Ellis v Home Office
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SINGLETON,LORD JUSTICE JENKINS,LORD JUSTICE MORRIS |
| Judgment Date | 14 May 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J0514-1 |
| Court | Court of Appeal |
| Date | 14 May 1953 |
[1953] EWCA Civ J0514-1
Lord Justice Singleton
Lord Justice Jenkins and
Lord Justice Morris.
In The Supreme Court of Judicature
Court of Appeal
Fos. 142.
Mr. J. SCOTT HENDERSON, Q.C., and Mr. I. STARFORTH HILL (instructed by Messrs G. & G. Keith, Agents for Mr. A.J. Bowker, Winchester) appeared on behalf of the Appellant (Plaintiff).
Mr. W.J. KENNETH DIPLOCK, Q.C., and Mr. EDGAR S. FAY (instructed by The Treasury Solicitor) appeared on behalf of the Respondents (Defendants).
This is an appeal of the plaintiff from the Judgment of Mr. Justice Devlin given at the Assizes at Winchester on the 5th December 1952. The claim of the plaintiff William Henry Berwyn Ellis was made against the Home Office. It was a claim for damage suffered by him through the alleged negligence of persons who are employed under the Home Office. Alternatively it was a claim for damages for breach of the duty which the defendants owed to him under The Prison Rules.
The plaintiff Ellis was in gaol in Her Majesty's prison at Winchester on the 22nd July 1949. He had been committed for trial. He was not a convicted person. It was thought, or suspected, that he had some illness, and accordingly he was sent to No.C.2 wing, the hospital wing of the prison. That wing has some thirty-eight cubicles. Two of those are used as places at which prisoners can empty their slops, and in the ordinary course they are allowed out of their cubicles about 7 o'clock in the morning to do that. According to the established practice, they are not all let out of their cubicles at once, but the officer in charge unlocks the doors of roughly one-quarter of the cubicles at a time, the doors of the other three-quarters remaining locked until those from the first quarter have emptied their slops. The cubicles were not all occupied on this morning of the 22nd July 1949, but a number of them were.
The practice of old was that there were two prison officers on duty at this time of the morning, and one went down to the kitchen through the centre to get breakfast for the prisoners. On this particular morning there was only one prison officer in attendance. That was due to shortage of staff and to the fact that two officers were on leave, and it happened that the only officer who was considered available for this task on the morning in question was a man named McHugh. He opened the doors of some cubicles. From what was found by another officer afterwards, it would appear that at least half the doors had been opened, though as I have said all the cubicles were not occupied. The officer then went away towards the centre; that is, he left the wing for a period. The length of that period is uncertain.
While the officer was away, someone went into the cell of Ellis, which was No.6, and hit Ellis upon the head at least two blows. It appears clear that the person who did that was a Canadian of the name of Hammill who was the occupant of No.25 cell. If the ordinary practice had been followed, the door ofNo.25 cell would not have been open at the same time as the door of No. 6 was open so that Hammill would not have been able to get into Ellis's cell. Hamill at some later date pleaded guilty to an offence against Ellis. We were told that the offence to which he pleaded guilty was unlawful wounding, and he was dealt with for that offence.
He (Hammill) had had a checkered career. He had been in Canada for some years. When he came back to this country he got into trouble. It is clear from the documents which are before the Court that different Courts in Canada had regarded Hammill as being a mental case. He was received into prison at Winchester in February, and he was due to appear at the Quarter Sessions at Southampton in April. He went to Sessions to be dealt with for the offence for which he had been committed for trial, and the Police Officer then produced a report before the learned Recorder which showed that Hammill might well be regarded as mentally deficient or as a mental defective.
The prison Medical Officer at Winchester does not seem to have been aware of that fact; but when his attention was drawn to it at Southampton he agreed to consider the matter, and Hammill was put back for sentence at a later Sessions; and in view of what had been found, Dr Fenton (the Prison Medical Officer) put Hammill into this same C.2 wing, and he remained there from the 19th April until the 22nd July. He was under observation. For some part of the period Dr Fenton was away; he was on his honeymoon, and another doctor had charge of the hospital patients, including Hammill.
On the 22nd July 1949 Ellis, the plaintiff in this action, ought to have appeared at the Assize Court at Winchester on the charge upon which he had been committed for trial, but about 7 o'clock that morning he received injuries which prevented his attendance there until December.
The claim of Ellis against the Home Office was put upon two grounds. In paragraph 4 of the statement of claim it is pleaded:"The said injury was caused and brought about by the negligence of the defendants their servants or agents. Particulars of Negligence. (i) The defendants, their servants or agents failed to exercise any or any adequate observation or supervision over the said convicted prisoner Hammill. (ii) they failed to segregate the said prisoner Hammill. (iii) they failed to keep the said prisoner Hammill, being a convicted prisoner, apart from the plaintiff, being an untried prisoner. (iv) they failed to take any or any adequate precautions to safeguard the plaintiff against the said prisoner being a mental defective. (v) they failed to keep the said prisoner confined or detained in a place apart while he remained in the said prison. (vi) they failed to ensure that the said prisoner did not have access to implements for the purpose of striking the plaintiff". It will be observed that the whole basis of the claim in regard to lack of supervision is lack of supervision of Hammill. I shall return to that later.
The further claim of the plaintiff is pleaded in paragraph 5 in this way: "Further or alternatively by reason of the matters aforesaid the defendants their servants or agents were in breach of their statutory duty under sections 92, 105 and 142 of the Prison Rules 1949, and the plaintiff will rely upon the particulars set out in paragraph 4 above". Those wore the claims which were made.
The claim under paragraph 5, insofar as it was mentioned in this Court, was based upon Rule 105 of The Prison Rules of 1949 which falls under Part III: "Special rules for particular classes of prisoners other than those sentenced to corrective training or preventive detention. Untried prisoners". Under "General" in that Part there appears Rule 105 which provides: "Untried prisoners shall so far as possible be kept apart from convicted prisoners". The reason for that rule is clear. It is, and for long it has been, the policy of those who are responsible for prison administration in this country to keep apart, as far as possible, convicted prisoners and unconvictedprisoners. It is recognised that if a person has not been convicted, it is better that he should not be placed in danger of contamination from those who have been convicted.
It is said on behalf of the plaintiff that it was breach of that rule which led to, or was a cause of, the injury which came upon the plaintiff. I do not think that that is so. The fact was that on the morning of the 22nd July of 1949 it was possible for Hammill to get into the cell of Ellis, but the injury which was caused to Ellis did not result from breach of that rule, and that claim fails.
As to the other claim of the plaintiff under paragraph 4, as I have pointed out the case was pleaded on the supposition that a particular duty laid upon the prison authorities because of the fact that Hammill was a person who was mentally deficient; and when the case was before Mr. Justice Devlin that was the way it was put before him. Witnesses were examined and cross-examined to show that Hammill was not up to the ordinary standard; it was said that his intelligence was not above that of a boy of seven or eight years of age; and it was, therefore, suggested that there was a higher duty upon the prison authorities than there was in the case of someone who was not so afflicted.
There was no evidence to show that Hammill had exhibited any sign of violence before the 22nd July 1949. There was evidence that one who is a mental defective is no more likely to use violence than one who is not. The learned Judge accepted that evidence; there was indeed no evidence to the contrary. Mr. Justice Devlin said, and I read from pages 14 and 15 of his Judgment: "Mr. McKenna contends" — Mr. McKenna was then appearing for the Home Office — "that mere lack of supervision shows no breach of any duty towards the plaintiff. Mr. McHugh's duty was to carry out the proper routine; that is to say, his duty towards his superiors, his employers. But I am not concerned with that. What I am concerned with is his superiors'or employers' duty towards the plaintiff, and they do not owe any duty to the plaintiff to see that the warders carry out all their instructions properly; the duty that the prison authorities owe to the plaintiff is to take reasonable care for his safety, and it is only if Mr. McHugh neglected to do that that his employers, the prison authorities, may be made liable.
"The test of that is whether Mr. McHugh, when he left the landing — as I think he did — ought to have appreciated, as a foreseeable consequence to what he did, that an injury might be done to the plaintiff, Ellis. I do not think that he ought, unless he knew, or his superiors knew — for that would be sufficient for the purpose — that Hammill was the sort of person who was likely, if he was allowed out of confinement,...
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