years which have not been actioned."

Mrs Tina Pupuke-Browne, a member of that Select Committee, gave evidence on behalf of the Plaintiff. She vividly confirmed "the total lack of security; the lack of control; that there was no discipline; and there were no channels of command." She confirmed, if confirmation was necessary, that the five earlier reports considered by the 1989 Ministerial Select Committee of which she was a member, and the 1989 report itself, highlighted a continuous and continuing "record of chronic failure in the Prison administration". I am satisfied that that criticism is an understatement of the conditions and administration of the Arorangi Prison between 1976 and 1989; as to criticism of supervision and control of the prisoners during that time it is clear, and I so find, that it was inept, ineffective and at times non-existent. The 1989 report concluded "that the escapes were made possible by the complete lack of security." That was certainly the position with the escape relating to this claim.

It is based on that evidence that the Plaintiff alleges the four grounds of negligence set out in the Statement of Claim. Clearly negligence has been established. I am satisfied that gross negligence has been established.

LIABILITY OF THE CROWN FOR NEGLIGENCE

The Defendant is sued "for and on behalf the Department of Corrective Services". The question that now has to be considered is whether Government Departments collectively referred to in legislation as "the Crown" can be sued for the negligence of its servants or agents, in this case its prison officers.

Counsel are agreed:

(1) That the Crown is bound by the Crown Proceedings Act 1950 (New Zealand) as applied in the Cook Islands by virtue of Section 350 of the Cook Islands Act 1915;

(2) That Section 6 of the Crown Proceedings Act 1950 (New Zealand) provides for the liability of the Crown in tort;

(3) That the prisoner involved in these pleadings was in the legal custody and control of the prison officers employed by the Department of Corrective Services by virtue of the Prisons Act 1967 and the Prison Regulations 1968;

(4) That the Crown is liable for the tortious acts of the prison officers.

Therefore, it has been agreed and accepted that the Department of Corrective Services can be sued in respect of those actions by prison officers which can be categorised as tort.

The further question which of necessity must now follow from those findings is:

Does the Crown's liability for the tortious acts of the prison officers include the negligence that has been established?

It has been put to me in both written and oral submissions on behalf of the Plaintiff that if a duty of care is owed by the Department of Corrective Services to the Plaintiff, then that Department will be liable for the injuries and losses sustained by the Plaintiff as a result of the negligence of its officers.

On the other hand, Counsel for the Defendant in both written and oral submissions denied liability under the collective headings of:

(a) the injuries or loss were not reasonably foreseeable;

(b) the necessary proximity was absent;

(c) the Plaintiff was not of a class of person that was foreseeable;

(d) contrary to public policy;

(e) the lack of knowledge or foresight that the attempted rape would be committed.

DUTY OF CARE

There is no doubt that as a generalisation the Crown can be vicariously liable to third parties for a tort resulting from actions by the Crown's servants or agents in the course of their employment. However, does such a tort require as a necessary ingredient, a duty of care that would then be capable of establishing the foundation for the ultimate assessment of damages? This question of the "duty of care" may arise from incidents involving either property damage or personal physical injury.

As to property damage, this is considered in Halsbury's Laws of England (4th Ed. Vol. 37 para 1140) where it is stated:

"Prison authorities also owe a duty of care to members of the public and an action will lie where property is damaged by prisoners which results from negligence on the part of the authorities, but a wide latitude will be allowed the authorities in determining proper ways of dealing with inmates before liability is imposed."

The reference to a wide latitude in the ways of dealing with prisoners before liability arises I shall deal with later. But I interpose at this stage that in this case, there is no question of the prison officers exercising their judgment say for example, part time release as a means of rehabilitation when the offence occurred. Rather no judgment was exercised by the officers and there was a complete failure to adequately control the prisoner; there was gross negligence in the non-performance of their duties; and there was a clear failure of the duty of care required of them.

