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Case Study: Watt v State of NSW

Watt V State Of NSW

Watt v State of NSW [2018] NSWSC 1926 is a decision of the Honourable Justice Garling in the NSW Supreme Court which considered the s54 Civil Liability Act 2002 (NSW) defence in the context of alleged negligence by prison officials.

The s54 defence precludes recovery where the plaintiff was injured in the commission of a serious offence or shortly after.


Adam Watt was being held on remand at Silverwater Correctional Complex. On the day in question Mr Watt had a violent run-in with another prisoner, Django O’Hara, who had a notable history of violence prior to and during his incarceration. Conflicting versions were given of the altercation but it ended in Mr Watt holding Mr O’Hara in a chokehold. A short time later there was a verbal confrontation between the two men in the public area, which ended when they shook hands at the behest of a Corrections Officer. During this incident Mr O’Hara placed an item in a pillowcase under a table, in view of corrections staff.

The main incident occurred shortly after. Mr Watt was seated in the common area when he was approached from behind by Mr O’Hara. Mr O’Hara hit Mr Watt on the head with the pillowcase, which contained a sandwich maker. Mr Watt fell to the floor and was struck again by Mr O’Hara.

Mr Watt suffered numerous injuries as a result of the incident including a brain injury, a psychiatric injury, hearing loss, tinnitus, facial scarring and facial numbness.

The decision

In the case of Watt v State of NSW, the State admitted that it owed Mr Watt a duty of care but contended that the harm suffered was outside the scope of its duty. Garling J found that the risk of Mr Watt suffering physical harm was reasonably foreseeable and not insignificant. Mr O’Hara had a long history of violence, which was known to the prison authorities, and he was therefore not an appropriate prisoner to be allowed to integrate with remand prisoners, especially as this information was not provided to the officers in charge of the relevant area. Garling J also found breach in respect of the failure to either identify or remove the weapon used to strike Mr Watt.

The section 54 defence

The State raised the defence under s54 of the Civil Liability Act. This defence precludes recovery in negligence where the plaintiff was injured in the commission of a serious offence or shortly after. The elements of this defence are as follows:
(a) That there was conduct on the part of the plaintiff which constituted a serious offence, namely one which carried a maximum penalty of 6 months or more;
(b) The … injury occurred at the time of, or following, the criminal conduct in (a); and
(c) That conduct contributed materially to the injury.

Garling J considered the meaning of the words ‘at the time of, or following, the criminal conduct’. While he found that the altercation that ended in the chokehold was not a ‘serious offence’ he went on to state that, even if it was a serious offence, it did not occur at the requisite time, nor did it materially contribute to the assault in which Mr Watt sustained his injuries.

Garling J considered the meaning of ‘following’, relying on earlier comments from McColl J in Wheatley v State of NSW [2018] NSWCA 315 and the second reading speech. He determined that the purpose of the section was to prevent those involved in a serious crime from recovering damages if they were in some way injured during the commission of that crime or while escaping. As such, he found that there was not a sufficient temporal connection between the crime and injury as the two events were separated by time, intervening interactions, and location such that the conduct could be considered to have ceased by the time the injury occurred.

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