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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McKeown (AP) v Lord Advocate [2001] ScotCS 16 (22 January 2001)
URL: http://www.bailii.org/scot/cases/ScotCS/2001/16.html
Cite as: [2001] ScotCS 16

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OUTER HOUSE, COURT OF SESSION

 

 

 

 

 

 

 

 

 

 

OPINION OF LADY PATON

in the cause

HAROLD STEPHEN McKEOWN (AP)

Pursuer;

against

THE LORD ADVOCATE

Defender:

 

________________

 

 

Pursuer: Jones, Solicitor-Advocate, Ketchen & Stevens W.S

Defender: J. Brodie, Advocate; Shona Smith, Solicitor for the Scottish Executive

22 January 2001

Assault on a remand prisoner

[1] At about 6.45 p.m. on 17 July 1996, the pursuer, a remand prisoner then aged 44, was found unconscious and bleeding in the communal wash area of the ground floor gallery in A Hall, Saughton Prison, Edinburgh. He had been bending over a basin washing his face when he was struck on the head, causing him to lose consciousness. He did not see his attacker. As a result of the attack he suffered injuries, more fully described below. Two other remand prisoners alerted a prison officer who was on duty as desk man on the ground floor gallery. The pursuer was taken to hospital.

[2] The prison governor requested Mr. Gordon Strange, supervisor of Forth Hall, Saughton Prison, to carry out an investigation into the attack. He did so, and produced a report number 6/14 of process. Mr Strange noted inter alia that the two prisoners who had been in the vicinity of the attack refused to give statements. He further observed, in paragraph 24 of the report:

"In my opinion, we will never discover who carried out the assault unless the person confesses. We do know there was an argument developing in the dining hall and any one of the three prisoners previously named [D Rafferty, A Dowel and J Lovell] is more than capable of carrying out the assault."

Claim against the prison authorities

[3] The pursuer subsequently raised the present action for damages against the Lord Advocate, representing the Scottish Prison Service. In Article 2 of Condescendence, the pursuer avers that before the assault, during the prisoners' dinner time -

"the pursuer was threatened by a fellow remand prisoner Mr. James Rafferty (hereinafter referred to as "Rafferty"). Rafferty threatened to kill the pursuer on their return to A Hall. The incident occurred in the dining hall in Saughton Prison. The prison officers witnessed the incident in the dining hall. Rafferty had a history of violent behaviour. The defender knew or ought to have known that Rafferty had a history of violent behaviour. The defender held and holds records detailing remand prisoners' histories and records of previous convictions. On about 17 July 1996 the defender held records for Rafferty. Believed and averred that those records for Rafferty detailed his history of violence and previous convictions for offences involving violence. The defenders are responsible for controlling the prison officers. After dinnertime whilst moving from the dining hall to A Hall Rafferty attempted to assault the pursuer. The prison officers intervened to restrain Rafferty. Rafferty and the pursuer were then locked in separate cells."

[4] The pursuer's cell was on the ground floor, and Rafferty's was on the third floor. The floors were connected by flights of stairs situated in the centre of the hall. About one and a half hours after they had been locked in their cells, the prisoners, including the pursuer and Rafferty, were released in order to take part in recreation. The pursuer avers that he -

"went then to wash in the washing area and was violently assaulted by Rafferty. Rafferty beat the pursuer on his head and body with a heavy battery in a sock ... At the time of the assault neither Rafferty nor the pursuer were being guarded, supervised or observed by prison officers".

[5] In Article 3 of Condescendence, the pursuer avers inter alia that the Scottish Prison Service -

"knew or ought to have known that Rafferty was likely to assault the pursuer. They knew or ought to have anticipated that if Rafferty and the pursuer were not separated or kept under observation that Rafferty would have the opportunity to assault the pursuer."

He avers that it was the defender's duty to take reasonable care to keep the pursuer and Rafferty separated. He also avers that, esto it was not reasonably practicable to keep them separated, the defender ought to have kept the pursuer or Rafferty under observation until the risk of an assault occurring had passed.

Need to establish negligence

[6] Jenkins L.J. commented in Ellis v Home Office [1953] 2 All E.R. 149, at p.159F-G:

"I confess to great sympathy for the plaintiff who, while detained as a remand prisoner in Her Majesty's prison ... was the victim of a brutal, and, apparently, entirely unprovoked, attack by a fellow prisoner ... from which he sustained serious injuries. But the mere fact that the plaintiff while in prison was attacked and injured by a fellow prisoner does not entitle him to succeed against the government department responsible for the management of the prison, i.e. the Home Office. He must show that the injury which he sustained was due to some breach of duty on the part of those responsible for the management of the prison..."

[7] These comments are relevant in the present case. The pursuer was subjected to a vicious attack which caused him serious injuries. Anyone hearing about the circumstances of the assault cannot but feel sympathy. Nevertheless in order to succeed in his claim for damages, the pursuer must establish negligence on the part of the defender.

