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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> DANIEL KAIZER (AP) AGAINST THE SCOTTISH MINISTERS [2017] ScotCS CSOH_110 (22 August 2017))
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Cite as: [2017] ScotCS CSOH_110
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PD1589/13
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 110
OPINION OF LORD ERICHT
In the cause
DANIEL KAIZER (AP)
against
THE SCOTTISH MINISTERS
Pursuer: Mitchell QC; Crawford; Drummond Miller LLP
Defender: Ross QC; Anderson Strathern LLP
Pursuer
Defenders
22 August 2017
Introduction
[1] 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. Mr Porter was subsequently
convicted of attempted murder. Lord Woolman imposed an order for Lifelong Restriction
on Mr Porter with a punishment part of 5 years, to commence at the expiry of his current
sentence. His sentencing statement included the following:
“On 4 December 2009, you attempted to murder a fellow prisoner at Aberdeen
Prison. You swung a bar bell at his head and fractured his skull. At the time of
committing the crime, the victim was exercising in the gym. He presented no threat
to you. Fortunately, the blow did not result in more serious consequences, such as
death or brain damage. But the victim has been left with headaches, concentration
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problems and other psychological difficulties since the attack. He is a Polish
National. The jury, which returned a unanimous verdict of guilty, decided that the
crime was racially motivated.
This was not an isolated incident of violence in your life. It was part of an escalating
pattern of conduct. Your criminal record makes disturbing reading. Although you
were only 23 years old, you have over 30 convictions. Many involve violence. In
2005 you were convicted of four charges with a racial element. Various attempts
have been made both in prison and in the community to address your problems, but
without success.
On 11 July 2009 you attempted to murder another Polish male, although the charge
did not include a racial aggravation. You pled guilty to that crime one week before
you committed the present offence. That is very troubling. The extreme gravity of
the first attempted murder is reflected in the fact that you received an extended
sentence totalling 15 years.”
[2] The pursuer claims 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. He seeks damages at common law against the Scottish
Ministers, as being responsible for the Scottish Prison Service.
The Law
[3] The defenders accepted that the Scottish Prison Service had a duty to take reasonable
care for the safety of those within the prisons which they operate, including the prisoners.
They accepted that that duty may extend to taking reasonable steps to avoid a foreseeable
risk of a prisoner sustaining injury at the hands of another prisoner. However, they argued
that what the duty of care required, and what would amount to negligence would vary
according to the facts of any given case.
[4] 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 at page 1063:
“A is responsible for damage caused to the person or property of B by the tortious
act of C (a person responsible in law for his own acts) where the relationship
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between A and C has the characteristics (1) that A has the legal right to detain C in
penal custody and to control his acts while in custody; (2) that A is actually
exercising his legal right of custody of C at the time of C’s tortious act and (3) that A
if he had taken reasonable care in the exercise of his right of custody could have
prevented C from doing the tortious act which caused damage to the person or
property of B; and where also the relationship between A and B has the
characteristics (4) that at the time of C’s tortious act A has the legal right to control
the situation of B or his property as respects physical proximity to C and (5) that A
can reasonably foresee that B is likely to sustain damage to his person or property if
A does not take reasonable care to prevent C from doing tortious acts of the kind
which he did.”
[5] Senior Counsel for the pursuer submitted 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.
[6] I was referred to a number of authorities, both in Scotland and in England, where
claims had been made in relation to assaults in prison. It is clear from the authorities, to
which I will return later, that they turn very much on the facts and circumstances of the
particular cases and so it is to the facts and circumstances of this case that I now turn.
The November Incident
[7] It was common ground that an incident (the “November Incident”) involving the
pursuer and Mr Porter had taken place in the prison gym around a week before the attack
on 4 December. The gym was in an external building separate from the main house block
which contained the residential areas. The ground floor of the gym building contained a
games hall. The upper floor of the gym building contained a weights room and an office
which was entered through a door from the weights room and contained a large window
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from which some, but not all, of the weights room could be observed. The weights room
had a variety of gym equipment, including exercise machines and dumbbells.
[8] The pursuer gave evidence that on a morning around a week before the attempted
murder he had been in the gym for about 20 minutes and had nearly finished using a
particular machine. Two men approached him. One had ginger hair, and had not been seen
before by the pursuer. The other had dark hair and evil eyes and the pursuer had seen him
previously briefly in the hall getting food. The pursuer subsequently learned that the name
of the dark haired man was Porter. The ginger man spoke to the pursuer in an aggressive
manner and said that he and his pal wanted to use the machine that the pursuer was using.
