Prisoner entitled to reparation after prison service failed to protect him from attack by fellow inmate

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 failed in its duty of care to protect the victim from a reasonably foreseeable risk of harm after the prison officer failed to report the threat.

Lord Ericht heard that on 4 December 2009, while the pursuer was on remand at HMP Aberdeen, he was assaulted in the prison gym 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 raised an action for damages at common law against the Scottish Ministers, as being responsible for the Scottish Prison Service (SPS), claiming that the attack was an implementation of a threat made to him by Porter in the gym around a week prior to the attempted murder and reported to a prison officer, Gary Lumsden at that time.

However 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 only.

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.

It was common ground between the expert witnesses that the November incident should have been reported by Mr Lumsden, 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 purser led the evidence of Mr McCaig, whose opinion was that if Mr Lumsden had reported the incident, it was possible that the pursuer and Mr Porter would not have been in the gymnasium at the same time on 4 December 2009. Even if they had, it was most likely that prison officer Kenneth Murray, who was sole officer on duty in the gym at the time of the assault, would have been aware of the investigation and the circumstances and as a consequence it was less likely that there would have been an unsupervised window of opportunity for Mr Porter to carry out the attack.

The defenders led the evidence of Mr Wheatley, whose opinion was that segregation from other prisoners would have been the only reliable way of removing the risk of a serious assault by Mr Porter, but that at the time of the attack there was not enough intelligence to justify segregation.

“I accept the evidence of Mr McCaig, based on his experience of prisons, to the effect that the presence of a prison officer is a deterrent to assault,” Lord Ericht said.

He added: “It seems to me that the implementation that day in the gym of the threat made previously was opportunistic. Had the opportunity to implement the threat not arisen at that time and place, the particular attack for which damages are being sought in this action would not have taken place. Accordingly I find on the balance of probabilities that if Mr Lumsden had reported the threat the attempted murder would not have taken place.”

The judge noted that it was “well established in law” that prison authorities can be liable for assaults by one prisoner on another, but each case turned on its facts and circumstances.

The classic statement of the law in this area is that of Lord Diplock in Home Office v Dorset Yacht Co Ltd 1970 AC 1004, which set out five characteristics which required to be present to establish liability.

Senior Counsel for the pursuer argued that all five of these characteristics were satisfied in the current case. In particular, he submitted in relation to characteristic (5) that it was reasonably foreseeable that a threat of violence may lead to actual violence. In relation to characteristic (3), he submitted that but for the failures of the defenders, the attempted murder would not have occurred.

Counsel for the defenders submitted that, in light of the evidence regarding the 4 December assault, it was doubtful to what extent, if at all, the November incident and the assault were connected, given that it occurred during an attack by three other inmates on another Polish prisoner, Lukas Rusek.

But the judge said the assault by Mr Porter on the pursuer was a “separate attack” which did not commence until the attack on Mr Rusek was underway and that it was directed to the pursuer’s face and head, which was “consistent with the threat to smash his face in”.

In a written opinion, Lord Ericht said: “In the current case, as the threat had been reported to the prison officer, it was known that Porter was ill disposed towards the pursuer who might be exposed to attack, and there was reason to regard Porter as posing a particular risk of violence to the pursuer… I consider that the assault on the pursuer was an incident of a kind such as might have been anticipated if there was no communication onwards to the prison authorities by Mr Lumsden of the threat which had been reported to him.

“In the light of that case-law, in my opinion, the facts of the current case fall within the circumstances in which prison authorities can be liable for assaults by one prisoner on another. The threat which was made by Mr Porter and reported to Mr Lumsden demonstrated that the pursuer was at particular risk of violent attack. Mr Porter made a specific threat to smash the pursuer’s face in. The pursuer informed Mr Lumsden of the threat.

“Mr Lumsden should have reported the threat, but he failed to do so. Mr Lumsden did not take reasonable care to prevent the implementation of the threat by reporting it. It was reasonably foreseeable that the pursuer was likely to sustain damage to his person if such reasonable care was not taken. Had Mr Lumsden reported the threat, on the balance of probabilities the attempted murder would not have taken place. Accordingly, all the five requirements of Dorset Yacht have been fulfilled. I find in favour of the pursuer in relation to liability.”

The judge held that the defenders failed in their duty of care to the pursuer, found them liable to make reparation and allowed a proof on quantum at a later date.