Appeal court upholds prisoner's damages award for attempted murder
A prisoner awarded damages against the Scottish ministers after a fellow prisoner attempted to murder him in the prison gym, has had the decision upheld by the appeal court in the Court of Session.
Daniel Kaizer had been the victim of an attack by Keith Porter while on remand in Craiginches Prison, Aberdeen in December 2009, receiving extensive head injuries after being attacked with a steel barbell. The pursuer, a Pole, made a case that in July that year Porter had attempted to murder another Pole, to which he pled guilty about a week before the assault on the pursuer; that about the time of the plea he had threatened to smash the pursuer's face in, also when in the gym; that the pursuer had reported this to the officer on duty, who had taken no action; that Porter had then been transferred to Glasgow to be sentenced but then transferred back to Aberdeen, and the assault had taken place on the following day; and that the officer on duty had been unaware of the previous threat, and as a matter of causation an attack would have been much less likely had that officer been forewarned. He led expert evidence in support of this last contention.
The defenders did not now dispute that the pursuer had reported the earlier threat, or that the officer concerned had been negligent in taking no action, but challenged the finding on causation. They argued that it was not enough to prove material diminution in risk; the pursuer had to show that the reduction was such that it was more likely than not that the attack would not have taken place. This had not been done, as measures short of segregation might have been followed; the Lord Ordinary's reasoning on causation, including the extent of his reliance on the expert evidence, was inadequate and unsatisfactory.
Delivering the opinion of the court, Lord President Carloway, who sat with Lords Brodie and Drummond Young, said the defenders' acceptance of negligence carried "an inference that the absence of a report amounted to a failure to take reasonable care for the pursuer’s safety; i.e. that he was thereby exposed to the risk of injury", which "sharply raised" the issue of causation.
He continued: "The defenders’ position, stripped to its essentials, is that, notwithstanding the fact that a prisoner in their custody was exposed to the risk of injury as a result of the failure to report a threat of serious violence with racist overtones, nothing effective would have been done about this by the prison authorities and thus the attack would have happened in any event. The court is unable to accept this unattractive proposition.
"Where negligence is established, as it is here, and thus the existence of a risk of injury is demonstrated in the context of a prison setting, in which the prison authorities control the movements of all those involved, the court is entitled to make the reasonable assumption that the prison authorities will not only do something about that risk, but that the something will reduce the risk to such a level that it will, in all probability far less on a mere balance, not occur. If that is so, causation must be taken to be established in the absence of some extraordinary factor which made the incident otherwise inevitable despite the taking of reasonable precautions. This in itself is sufficient reason to refuse the reclaiming motion."
There was in any event a sufficient evidential basis for the Lord Ordinary's findings.