The pursuer said “give me two or three minutes then it’s yours”. The ginger man turned
around and walked back to Porter and they spoke to each other. The pursuer carried on
with what he was doing. Porter came to towards the pursuer swearing and saying that
because he said it the pursuer had to do it. Porter called him a “Polish bastard” and said he
would “smash his fucking Polish face in.” The pursuer went straight to prison officer Gary
Lumsden who was in the office. He told Mr Lumsden that he was scared and told him
about the two men and told him exactly what they said. Lumsden went straight to the door
of the office but the two men were away. The pursuer did not say who the men were, as he
did not know their names. He said that one was ginger and the other one dark. Lumsden
told the pursuer not to worry and that Lumsden would sort it out. There had only been five
people in the weights room at that point: the pursuer, Lukas Rusek, a Nigerian prisoner and
the two men. Lumsden said to Rusek words to the effect of do me a favour and look after
the pursuer and if somebody touches him you protect him; I give you my permission to
protect him. The pursuer understood that Mr Lumsden was asking Mr Rusek to act as the
pursuer’s bodyguard.
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[9] Lukas Rusek gave evidence that he was a prisoner who was in the gym that day.
Due to the passage of time, he did not remember every detail. But he did remember that
Lumsden called him to watch and keep an eye on the pursuer. He told Rusek to keep an eye
on the pursuer because it might be that something was going to happen. Mr Rusek thought
that Mr Lumsden mentioned the name Keith Porter, but was not 100 per cent sure about
this. His recollection was that Lumsden said that maybe there is going to be a problem with
Porter because the pursuer and Porter had an argument.
[10] Gary Lumsden was aged 50 with 18 years experience as a PE instructor with the
Scottish Prison Service. He was called by the defenders and gave evidence that the gym was
busy all the time and prisoners like to go to the gym to get out of their cells and keep fit. He
said there was “argy-bargy” all the time but a lot of it was “banter” not going to violence.
Violence was not common because the prisoners wanted to go to the gym and did not want
to be banned from the gym. By “argy-bargy” he meant boys ripping into each other about
things such as how strong they were: it was banter, laughing and joking. There was always
somebody trying to “rip the piss” out of someone else for one reason or another.
[11] Mr Lumsden remembered the pursuer coming into the office about a week before the
assault. Mr Lumsden was on his own at his desk. The pursuer came in and was
complaining about something to do with dumbbells: that they had been used or somebody
had taken them. Mr Lumsden asked who it was and the pursuer gestured to the door with
his hand as if to say it is somebody out there, but did not tell him who it was. Mr Lumsden
told him that if he did not tell him who it was he could not do anything about it because
there were 12 guys in the gym including him. The pursuer walked out of the office and
Mr Lumsden walked out with him and said in front of everyone “right guys the equipment
in the gymnasium is for everyone to use” or words to that effect. After that, the pursuer
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started training again and Mr Lumsden went back into the office to work on the computer.
At the end of the session, Mr Lumsden spoke to Mr Rusek and said “you’ll need to keep an
eye on your pal”. Mr Lumsden did not mean that any harm was going to come to the
pursuer: he just meant for Mr Rusek to keep an eye on him as the pursuer was a bit
“sheepish”. He was positive that the conversation with the pursuer was not as the pursuer
described it: nothing was said about any violence, only about equipment being taken off
him. In cross-examination, Mr Lumsden changed his position as to the contents of the
conversation in the office. He confirmed that it had always been his position that nothing
was said by him to the pursuer in the office beyond the equipment being taken off him. He
was then asked whether the pursuer said anything about getting bullied and in a series of
answers his position developed from “can’t remember”, to “maybe he said to [the pursuer]
are they bullying you?” but he could not remember, to “maybe I said is someone bullying
you and I’ve said who and he hasn’t told me”. On re-examination, he was asked whether he
actually remembered saying “are you being bullied” or whether he was just guessing, and
he replied that he thought he actually said it and he never got a response.
