Scottish Court of Session Decisions

The pursuer is a prison officer employed at HM Prison, Glenochil. On 10 October 1994 he was working as a relief instructor in the wood assembly shed in the prison, a building where work parties of between 30 and 40 prisoners were employed on a daily basis, manufacturing such items as garden huts and benches. Wood assembly was one of a number of industries in which prisoners were employed in the prison. The pursuer had worked in the shed for about 3 weeks. As well as instructing prisoners in their work, he was also expected to carry out disciplinary duties. At about 10.20am, in the wood assembly workshop, a large area about 50 metres by 15 metres, the pursuer approached a prisoner, Francis Carr, who was in possession of a piece of wood which ought not to have been removed from the finished goods store, which was adjacent to the workshop. The pursuer was unaware of Carr's identity. He asked him to give him the piece of wood, whereupon Carr threw it to the floor away from the pursuer, uttered an obscene taunt, and walked away. This exchange took place within the sight of a number of other prisoners. The pursuer picked up the wood and continued walking towards the entrance to the shed together with another officer instructor James O'Neill. The officers turned and walked back up the workshop, by which time Carr had also turned and was walking towards them. As they drew level, Carr uttered a threat to the effect that the pursuer would receive a "home visit". This was a serious threat and indicated that the pursuer would be visited at his home by associates of the prisoner. Such threats have on occasion been carried out in the past. The pursuer decided that Carr required to be disciplined for this. He turned and approached him and informed him that he was being placed on report to the Governor. He told him to keep walking towards the door of the shed. The immediate consequence of being placed on report would normally be that the prisoner would be locked in his cell. At this Carr grabbed the pursuer's lapels and punched him on the left side of the jaw. The pursuer was knocked off balance, his body swung round and down to the left and his left knee struck the concrete floor. The knee was immediately painful. From that position he saw Francis Carr and another prisoner whom he later learned was his brother, Peter Carr, coming towards him shouting and swearing. The pursuer was punched and kicked on the head, body, arms and legs by both men. He curled himself into a ball for protection and the kicking and punching continued. He felt someone on his back, but was able to get on top of Francis Carr and was ultimately able to restrain him, while Peter Carr was restrained by another officer. As he was restrained, he shouted a threat that the pursuer would be stabbed. The staff alarm went off and other officers came to assist the pursuer.

On 12 August 1994 in A Hall at Glenochil Prison, Francis and Peter Carr, together with a third brother, Michael Carr, were involved in an assault on another officer, Robert Farmer. The assault took place after Mr Farmer had informed Francis Carr that he was placing him on report for a breach of discipline. Another officer was asked to take Francis Carr to his cell. When this happened, Peter and Michael Carr, who were housed in adjacent cells, confronted Mr Farmer and bundled him into a cupboard, where they punched and kicked him repeatedly. They were joined in the assault by Francis Carr, who had become free to do so when the officer who was escorting him went to assist Mr Farmer. Mr Farmer committed suicide some time later. The brothers were subsequently charged on complaint with two assaults. On 2 May 1996, at Falkirk Sheriff Court, Peter Carr was found guilty on one charge and sentenced to 3 months imprisonment. Michael Carr was found guilty on two charges and sentenced to a total of 6 months imprisonment. Francis Carr was acquitted following a successful plea of no case to answer.

Immediately following the incident involving Mr Farmer all three brothers were disciplined and placed in the Segregation Unit of the prison. On 23 August 1994, while the brothers were still in segregation, Francis Carr became abusive towards a prison officer who admonished him when he attempted to terminate his exercise period prematurely. He was put on report, and then placed in his cell. When this happened he threatened to assault the officer with boiling water. At this point his two brothers started shouting in support of him from within their cells nearby. Two officers lodged reports of the incident. Michael Carr was subsequently transferred to another prison.

On 3 October 1994, Peter Carr was transferred from the Segregation Unit and allocated to a work party in the wood assembly shed. His brother Francis  had been allocated to same work party on 11 November 1993 and had remained there, apart from the period of segregation already referred to. There was no precise evidence as to the duration of his period of segregation, but it is clear that he had been returned to the work party before or at the same time as Peter Carr was allocated to it. It appears that was returned to the work party without reference to the Labour Allocation Board.

