Australia: Back to Basics – Shirt Calculus, Section 5B and the special relationship between the State and Inmate

Curwoods Case Note
Last Updated: 26 January 2012
Article by Shannon Say

Judgment date: 10 November 2011

Price v State of New South Wales [2011] NSWCA 341

Court of Appeal1

In Brief

  • Always go back to basics when examining the scope of duty and breach. Section 5B of the Civil Liability Act 2002 (CLA) is simply a statutory expression of the Shirt Calculus. It is a contextual and balanced assessment of the reasonable response to a foreseeable risk.
  • The relationship between a prison and an inmate is a special one. The scope of duty turns upon factors such as the level of control a prison has over the inmate, the assumption of responsibility of each inmate and the inmate's loss of autonomy.


In early January 2006, Mr Price, the appellant, was an inmate at Parramatta Correctional Centre (PCC). During an exercise break at the PCC, Mr Price was watching a tennis match and was hit in the eye with a tennis ball sustaining a detached retina and substantial loss of vision to his right eye.

The tennis was being played on an outdoor court, located within the exercise yard and surrounded on 3 sides by wings of the PCC. Adjacent to the court was an oval. Bench seating surrounded the court with a capacity to hold 78 inmates. Some of these seats were located behind the baselines at each end of the court. At the time of his accident, Mr Price was seated behind the baseline and had been there for about one hour before the accident occurred.

To set up the court, a net and supporting posts would be put in place before the game. No fencing or netting was erected or installed around the court. The court was supervised by 2 PCC officers called Rovers. Their responsibilities were to periodically check the oval and the activities when in use.

It was accepted at first instance and on appeal that on the day in question the tennis players were playing in a normal fashion. There was no wild or reckless behaviour on their part. It was a normal tennis match being played properly. However, nothing ultimately turned upon this issue. The Rover on duty at the relevant time, Ms Andrews, gave evidence that she did not perceive there to be a risk of injury to Mr Price, and therefore did not ask him to move from where he was sitting.

PCC admitted that it owed a duty of care to Mr Price, but relied on s 5F of the CLA to deny any duty to warn Mr Price of the risk of injury because it was said to be obvious.

Section 5B of the CLA provides as follows:

  1. "A person is not negligent in failing to take precautions against a risk of harm unless:
    1. the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
    2. the risk was not insignificant; and
    3. in the circumstances, a reasonable person in the person's position would have taken those precautions.
  1. In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
    1. the probability that the harm would occur if care were not taken;
    2. the likely seriousness of the harm;
    3. the burden of taking precautions to avoid the risk of harm;
    4. the social utility of the activity that creates the risk of harm."

District Court

At first instance, Colefax SC DCJ found that PCC was not responsible for the injuries to Mr Price largely on the basis that the possibility of the risk of serious injury was remote.

The primary judge's decision was largely based on his preference of the evidence given by Ms Andrews. Colefax SC DCJ in accepting the evidence of Ms Andrews found that the game was being played competently and apparently responsibly and there was nothing in the conduct of the players which required any intervention by the officers.

Mr Price argued that PCC failed to discharge its duty of care to him by:

  1. Failing to direct him to move to a safer location.
  2. Failing to have in place perimeter netting or fencing.
  3. Permitting the game to proceed in the absence of netting or fencing.

Colefax SC DCJ rejected the proposition that Ms Andrews ought to have made Mr Price move because he regarded the possibility of the risk of serious injury as remote. A factor he took into consideration was that there was no unusual increase in the number of inmates around the court. Consequently there were a number of other benches Mr Price could have sat on. The bench where Mr Price was sitting on was 8 metres behind the baseline. The tennis match was being played reasonably and no inmate had been injured as a result of a tennis match before or after the accident.

The primary judge did not accept that netting could be installed as it posed a potential security risk. He also did not accept that it was reasonable to prevent the game from being played after balancing the advantages of playing tennis for the inmates against the remote possibility of serious damage.

It was on this basis that Colefax SC DCJ found against Mr Price.


Allsop P (unanimously followed by Beazley JA and Giles JA) found that the primary judge's reasons reflected an inadequate and flawed analysis of s 5B of the CLA. The Court of Appeal noted that s 5B of the CLA has been accepted as a statutory expression of the formulation of Mason J (as he then was) in Wyong Shire Council v Shirt2. The Court of Appeal further noted this involves a contextual and balanced assessment of the reasonable response to a foreseeable risk: Roads and Traffic Authority (NSW) v Dederer3.

It was accepted by the Court of Appeal that the primary judge was correct to dismiss the suggestion that netting ought to have been used or that the game ought to have been cancelled.

It was held that the relationship between PCC and Mr Price was a special one and that the scope of PCC's duty was affected by the detention of Price and the subsequent assumption of control of his person, and consequently PCC attracted a duty to exercise reasonable care for his safety during his detention. The special characteristics of the relationship and duty arose from the level of control PCC exercised over Mr Price and its assumption of responsibility over him. The Court of Appeal held the duty extended to the taking of reasonable care in the exercise of powers of control and direction that exist in order to avoid injury to an inmate.

Therefore, taking this into account, the appeal turned upon whether it was reasonable for Ms Andrews to not require Mr Price to sit somewhere else.

The Court of Appeal found that it was obvious that there was a risk that inmates could be hit with a tennis ball when sitting behind the baseline, regardless of how the game was being played. Whilst it might be said that the risk of a truly serious injury was not high, the risk was not remote or fanciful. Persons could be hit in the face, throat or head. The seated position located behind the baseline was a vulnerable location.

Accordingly, the Court of Appeal concluded in applying s 5B(2) of the CLA that the nature of the risk and the extent of possible injury could have easily been eliminated and without cost by asking Mr Price and others to move from the seats located behind the baseline.

Accordingly the Court of Appeal found in favour of Mr Price.

The Court of Appeal also confirmed the finding of the primary judge that Mr Price contributed to his injuries by sitting where he did (when the risk was obvious) and failing to keep a proper look out. The finding of 30% contributory negligence was therefore maintained. Alsop P expressed the opinion that it may be that more than 50% contributory negligence could have been attributed, but noted an increase was not sought by PCC.


This case is simply another reminder of the correct application of s 5B of the CLA. It also highlights how the courts recognise special relationships based on the level of control exercised and in this case, particularly so with regard to the duty owed by a prison to inmates, as inmates have very little autonomy over their activities whilst incarcerated.


1 Allsop P, Beazley JA, Giles JA
2 [1980] HCA 12
3 [2007] HCA 42

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