[12] This was one of several instances of Mr Lumsden changing his position in the
witness box. He also changed his position on whether the pursuer was upset. His original
position in cross is that he could not recollect how the pursuer looked when he came into the
office, but if the pursuer had come in looking shaken and upset then Mr Lumsden would
have done something else from what he had done: he would not have let the pursuer go
until the pursuer had told him what had happened and would have got additional staff over
to the gym. Later in cross-examination, when explaining why he had asked Mr Rusek to
keep an eye on the pursuer, Mr Lumsden stated that obviously the pursuer was upset about
something because he came into the office in the first place.
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[13] Another example of Mr Lumsden changing his position was that, in cross when
asked how many officers were typically on duty in the gym in the morning, he very
confidently responded that there would be two and when the defender’s counsel asked if he
was sure about that, he rapidly changed his position to saying that without a roster it would
be hard to say, and then said “if you tell me there is one on there was one and if you tell me
there were three on there were three”. Yet another example is that he stated confidently in
chief in relation to the November Incident that there were 12 guys in the gym including the
pursuer and that they were all in the weights room but then rapidly changed his position to
being that there was a maximum of 12 but he could not tell unless he checked the diaries
and saw the names, he then sought to justify his earlier answers being on the basis that it
was night time and it was always full at night time. In fact on the unchallenged evidence of
the pursuer the incident took place in the morning.
[14] After the attempted murder on 4 December, the pursuer met with prison officer
Mr Archie Orr and gave him an account of the November incident. The meeting took place
on 8 December 2009 and as a result Mr Orr completed a confidential racial incident report
form. At the time of the interview the pursuer had recently returned from hospital and was
suffering from his injuries.
[15] Mr Orr included the following in the form:
“Mr Kaizer stated that about a week ago he was using the biceps machine. A ginger
haired person called Sean tried to take the bar I was using. I told him I was not
finished with it. Then the black haired guy Porter said ‘hurry up you stupid cunt’.
Since that incident there were no further problems…
He believes [the assault on 4 December] was due to the disagreement the previous
week and they think he was an idiot because he could not speak good English.”
[16] Mr Orr gave evidence that he did not ask the pursuer about whether any racial
threats were made on the first occasion.
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[17] I found the pursuer to be a credible and reliable witness and I prefer his evidence to
that of Mr Lumsden.
[18] The pursuer gave his evidence in a straightforward, calm and consistent manner. I
consider that Mr Porter’s general disposition to be racially hostile (which can be seen from
Lord Woolman’s sentencing statement) supports the credibility and reliability of the
pursuer’s account.
[19] By contrast, I did not find Mr Lumsden to be a credible nor reliable witness.
Mr Lumsden was dogmatic, assertive and argumentative. He laughed when the pursuer’s
counsel put the pursuer’s position to him, and also when the pursuer’s counsel was putting
to him a description of the other prisoners in the gym. He frequently changed his position.
[20] Further doubts are cast on the credibility and reliability of Mr Lumsden when his
account of what he said to Mr Rusek about keeping an eye on the pursuer is compared with
the accounts of the pursuer and Mr Rusek.
[21] I found Mr Rusek to be a credible and reliable witness. Mr Rusek gave his evidence
in a considered and thoughtful manner. He had no reason to lie to help the pursuer:
Mr Rusek had no particular connection with the pursuer other than knowing him as a fellow
Pole when in prison some eight years before he gave his evidence in the witness box.
Mr Rusek was busy exercising so did not see or hear what passed between the pursuer,
Mr Porter and the ginger headed man. However, he did give evidence as to what
Mr Lumsden had said to him. His evidence is set out at paragraph [8] above but the import
of it was that Mr Lumsden thought that the pursuer was at risk from Mr Porter. The
pursuer’s evidence of the conversation is set out at [9] above and although there are
differences as to the wording the import is similar: Mr Lumsden thought that the pursuer
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was at risk and needed to be protected. On the other hand Mr Lumsden’s evidence was that
he asked Mr Rusek to keep an eye on him because he was sheepish and not because he was
at risk. I accept the evidence of Mr Rusek on this point. In any event, on Mr Lumsden’s
account it is difficult to see why, if what the pursuer said in the office was as innocuous as
Mr Lumsden claims, Mr Lumsden should have felt any need to make the effort on that
particular day to address the pursuer’s sheepishness by asking Mr Rusek to keep an eye on
him. Accordingly I find that Mr Lumsden was aware that the pursuer was at risk from
Mr Porter.