[8] In a proof before answer, the pursuer (48) gave evidence. Evidence was also led from Gordon Comyns (58), hall supervisor, Saughton (now retired); Gordon Strange (51), hall manager and formerly hall supervisor, Saughton; David McAdam (30), prison officer; Raymond Reid (39), prison officer; and Dr. Watson (48), general practitioner. The defender led evidence from Anne Gibb (46), prison officer; Adam Quin (38), prison reception manager; John Grieve (29), prison officer; Alexander Boyle (52), prison officer; Michael Piper, prison manager; and Alison Fraser (42), prison officer.

Evidence relating to events in the dining hall

[9] The pursuer explained that on 17 July 1996 he had been requested by other prisoners to call for a few minutes silence after the prisoners' dinner which took place in the dining hall between 4 p.m. and 5 p.m. The silence was to mark the recent death of a former prisoner. The pursuer announced a three minute silence at the end of the meal. Most of the prisoners complied, one switching off the television. However Rafferty began staring at the pursuer and shouting at both him and other prisoners. He got up from his seat, walked over to the television, and turned it on. Others told him to sit down and be quiet. He then sat at a table near the pursuer. He continued glaring at the pursuer. He made threats, such as "I'm gonnae see you back at the hall". He spoke in a violent threatening way, staring at the pursuer. He kept mumbling threats. He ignored others, including prison officers standing at the perimeter of the dining hall, who told him to be quiet and behave himself. He called the other prisoners "A shower of f---ing idiots". When re-seated at the table near the pursuer, he told the pursuer that he was going to kill him. The pursuer could not say whether the prison officers had heard that threat: he thought they ought to have heard. The pursuer added that he kept asking Rafferty what was wrong with him. The pursuer had never experienced any trouble with him before. The pursuer remained behind in the dining hall until Rafferty had left, because, as the pursuer explained in evidence, he was frightened.

[10] Prison officers Gordon Comyns, Anne Gibb, and John Grieve were present during the incident. Each agreed that there had been an incident, which they variously described as a "verbal confrontation", a "heated discussion", and an "everyday disagreement". Both Rafferty and the pursuer appeared to be angry. There had been shouting and raised voices. None of the officers had heard threats or seen behaviour which suggested that the incident was a serious one or that it might lead to something serious.

[11] Mr. Comyns said that he and other prison officers told the pursuer and Rafferty to "Quieten down there". He also spoke of warning the pursuer at the dining hall doorway after the incident. Mr. Comyns told the pursuer to be careful and to watch himself, as he (Mr. Comyns) knew Rafferty to be someone who had caused the prison authorities problems. According to Mr. Comyns, Rafferty was involved in drugs, and seemed never to be out of prison. Mr. Comyns described Rafferty as someone who was known to have indulged in assaults; taking cigarettes, telephone cards and money from other prisoners ("taxing"); and generally acting as a bully. Prison staff often had difficulty proving that Rafferty was to blame, but they nevertheless knew what was going on. Mr. Comyns confirmed that number 7/10 of process appeared to be a computer-generated disciplinary record relating to Rafferty, although he added that he personally had dealt with a card system, not a computerised system. The computer record appeared to contain a record of disciplinary offences committed by Rafferty, such as "threatening" and "fighting" in 1995, and "disobedience" in early 1996. Nevertheless Mr. Comyns, who had about twenty years experience in prisons (which he found of assistance when exercising his judgement in predicting whether or not there was likely to be trouble), had not thought that the events in the dining hall were sufficiently serious to require a step such as putting Rafferty on report.

[12] Mr. Grieve gave evidence and confirmed that after the heated discussion, both the pursuer and Rafferty had returned to their seats. No blows had been struck. Mr. Grieve had not felt it necessary to take any action. Prisoners argued every day, as might be expected when adults were locked up in a confined area. As far as he was concerned, the incident was finished. On a scale of 1 to 10, Mr. Grieve thought that the dispute rated 5, and it had not prompted him to do anything. It seemed to resolve itself. When asked in cross-examination whether he could remember hearing Rafferty threaten the pursuer, Mr. Grieve said that he had not heard a threat. He agreed that Rafferty had been sitting with his back to him (Mr. Grieve) and that a scowling expression would not have been visible to him. However a scowl would not cause him to take any action.

[13] Miss Fraser said in evidence that the incident seemed like an everyday disagreement. She had not felt it to be serious. The two had been told to sit down and be quiet. Arguments such as had occurred were an ongoing occurrence in the jail. There had been no physical violence. The incident appeared to be over. Miss Fraser had not heard Rafferty make a serious threat to do harm to the pursuer. Had she heard a prisoner making serious threats to harm another prisoner, Miss Fraser would have taken the one making the threats away and locked him up.