The evidence clearly demonstrates these failures relate to the prison officers who permitted the prisoner to leave the prison for the fifth time on 10 June 1989 and for two further occasions subsequently. However the evidence also demonstrates that between 1976 and 1988 when a total of five comprehensive reports and related recommendations were formulated and presented to the Department of Corrective Services, the 1988 Commission of Inquiry recording that all the previous "recommendations have been largely ignored. Their non-implementation is attributable to a number of reasons the most important of which is that the Minister in charge of each Committee appears to have failed to give the necessary direction to the Head of the Prison Service ..."

In the present case therefore it is not only a matter of considering the neglect of duty and the corresponding liability of a duty of care on the part of the prison officers immediately responsible for the escape and the consequential attempted rape, but also the total neglect of duty of everybody responsible for the Department of Corrective Services.

These circumstances establish a failure by the Defendant to adequately perform an undeniable duty of care towards the members of the public. The Defendant would have been liable if in this case there had been property damage arising from this negligence of the prison officers; the prison administration; or as in this case, by both of them. Counsel for the Defendant conceded that would be the case if the claim had been for property damage, and not personal injuries. He conceded that the circumstances were such that it was reasonably forseeable that the prisoner as a convicted and habitual criminal (34 offences of burglary or theft) would commit offences while at large.

He further conceded that it is natural to assume that an escapee will therefore commit offences relating to basic needs of food, shelter and transport. He was not prepared to infer however that the Defendant could reasonably contemplate the prisoner would enter the Plaintiff's house when he had his fifth escape and commit the attempted rape.

I cannot accept the logic of that argument. The Defendant accepts forseeability for theft and burglary, and a result the acceptance of any liability for property damage, because the prisoner had committed those offences previously. However it is suggested that there would be no liability for property damage such as arson or personal injury such as attempted rape caused by gross negligence because on previous escapes from prison such offences had not been committed. With that argument I disagree. Counsel for the Defendant does accept as I record his submissions that if property damage to the Plaintiff had resulted, then the duty of care reposing in the Department would have been established by the historical background of the prisoner; the incompetence of the administration; and the negligence of the prison officers. If Counsel for the Defendant did not concede what I have attributed to him insofar as property damage is concerned, then I have no difficulty in so deciding such liability upon the facts and the evidence of negligence and the failure of the duty of care imposed on the Defendant.

DUTY OF CARE

It is suggested that the principles I have been considering while applying to property that is damaged in circumstances akin to the present case, will make the Defendant liable for the losses incurred for that damage. It is further suggested by Counsel for the Defendant, however, that such principles do not apply where personal injuries are sustained as a result of the same circumstances. I shall try and find out why this should be so.

A consideration of the development of the law relating to negligence over recent years highlights the willingness of the Courts to grapple with the ever increasing variety of and variation to circumstances giving rise to claims based on negligence and the associated failure of the duty of care. For example, this variety of claims is of course influenced to a large degree by the rapidly changing conditions in modern day society. In the case of Brown v. Heathcote County Council [1986] NZCA 451; (1986) 1 NZLR 76 Cooke P. commented -

"When a New Zealand Court is urged, as Counsel for the appellant urged us here, not to hold that a duty of care existed in a kind of factual situation not precisely covered by existing authority, the whole matter should be weighed against a background and in the spirit of what is now a not inconsiderable body of indigenous New Zealand case law. One of its features is perhaps a certain simplicity."

In order to establish that a duty of care arises in this particular claim, I propose as a basis to consider the principles enunciated in two of the leading cases referred to in the many authorities on this topic. The first is Anns v. London Borough of Merton [1977] UKHL 4; (1977) 2 AER 492. Lord Wilberforce in that case at Page 498 stated as follows:

"Through the trilogy of cases in this House, Donoghue v. Stevenson, Hedley Byrne & Co Ltd v. Heller & Partners Ltd and Home Office v. Dorset Yacht Co Ltd, the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First, one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise."

