Edward Pratt V. The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Wheatley,Lady Paton,Lord Glennie |
| Neutral Citation | [2013] CSIH 17 |
| Court | Court of Session |
| Published date | 14 March 2013 |
| Year | 2013 |
| Date | 14 March 2013 |
| Docket Number | A2250/00 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lady Paton Lord Glennie Lord Wheatley | [2013] CSIH 17 A2250/00 OPINION OF THE COURT delivered by LORD GLENNIE in the cause EDWARD PRATT Pursuer and Reclaimer; against THE SCOTTISH MINISTERS Defenders and Respondents: _______________ |
Pursuer and Reclaimer: Summers, QC, Olson; Drummond Miller LLP for JAS S Grosset, solicitors, Leven
Defenders and Respondent: Milligan, QC, Sheldon; Dundas & Wilson, CS
14 March 2013
Introduction
[1] In this action the pursuer, who was employed by the Scottish Prison Service ("SPS"), sues for breach of a duty of care which he alleges was owed to him in the immediate aftermath of an incident at HM Prison Barlinnie on 3 August 1997. The defenders are the Scottish Ministers, who are responsible for the failings of SPS. After a 9 day proof restricted to issues of liability, the Lord Ordinary (Brodie) assoilzied the defenders from the conclusions of the summons. He held that although SPS owed the pursuer a duty of care to see that he was offered early counselling and support of the sort that could be provided by the prison's internal unit established to deal with traumatic incidents in the workplace (the Barlinnie Care Team), it was not in breach of that duty; and that, even if SPS was in breach of duty in the manner alleged, the pursuer had failed to establish causation.
[2] The pursuer now reclaims. He challenges a number of the Lord Ordinary's findings of fact in relation to breach and causation.
[3] In the course of the hearing we invited parties to depart from the usual order of speeches and address us first on matters relating to causation before moving on, if necessary, to deal with breach of duty. This resulted in junior counsel dealing only with causation in their speeches. When senior counsel came to speak, they addressed us on both issues, combining a second speech on causation with a first (and only) speech on breach of duty. We are grateful to all counsel for their willingness to accommodate our wishes. We are also grateful to them for their helpful and detailed written Notes of Argument under reference to which they made their submissions.
The facts in outline
[4] At about 3.30pm on Sunday 3 August 1997 the pursuer was working in the course of his employment with SPS as a prison officer at Barlinnie when a fight broke out between an inmate ("C") and a fellow prisoner. C was injured in the fight and was bleeding from the face. The pursuer intervened in order to break it up. As he did so, C shook his head and some of C's blood entered the pursuer's mouth, sufficient in quantity for the pursuer to taste it. He believed that he might have swallowed some. He said as much to a fellow officer, Mr Gibb, who replied, referring to C, "He is a junkie, I would get myself checked if I were you". The pursuer inferred from that that C was an intravenous drug user and therefore quite probably infected with Hepatitis C, the HIV virus or AIDS. He immediately became fearful that he might contract one of those diseases because of having ingested C's blood and that in consequence he would die.
[5] The pursuer decided to go to the prison medical centre and told his supervisor, Mr Mackie, that he was going. At the medical centre he was seen by the clinical manager, Sharanne Cassidy. He explained that he had swallowed blood from "a junkie" and asked what was to happen. It was the pursuer's evidence that Miss Cassidy told him: "Do not worry about it, there is a million to one chance that you will catch something" and that she explained that the virus would have "died" travelling in the air from C to him. Miss Cassidy gave him an antiseptic chlorhexidine mouthwash. In accordance with her standard practice she advised the pursuer to contact his general practitioner. Her role in relation to prison staff was limited to giving first aid.
[6] The pursuer was not reassured by what he understood Miss Cassidy to have told him about the million to one chance and the virus having died. He spent the rest of the day trying to spit out any remaining blood from his mouth. He returned to A Hall for lock up at 5pm and then went back to Rutherglen where he was living alone.
[7] Early on Monday 4 August the pursuer took steps himself to arrange an appointment for a blood test at the Infectious Diseases Clinic at Ruchill Hospital ("Ruchill") in Glasgow.