Evidence relating to the prisoners' return to A Hall

[14] The pursuer described returning to A Hall after the incident in the dining hall to find Rafferty standing near the entrance with most of the prisoners behind him. Prison officers were also present. Rafferty shouted "Pick a f---ing peter [cell] to die in." He was angry and was making violent gestures. He made further comments and threats along the lines of "F---ing idiot. Rookie. Never been in a jail before. I'm going to f---ing kill you". At one point he lunged at the pursuer and tried to punch him. Miss Gibb, prison officer, told the pursuer to ignore Rafferty and to return to his cell. The pursuer began walking back to his cell. Other prisoners were still standing nearby. Rafferty followed the pursuer, and attempted to get at him, but found his path obstructed by prisoners. Rafferty continued to threaten to kill the pursuer. In cross-examination the pursuer said that Rafferty attempted to strike him, but was restrained by two prison officers while Miss Gibb bundled the pursuer back into his cell.

[15] The pursuer then described being released later from his cell by Miss Gibb for the recreation period. He said that as a result of what had happened in the dining hall, he had first looked around to see if there was any activity. He said that he felt quite frightened. He decided that it was safe to go and have a wash. He was then knocked out while splashing soap from his face.

[16] Prison officers also gave evidence about the prisoners' return to A Hall after the incident in the dining hall. Miss Gibb, who was working as a ground floor gallery officer that day, stated that she could not recall anything happening when the prisoners came back from dinner. She could not recall any incident involving the pursuer and Rafferty. Mr. Grieve, who was working as a second floor gallery officer, stated that he had not been aware of any disturbance on the prisoners' return from dinner, nor had he been aware of any incident involving the pursuer and Rafferty, although he conceded that it was possible that he might have missed an incident. Mr. Boyle, desk man on the ground floor gallery, said that he had not been aware of any event or incident on the prisoners' return which was out of the ordinary, or which involved two or more prisoners. He had not been aware of any incident involving the pursuer or Rafferty.

Evidence relating to the day after the assault

[17] Mr. Quin, who was in July 1996 a prison supervisor at Saughton, gave evidence that he had escorted the pursuer from one hospital to another on the day following the attack. While being escorted, the pursuer had made some comments about the events of the previous day. Mr. Quin regarded the comments as important and noted them on an information paper dated 19 July 1996 number 6/10 of process, which he subsequently sent to his Unit Manager.

[18] The solicitor-advocate for the pursuer objected to the line of evidence relating to paper number 6/10 of process. He submitted that the defender had no positive averments that the assault had been carried out by someone other than Rafferty. It was not therefore open to the defender to seek to make a positive case that the assailant was someone other than Rafferty. Counsel for the defender responded by submitting that the question whether the assailant had been Rafferty was one which the court would have to assess on a balance of probabilities, on the basis of circumstantial evidence. The fact that, on the day following the assault, the pursuer had suggested the name of someone other than Rafferty was one of the many circumstances which the court should take into account. The defender was not seeking to make a positive case that the assault had been carried out by another named prisoner.

[19] During the proof before answer, I allowed the evidence of Mr. Quin, reserving all questions of competency and relevancy. I now formally rule Mr. Quin's evidence to be admissible for the reasons given by counsel for the defender.

[20] Mr. Quin's paper number 6/10 of process notes that the pursuer told him that:

"... he did not see who hit him, but knew who had done it. He stated that he (the assailant) thought he was the biggest guy in the hall. In conversation he stated that he had been asked to request a 3 minute silence for an ex-prisoner named Ricky Munro. This was carried out and [the pursuer] speculated that prisoner A. Dowel [a prisoner mentioned in Mr Strange's report number 6/14 of process] was miffed at the fact that [the pursuer] had organised this event and not he. Dowel then asked [the pursuer] for a square go in his cell. [The pursuer] refused this and ignored this challenge. After lock-up, whilst washing his face in the sink, [the pursuer] was struck on the head and states he immediately blacked out. [The pursuer] further stated that he thought the reason for this was as previously stated, his [Dowel's] authority was not sought for the 3 minute silence. He further added that he (Dowel) has been like a bear with a sore head due to the fact that he was not getting his SKAG (heroin) lately. [The pursuer] claimed that Dowel dealt in heroin and has had it regularly whilst in prison ..."

[21] The content of Mr. Quin's paper was put to the pursuer in cross-examination. The pursuer stated that he did not recall having made those comments to Mr. Quin. The pursuer initially appeared to remember the hospital transfer in question, but then stated that he could not remember it, and that he must have been unconscious during it. Mr. Quin was asked about the pursuer's condition during the transfer. He described the pursuer as being very much conscious, as having his faculties about him, and as being quite compos mentis.

