has a very serious responsibility to extend what protection it can to persons who are incarcerated by force of law in penal institutions. Those people have no choice about being there; they are sent there by the courts as punishment for their crimes. They are entitled to serve their punishment free of abuse and indignity and interference with their basic rights as human beings.In Hartwick v State of Victoria [2018] VCC 2187, currently attracting some attention from the mass media, the Supreme Court has awarded damages to a prisoner injured by a peer while on remand in Victoria's Metropolitan Assessment Prison. The state government had admitted liability.
The judgment states
On 12 January 2015 the plaintiff, Dylan Hartwick , was arrested in relation to assault related offences and was held in custody. On 16 January 2015 he was transferred to the Metropolitan Assessment Prison (“MAP”).
On 17 January 2015, whilst still in custody at MAP, Mr Hartwick was allocated to a three bed shared cell.
On 19 January 2015 another prisoner with a known history of mental instability and a potential for erratic and aggressive behaviour (“the assailant”) was placed in the cell with Mr Hartwick and another prisoner.
In the early hours of 20 January 2015 Mr Hartwick was assaulted by the assailant. The nature of the assault involved the assailant stabbing the plaintiff multiple times in the face, head and arm with a metal butter knife, causing bleeding and requiring medical treatment.
Mr Hartwick claims that the assault occasioned upon him and his injuries were a result of negligence on behalf of the State of Victoria, the named defendant.
The defendant has admitted negligence and the matter before me proceeded as an assessment of damages. The parties have agreed that the assessment would be specifically limited to general damages only. There was little dispute between the parties as to the nature of the initial physical injuries sustained by the plaintiff.
Mr Hartwick additionally claims damages in relation to the non-organic consequences flowing from the assault. The extent of these consequences and the question of causation was largely the area of dispute.Further
Mr Hartwick gave evidence concerning his assault while in the prison. He described being in a three person cell, initially with an older man who was transferred before the assault occurred. On the afternoon prior to his assault two other prisoners were transferred into his cell, including the assailant who eventually attacked him.
Mr Hartwick described the behaviour of his assailant after lock-down on the evening before the assault:
.. initially when we got locked down he was pacing, talking about satellites and bombs and terrorists and young girls in wheelchairs. Me and the other fellow were having a bit of a chat and trying to watch the TV show. So we asked him politely if he could settle down a bit and if he wanted to watch the show. He then sat on his bed with his head facing the wall, headbutting the wall continuously ...
Mr Hartwick described being woken by an intercom in the cell the following morning at what he believed to be about 7.30. He then stated:
So I dozed off back to sleep and then I woke up to a huge scream, like a shriek, and I looked up and he was stabbing me in the eyes... . I heard this huge scream, it was like a shriek, I looked up, he was stabbing me in the eyes with the butter knife. I managed to get up out of the bed and put my right arm above my head. ... my vision in my right eye was gone because when he stabbed me the right eye was fully closed, and the left eye, he had already got me above in eye on the eyelid and below the eye, so I had the right arm up. He did get me with the knife a couple of times on the arm. As I got up there was some scratch marks. ... So I had the right arm up and then I could wipe my left eye and probably get about two or three seconds vision before the blood would run back into it. I think it was at that time that he got me somehow in the side of the head, there were two in the side, two at the back and a big one on the top. (Mr Hartwick indicated the left side of his head).
Mr Hartwick described being assisted by the third prisoner in the cell before prisoner officers arrived and subdued his assailant. He was taken to a reception part of the prison and then by ambulance to Royal Melbourne Hospital. He believed he remained there for two or three nights. He recalls having stitches in both eyelids and staples on the top and back of his scalp.
After being discharged from hospital, Mr Hartwick remained in prison for approximately another eight days before he was granted bail. During that time he initially shared a cell with another prisoner, who he described as “a really nice guy.”As one student commented, you don't go to prison to get 'done over with a butter knife' and headlines such as that in The Age ("Man who assaulted ex-wife wins $125,000 payout after prison stabbing") are problematical.
Hartwick argued the state of Victoria was negligent in its duty of care to him by placing him in a cell with a man who was “mentally unstable, acutely disturbed, behaving erratically and posed a foreseeable risk of harm”.
