Scottish Court of Session Decisions

Hendrie v. Scottish Ministers [2003] ScotCS 93 (1 April 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Marnoch Lady Cosgrove Lord Abernethy	A354/01 OPINION OF THE COURT delivered by LORD MARNOCH in RECLAIMING MOTION in the cause GARY HENDRIE Pursuer and Respondent; against THE SCOTTISH MINISTERS Defenders and Reclaimers: _______

 

 

Act: Clancy, Q.C., McBrearty; Ketchen & Stevens, W.S. (Pursuer and Respondent)

Alt: Jones, Q.C., Brodie; Brodies (Defenders and Reclaimers)

1 April 2003

1. This is a reclaiming motion against an interlocutor of the Lord Ordinary dated 10 January 2002 whereby he awarded to the pursuer damages in the sum of £516,519.
2. The pursuer was injured on 14 November 1994 while employed as a Prison Officer in the West Wing of Polmont Young Offenders' Institution. On that date a fight broke out between two of the inmates and the pursuer suffered a disabling injury in his lower back while trying to separate them. It was not disputed that in order to protect, inter alia, prison staff violence should be kept to a minimum in institutions such as that to which we have referred.
3. Although the written grounds of appeal ran to nine numbered headings, the eighth head was abandoned and, for the rest, the substantive issues argued came down to only three: first, that the Lord Ordinary had held liability established on a ground of fault which was not averred on Record; second, that in any event the Lord Ordinary's findings in fact did not justify the finding of fault made; and, third, that a sum of £20,000, included in the award of damages for loss of the prospect of promotion, was excessive. We deal with each in turn.
4. So far as the pursuer's pleadings are concerned, there is no doubt that, in their original form, the only case pled was that by mid-day on 14 November 1994 the two inmates in question had negligently been re-united in the same hall, having at some prior stage been separated into different halls because of an incident which had taken place between them and the risk of further violence. In that context it was part of the pursuer's factual case (at p.7D-E) that "the normal course was for all such incidents to be reported to the Duty Governor of the hall in question and for him to make the decision to separate but, exceptionally, if for instance the duty Governor was unavailable, a decision to separate could be taken by a shift Senior Officer." The particular case of fault pled was that in all the circumstances "it was the duty of said Governor, or, in his absence, of said shift Senior Officers, not to re-unite (the two inmates in question) and place them in a situation in which further violence between them, with consequent risks to employees such as the pursuer, was possible."
5. Although, however, the original case pled was as summarised above, it transpires that on the penultimate day of the Proof an amendment was allowed to the effect of inserting, immediately after the passage just quoted, the following additional ground of fault:

"Esto (the two inmates) were not separated after the initial incident...it was the duty of said Governor or Senior Officers to separate them by transferring one or other of them to another hall until (one of the inmates) was moved to Dumfries Prison."

While a transitory submission was advanced to the contrary, it was eventually accepted that this amendment had been understood by all concerned to open up a case of fault against the Governor and Senior Officers who were on duty between mid-day and around 8.00pm on 14 November 1994 when the pursuer sustained his injuries. In this connection, we were informed by senior counsel for the respondent that, throughout the Proof, all the emphasis had been on whether and, if so, in what circumstances, two inmates should be separated (rather than re-united) and that the amendment in question reflected a considerable amount of evidence which had already been led without objection. Since, in the end, the Lord Ordinary held that no earlier separation had been established, the case introduced by amendment is, to all intents and purposes, the case which must now be considered.

6. Para.[23] of the Lord Ordinary's Opinion is in the following terms:

"The case made on Record is directed against the officers of Governor grade, or the Senior Officers, working on Monday 14 November, with responsibility for the west wing. On Record and initially in argument the case was presented on the basis that Senior Officers as well as the officers of Governor grade with responsibility for the wing had the authority to make an appropriate transfer. As already indicated I do not find that the Senior Officers ordinarily had such authority, albeit they did have such authority on occasion if the officer of Governor grade was not available. There was nothing however in the evidence to show that an officer of Governor grade was not available on 14 November. Equally there was no specific evidence as to whether the Senior Officers on duty on 14 November did or did not approach the appropriate officers of Governor grade in relation to any potential transfer. It was argued, however, on behalf of the pursuer that since it was clear that Senior Officers had at least a duty to pass on relevant information to the officer of Governor grade and that since on the evidence the Court should find that it would have been obvious, at least from the information available at the handover meeting, to the Senior Officers, and to those holding office above them who learned of it, that the safe and reasonable course was indeed to separate (the two inmates in question), then - if that was proved - the case on Record was wide enough to enable the pursuer to succeed, on the basis that one or other of the Senior Officers or officers of Governor grade must have been negligent. I see no reason to question that approach."