[22] Further events which occurred on the day after the assault involved other prison staff and prisoners. Prison officers David McAdam and Raymond Reid gave evidence that on the day after the assault, other (unnamed) prisoners told them that they had heard that Rafferty was the man who had assaulted the pursuer. Mr. McAdam also saw Rafferty boasting to other prisoners about "what he had done to [the pursuer]", all as noted in an information paper number 6/11 of process.

Credibility and reliability

[23] I found the evidence of the prison staff generally credible and reliable. There were a variety of memory lapses and discrepancies, but these were in my view understandable bearing in mind the fact that witnesses were being asked to recall precise sequences of events, precise positions, and precise details of incidents, some four years after the event. So far as the pursuer was concerned, a conflict between his evidence and the evidence of prison officer Mr.Quin caused me to doubt the pursuer's credibility and reliability in relation to his description of both the incident in the dining hall and the events on his return to A Hall.

[24] Mr. Quin's only involvement was to escort the pursuer from one hospital to another on the day following the assault. As indicated above, Mr. Quin noted comments made to him by the pursuer during the transfer. However the pursuer denied having made such comments. I found Mr. Quin a credible and reliable witness. He was not involved in the events surrounding the attack on the pursuer, other than to escort him from one hospital to another. He made a reasonably contemporaneous note of the comments made by the pursuer. In the circumstances I found it difficult to disbelieve Mr. Quin's evidence. I formed the view that Mr. Quin had neither misheard nor misunderstood the comments, nor was he lying about them. Ultimately, I preferred his evidence to that of the pursuer, and I was satisfied that the comments noted in paper number 6/10 of process had indeed been made by the pursuer on the day following the assault.

[25] The discrepancy between the pursuer's and Mr. Quin's evidence was in my view highly significant. It seemed to me that, had the incident in the dining hall been as serious as the pursuer made out in his evidence, had the threats there made been as explicit as the pursuer claimed in court (inter alia that Rafferty was going to kill him), and had that incident been followed on the prisoners' return to A Hall with an overt display of aggression and threats by Rafferty such as "Pick a f---ing peter to die in" all as the pursuer maintained in evidence, the pursuer could not but have thought of Rafferty as a possible suspect for the attack. The fact that the pursuer was apparently not thinking of Rafferty the following day, but was reasoning that it was likely to have been prisoner A. Dowel who inflicted the injuries because he was "miffed" for the reasons noted by Mr. Quin in paper number 6/10 of process, seemed to me to suggest that any incident or incidents involving the pursuer and Rafferty the previous day had not been as overtly serious, threatening, and menacing as the pursuer claimed in evidence, but rather had been the verbal confrontation, the heated discussion, or the everyday disagreement, described by the prison staff.

Conclusions in relation to events in the dining hall and A Hall

[26] Having considered and weighed up the evidence, I was satisfied that there was indeed a verbal confrontation between the pursuer and Rafferty on 17 July 1996 in the dining hall some time after 4 p.m., triggered by the pursuer's having announced a short silence; that the confrontation involved a display of anger on the part of Rafferty, and some annoyance on the part of the pursuer; that Rafferty shouted and swore; that there were admonitions from both prisoners and staff along the lines of "Sit down and be quiet" "Behave yourself"; and that the two men ultimately sat down. However I was not satisfied that any prison officer heard a threat made by Rafferty to the pursuer, in particular any threat to kill him. Nor was I satisfied that the incident overall was as menacing and threatening as the pursuer suggested in evidence. On the contrary, the evidence of Mr. Quin, whom I found a credible and reliable, tended to support the prison officers' assessment of the incident as a fairly run-of-the-mill angry verbal disagreement between two prisoners. Mr. Comyns' words of advice were consistent with his having witnessed such a disagreement, knowing that one of the protagonists had a history of bullying and trouble-making.

[27] In relation to the prisoners' return to A Hall, only the pursuer gave evidence about further hostility displayed by Rafferty, including explicit threats to kill and attempts to assault the pursuer, foiled (according to the pursuer) partly by other prisoners and partly by prison officers restraining Rafferty while bundling the pursuer into his cell. The evidence of prison officers Gibb, Grieve, and Boyle not only did not support the pursuer's evidence, but contradicted it. As indicated above, I had doubts about this passage of the pursuer's evidence. Moreover, the evidence of Mr. Quin suggests that, on the day following the assault, the pursuer was not even considering Rafferty as the possible assailant. Had the undisguised aggression and shouted death threats occurred in A Hall as the pursuer described, it would be almost inconceivable that he would not have considered Rafferty as someone who might have attacked him. In the result, I was unable to accept the pursuer's account of what occurred on the prisoners' return to A Hall, and unable therefore to find it proved that anything noticeably untoward had occurred involving the pursuer and Rafferty on the prisoners' return to A Hall.