The second case is that of Brown v. Heathcote County Council already referred to above, where Cook PJ stated as follows:

"In particular ... we have found it helpful to think in a broad way on the lines of this twofold approach. That is to say, although different members of our Court have put it in different ways, we have considered first the degree of proximity and the foreseeability of harm as between the parties, I would put it as whether these factors are strong enough to point prima facie to a duty of care. Second, if necessary, we have considered whether there are some particular factors pointing against a duty. It is also conceivable that other factors could strengthen the case for a duty. In terms of the opinion of Lord Keith of Kinkel in Peabody at p241 we have found this kind of analysis helpful in determining whether it is just and reasonable that a duty of care of particular scope was incumbent upon the defendant."

In the first case above, an appeal to the House of Lords, no fewer than twenty-seven cases were referred to in the opinions; while in the New Zealand Court of Appeal decision above, which incidentally was finally dealt with by the Privy Council, nine cases were referred to and twenty cases mentioned. Counsel in these proceedings have each provided a useful synopsis referring to many of these decisions but I propose to proceed with my analysis on the two fold approach adopted in the Anns and Brown cases already referred to.

Firstly the degree or proximity and the forseeability of harm. That is, a consideration of the relationship between the wrongdoer and the person suffering the injuries and whether it is reasonable to link the negligence alleged with the injuries sustained. If it is reasonable then a duty of care arises.

Counsel for the Defendant submitted that the Plaintiff, a resident living within about a mile from the prison, could not be identified as a potential victim amongst all the many other residents in the Arorangi district. Therefore there was no reasonable forseeability. The thrust of the defence throughout the hearing was that the prison authorities could not reasonably anticipate the prisoner would attempt to rape the Plaintiff; that the Plaintiff was but one of many residents in Arorangi; that they had no special duty of care to her; and that because of these considerations the principles applying to proximity and forseeability in such cases were not satisfied and as a consequence the prison authorities did not owe a duty of care to the Plaintiff.

I cannot accept either the logic or the reasonableness of such a proposition. The Defendant is empowered by statute to operate a prison and is required to maintain security to a degree where prisoners are contained and the community are safe. The whole island of Rarotonga can rightly be regarded as a community of some 15,000 persons. The Defendant owes this whole community the security which everyone would expect a normal prison to provide. The Defendant with such a proven record of incompetence neglect and chronic administration failure suggests by that defence that despite its record it has a responsibility to only a few of the inhabitants of this small island. It was not suggested who were the selected few. As I say, this community is so small that the Defendant has a responsibility to the whole Island and if gross negligence occurs, as has been established, then so called selective responsibility cannot be a factor. In this case, four earlier escapes; incompetent officers and gross' negligence combine to clearly predict the forseeability of harm. Nothing could be more forseeable in the circumstances:

Secondly I must consider whether there are any factors which might otherwise limit or restrict this duty of care that I have found was owed by the Defendant. Even to go as far as factors pointing against a duty. Counsel for the Defendant raised the question of public policy and submitted that if the Court were to extend the duty of care to prison authorities for damage when a prisoner escaped this would impose an unnecessarily heavy burden on the taxpayer. I consider this is the only substantive factor that was submitted in argument and that I perceive as pointing against a duty of care. This argument was considered in the case of Home Office v. Dorset Yacht Co Ltd [1970] UKHL 2; (1970) 2 A.E.R. 294 a decision of the House of Lords, and rejected. Lord Reid at page 302 stated:

"It was suggested that a decision against the Home Office would have very far reaching effects; it was indeed suggested in the Court of Appeal that it would make the Home Office liable for the loss occasioned by a burglary committed by a trainee on parole or a prisoner permitted to go out to attend a funeral. But there are two reasons why in the vast majority of cases that would not be so. In the first place, it would have to be shown that the decision to allow any such release was so unreasonable that it could not be regarded as a real exercise in discretion by the responsible officer who authorised the release. And secondly it would have to be shown that the commission of the offence was the natural and probable, as distinct from merely a foreseeable, result of the release - that there was no novus actus inter-veniens."