[22] I find the confidential racial incident report form to be of little assistance in assessing
credibility and reliability. The information in the report was filtered through the mind of
Mr Orr, whose prime focus was on the December attempted murder and not the November
incident. The pursuer was suffering from his injuries at the time he was interviewed. The
report is supportive to some extent of the pursuer’s current position, in that it reports that he
stated at that time that he believed that the attack was due to the disagreement the previous
week, and referred to the view Porter took of him because he could not speak good English.
However, the strength of that support is weakened by lack of any reference to the specific
words which the pursuer says Mr Porter used.
[23] Taking all of the above into account, I find that Mr Porter did threaten the pursuer to
“smash his fucking Polish face in” and that this was reported by the pursuer to Mr Lumsden
in the office.
Period Between the November Incident and the Attempted Murder on 4 December
[24] It was a matter of agreement that Mr Porter was transferred to HM Prison Barlinnie
on 26 November 2009 and that on 27 November 2009 at the High Court in Glasgow he pled
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guilty to attempted murder of a Polish national. He was transferred back to HM Prison
Aberdeen on about 3 December 2009. It is clear from this that for most of the time between
the November incident and the assault on 4 December, Mr Porter was away from
HMP Aberdeen and not in a position to carry out his threat. He did however assault the
pursuer on 4 December, the day after he returned from Barlinnie.
Attempted Murder on 4 December
[25] On 4 December Mr Porter was in the gym. Prison officer Kenneth Murray was the
sole prison officer on duty in the gym.
[26] There were around 11 inmates in the gym using the equipment, including Mr Rusek
and the pursuer and George Stewart. Mr Rusek had been aware from a newspaper report of
the circumstances of the crime to which Mr Porter and George Stewart had just pled guilty,
in particular that it involved an assault on a Polish National involving insertion of a broom
handle into his anus. Mr Rusek spoke to Mr Stewart and said something like “you fucking
hero”, which was a reference to the conviction, and there was a brief exchange of words,
after which the co-accused, George Stewart, kept staring at Mr Rusek and the pursuer,
trying to intimidate them. Mr Rusek then went to exercise on a machine. While he was on
the machine, he was attacked by three people and beaten up by being punched in the face.
[27] The pursuer gave evidence that he and Mr Rusek were exercising on machines.
Three men attacked Mr Rusek, who could not defend himself because of the position he was
in on the machine. The fourth person, Mr Porter, was behind the pursuer “smashing me like
he promised”. The pursuer received extensive head injuries as referred to in the sentencing
statement.
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[28] The prison officer, Mr Murray, was in the office and his attention was drawn by
seeing a movement of three prisoners towards Mr Rusek, through the window. He went out
into the gym and saw Mr Porter standing with the bar bell above his head. Mr Murray
screamed at Porter who stepped back and threw the bar down. Mr Murray grabbed the
pursuer and pulled him into the office. He did so because he thought the pursuer was in
danger and he therefore took him to a place of safety. Mr Murray got the impression at the
time that Porter was focused on committing an act of violence.
[29] Mr Archie Orr, a prison officer with over 29 years experience with the Scottish Prison
Service, gave evidence that he was asked by the Governor to investigate the 4 December
incident. He interviewed the pursuer and completed a confidential racial incident report
form on 8 December 2009, which is referred to in paragraphs [14 and 15] above. He asked
about whether any reference had been made to the pursuer’s Polish nationality during the
3 December assault, but he did not ask directly whether there had been any racial threats on
previous occasions.
[30] 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. However, I note that the initial discussion on 4 December was
between Mr Rusek and George Stewart and neither Mr Porter nor the pursuer were
involved in this. I note that the attack on Mr Rusek was conducted by George Stewart and
two others and Mr Porter was not involved in that. Only Mr Porter and none of the others
was involved in the attack on the pursuer. The attack by Mr Porter on the pursuer did not
commence until the attack on Mr Rusek was underway. I note also that the attack was
directed to the pursuer’s face and head, and not to other areas of his body, which was
consistent with the threat to smash his face in. I also note that Mr Porter was absent from
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HMP Aberdeen from 26 November, shortly after the threat, returning on 3 December, the
day before the attempted murder, so that there was little opportunity to carry out the threat
until the visit to the gym on 4 December. In all of these circumstances, it seems to me that
the reason for the attack on the pursuer was not what Mr Rusek had said to George Stewart,
but that it was a separate attack on the pursuer by Mr Porter. Accordingly, I hold that the
attack on the pursuer on 4 December was in implementation of the threat made by Mr Porter
around the week before to “smash his fucking Polish face in”.