7. The "approach" in question is clearly not one which is spelt out in terms in the amendment to the fault condescendence. As counsel for the reclaimers pointed out, the case there spelt out is not a case about passing on information available at the "handover meeting" (which, incidentally, was a joint meeting which took place between outgoing and incoming staff at the change of shift around mid-day) but a case involving a decision to separate two inmates. The question thus comes to be whether the case given effect to by the Lord Ordinary is, as counsel for the respondent submitted, either "implicit" in what is averred or an admissible development of it; - vide Burns v Dixon's Iron Works Ltd 1961 S.C. 102, where the court drew a distinction between, on the one hand, a "variation, modification or development" of what is averred and, on the other hand, "something which is new, separate and distinct".
8. In the result, we answer this question in the affirmative. Unlike Burns v Dixon's Iron Works the evidence in support of the case found established by the Lord Ordinary was elicited without objection on the basis of the factual averments at p.7D-E of the Record referred to above. Moreover, as was pointed out by counsel for the respondent, in order that the Governor, or someone of Governor grade, could take a decision about separating two inmates, it seems obvious that information would have to be passed up to him by, amongst others, the Senior Officers. To that extent the case which found favour with the Lord Ordinary can indeed be said to be "implicit" in the fault condescendence as amended. The other way of looking at the matter is that if, as the Lord Ordinary held, the Senior Officers did have relevant information, and this information was not passed up, then this was tantamount to a decision on their part not to separate the inmates in question. In the result, even if the case held proved by the Lord Ordinary against one or other of the Senior Officers or officers of Governor grade is not properly to be regarded as "implicit" in the fault condescendence, we are clearly of opinion that that case falls to be seen as an admissible development of what is averred, rather than as something which is "new, separate and distinct". In reaching this conclusion we have not overlooked the argument that it gives rise to prejudice on the part of the defenders and reclaimers in that, had they realised how the case would be developed, they might have led evidence from the two Senior Officers who were present at the handover meeting. These officers, it was said, might have denied having received any relevant information at the handover meeting or might have claimed that they passed it on to a Principal Officer, Officer Cameron, or might even have deponed to an assumption on their part that the information in question was already known to the Governor. So far as a possible denial of being in receipt of information is concerned, it is perhaps instructive that the defenders' case on Record was that there had been no prior trouble of any sort between the two inmates in question. If, therefore, these officers were indeed in a state of ignorance it is perhaps a little surprising that they were not called upon to give evidence in support of that case. So far as the hypothesis of passing on information to Principal Officer Cameron is concerned, the fact of the matter is that the defenders and reclaimers themselves led Mr Cameron as a witness and that he deponed he had no recollection of being told of any trouble between the two inmates concerned. At no stage was it suggested to him that he had in fact been told of such trouble. And, as for the proposition that the Senior Officers might have assumed knowledge on the part of the Governor, our opinion is that this amounts to no more than sheer speculation. In any event, as it seems to us, the true rationale is that once the case held established by the Lord Ordinary is seen as an admissible development of the case on Record, then that is a case of which counsel for the defenders must be deemed to have had notice.
9. Turning now to the second of the substantive issues argued, the operative part of the Lord Ordinary's Opinion is in the following terms (under explanation that the two inmates in question are here referred to as "Barnes" and "Duncan"):

"[24] The question, however, remains whether the information was such that officers above prison officer rank should have realised that the safe and reasonable course was to separate Barnes and Duncan prior to Barnes' departure from the Institution on the following day. The high point for the pursuer is the information available to the Senior Officers at the handover meeting (and the officers' concerns about it). That information - as I have found - included information that there had been a physical altercation between Barnes and Duncan at the weekend and that the matter between them was not regarded as being settled. If that was all that was known that would not, I consider, be enough for the pursuer. In particular Mr Cameron - a witness respected in submission by both sides - gave reasonably clear evidence in re-examination, when a similar scenario was put to him, that if that was all that was known there would not necessarily be any need to transfer, although no doubt the staff would be asked to keep an eye on things. In addition, however, it was, as I have found, known that Barnes was due to be transferred out of the Institution on the following day. (Mr Cameron, incidentally, accepted that such a decision would have been taken at least a day beforehand so it is not surprising that the prison officers at the handover meeting were apparently aware of it). Further, it was known that Barnes had been cut, that he had been to the medical centre, that he had, apparently for his own reasons, given an implausible explanation as to what had happened to him, and all this in circumstances in which it was entirely possible that a weapon had been involved.

10. I have come to the view that, taking account of all of these factors, this was indeed one of those occasions when the safe and reasonable step would have been to transfer one or other of Barnes and Duncan out of the west wing pending Barnes' removal from the Institution...."
11. The submission for the defenders and reclaimers was that, while the Lord Ordinary's decision anent the need to separate the two inmates depended on all of the factors summarised in para.[24], he had not found that all of these factors were known to the Senior Officers to whom he had potentially attributed negligence. In our view, however, it is abundantly clear from a fair reading of the Lord Ordinary's Opinion as a whole that he did attribute to the Senior Officers knowledge of all the relevant factors. Indeed, were the position otherwise, his careful and closely argued conclusions would in the end make no sense whatever. There is, in our opinion, no merit in this branch of the reclaimers' argument.
12. This leaves only the third of the substantive issues raised before us, namely that concerned with the quantification of damages. As indicated above, the pursuer's claim for damages was a substantial one and, in the end, the Lord Ordinary awarded £301,020 in name of future wage loss alone. This sum included the figure of £20,000 which was designed to reflect the loss of what the Lord Ordinary held was a "chance" of promotion. In this connection, the annual difference in salary between a promoted and non-promoted post was agreed to be about £4,000. At one stage in the debate it was argued on behalf of the defenders and reclaimers that the Lord Ordinary was not entitled on the evidence to award any figure under this head. However, that ground of appeal was eventually abandoned and the submission came to be that a figure of £4,000 (reflecting one year's net annual difference in salary) was a more appropriate award. Passing reference was made to the evidence on this matter, but it seems to us that everything relevant was taken note of by the Lord Ordinary at para.[29] of his Opinion. In particular, he noted -as do we - that the system of promotion now depends heavily on how an applicant presents at interview. The assessment of damages under this head cannot be precise and, in the end, we consider that it was a "jury question" for the Lord Ordinary who had the benefit of seeing the pursuer in the witness box and assessing, amongst other things, his possible performance at interview. We are not disposed to interfere with that assessment.
13. In the overall result, we shall refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary.