Kaizer v Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Ericht |
| Judgment Date | 29 May 2018 |
| Neutral Citation | [2018] CSIH 36 |
| Docket Number | No 27 |
| Court | Court of Session (Inner House) |
| Date | 29 May 2018 |
[2018] CSIH 36
First Division
Lord Ericht
AW v Greater Glasgow Health Board [2017] CSIH 58; 2017 GWD 29–465
Collins v First Quench Retailing Ltd 2003 SLT 1220; 2003 SCLR 205; 2003 Rep LR 42; [2004] LLR 191
McGinnes v Endeva Service Ltd [2006] CSOH 41; 2006 SLT 638; 2006 Rep LR 64
MacLeod's Legal Representatives v Highland Health Board [2016] CSIH 25; 2016 SC 647; 2017 SCLR 115; 2016 GWD 12–241
Porter v Strathclyde Regional Council 1991 SLT 446
Reparation — Personal injury — Causation — Threat by one prisoner to another — Negligent failure of prison officer advised of threat to report it to prison authorities — Same prisoners thereafter placed together under supervision of another prison officer — Supervising officer not advised of threat — Prisoner assaulted by the author of the threat — Whether causation established
Daniel Kaizer (AP) raised an action for damages against the Scottish Ministers in the Court of Session. Following a proof before the Lord Ordinary (Ericht), on 22 August 2017, the Lord Ordinary found in favour of the pursuer ([2017] CSOH 110). The defenders reclaimed against that decision to the Inner House.
The pursuer raised an action for damages for the negligent failure to prevent his assault by another prisoner when he was being held on remand. A prisoner threatened him when they were in the prison gym about a week before the assault. The pursuer had reported the threat to the prison officer on duty at the time, but that prison officer had not made any report about the incident. A different prison officer on duty in the prison gym at the time of the attack on the pursuer was unaware of the threat. Evidence was led at proof of the systems employed in the prison to mitigate the risks of bullying, particularly when a known threat had been made. The Lord Ordinary found in favour of the pursuer. The defenders reclaimed. The Lord Ordinary's finding that the failure to report was negligent was not challenged.
Counsel for the reclaimer submitted that the Lord Ordinary had erred in holding that had the prison officer reported the threat, the attempted murder would have been avoided. The pursuer had failed to show that it was more likely than not that the attack would not have taken place. He had failed to demonstrate that, if a report had been made, the pursuer and his attacker would have been segregated from each other.
Counsel for the defenders submitted that the Lord Ordinary had found that the prison officer on duty at the time the attack took place on the pursuer would have been made aware of the threat if it had been reported to the prison authorities at the time it was made. That prison officer would have used heightened vigilance and closer supervision of prisoners which would have had a deterrent effect on the prisoner and would on a balance of probabilities have prevented the attack.
Held that: (1) the negligent failure to report the threat made to the pursuer carried with it an inference that the absence of a report amounted to a failure to take reasonable care for the safety of the pursuer (para 25); (2) where negligence was established and thus the existence of a risk of injury in the context of a prison setting the reasonable assumption had to be that the prison authorities would do something about the risk to reduce it to such a level that it will probably not occur (para 26); (3) in the absence of some extraordinary factor which made the incident otherwise inevitable despite the taking of reasonable precautions, causation must be taken to be established (para 34); and reclaiming motion refused.
The cause called before the First Division, comprising the Lord President (Carloway), Lord Brodie and Lord Drummond Young, for a hearing on the summar roll, on 8 May 2018.
At advising, on 29 May 2018, the opinion of the Court was delivered by the Lord President (Carloway)—
Opinion of the Court—
[1] This is a reclaiming motion against the interlocutor of the Lord Ordinary ([2017] CSOH 110) dated 22 August 2017, in which the defenders were found liable to the pursuer for the loss, injury and damage which he sustained on 4 December 2009 while he was on remand at HMP Craiginches, Aberdeen. On that date another named prisoner, namely Keith Porter, attempted to murder him in the prison gym with a steel barbell.
[2] The pursuer is a Polish national. On 11 July 2009, Mr Porter had attempted to murder another Pole. He pled guilty to that crime about one week before the assault on the pursuer. The pursuer's contention, which was accepted by the Lord Ordinary, was that the attack upon him was in implementation of a threat made by Mr Porter, also in the gym, occurring about a week prior to the assault.
[3] Although the matter was one of controversy at the proof, it is not now disputed that the pursuer had reported the threat to a prison officer on duty at the time. This officer, namely Gary Lumsden, did not make any report about the incident, as a result of which no further action was taken. The Lord Ordinary's finding that his failure to report was negligent is not challenged.
[4] This appeal is about causation; namely, whether it was established that, but for Mr Lumsden's negligence, for which the defenders are vicariously liable, the assault upon the pursuer would not, as a matter of probability, have occurred.
[5] The threat in the prison gym took place in late November 2009. The gym consisted of a detached building on the upper floor of which was a weights room and an office containing an internal window, through which the weights room could, in part, be observed. The pursuer had been approached by two men, one of whom was Mr Porter. They had told the pursuer that they wanted the machine that...
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TF v Secretary of State for the Home Department
...Imm AR 729; [2010] INLR 425; The Times, 9 July 2010; (2010) 107 (29) LSG 18; 160 NLJ 1012; 154 (27) SJLB 29 Kaizer v Scottish Ministers [2018] CSIH 36; 2018 SC 491; 2018 GWD 17–224 Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449; [2000] Imm AR 271; [2000] INLR 1......