For the same reasons I do not accept public policy as a factor pointing against a duty of care by the Defendant in this case.

Since the Dorset Yacht case referred to above has striking similarities to the present proceedings, further extracts from the House of Lords decision are relevant. The brief facts as stated therein are as follows:

"On 21 September 1962, a party of borstal trainees were working on Brownsea Island in Poole Harbour under the supervision and control of three borstal officers. During that night seven of them escaped and went aboard a yacht which they found nearby. They set this yacht in motion and collided with the respondents' yacht which was moored in the vicinity. Then they boarded the respondents' yacht. Much damage was done to this yacht by the collision and some by the subsequent conduct of these trainees."

"The facts which I think we must assume are that this party of trainees was in the lawful custody of the governor of the Portland Borstal Institution and was sent by him to Brownsea Island on a training exercise in the custody and under the control of the three officers with instructions to keep them in custody and under control. But in breach of their instructions these officers simply went to bed leaving the trainees to their own devices. If they had obeyed their instruction they could and would have prevented these trainees from escaping. They would therefore be guilty of the disciplinary offences of contributing to carelessness or neglect to the escape of a prisoner and to the occurrence of loss, damage or injury to any person or property. All the escaping trainees had criminal records and five of them had a record of previous escapes from borstal institutions. The three officers knew or ought to have known that these trainees would probably try to escape during the night, would take some vessel to make good their escape and would probably cause damage to it or some other vessel. There were numerous vessels moored in the harbour, and the trainees could readily board one of them. So it was a likely consequence of their neglect of duty that the respondents' yacht would suffer damage."

The case for the Home Office is stated in the Judgment of Lord Reid as follows:

"The case for the Home Office is that under no circumstances can borstal officers owe any duty to any member of the public to take care to prevent trainees under their control or supervision from injuring him or his property. If that is the law then enquiry into the facts of this case would be a waste of time and money because whatever the facts may be the respondents must lose. That case is based on three main arguments. First, it is said that there is virtually no authority for imposing a duty of this kind. Secondly, it is said that no person can be liable for a wrong done by another who is of full age and capacity and who is not the servant or acting on behalf of that person. And thirdly, it is said that public policy (or the policy of the relevant legislation) requires that these officers should be immune from any such liability."

"Even so it is said that the respondents must fail because there is a general principle that no person can be responsible for the acts of another who is not his servant or acting on his behalf. But here the ground of liability is not responsibility for the acts of the escaping trainees; it is liability for damage caused by the carelessness of these officers in the knowledge that their carelessness would probably result in the trainees causing damage of this kind. So the question is really one of remoteness of damage. And I must consider to what extent the law regards the acts of another person as breaking the chain of causation between the defendants' carelessness and the damage to the plaintiff."

"If the carelessness of the borstal officers was the cause of the respondents' loss what justification is there for holding that they had no duty to take care? The first argument was that their right and power to control the trainees was purely statutory and that any duty to exercise that right and power was only a statutory duty owed to the Crown. I would agree but there is very good authority for the proposition that, if a person performs a statutory duty carelessly so that he causes damage to a member of the public which would not have happened if he had performed his duty properly, he may be liable. In Geddes v. Proprietors of Bann Reservoir Lord Blackburn said:

"For I take it, without citing cases, that it is now thoroughly well established that no action will lie for doing that which the legislature has authorised, if it be done without negligence, although it does occasion damage to anyone; but an action does lie for doing that which the legislature has authorised, if it be done negligently." (1878) 3 app. Cas. 430.

"The reason for that is, I think, that Parliament deems it to be in the public interest that things otherwise unjustifable [sic] should be done, and that those who do such things with due care should be immune from liability to persons who may suffer thereby. But Parliament cannot reasonably be supposed to have licensed those who do such things to act negligently in disregard of the interests of others so as to cause them needless damage."

Lord Reid's commentary I believe is so compelling in its reasonableness; and so logical in its conclusions. Applied to the present case, the circumstances of the negligence of the prison administration and the prison officers - combined with the known propensity of the prisoner to have escaped four times previously - creates a failure of the duty of care owed to the Plaintiff. Thus clearly that degree of proximity and forseeability of harm as between the parties has been established and without any negative circumstances being affirmatively presented to indicate that there is in fact no such duty of care.

Finally, I have carefully considered the case of Murphy v. Brentwood District Council (1990) 2 A.E.R. 908 decided by seven law lords of the House of Lords and departing from the Judgment in Anns v. Merton London Borough to which I have already referred.

However, those principles as to the establishment of the duty of care enunciated by Lord Wilberforce in the Anns case and by Cooke P. in the Brown case have in no way been affected by the result of the judgments in the Murphy case. Indeed as Lord Oliver said at Page 934 -

"In the straightforward case of the direct implication of physical injury by the act of the Plaintiff there is indeed no need to look beyond the forseeability by the Defendant of the result in order to establish that he is in a "proximate" relationship with the Plaintiff."

Accordingly, I am satisfied that the Defendant, which includes the total prison administration and the prison officers concerned were negligent; that the Defendant owed a duty of care to the Plaintiff; that the Defendant failed to exercise or carry out that duty of care; and that I reject the claim that public policy would negate such a duty of care.

ASSESSMENT OF DAMAGES

The Plaintiff has claimed $80,000 by way of General Damages and a further $20,000 by way of Aggravated Damages.

The Plaintiff's claim is based upon the following:

"1. Pain and suffering - physical injuries occurred by the assault;

2. Loss of enjoyment of life - emotional suffering, fear and anguish;

3. Mental distress and anxiety;

4. Aggravated Damages."

I concede two factors in my approach to a fair, responsible and appropriate award of damages arising from this claim. Firstly, I accept that the Plaintiff has had not one but several experiences no woman, least of all an elderly, recently widowed woman, should be subjected to. Secondly, those experiences have had an effect upon her personality and which have produced a form of anxiety which is described in the pleadings as anxiety neurosis.

Dealing first with the experiences - the Plaintiff's husband died in October 1987; the prisoner first broke into her house on 19 November 1987; again on 25 November 1987; and again on 10 June 1989 when the Plaintiff was attacked, battered and the prisoner attempted to rape her - she valiantly fought with him and he escaped.

I turn now to the second factor and the resultant effect of those experienced. The Plaintiff in her evidence vividly described the anxiety she has suffered and the extraordinary lengths she has gone to in order to provide security for herself form the quite natural fears to which she is now subjected. I was most impressed with the manner in which the Plaintiff gave her evidence, and clearly she has been affected by this terrifying experience of an attempted rape, this of course was but the culmination of those earlier break ins by the same prisoner. As evidence of the degree of this distress it must be recorded that the Plaintiff had recently built a new and substantial home. She said that security was a paramount consideration when the house was built. After these incidents additional security has been provided in the following ways - bolts put across the inside of the doors; dowling put into the channels of the windows to prevent any opening; aluminium grill bars put on the windows; an alarm system installed inside the house; a boat horn placed beside her bed; armoured glass in the windows; security lights set up on the outside of the house which come on automatically if anybody approaches; telephones installed in every room; and a can of mace placed beside her bed. I accept that the Plaintiff has a real and genuine fear as a result of these experiences.

I consider now the written submissions presented by Mr Gibson Counsel for the Plaintiff, and as well the oral submissions he argued at the conclusion of all the evidence. He suggests that I should assess damages as a separate heading for the two break-ins in November 1987. However, there was no physical injury from either of those incidents; it was an upsetting experience and this cannot be denied - especially so soon after the death of the Plaintiff's husband a month earlier. I would agree that I could consider those incidents as an aggravation of the subsequent attempted rape but not as a separate head of damages as suggested by Counsel.

I turn now to an assessment of what, in all the circumstances I have recounted, is a fair and appropriate award of damages based upon the four grounds which I shall refer to separately.

1. Pain and Suffering - the Plaintiff was punched and as a result suffered pain. She applied ice packs to her face; and as a result there was little bruising. From her evidence, she attended to her substantial business the following day. The pain and suffering was clearly minimal.

2. Emotional Fear and Anguish - this, as I have already stated, has to a degree been established.

3. Mental District and Anxiety Neurosis - this is clearly linked with emotional fear and anguish referred to in 2 above. No medical evidence was called by the Plaintiff to establish that "mental distress" was of a degree that could be classified medically as an illness. Likewise with "anxiety neurosis". Accordingly I have had to decide for myself from the evidence presented by the Plaintiff and from her demeanour in giving it; whether the "anxiety - anguish - distress - and fear" referred to are the perfectly natural symptoms one would expect from such experiences; or whether such symptoms have a more serious connotation derived from the descriptions "mental and neurosis". I reject the latter as clearly the Plaintiff was not so affected to that degree. The symptoms relate therefore to the natural anxieties and apprehensions affecting any woman who had been subjected to these incidents.

4. Aggravated Damages - I have considered the submissions made by Counsel for the Plaintiff claiming aggravated damages. The circumstances here clearly cannot sustain compensatory damages. The claim under this heading is rejected.

What then, in these present circumstances, would be an appropriate award for the natural anxiety, anguish, distress and fear generated by the attempted rape of the Plaintiff on 10 June 1989? There are no comparative cases that I know of in this jurisdiction. Of necessity therefore, I must seek assistance from other jurisdictions. While it can be said there is no doctrine of precedent in assessing the quantum of damages, nevertheless I believe I am entitled to take judicial notice of comparative levels of awards to assist in arriving at what is always a most difficult assessment. In this way, standards can be evaluated and criteria determined as to what are appropriate and recognised levels of damages. In this context it is of course necessary to weigh carefully each case individually since it would be most unusual to ever find two cases alike. But comparisons do at least provide a guide. Not by way of a precedent, but by judging the general level of damages in a similar type of case. In this way, and by this means of comparison, a generalised level of damages by way of analogy can be determined, with a measure of consistency when compared to like awards.

In this context, I have referred to a publication entitled "Damages for Personal Injuries and Death (MUNKMAN) under the heading "neurosis - serious cases". The author refers to two cases, viz. -

1. Brice (1984) 1 All E.R. 997 - This was a woman of 42 - owing to vulnerable personality, the shock of a minor accident precipitated severe mental disorder and her life became one of misery, largely in institutions. The award was 22,500 pounds ($NZ67,500 approx.).

2. Breman (1984) 5 C.L. 105.a. - This woman was 65 - permanent and severe depressive state after all - now housebound. The award was 7,500 pounds ($NZ22,500 approx.)

Under the heading "minor or slight, and trivial injuries" the author refers to three cases, viz. –

1. Daly (1982) CLY - CA 91 - Man 69 - fractured rib and superficial wounds in unpleasant and frightening accident when thrown off bus. On appeal 1,500 pounds held not excessive ($NZ4,500 approx.).

2. Grattan (1982) CLY - 881 - Woman of 73 - thrown down in bus - severe shock, bruising, sprain of left shoulder, residual effects up to 18 months - award of 1,250 pounds ($NZ3,750 approx.).

3. Givilynm (1982) CLY 887 - Woman 52 - thrown down by electric shock, severe shock and resulting phobia of electricity 300 pounds ($NZ900 approx.).

Actions such as this present one are no longer possible in New Zealand. There the Accident Compensation Act 1982 is in force. I have considered all the relevant decisions of the Accident Compensation Appeal Authority up to 31 December 1990. The following are the summaries of what I considered were cases allied to the basis of the present claim.