Disciplinary powers available to prison officers in 1996

[28] Mr. Michael Piper, prison manager, Glenochil, gave evidence about the powers available to prison officers in 1996 in order to maintain discipline within prisons. He emphasised that officers had to proceed on the basis of the Prisons and Young Offenders Institutions (Scotland) Rules 1994 (S.I. 1994 No.1931) - the "Prisons Rules". Prisoners had rights, and any special disciplinary or protective measures which resulted in unusual arrangements for a prisoner (such as removing him from association, or categorising him as a vulnerable prisoner, or reporting him to the governor in respect of a breach of discipline) had to be justifiable and authorised in terms of the Prisons Rules. Mr. Comyns also confirmed the necessity of abiding by the Prisons Rules. In relation to removing a prisoner from association, Mr. Comyns commented: "You have got to have good reason to take a prisoner out of association. You need evidence, witnesses ..."

[29] Rule 80 of the Prisons Rules provides inter alia:

"(1) Where it appears to the governor desirable for the purpose of -

    1. maintaining good order or discipline;
    2. protecting the interests of any prisoner; or
    3. ensuring the safety of other persons,

he may order in writing that a prisoner shall be removed from association with other prisoners, either generally or during any period the prisoner is engaged or taking part in a prescribed activity ...

(4) If the governor makes an order under paragraph (1), he shall -

    1. specify in the order whether the removal from association is -
      1. in general; or
      2. in relation to a prescribed activity;
    2. if the removal is in relation to a prescribed activity, specify which activity the order relates to;
    3. specify in the order the reasons why he is making it;
    4. record in the order the date and time it is made; and
    5. explain to the prisoner the reasons why the order is made.

(5) A prisoner who has been removed from association generally by virtue of an order made by the governor in terms of paragraph (1) shall not be subject to such removal for a period in excess of 72 hours from the time of the order without the written authority of the Secretary of State ..."

[30] Rule 95 provides inter alia:

"(1) Every suspected breach of discipline shall be reported forthwith in writing to the Governor by the officer to whose notice it has come.

(2) Subject to paragraphs (3) and (4), where any officer has reasonable grounds for suspecting that a prisoner has committed a breach of discipline he may, if he considers it appropriate to do so, remove the prisoner from association with other prisoners in general pending the making of a report in terms of paragraph (1) and the adjudication of the charge of breach of discipline ..."

Rule 94 and Schedule 3 defines "breach of discipline" as follows:

"A person shall be guilty of a breach of discipline if he -

(a) commits any assault; ...

(d) fights with any person; ...

(q) uses threatening, abusive or insulting words or behaviour; ...

(z) attempts to commit ... any of the foregoing breaches."

[31] Both Mr. Piper and Mr. Strange gave evidence that a confrontation between two prisoners would have to be assessed by the prison officers who witnessed it. Not every confrontation resulted in disciplinary proceedings. Arguments and bad language were fairly common in prison. A physical assault would normally be a breach of discipline requiring steps to be taken, although Mr. Strange commented that prisoners sometimes indulged in play-acting, carrying-on, and toy-fighting, for example, chasing each other into cells. An experienced prison officer would often not take any action in such circumstances as he would know that such behaviour was unlikely to culminate in an assault. An argument or an exchange of words would have to be assessed on the basis of all the circumstances, including an assessment of the particular prisoners involved, the reaction of other prisoners in the vicinity, any previous hostility shown, any known related matters such as debts owed, involvement in drugs, or "grassing". The words used, and the actual behaviour, were also relevant. Ultimately a prison officer had to rely on his or her experience, judgement, and common sense.

Pursuer's case: direct liability or vicarious liability

[32] The pursuer's case on record was directed against the Lord Advocate, representing the Scottish Prison Service. The averments of fault made a case of direct liability, not vicarious liability. Although the evidence established that the staffing on 17 July 1996 was below the normal complement, as one member of staff was absent, that factor was not founded upon on record or in submission as a ground of fault per se. Nor was it suggested on behalf of the pursuer that the defender's regular system of supervision and observation of the remand prisoners was inadequate or unsatisfactory in some way. Thus no attack was made upon the system adopted at recreation whereby the desk man called to the three galleries to "Open up for recreation", and thereafter on each gallery an officer moved from cell to cell releasing prisoners for recreation while keeping a general observation on the released prisoners who were free to move from gallery to gallery by the central stairs. The pursuer's case was rather that, following upon the explicit threats made to the pursuer by Rafferty, a prisoner known for his bullying and "taxing" of fellow-prisoners, special steps should have been taken in relation to observation or separation of the pursuer and Rafferty.

[33] At the hearing on evidence, the solicitor-advocate for the pursuer submitted that Mr. Comyns, the supervisor in charge of A Hall, had witnessed a serious incident in the dining hall during which Rafferty had threatened to kill the pursuer. Yet Mr. Comyns had not alerted his subordinate staff (such as Miss Gibb in A Hall) so that they could take particular care in relation to the pursuer and Rafferty when carrying out their normal gallery duties, and in particular their duties of observation. Had Mr. Comyns so alerted his staff, the assault would not have occurred. The solicitor-advocate was in effect basing his case on vicarious liability, not on direct liability. His submissions were not accompanied by a motion for late amendment. He contended that in order to succeed, the pursuer had to establish four matters, namely (1) that on 17 July 1996 a threat was made to the pursuer in the dining hall; (2) that Mr. Comyns, who witnessed that threat, knew about Rafferty's history; (3) that at the time of the assault Miss Gibb had been physically outside A Hall beyond the double doors leading to the recreation area, and had not been circulating and observing the prisoners within A Hall as she should have been, while Mr. Boyle, the desk man, had been restricted in that he had to be at his desk; (4) that the assault had indeed been perpetrated by Rafferty. It was submitted that the second incident in A Hall on the prisoners' return from the dining hall was not essential to the pursuer's case. It was further submitted that the pursuer had established elements (1) to (4), and was entitled to succeed, on the basis that had Mr. Comyns told Miss Gibb and Mr. Boyle about the threat in the dining hall, they would have been alerted, or put on notice, to keep a special lookout for the pursuer. Such notice would have enabled Miss Gibb to unlock the pursuer last, or to keep him at her side at all times. If it were to be suggested that the submissions advanced did not reflect the case pled on record, the pursuer's position was that the submissions were but a variation or development of the case on record.

[34] Counsel for the defender submitted that the pursuer was trying to succeed on the basis of vicarious liability. There was no record for such a case. There had been no fair notice to the defender, or to Mr. Comyns, whose evidence had been led by the pursuer. There had been no motion for late amendment. Any such motion would of course have been opposed. The pursuer was not entitled to try to make a case of vicarious liability at such a late stage. Conversely, the pursuer had failed to make out any case founded on direct liability. There had been no evidence that the Scottish Prison Service had failed in duties to make arrangements for separation and/or observation of prisoners. On the contrary, the Prisons Rules and the evidence of witnesses such as Mr. Strange, Mr. Piper, and prison officers Gibb and Fraser, made it clear that the Scottish Prison Service had an appropriate system. An individual failure by one of their employees properly to operate the system was not a breach of duty on the part of the Scottish Prison Service. Any such failure would be a breach of duty on the part of the employee - in other words, a case of vicarious liability. The pursuer had accordingly failed to establish fault. The defender was entitled to absolvitor.

[35] In my view, counsel for the defender was correct in his contention. There was on record no case of vicarious liability naming Mr. Comyns as an employee accused of a breach duty, and averring in what way he personally had failed. In the circumstances of this case I am satisfied that the pursuer should not be permitted to present a case of vicarious liability, blaming Mr. Comyns as having been negligent. While it is accepted that a lenient and accommodating approach to pleadings should be adopted wherever possible, thus avoiding reducing litigation to a "game of skill and chance" in the words of Lord Diplock in Gibson v BICC Co. Ltd 1973 S.C. (H.L.) 15, it seems to me that it is the antithesis of fair notice for the pursuer to give neither the defender nor their employee Mr. Comyns any warning that Mr. Comyns was to be blamed as having been negligent, to lead Mr. Comyns as a witness for the pursuer, and finally to present submissions on the basis of the negligence of Mr. Comyns, for which the defender should be vicariously liable, although the pleadings contain no averments relating to vicarious liability. Had fair notice been given to the defender and to Mr. Comyns, the proof would in all likelihood have taken a different path.

[36] In conclusion, there being no evidence to support the case of direct liability, and indeed no submissions inviting me to find for the pursuer on the basis of direct liability, it follows that the defender is entitled to absolvitor.

Identity of attacker, and causation

[37] There was a further matter of some significance, namely, whether the identity of the pursuer's assailant had been established on a balance of probabilities. As indicated, the pursuer did not see his attacker. He was rendered unconscious by the attack. There were no eye witnesses who were willing to give a statement. No real evidence was found. No criminal prosecution could be pursued. No disciplinary proceedings could be taken.

[38] The pursuer gave evidence that on 23 September 1996, which was his last day in prison, having been acquitted at his trial, Mr. Piper told him that Rafferty had admitted to him having assaulted the pursuer. Mr. Piper in evidence denied having said such a thing to the pursuer. He stated that Rafferty was not the type of person to come to him for anything. Rafferty had a deep dislike of him, and had made no admission to him.

[39] I was not satisfied that any admission had been made to Mr. Piper, and accordingly I leave out of account that part of the evidence.