Expert Evidence
[31] Both the pursuer and the defender led expert evidence.
[32] The pursuer led the evidence of John T McCaig, a consultant in prison management.
Mr McCaig had joined the Scottish Prison Service in 1974 as a prison officer and had retired
from the Scottish Prison Service at the end of November 2009. He had been successively
Deputy Governor in Her Majesty’s Prisons Greenock, Polmont and Barlinnie and had ended
his career as Deputy Chief Inspector of Prisons. As Deputy Chief Inspector of Prisons, he
had inspected HMP Aberdeen in October 2008, that is approximately a year before the
attempted murder of the pursuer. Since retiring he had spent six months working in Ankara
with the Council of Europe as “resident expert” on a project of prisoner form for Turkey. He
has also provided short term expert advice to the Ministry of Prisons in Georgia and Turkey.
He now has a part time role with the Parole Board of Scotland where he uses his knowledge
and experience of prisoner risk factors to form a range of decisions on potential prisoner
release/recall and risk reduction.
[33] The defenders led the evidence of Philip Martin Wheatley CB LLB FRSA CCMI. His
experience was in the England and Wales Prison Service. After graduating with an LLB, he
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joined the English and Welsh Prison Service as a prison officer in 1969 and retired in 2010.
He was Senior Assistant Governor at Leeds Prison then Deputy Governor of Gartree Prison
and Governor of Hull Prison. In 1990 he became Prison Service Area Manager responsible
for the performance of nine prisons in the East Midlands. In 1992 he became Assistant
Director, in charge of the division of Headquarters responsible for, amongst other things,
identifying and allocating category A prisoners, security policy, intelligence analysis, police
liaison, the maintenance of good order and the development of anti-bullying strategy. In
1995 he was promoted to Director with a seat on the Prison Service Management Board,
responsible for the six high security prisons. In 1999 he was appointed as Deputy Director
General of the Prison Service responsible for all operational management and for prison
security and Suicide Prevention Policy. In 1993, he was promoted to become Director
General of the Prison Service. Since retiring as Director General, he continued to work in a
variety of prison related roles. For example he was a non-executive director of the Northern
Ireland Prison Service, he has provided advice to the Governments of Bermuda and the
Punjab and Pakistan at the requests of the Foreign and Commonwealth Office, he advised
G4S on prison matters in the UK, South Africa and New Zealand, he has made specialist
contributions on prison management at international conferences, and since retirement has
visited eight different jurisdictions and made over 60 visits to prisons.
[34] Both experts gave their evidence in respect of two different hypotheses: the “Kaizer
Hypothesis” (which was based on the assumption that as a matter of fact the pursuer had
told Mr Lumsden about the threat), and the “Lumsden Hypothesis” (which assumed as a
matter of fact that the pursuer had not done so). As I have held that the pursuer did as a
matter of fact tell Mr Lumsden about the threat, then it is the Kaizer Hypothesis which
applies, and I now turn to what the consequences of that finding in fact are.
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[35] It was common ground between both parties’ expert witnesses that in these factual
circumstances the November Incident should have been reported by Mr Lumsden.
Accordingly I find that Mr Lumsden should have reported the threat.
[36] However, parties and their experts were in dispute as to what the consequences of
such a report would have been. This went to the question of causation: whether it was
more likely than not that the attempted murder would have taken place.
[37] Mr McCaig’s 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 Mr Murray 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 on the pursuer.
[38] Mr Wheatley’s opinion was that as things stood there was not sufficient intelligence
to justify either segregating Mr Porter from other prisoners or barring him from the
gymnasium, given that the threat he made to the claimant was not specific to that location.
He would have expected the Scottish Prison Service to respond by alerting all staff who
might supervise these two prisoner areas about the threat made by Keith Porter against the
pursuer, and to be on the lookout for any signs of further problems between the two
prisoners. The Scottish Prison Service should also have ensured all staff were aware of
Mr Porter’s potential for racist violence and they should report any evidence of further
animosity or racism. Alerting staff in this way would have increased the possibility of
gaining further intelligence which could possibly have been used to justify the segregation
of Mr Porter under Rule 94. Segregation from other prisoners would, in his view, have been
the only reliable way of removing the risk of a serious assault by Mr Porter. In his view, had
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such an approach been taken it would not have been likely to provide enough evidence to
segregate Mr Porter under Rule 94 before 4 December 2009.