(A) Mental Consequences

Donovan (191/87)

There were allegations of mental losses in addition to minor physical losses. However, the later psychiatric report added little to what had previously been known. The award of $2,000 was confirmed on appeal.

Bills (303/89)

As a result of ingestion of herbicide sprays in November 1986 the appellant suffered a number of consequences. He had been an Area Manager for an engineering firm, but with his wife purchased a country store. He was able to assist in the store only two to three hours per day. He had been prominent in competitive bowls but gave up this and social tennis. There was breathlessness, dizziness, loss of memory, and pain in the joints, and there was depression and frustration. The award was $10,000.

(B) Neurosis

re K 271/88

The appellant was raped and brutally beaten in September 1981. Mental suffering would remain with her for the rest of her life, and her relationships with men would be tainted (although she had entered into a satisfactory de facto relationship). She now found sex particularly distasteful. There was residual facial scarring with consequent embarrassment when recalling their cause. There was severe loss of memory on occasions. She was aged 24 at the time of the appeal hearing. There was no permanent loss or impairment of bodily function, and the award was $10,000.

Claim for Damages for Rape by a Husband

(There was a restriction on publication of this decision.)

The judgment referred to "... an act of violent rape. The affront to the victim in violating her could properly be described as the utmost insult that any woman could suffer." This was a particularly bad rape associated with attendant cruelty. The award was for $20,000 damages.

H. v A.C.C. (1990) - N.Z.A.R. 504

This was an appeal, the issue being whether the appellant suffered personal injury by accident as a result of recurring sexual assaults on her by her brother over a period of 10 years. The evidence disclosed that the appellant was "terrorised" during these attacks. The appeal was allowed and she was awarded $10,000 - the maximum provided by the Accident Compensation: Act in New Zealand.

In the context of those awards, and upon a comparison of the injuries giving rise to the, it is clear that this claim for $100,000 is grossly exaggerated and cannot be sustained. However, I have to consider whether this claim is for the resultant effects of the attempted rape of the Plaintiff; or whether it is a means of activating the Defendant into organising the Department of Corrective Services which six Commissions of Enquiry have failed to do; or whether it is a combination of both. I say this advisedly as the Plaintiff in giving evidence made the following statements:

"I had taken all the precautions that I felt necessary to keep somebody out of my home and yet it happened again ... what was worse is that it was from somebody out of the Prison and it seemed that whenever he wanted to he could just walk out.

"I just hope that the Prison does something ... It's a real fear that if I don't do something about the Prison now, that I'll never be able to feel safe in my house and that's the reason I'm here, not because I'm being sensational about anything but first ... I ... something has to be done about the Prison."

That concern expressed by the Plaintiff is very real. No doubt, she will hope that this decision, along with all the earlier enquiries into the Prison's administration and security, will motivate the corrective measures so necessary for its proper control and for the ultimate safety of the residents of Rarotonga. It is clear that it is this concern which has prompted the present claim. I accept that there is the perfectly natural anxiety which also affects the Plaintiff. It is the latter I have to assess in fixing an award of damages.

Significantly, no medical evidence as to the Plaintiff's condition was led at the trial. The claim therefore has no connotation of injuries other than the minor bruising described by the Plaintiff herself; nor any suggestion of mental effect or deterioration; rather, this is a claim based on the repeated violation of the sanctuary of the Plaintiff's home, ending finally with an attempted rape upon her, and this despite the quite extraordinary measures she has taken in order to secure her home as a safe haven for her herself.

Giving this matter the best consideration that I can; and assisted by the awards in relevant and comparative cases that I have referred to, I award the Plaintiff general damages of $15,000 together with interest from the date of service of the Writ up until the date hereof, and costs on the higher scale as fixed by the Registrar. There will be judgment for the Plaintiff accordingly.

DILLON, J.