The Labour Allocation Board in Glenochil Prison, as the name implies, is responsible for the allocation of individual prisoners among the various industries in which prisoners are required to work. The Board require to make allocations in a number of circumstances, for example, an allocation may follow upon an application from a prisoner for a change of work party, or may be instigated by the Governor following upon disciplinary action. In 1994 the Board normally met once a week and was composed of 3 or 4 senior officers of supervisor or governor grade. Its composition might differ from week to week. Certain specific guidelines were in operation in relation to applications by prisoners for a change of work party, but no specific guidelines were in operation for allocations instigated by the Governor. The Board obtained disciplinary reports from the security staff relating to prisoners who were to be allocated, and were aware of the earlier assault on Mr Farmer. Assaults on prison officers are an acknowledged risk within the prison service. Senior management are concerned to reduce the incidence of such assaults and set targets aimed at reducing the number of serious assaults on officers year by year. These targets relate to assaults involving injury requiring hospitalisation. As at 1994, the incidence of assaults involving serious injury at Glenochil Prison was approximately one per month. It was reasonably foreseeable that assaults on officers would occur. Having regard to the disciplinary record of the Carr brothers, there was a higher risk of their committing an assault on an officer when they were together in the prison as compared with that applicable to the general body of prisoners. That was, or ought to have been, foreseeable by the management of the prison and senior officers responsible for the allocation of prisoners. There were a number of other factors which required to be taken into account by the Board in determining the allocation of prisoners. These included: the existence of vacancies in work parties; the requirement to provide work for all prisoners who were fit to do it; the physical aptitude of the individual prisoner to a specific type of work, his medical condition and his entire history, including any disciplinary record; whether any previous breach of discipline was isolated or part of a regular pattern; the identity of the individual prisoner's associates and enemies.

As at 12 October 1994, the pursuer was aware that an assault had been perpetrated against Mr Farmer by brothers named Carr. He was unaware of the identities of most of the prisoners working in the wood assembly shed at any given time. In particular, he did not know either Francis or Peter Carr by name, nor did he know that both of them were working in the same work party on the day in question. Had the pursuer known that the two brothers were working in the same work party, he would not have placed Francis Carr on report in the way that he did, but would have avoided confrontation and either requested other officers to place him on report, or waited until the work party had ended and Carr had returned to his cell.

In making these findings in fact I have accepted the evidence of the pursuer, who I considered gave his evidence in a straightforward manner without exaggeration. His version of the assault itself was not seriously challenged, but his assertion that he was unaware of the identities of the Carr brothers or of their presence in the work party was disputed on behalf of the defenders. No specific means by which he should or might have gained that knowledge was suggested to him and there was no evidence of a system, formal or otherwise, whereby officers in his position would be told of the presence in work parties of participants in previous incidents of the kind involving Mr Farmer or would have such participants identified to them. It was accepted by Mr Campbell, the shift supervisor and senior instructor in the wood assembly workshop in the week which elapsed between the allocation of the two brothers to the work party and the assault on the pursuer, that the pursuer, might not have become aware of their identities or of their joint presence in the party. In these circumstances I accept the pursuer's evidence that he did not know who the Carrs were and that they were in the work party in question.

There was also a dispute in relation to the evidence of Mr Roddie, the Labour Allocation Board co-ordinator, who said that it was the custom and practice of the Labour Allocation Board that prisoners who had been involved in a fight would be separated and moved to different work parties and/or different halls. Mr McBain, the Governor of Glenochil, said that no general rule applied, but that in any such case the behavioural pattern of the participants was examined before it was decided how to allocate them. He said further that the various factors to which I have already referred required to be taken into account in every case. I find it difficult to resolve this conflict because it seemed to me that both of these witnesses were less than entirely impartial. Mr Roddie had clearly formed his own view as to the liability of the defenders, and Mr McBain, as Governor, had an interest to deflect criticism of the institution. Mr Roddie was not a regular member of the Board. His job, as I understood it, was to gather together the material which the Board needed to carry out its function. I conclude that there was no established and formalised practice along the lines described by Mr Roddie but that each case was decided on its merits. In an appreciable number of appropriate cases this resulted in the separation of participants in violent incidents.