[39] I accept Mr Wheatley’s evidence that had staff been alerted after the November
incident it would have been unlikely that enough evidence would have been provided to
segregate Mr Porter under Rule 94 before 4 December 2009. Segregation under Rule 94 is a
very serious matter. Detailed procedures require to be gone through, and it is judicially
reviewable. For most of the intervening period, Mr Porter was away at HMP Barlinnie in
connection with his appearance at Glasgow High Court.
[40] However, I do not accept Mr Wheatley’s evidence that the only action which was
available to the Scottish Prison Service which might have prevented the assault was the
segregation of Mr Porter under Rule 94. In cross-examination, Mr Wheatley was asked
whether there was a reason not to take any lesser measure. He was very clear in his
response. He did not think that the risk could have been mitigated in any other way. The
threat could only be removed by taking him out and locking him up separately, and could
not be mitigated in any other way. He also took the view that there was not sufficient
intelligence to bar him from the gymnasium, given that the threat he made was not specific
to that location: the normal association of prisoners within a wing would have provided
ample opportunities for Mr Porter to assault the pursuer. When asked in cross-examination
to look at less perfect methods than segregation, Mr Wheatley’s position was that you have
to have something that works: a solution that does not remove the risk is not a solution;
and his expert opinion was that lesser methods would not mitigate the risk.
[41] The issue for me is one of causation: was it more likely than not that the attempted
murder would not have taken place.
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[42] I did not find that Mr Wheatley’s evidence gave me much assistance on this matter.
He was very emphatic that a Rule 94 segregation was the only way to remove the risk. If
there were no segregation, then the risk could not be removed as there would be ample
opportunity for the pursuer to be attacked whether in the gym or elsewhere in the prison.
However, it is not the general question of risk which is relevant here. It is whether the
particular attack which actually did occur on a particular day in a particular location could
have been prevented.
[43] In his oral evidence, Mr McCaig was asked about what kind of effect the presence of
a prison officer in the gym would have on the likelihood of assault. His evidence was that in
his opinion the presence of a prison officer on the floor has the same effect as a beat Bobby:
it acts as a deterrent. Mr McCaig referred to Mr Murray’s evidence that the prisoner had a
fixed stare and a weapon and yet responded to Mr Murray’s instructions, and expressed the
view that this suggested that Mr Murray carries authority and he is able to control prisoners
by the use of instructions and commands, and accordingly that would suggest that by being
around the floor and picking up early rumblings he would have intervened with successful
results. In Mr McCaig’s opinion, if Murray had not left the weights room to go into the
office to answer the phone, the assault would not have happened. In re-examination he
confirmed his view. He stated that he would expect that if Mr Murray had been forewarned
of the prior incident and was spending more time on the floor, he was of the view that the
presence of a prison officer closely observing prisoners has an effect on their behaviour and
that very rarely is there an assault in view of a member of staff. Accordingly, it would be
much less likely that the assault would have happened with Mr Murray having been seen to
be closely observing all the prisoners in the area. On the balance of probabilities it was more
likely that the assault would not have happened in these circumstances.
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[44] I accept the evidence of Mr McCaig on this matter. From Mr Murray’s evidence and
his impressive demeanour in the witness box, I formed the impression that Mr Murray was a
very competent and conscientious prison officer who had managed to bring the 4 December
incident to an end merely by the force of his authority and presence, notwithstanding that he
was the only prison officer present and Mr Porter was armed with a bar. Had he been aware
of the previous incident and so not left the room unsupervised by going to the office to answer
the telephone, it seems to me more likely than not that his authority and presence would have
prevented the assault taking place in the first place. 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. 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.
[45] Accordingly I find on the balance of probabilities that if Mr Lumsden had reported
the threat the attempted murder would not have taken place.
Alternative Basis of Fact
[46] I heard evidence from the two expert witnesses, and submissions, on an alternative
factual basis which parties referred to as the “Lumsden scenario” namely that it was
Mr Lumsden’s account of what the pursuer had told them which was true, and accordingly
that the pursuer had not told Mr Lumsden of the specific threat to “smash his fucking Polish
face in”. I have rejected this scenario as a matter of fact and therefore need not consider it
further. However, for the sake of completeness I record here the parties’ positions on this
scenario.
