May 29, 2012

The description of the daily routine of Wacol’s correctional centre prisoner population in an April district court injury compensation award, may not quite make the cut for a Shawshank Redemption re-make, but the ruling gives some fascinating insights into the lifestyles of the despondent and the infamous at Queensland’s largest jail.
The tawdry details emerged in a claim by cocaine smuggler Kevin Nudd, who sued prison authorities for negligence for their part in his slip on a water puddle and crash to the floor in a jailhouse common-area, in December 2002.
The court heard that K Block contained a large kitchen, dining facilities, a phone and “at least one television…which appears to have been turned on only in the late morning”.

Cells were unlocked from 6 am – and after their self-made breakfast – those who had jobs went off to work while others including Nudd, spent the day reading the newspaper and watching the TV. Lunch and dinner were also self-catered and inmates retired about 7.30 pm to be locked in their cells.

The prison economy was such that there were a greater number of prisoners than available jobs but – given he was recovering from a serious ankle injury and was mobile-only on crutches – Nudd was excluded from the ranks of the gainfully gaoled & employed.

Despairing at the inherent “difficulty of accurate recall” by guards and prisoners of details of an incident that occurred nearly 10 years earlier, the court had resort to a grainy surveillance video to reconcile conflicting accounts.

Finding that the vision supported the plaintiff’s version – that the fall occurred because the tip of his crutch slipped from under him on a puddle of water – the court had still to consider the extent of the prison’s duty and what floor-surveillance rotation period would have been reasonable.

Nudd had been extradited to Australia from Los Angeles after a yacht bound from Mexico via Noumea and carrying 89 kgs of cocaine, was intercepted in Moreton Bay. He was convicted in the supreme court in 2003 and his appeals including to the high court of Australia were dismissed.

Remarking that the preponderance of decided slip and fall cases arise from shopping centres or supermarkets, his honour did not think that the analogy between “places of that nature” and a prison “is entirely apt” – because for one thing, patrolling officers needed to look around to generally see what was going on as well as guard against potential attacks from the prisoners themselves.

On the other hand, the sole task of a shopping centre cleaner “is specifically to concentrate on the floor” and hence the duty to patrons in that environment is significantly higher.

But it was this very distinction which allowed the plaintiff to successfully argue that – because guard patrols had nothing to do with protecting inmates against the risk of falling as a result of food and beverage spills – there was in fact, no system at all, to detect or to clean them up.

Ultimately it was decided that even in prison “there was a least an obligation have some periodic inspection” and this was particularly true in the case of the already disabled plaintiff who was known – because of his mobilisation on crutches – to be at potentially higher risk than his companion guests of the state.

A reasonable surveillance rotation was held, in the circumstances, to be two hours: unlike a food court or shopping centre rotation which is generally considered acceptable at around 20 min.

The fall occurred at about 1:30pm and as is usually the case wherever such a fall occurs, the plaintiff had no idea of exactly how long the water had been present before the loss of footing occurred. But applying the high court’s logic very recently articulated in Strong v Woolworths, the court ruled that – given the area had already been occupied about six hours – “it is more probable than not that the inspection would have detected the water and hence prevented the fall and the plaintiff’s injury”.

The court accepted that had the injury not occurred, Nudd would have been capable of earning about $750 more per annum while an inmate, a total loss during incarceration of about $1,700. Once outside – he is due for release next year – Nudd will be disadvantaged for the 10 years of his remaining working life, for which $40,000 was also allowed.

Further minor detail in this quirky tale: even a convict sent for surgery by his gaolers was made to pay back the Princess Alexandra Hospital treatment expenses of $2100. The total award for the miscreant painting contractor, of $83,000.

On 19/10/2012 the state successfully appealed this decision and reversed the damages award. The appeal court held that on the evidence as a whole, the prisoner “failed to prove his case because he failed to prove that a reasonable system of inspections probably would have detected the presence of water before the respondent?s accident”.

Nudd v State of Queensland [2012] QDC 064 Brisbane McGill SC DCJ 23/04/2012

Categories: Personal Injury , Litigation & Law Practice

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