I accepted the evidence of Mr McBain that considerable developments had taken place in relation to the safety of officers since the prison riots of the mid-1980s. Difficult prisoners who had previously been concentrated in Peterhead were split up among Glenochil, Shotts and Perth prisons. The approach to disciplinary matters was modified in order to reduce confrontation. The specific needs of individual prisoners were addressed. A personal alarm system for officers was introduced and increased numbers of cameras and alarm bells were introduced into work sheds. This said Mr McBain was evidence of the seriousness with which the prison management took matters of staff safety and morale.

No evidence was led from any member of the Labour Allocation Board which allocated Peter Carr to the wood assembly shed as from 3 October 1994. The nearest I heard was hearsay evidence from Mr Roddie to the effect that Mr McMillan, the Chairman of the Labour Allocation Board in question, had indicated after the assault on the pursuer that he was unaware that the two brothers were together in the work party. Mr Roddie said that he too was unaware that Francis Carr was a member of the work party in question at the time Peter Carr was allocated to it. I hesitate to give weight to hearsay evidence of this sort when there was no indication that Mr McMillan himself would not have been able to give evidence. In the absence of other clear evidence, I am unable to form a concluded view as to the extent of the information before the Labour Allocation Board.

Mr Roddie also spoke to his recollection of a verbal instruction from the Segregation Unit which he received by telephone in his capacity as an officer of the General Purposes Party, subsequent to the assault on Farmer but prior to the assault on the pursuer. It was his impression that it had originated with the Governor in charge of the orderly room. The instruction was to the effect that the Carr brothers had to be kept separated in different work parties after their release from the Segregation Unit. It has to be said that Mr Roddie's recollection was somewhat vague and his evidence was unsupported either by other witnesses or by any documentary record. The records of complaints and recommendations made by other officers in relation to the Carr brothers were maintained by the prison authorities and were produced in process. I understood the records lodged to be the complete disciplinary records relating to the Carrs. It is clear that there was a well established system for the recording of such matters, and it is therefore surprising that such an important instruction does not appear to have been recorded. In the absence of any such record. I am unable to find as a fact that any such instruction was given.

Two specific grounds of fault came to be relied upon on behalf of the pursuer. The first was that it was the duty of the Labour Allocation Board, having regard to the information available to them about the prior assault on Mr Farmer, not to allocate Francis and Peter Carr to work in the same shed. On behalf of the pursuer, Mr Clancy argued that on the evidence, any one of the following three sets of circumstances might have applied. Firstly, the Labour Allocation Board acted in full possession of all the facts and history relating to the Carr brothers, but deliberately decided to take the risk of allocating them to the same work party. Secondly, the Labour Allocation Board failed to take cognisance of the established custom and practice, the instruction from the Segregation Unit, and the self evident risk of further violence. Thirdly, the Board did not appreciate that Francis Carr was already working in the work party. In either of the latter two sets of circumstances the decision to allocate Peter Carr to the work party was a mistake. Whichever set of circumstances obtained there was negligence on the part of the Board. For the defender, Mr Lindsay argued that the test to be applied was the test set out in the case of Hunter v Hanley 1955 S.C.200. The individuals involved in making the decision of the Labour Allocation Board, were professional men. The nature of the decision made was a professional decision involving the exercise of professional judgement. In those circumstances the court had to be satisfied that the normal practice in circumstances of the kind which arose in this case was that joint perpetrators in a previous assault were separated; that that normal practice had not been adhered to; and that no reasonably competent Labour Allocation Board would have allocated the two brothers to the same work party. Mr McBain, the Governor had given evidence of the criteria to be taken into account by the Board. He had done so as a professional person and it was difficult if not impossible for the court to take a different view without the benefit of expert evidence led on behalf of the pursuer. A balance had to be struck between the rights of prisoners, the rights and expectations of prison officers, and the efficient and effective management of prisons. Prisoners had rights under prison rules, and society expected them to be rehabilitated. The risk of assaults on officers could only be eliminated by chaining prisoners up and that was unacceptable. The court was not in a position to assess where the balance should be struck without the benefit of expert evidence. Mr Roddie did not qualify as a expert witness.

