Appeal judges uphold damages award to prisoner for attempted murder by fellow inmate following negligence ruling

Keith Porter was convicted of attempted murder following the attack on Daniel Kaizer in December 2009 and a judge held that the Scottish Prison Service (SPS) was negligent by failing in its duty of care to protect the prisoner from a “reasonably foreseeable risk of harm” after the prison officer failed to report the threat.

The Scottish Ministers, being responsible for the SPS, appealed against the decision of the Lord Ordinary to find the defenders liable to the pursuer for the loss, injury and damage he sustained, but the Inner House of the Court of Session refused the reclaiming motion.

Negligence

The Lord President, Lord Carloway, sitting with Lord Brodie and Lord Drummond Young, heard that heard that on 4 December 2009, while the pursuer was on remand at HMP Aberdeen, he was assaulted in the prison gym with a steel barbell by a fellow prisoner, Keith Porter, who was subsequently sentenced to an Order for Lifelong Restriction with a punishment part of five years after being convicted of attempted murder.

The pursuer, a Pole, raised an action for damages claiming that the attack was an implementation of a threat made to him by Porter around a week prior to the attempted murder, and that he reported it to a prison officer, Gary Lumsden, at that time.

The pursuer’s case was in July that year Porter had attempted to murder another Pole, to which he pled guilty about a week before the assault on the pursuer, and that at about the time of the plea he had warned the pursuer that he would “smash his fucking Polish face in”.

However Mr Lumsden, who had 18 years experience as a PE instructor with the Scottish Prison Service, failed to report the incident and the court was asked to determine the issue of liability.

The court heard evidence from two expert witnesses: John McCaig, a consultant in prison management with 35 years’ experience as a prison officer in the SPS; and Philip Martin Wheatley, a former Director General of the Prison Service in England and Wales.

Causation

It was not disputed that Mr Lumsden did not report the incident and that no further action was taken, but the experts were in dispute as to what the consequences of such a report would have been, which went to the question of causation; whether it was more likely that not that the attempted murder would have taken place.

The appeal concerned the issue of causation, namely, whether it was established that, but foMr Lumsden’s negligence, for which the defenders were vicariously liable, the assault upon the pursuer would not, as a matter of probability, have occurred.

The defenders submitted that the Lord Ordinary ought not to have held that, had Mr Lumsden reported the incident, the attempted murder would have been avoided.

It was argued that the onus was on the pursuer to establish causation and it was not enough for the pursuer to prove a material domination in risk, as the pursuer still had to show that the reduction was such that it was more likely than not that the attack would not have taken place.

However, on behalf of the pursuer, it was argued that the findings in relation to causation were properly that, had the incident been reported, in the period before the attack the prison officer on duty in the gym, Kenneth Murray, would have been made aware of the threat and would have used “heightened vigilance and close supervision” of the prisoners, which would have had a “deterrent effect” on Mr Porter.

It would have allowed Mr Murray to identify “early rumblings” or any other precursors to an assault, reducing the opportunity for Mr Porter to implement his threat which, on the balance of probabilities, would have prevented the attack.

Defenders’ position ‘unattractive’

Delivering the opinion of the court, the Lord President said: “The Lord Ordinary has found, and the defenders now accept, that Mr Lumsden’s failure to report the threat to the pursuer in the gym constituted negligence. That finding and acceptance carry with them an inference that the absence of a report amounted to a failure to take reasonable care for the pursuer’s safety; ie that he was thereby exposed to the risk of injury. The Lord Ordinary said this in terms.

“The issue of causation is thus sharply raised. The defenders’ position, stripped to its essentials, is that, notwithstanding the fact that a prisoner in their custody was exposed to the risk of injury as a result of the failure to report a threat of serious violence with racist overtones, nothing effective would have been done about this by the prison authorities and thus the attack would have happened in any event. The court is unable to accept this unattractive proposition.

“Where negligence is established, as it is here, and thus the existence of a risk of injury is demonstrated in the context of a prison setting, in which the prison authorities control the movements of all those involved, the court is entitled to make the reasonable assumption that the prison authorities will not only do something about that risk, but that the something will reduce the risk to such a level that it will, in all probability far less on a mere balance, not occur. If that is so, causation must be taken to be established in the absence of some extraordinary factor which made the incident otherwise inevitable despite the taking of reasonable precautions. This in itself is sufficient reason to refuse the reclaiming motion.”

Lord Carloway added that there was, in any event, a “sufficient evidential basis” for the Lord Ordinary’s findings.