[40] The solicitor-advocate for the pursuer submitted that there was sufficient circumstantial evidence to establish, on a balance of probabilities, that Rafferty had been the attacker. In particular, the pursuer and Rafferty had had a confrontation at some time between 4 p.m. and 5 p.m. on 17 July 1996. Rafferty had become angry and aggressive, and obviously bore the pursuer ill-will. Accordingly Rafferty had a motive to attack the pursuer. Only an hour or so later at about 6.45 p.m., when the cells in A Hall had been opened up for recreation, Rafferty had the opportunity to come down the stairs from his cell on the top flat, and to assault the pursuer as he was bending over a basin. Further prison officers David McAdam and Raymond Reid gave evidence that on 18 July 1996, other prisoners were naming Rafferty as the man who had assaulted the pursuer. Mr. McAdam had seen Rafferty on 18 July 1996 boasting about "what he had done to [the pursuer]", all as noted in the information paper number 6/11 of process.

[41] Counsel for the defender submitted that there was insufficient evidence to establish the identity of the perpetrator, even on a balance of probabilities. The pursuer thought that his attacker had been Mr. Dowel. No reliance could be placed on the double hearsay from fellow prisoners. The precise time of the assault could not be established, and accordingly the pursuer could not even show whether Rafferty's third floor cell had indeed been opened in time for him to descend the stairs and assault the pursuer. In other words, opportunity had not been proved. The ill-will shown towards the pursuer did not assist: Rafferty could have arranged for another prisoner to attack the pursuer. The motives behind Rafferty's subsequent boasting could be many and varied, including a desire to save face after the incident in the dining hall. It was significant that no disciplinary measures had been taken, although admittedly the rules and standard of proof relating to disciplinary matters within a prison had not been explored in evidence.

[42] The alleged assault in the present case was a particularly vicious attack upon someone who was unsighted and bending over a basin. Having carefully reviewed all the evidence available, I was not satisfied that the identity of the pursuer's attacker had been established even on a balance of probabilities. It follows that, even if, contrary to my conclusions above, it were to be held that the pursuer was entitled to proceed upon the basis of vicarious liability, and even it were to be held that a breach of duty had occurred, the pursuer would in my view be unable to establish that the precautionary measures desiderated by him (which were directed to the particular combination of the pursuer and Rafferty) would, on a balance of probabilities, have prevented the assault from occurring. In my view, the defender would be entitled to absolvitor for that reason also.

The question of negligence

[43] In deference to the arguments presented to me, I add, obiter, that the solicitor-advocate for the pursuer and counsel for the defender agreed that, at common law, the prison authorities owed the pursuer a duty to take reasonable care for his safety. As Singleton L.J. said in Ellis v Home Office [1953] 2 All E.R. 149:

"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, and that includes those who are within against their wish or will ..."

Similarly Devlin J. at first instance in Ellis v Home Office commented:

"...it is only if [a prison officer] neglected [to take reasonable care for the remand prisoner's safety] that his employers, the prison authorities, may be made liable. The test of that is whether [the prison officer] ... ought to have appreciated as a foreseeable consequence to what he did, that an injury might be done to the plaintiff ..."

[44] Lord Diplock made similar observations in Dorset Yacht Co. Ltd. v Home Office [1970] A.C. 1005, at pp. 1067D-1069H, while Lord Morris of Borth-y-Gest stated at p.1040F-G:

"If someone is serving a sentence of imprisonment and consequently is not free to order his own movements I would think it eminently reasonable to hold that those in charge of the prison owe him a duty to take reasonable care to protect him from being assaulted by a fellow-prisoner who may have shown himself to be one who might cause harm (Ellis v Home Office [1953] 2 All E.R. 149; D'Arcy v Prison Commissioners, The Times, November 17, 1955)."

[45] In the present case, the solicitor-advocate for the pursuer submitted that the proper test to be applied was one of reasonable foreseeability of a physical assault being perpetrated upon the pursuer by Rafferty. Reference was made to Ellis v Home Office [1953] 2 All E.R. 149; Whannel v Secretary of State for Scotland, 1989 S.L.T. 671; Leslie v Secretary of State for Scotland, 1999 Rep.L.R. 39; and Dorset Yacht Co. Ltd. v Home Office [1970] A.C. 1005.

[46] Counsel for the defender accepted, under reference to the same authorities, that prison authorities owed their prisoners a duty to take reasonable care to protect them from violence from other prisoners. However that duty was not one of insurance: the prison authorities were not bound to ensure that no prisoner was ever hurt by a fellow prisoner. Reference was made to the opening passage in the opinion of Jenkins L.J. in Ellis v Home Office, quoted in paragraph [6] above. The duty was to take reasonable care in all the circumstances: cf. Donoghue v Stevenson, 1932 SC (HL) 31, Lord Atkin at p.44. The mere occurrence of harm did not of itself prove that there had been a failure in duty: Dorset Yacht Co. Ltd v Home Office, cit. sup., Lord Morris of Borth-y-Gest at p.1040. For the pursuer to succeed in establishing a breach of a duty of care, he had to establish that harm to the pursuer was a reasonable and probable consequence of the acts and omissions of the defender: Muir v Glasgow Corporation,1943 SC (HL) 3, Lord Thankerton at p.8 and Lord Wright at p.15.