I do not consider that the approach to the determination of negligence as set out in Hunter v Hanley is the appropriate one in a case such as this. The relationship between the pursuer and defender is one of employer and employee. The Hunter v Hanley test applies where the pursuer has employed a professional person for his professional services. It does not seem to me to be appropriate to equiparate the relationship between patient or client and professional person with that of employer and employee, even when the employer happens to be a professional person. The correct approach, which is not altogether unrelated to the Hunter v Hanley approach, is in my view to be found in the speeches of Lord Reid, Lord Morris of Borth-y-Gest and Lord Diplock in Dorset Yacht Co v Home Office [1970] A.C. 1004. In that case the House of Lords examined the liability of the Home Office for the failure of Borstal officers to exercise effective control and supervision over Borstal boys who escaped and damaged the property of the plaintiff. In doing so they recognised that the Home Office in fulfilling its statutory duty under the legislation relating to Borstal training had been given a discretion to decide on the system of custody and control of trainees which was most likely to conduce to their reformation and the prevention of crime. In the exercise of that discretion, different considerations and interests had to be balanced. In the present case the statutory duty of the defender in relation to the custody and control of prisoners at Glenochil was broadly similar to that incumbent on the Home Secretary in relation to Borstal trainees. The Labour Allocation Board's task of allocating prisoners represented a delegation of the defender's statutory duty and conferred on the Board a discretion to decide on the appropriate disposition of prisoners. In the exercise of that discretion they required to balance different interests such as the training of inmates, the maintenance of good order and administration, the best use of resources and the safety of officers. This list is not exhaustive.

In considering the question of liability for the consequences of decisions made in the exercise of such a discretion, Lord Reid said at page 1031A "Where Parliament confers a discretion ... there may, and most certainly will, be errors of judgment in exercising such a discretion and Parliament cannot have intended that members of the public should be entitled to sue in respect of such errors. But there must come a stage when the discretion is exercised so carelessly or unreasonably that there has been no real exercise of the discretion which Parliament has conferred. The person purporting to exercise his discretion has acted in abuse or excess of his power. Parliament cannot be supposed to have granted immunity to persons who do that." His Lordship went on to consider the case of Greenwell v Prison Commissioners (1951) 101 L.J. 486 in which a county court judge held that the authorities had been negligent in failing to remove to a more secure institution Borstal trainees who had escaped and damaged the plaintiff's property. His Lordship said, "In my view this decision could only be upheld if it could be said that the failure of those authorities to deal with the situation was so unreasonable as to show that they had been guilty of a breach of their statutory duty and that that had caused the loss suffered by the plaintiff."

Lord Morris said at page 1037F "I think that it is important to point out that liability should not be held to result from what might be an error of judgment on the part of someone making a decision which is within his powers and his discretion to make.".

Lord Diplock at page 1067D said, "The conflicting interests of the various categories of persons likely to be affected by an act or omission of the custodian of a Borstal trainee which has as its consequence his release or his escape are thus of different kinds for which in law there is no common basis for comparison. If the reasonable man when directing his mind to the act or omission which has this consequence ought to have in contemplation persons in all the categories directly affected and also the general public interest in the reformation of young offenders, there is no criterion by which a court can assess where the balance lies between the weight to be given to one interest and that to be given to another. The material relevant to the assessment of the reformative effect upon trainees of release under supervision or of any relaxation of control while still under detention is not of a kind which can be satisfactorily elicited by the adversary procedure and rules of evidence adopted in English courts of law or of which judges (and juries) are suited by their training and experience to assess the probative value.

It is, I apprehend, for practical reasons of this kind that over the past century the public law concept of ultra vires has replaced the civil law concept of negligence as the test of the legality, and consequently of the actionability, of acts or omissions of government departments or public authorities done in the exercise of a discretion conferred upon them by a Parliament as to the means by which they are to achieve a particular public purpose. According to this concept Parliament has entrusted to the department or authority charged with the administration of the statute the exclusive right to determine the particular means within the limits laid down by the statute by which its purpose can best be fulfilled. It is not the function of the court, for which it would be ill-suited, to substitute its own view of the appropriate means for that of the department or authority by granting a remedy by way of a civil action at law to a private citizen adversely affected by the way in which the discretion has been exercised. Its function is confined in the first instance to deciding whether the act or omission complained of fell within the statutory limits imposed upon the department's or authority's discretion. Only if it did not would the court have jurisdiction to determine whether or not the act or omission, not being justified by the statute constituted an actionable infringement of the plaintiff's rights in civil law."

I recognise, of course, that the context in which these passages were written was that of a claim by a member of the public, an outsider, against the Home Office for damage caused by a trainee under its control. In my view, however, the words of Lord Diplock indicate that they must apply equally to a case in which an employee bases his action upon a decision made in the exercise of a discretion conferred by the statutory duty incumbent on his employer. The pursuer's interest in this case was one of a number of interests which the Labour Allocation Board had to balance one against the other, just as, in Dorset Yacht Co, the plaintiff's interest was one which required to be balanced against a number of other interests.

One of the difficulties from which I suffered in the determination of this case was the lack of evidence as to the actual decision making process adopted by the Labour Allocation Board in allocating Peter Carr. There was, for example, no clear evidence as to the extent of the information before the Board. Unfortunately for the pursuer, that lack of evidence does not help him, because the onus remains on him to prove his case. There was evidence from Mr Roddie which indicated that the members of the Board did not appreciate that the effect of their decision was to place Peter Carr and his brother Francis in the same work party. There was also evidence from the defender's witnesses, Mr Campbell the Shift Supervisor, Mr Mannion, a member of the Labour Allocation Board (although not involved in this decision), and Mr McBain, that the Carrs' disciplinary record was not sufficiently bad to justify separation, having regard to the fact that their brother Michael, who was regarded as the ring leader in the assault on Mr Farmer, had been removed to another prison. Weight was also attached to the fact that Michael and Peter Carr had previously acted as pass men, a job given to trusted prisoners, who could work with prison officers. Having regard to the available evidence, I am unable to conclude that no reasonable Labour Allocation Board could have come to the decision to allocate Peter Carr to the same work party as his brother in all the circumstances of this case. For this reason I have come to the view that the pursuer's first ground of fault must fail.

The pursuer's second ground of fault was that it was the duty of the Governor and the officers in charge of the security unit to inform the pursuer and other staff working in the wood assembly shed that Francis Carr and Peter Carr were working together in the same shed. As I have already said, in the light of the various events leading up to the allocation of Peter Carr to the wood assembly shed, it was or ought to have been clear to the prison authorities that the Carr brothers when placed together created a greater risk of an assault on officers than that created by other individual prisoners. Francis Carr had on two occasions reacted violently when disciplined or admonished by an officer, and prior to the assault on Mr Farmer, Peter and Michael Carr had behaved on a number of occasions in such a way that officers had recommended their removal from pass duties. In my view, in the light of their recent record of conduct, it was reasonably foreseeable that if one of the Carr brothers, and in particular Francis Carr, was approached in a confrontational manner by an officer he would resort to some form of violent behaviour more readily than other prisoners, in the knowledge that his brother would come to his aid. Mr Sim, the supervisor of A Hall at the time of the assault on Mr Farmer, said that the Carr brothers were easier to handle individually, but when together would egg each other on in any dealings with officer. I am satisfied that if the pursuer had been advised of the presence of the two brothers in the work party, he would have refrained from approaching Francis Carr in the manner he did, but would have delayed putting him on report or would have requested the assistance of another officer. If that had been done the assault on the pursuer would not have occurred. In these circumstances I take the view that it was the duty of the prison authorities to inform the pursuer of the fact that the two brothers were working together in the same shed. I therefore conclude that on his second ground the pursuer succeeds.

After the assault, the pursuer was taken to the prison medical officer. He was shaken and his left knee was painful. His jaw, ribs and other parts of his body were sore from the blows he had received. He was then taken home where he was visited by his general practitioner, Dr King, who gave him painkillers. He remained off work for two weeks. When he returned to work his jaw and ear remained painful. His left knee was unstable and became painful on walking more than a short distance and on climbing stairs. He could not run. The knee required to be heavily strapped. In December 1994 he underwent an arthroscopy in which his anterior cruciate ligament was found to be ruptured and a partial lateral meniscectomy was carried out. Stress tests confirmed that the knee was unstable. In May 1996, after a period during which the left knee was intermittently painful and unable to bear weight, the pursuer underwent a further arthroscopy during which a loose body was removed from his knee. The pain and instability continued and eventually in February 1997 he underwent an operation to reconstruct his anterior cruciate ligament. He was off work from then until 17 October 1997. He continues to have a slight limp and slight instability in the knee. He is unable to take part in the sports of rugby, football and skiing in which he formerly participated. The defenders eventually accepted, on medical advice, that the pursuer's absence from work following the operation in February 1997 was caused by the assault on 10 October 1994. As a result, no reduction was made in his wages during that period. He also suffered psychological injury known as adjustment reaction. He became anxious, irritable and introverted and lost his motivation to engage in social and family activities outside the home as he formerly had done. His relationship with his wife and children suffered and he and his wife required the assistance of the Marriage Guidance Council.

The pursuer had suffered damage to his left knee prior to the assault. There was evidence that his anterior cruciate ligament had been damaged as long ago as 1987. An arthroscopy was carried out in November 1990 in which a torn medial meniscus, a torn anterior cruciate ligament and a small tear in the lateral meniscus were diagnosed. Nevertheless, he continued to play rugby up until 1 September 1994 when he was injured in a tackle. He was taken from the field and attended the Accident and Emergency Department of Stirling Royal Infirmary. He was found to be suffering from moderate haemarthrosis and a medial meniscus injury was diagnosed. Stress tests indicated that the knee was stable at that time. He was off work for one week. In the opinion of Mr Charles Court-Brown, Consultant Orthopaedic Surgeon, up until then the defect in the pursuer's anterior cruciate ligament had been compensated for by the other ligaments of the knee so that he was able to play rugby. The rugby injury on 1 September 1994 had caused a mild sprain to the medial lateral ligament from which he recovered quickly. The assault then rendered the knee unstable to an extent that it had not previously been.

I accept Mr Court-Brown's analysis of the pursuer's injury. In my view, his evidence is supported by the medical history which indicates that the instability was revealed by stress tests only after the assault, and continued until the reconstruction operation in 1997. Mr George Bennett, Consultant Orthopaedic Surgeon for the defenders, took the view that the rugby injury had created the instability in the knee. His analysis depended upon the assumption that there was no rotational element in the movement of the knee before it struck the floor during the assault. In my view, the pursuer's evidence indicated that a rotational movement of the knee took place before it struck the floor. In these circumstances I prefer Mr Court-Brown's evidence.

I consider it appropriate to make a global award in respect of solatium covering all the pursuer's injuries both physical and psychological. He suffered serious disruption of his personal and family life over the period between the assault and the proof as a result of the psychological disturbance, together with continuing pain and disability of the knee.

Mr Court-Brown considered that, had the assault not taken place, the pre-existing condition of the pursuer's knee would have led to the necessity for reconstruction of the anterior cruciate ligament within a period of 10 to 20 years of the date of the assault. Since the defender's position was that the assault did not cause the necessity for the reconstruction operation, no counter submission was made as to the period over which the pursuer's knee would have remained stable. It is clear that the pursuer was an active man who was a regular participant in sport. That fact leads me to the view that the condition of his knee would have deteriorated to the point of requiring ligament reconstruction sooner rather than later. Accordingly I approach the quantification of solatium on the basis that he required to undergo that operation about 10 years sooner than he otherwise would have done. For the pursuer Mr Clancy argued that an award should be made to reflect the adverse effect of his injuries on the pursuer's prospects of promotion. The pursuer considered that his sick record was the cause of his being passed over for promotion. In my view there was no support for the pursuer's contention. The fact he did not have a trade did not help his promotion prospects as an instructor. In any event he has now been promoted to full time instructor, and there was no evidence to suggest that his injuries prevented him from gaining further promotion. Mr Roddie who dealt with applications for promotions in the relevant period said that absences from work occasion by assaults by prisoners were not held against officers in relation to promotion applications.

Making the best assessment I can I consider an appropriate award of solatium to be £15,000, three quarters of which I consider to be attributable to the past. I shall therefore award interest at the rate of 4% per annum on the sum of £11,250 from 10 October 1994 to the date of decree.