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[47] Senior Counsel for the pursuer submitted that on this alternative factual scenario, the
November Incident should have been reported, even if the identity of the perpetrator was not
known. The pursuer sought to find support of this proposition in the Scottish Prison Service
Anti-Violence Policy and Anti-Bullying Strategy (“ABS”); the evidence of Mr McCaig as to
how the ABS operated in Scottish Prisons and in particular at HMP Aberdeen at the material
time; the evidence of Mr Orr, who stressed how seriously the Governor and the prison
management at HMP Aberdeen took bullying and racism; and evidence from Mr Murray who
relied upon the anti-bullying system to inform him of such disputes. He submitted that
Mr McCaig’s evidence should be preferred to Mr Wheatley’s as Mr Wheatley’s experience was
in the English prison system, not the Scottish, and the Scottish ABS required the November
Incident to be recorded.
[48] Senior Counsel for the defenders argued that the Anti-Bullying Strategy did not go so
far as to provide that every dispute that might be bullying required to be reported, and the
minor dispute over use of gym equipment reported to Mr Lumsden did not require to be
reported under the Anti-Bullying Strategy. Even if the November Incident should have been
reported in the ABS, it did not follow that liability was established as failure to comply with
non-statutory policies and guidance does not give rise to a civil cause of action nor does it, of
itself amount to negligence. Mr Lumsden had no reason to consider that Mr Porter posed an
immediate threat, and did not act in breach of the duty to take reasonable care to protect the
pursuer from reasonably foreseeable risk of harm. In any event, making a report under the
ABS would not have prevented the assault on 4 December: the reporting of such a minor
incident would not have led to action being taken which would have prevented the pursuer
and Mr Porter being in the gym together on 4 December.
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The Law
[49] The courts have recognised that the management of prisoners is a difficult task.
Nonetheless, it is well established in law, in cases from Dorset Yacht onwards, that prison
authorities can be liable for assaults by one prisoner on another.
[50] I was referred to a number of authorities, both in Scotland and in England, where
claims for damages have been made by the victims of assaults in prison. These cases turn on
their facts and circumstances, so it is now necessary to consider them to see what guidance
they can give to the situation where the attacker has previously threatened the victim that he
will “smash his fucking Polish face in” and this has been reported to a prison officer.
[51] In Leslie v Secretary of State for Scotland 1999 Rep LR 39 a prisoner was assaulted with
a makeshift knife in a prison corridor. The case failed largely on matters of fact and
evidence, but in the course of his opinion Lord Nimmo Smith stated:
“I have already pointed out that there was no evidence to support the averments
about a previous history of violence on the part of [the attacker]. Entirely different
considerations would arise if a prisoner with a non-history of violence towards other
prisoners was able to loiter without being moved on, all the more so if he was known
to be ill disposed towards an individual prisoner who might be exposed to attacks.
But these considerations do not arise in the present case, and there was no reason to
regard Patrick Flynn as posing any particular risk of violence towards other
prisoners, including the pursuer.”
[52] The current case falls within the category of cases in which Lord Nimmo Smith
anticipated that different considerations would apply. 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.
[53] In Whannel v Secretary of State for Scotland 1989 SLT 671 a borstal inmate sought
damages from the Secretary of State in respect of stabbing injuries which he sustained in an
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assault by a fellow inmate in the kitchen. Lord Morton of Shuna in the Outer House held in
favour of the pursuer. He held that the kitchen staff should have been told about the
attacker’s past history of violence and bullying. He stated:
“If that had been done it would seem on the evidence most unlikely that [the
attacker] would have been able to obtain a knife or use it on the pursuer. I consider
that the stabbing of the pursuer was an incident of a kind such as might have been
anticipated if there was no communication to the kitchen staff about Robertson’s
previous history and propensities.”
[54] In the current case, 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.