[8] The Lord Ordinary described Ruchill as being at that time the primary centre in Glasgow for treatment of HIV and AIDS and the best source of authoritative advice on the risk of infection with blood-borne diseases. It provided a confidential testing service for those concerned that they might have been exposed to or infected by blood-borne viruses including HIV and Hepatitis C. That service included pre and post-test discussion and provision of information about the nature of the potential risk of blood-borne virus infections; the severity of that risk in relation to the particular patient in light of the history obtained from the patient; the procedures for the screening of the patient for blood-borne infections; the potential results of the screening tests for these infections together with information on the meaning of the potential results; the implications for the patient of a positive result for each of the blood-borne infections referred to including the potential impact on the patient's physical and mental health and social and financial circumstances; the management, support and treatment available to the patient in the event of a positive test; the obtaining of informed consent to have the screening test carried out; and the making of arrangements to have blood samples taken and appointments for the results of blood tests to be given.
[9] The pursuer attended at Ruchill on Wednesday 6 August 1997 and on five occasions thereafter. The Lord Ordinary found that it was likely that at Ruchill he was provided with or offered all the services available to those who attended the clinic by reason of their being concerned about exposure to a blood-borne virus. He would have been advised when he first went there that there was a very low risk of him having been infected by contact with C's blood (even if C himself was infected). Testing subsequently established that he had not been infected either with HIV/AIDS or hepatitis. However, because of the relevant incubation periods, he had to wait for three months and six months respectively for these results. He received the hepatitis B and C results on his last appointment on 5 February 1998 and was discharged from the clinic on that day.
[10] The pursuer did not like attending Ruchill because it was "full of junkies" and he wanted to spend as little time in the clinic as possible. In addition, he was angry with his employers. He considered Miss Cassidy's response to have been inadequate. He felt that he should have been referred to an outside hospital whereas all she had provided him with was a mouthwash. He had expected someone "from management" to speak to him but there was "not a thing on the Monday" (4 August). When he attended at Mr Lamont's office the following day - Mr Lamont was the pursuer's unit manager - Mr Lamont indicated that he knew what had happened and said that there should have been a procedure set up for such occurrences; but otherwise the pursuer's impression was that Mr Lamont was not interested. The following week, on Monday 11 August, the pursuer went to his general practitioner, Dr Barrett, and was certified unfit for work by reason of sickness for a period of two weeks. The pursuer explained that he felt let down with the way he had been treated by SPS. He could not cope with the idea that he had been abandoned by it. His impression was that he was considered to be "a big fat prison officer" who would shrug the matter off whereas he did not. It was as if SPS did not want to communicate with him. It should have done more to help him. The whole world seemed to be against him. He was equally unimpressed by the Scottish Prison Officers Association.
[11] The pursuer remained off work for more than 12 months until returning on 14 September 1998. He was granted ill-health retirement from SPS in January 2001. At the time of his retirement he had just turned 38 years of age.
The Barlinnie Care Team
[12] At the time of the incident there was in existence something called the Barlinnie Care Team. It has since been wound up. The concept of a care team was familiar in the Prison Service by the mid-1990s as a way of responding to serious incidents. Specific evidence about the Barlinnie Care Team was given by a member of the Team, Alan Haughey, under reference to two documents: a leaflet designed to publicise the existence of the Team and the services it provided entitled "A Service to Barlinnie" (hereafter "the Leaflet"); and a Manual entitled "Traumatic Incidents in the Workplace, Training for Designated Officers: dealing with traumatic incidents and ensuring support for staff involved" (hereafter "the Training Manual"). The Barlinnie Care Team was set up in January 1994. It provided a support, listening and guidance service to staff and prisoners within Barlinnie. It had 11 members made up of prison officers who had volunteered to participate in the Team. They were not qualified to provide medical care or psychological therapies. They were available to provide support or advice in the aftermath of an incident. Where appropriate they would refer the staff member or prisoner to appropriate professionals, such as a nurse or a general medical practitioner.
[13] It is useful to set out parts of the Leaflet and the Training Manual to get the flavour of the service offered by the Barlinnie Care Team. The Leaflet introduced the Barlinnie Care Team in this way:
"Where any prisoner or member of staff has been involved in an incident or has suffered a personal crisis, the Barlinnie Care Team will provide, with the individual's...
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