[55] In Hendrie v The Scottish Ministers 2002 Rep LR 46 a prison officer was awarded
damages in respect of injuries sustained when he intervened in a fight between two inmates
at a young offenders institution. At paragraph [24] Lord Kingarth held that information that
there had been a physical altercation between the two inmates the previous weekend and
that the matter between them was not regarded as being settled, would not, if that was all
that was known, be enough for the pursuer to succeed. However, there were additional
circumstances, such as the knowledge that one of the inmates was due to be transferred out
the following day, and that it was possible that a weapon had been involved, and
accordingly the safe and reasonable step would have been to transfer one or other of the
inmates out of the west wing pending the imminent removal.
[56] In the current case the threat and the reporting of it, which demonstrate a particular
continuing risk of assault, are additional circumstances beyond a mere altercation in the
gym.
[57] In Palmer v The Home Office, Court of Appeal, 25 March 1988 (unreported) 1988
WL 1609043, a very dangerous prisoner, who had been convicted of three murders and other
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serious violent offences, and had a history of violence within the prison, was put to work in
the tailor’s shop where he had access to scissors with which he stabbed a fellow inmate. His
claim was dismissed at first instance and he unsuccessfully appealed to the Court of Appeal
Lord Justice Neill referred to the following passage from Halsbury’s Laws 4th Edition,
Vol 37, paragraph 1140:
“The duty on those responsible for one of Her Majesty’s prisons is to take reasonable
care for the safety of those who are within, including the prisoners. Actions will lie,
for example, where a prisoner sustains injury at the hands of another prisoner in
consequence of the negligent supervision of the prison authorities, with greater care
and attention, to the extent that it is reasonable and practicable, being required of a
prisoner known to be potentially at greater risk than other prisoners”
He went on to say:
“Those in charge of prisoners have a difficult task. Clearly, except in extreme cases,
of which obviously there are some, those responsible for prisons cannot keep
prisoners permanently locked up or segregated from other prisoners. In addition it
is necessary, or certainly desirable wherever possible, to provide suitable
employment for individual prisoners. One had to look therefore, at the situation in
this case as it appeared in 1979 and 1980 to those responsible for Wormwood Scrubs
and the information which they had in their possession at that time. It was [the
Assistant Governor’s] assessment that [the attacker] though plainly a dangerous
man, was not a particular risk and it was his view that it was appropriate to employ
him the tailor’s workshop. I find it impossible to disagree with that opinion.”
[58] It is clear from this that Lord Justice Neill saw the question at issue as being whether
there was a particular risk. In the current case, the particular risk is constituted by the
threat.
liable for a razor attack. The case turned on the prison’s policy as to the availability of
shaving razors so is not relevant to a situation such as ours where the issue is a threat to a
particular prisoner.
was held hostage in his cell by another prisoner, who inflicted serious injuries on the
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complainer with a craft knife before he was successfully rescued. The attacker had
previously been very difficult to manage in the prison due to his general behaviour, and was
frequently abusive and threatening. For example the attacker had previously told a
psychologist that he felt like killing an inmate to secure a move from Wakefield Prison, and
had also written to the Governor along these lines. The claimant contended that the prison
authorities had been negligent in the way they handled his attacker’s management and that
he had suffered injury as a consequence of their negligence. The claimant was successful at
first instance, but was overturned on appeal after a thorough review of the evidence by the
Court of Appeal. In giving the opinion of the court, Brooke LJ stated:
“[the prison employee in charge of his management] made the judgement, at any
rate initially, that it would be better to keep him for the time being in the one prison
where he had been able to live a fairly normal life on normal location. There was no
evidence at all that anyone thought he posed an immediate threat to a fellow inmate.
The highest [the Governor] put it was that if in due course he became frustrated
because he was not moved he might just carry out one of his threats.” [paragraph 62]
The court recognised that many prisoners were extremely difficult to handle and that different
considerations would apply to the management of particular prisoners (paragraph 46) and
that the prison authorities had to consider various factors, including working towards the
eventual release of the prisoner, maintaining prison discipline and protecting prison staff and
other inmates from violence (paragraph 48). On the facts of the case, the court held that the
decisions made in respect to the attacker’s management were sound and logical
(paragraph 73).
[61] Unlike the generalised threats made by Mr Stenning that he might attack someone,
the threat in the current case is of a particular type of attack on a particular prisoner.
[62] 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
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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.
Decision
[63] 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.
[64] The Proof before me proceeded in relation to liability only. I find the defenders to
have failed in their duty of care to the pursuer, find them liable to make reparation to the
pursuer and allow a Proof on Quantum on dates to be afterwards fixed.