[47] I should add that I also found the decision of Lord Philip in Connor v Secretary of State for Scotland, 2000 Rep. L.R. 18, to be of assistance.

[48] In my view, the authorities cited support the proposition that an element of discretion rests with prison staff in the exercise of their duties. Their daily work involves the balancing of competing considerations and interests, for example, the requirements of security, safety of the public, safety of the staff, safety of the inmates, orderly administration of the prison, particular protection for inmates identified as vulnerable, prevention of disorderly or violent conduct, visiting rights, work rights (although remand prisoners generally do not work), rehabilitation, some association with other prisoners, and recreation. Frequent references to the exercise of discretion or the exercise of judgement appear in the authorities referred to.

[49] For example, in Dorset Yacht Co. v Home Office [1970] A.C.1004, Lord Reid commented at p.1031A-F

"Where Parliament confers a discretion ... there may, and most certainly, will, be errors of judgement in exercising such a discretion and Parliament cannot have intended that members of the public should be entitled to sue in respect of such errors. But there must come a stage when the discretion is exercised so carelessly or unreasonably that there has been no real exercise of the discretion which Parliament has conferred. The person purporting to exercise his discretion has acted in abuse or excess of his power. Parliament cannot be supposed to have granted immunity to persons who do that ...

Governors of these institutions and other responsible authorities have a difficult and delicate task ... [they] must weigh on the one hand the public interest of protecting neighbours and their property from the depredations of escaping trainees and on the other hand the public interest of promoting rehabilitation. Obviously there is much room here for differences of opinion and errors of judgement. In my view there can be no liability if the discretion is exercised with due care. There could only be liability if the person entrusted with discretion either unreasonably failed to carry out his duty to consider the matter or reached a conclusion so unreasonable as again to show failure to do his duty."

Lord Morris of Borth-y-Gest observed at p.1037E-G:

"...I think that it is important to point out that liability should not be held to result from what might be an error of judgement on the part of someone making a decision which it is within his powers and his discretion to make ... decisions of policy will have to be made on a weighing up of the balance of competing considerations as to the appropriate course to be followed in a particular case. There should not be liability merely because unfortunate consequences have followed upon a decision which someone has in his discretion made while acting within his powers."

[50] Similarly in Whannel v Secretary of State for Scotland, 1989 S.L.T. 671, Lord Morton observed:

"... the court must be careful not to substitute what it considers should have been done for the exercise of a discretion by the prison staff ..."

In Leslie v Secretary of State for Scotland, 1999 Rep. L.R. Lord Nimmo-Smith provided an example:

"A prison officer who is suddenly faced with an outbreak of fighting among prisoners needs to take rapid decisions about a number of matters, including his own safety and the safety of the prisoners, and the taking of what can with hindsight be seen as a wrong decision in the heat of the moment does not of itself establish negligence on his part."

[51] In the present case, the evidence of all the prison staff, including Mr. Comyns and Mr. Piper, illustrated the numerous day-to-day decisions which prison staff require to take, often involving the assessment of situations, signs and behaviours, and the weighing and balancing of the individual rights of inmates with the need for orderly administration of the prison and the protection of the safety of all inmates and staff. Decisions concerning the removal of a prisoner from association, or the reporting of a prisoner to the governor, or the separation of particular prisoners, or the placing of a prisoner under special observation, may be finely-balanced matters which by their nature require the exercise of judgement or discretion. In such circumstances, any court, operating as it does without the benefit of practical experience in prison management, but with all the advantages of hindsight, should in my view be slow, in the words of Lord Morton, to substitute what it considers should have been done for the exercise of judgement or discretion by prison staff.

[52] Turning to the particular circumstances in the present case: I consider that in July 1996 the precautionary powers available to prison staff were those set out in the Prisons Rules applicable at the time. In my view, there was no evidence to suggest that a prison officer had the power or authority to keep a prisoner at his or her side while performing other general duties such as unlocking cells, or carrying out general observation of prisoners on a gallery. In relation to the events on 17 July 1996, as indicated above, I was satisfied that there had been an angry verbal disagreement between the pursuer and Rafferty arising from the pursuer's announcement of a few minutes' silence in the dining hall. However for the reasons given above, I was not satisfied that the incident was of such an explicitly threatening nature as the pursuer maintained in evidence, nor that any prison officer heard Rafferty making a threat to the pursuer. Nor was I satisfied that there had been any second incident of an explicitly violent and menacing nature on the prisoners' return to A Hall, as claimed by the pursuer. From the point of view of Mr. Comyns, who had some knowledge of Rafferty's history, I consider that it was reasonably foreseeable following upon the incident in the dining hall that there might be no further repercussions, or that there might be some further angry words, possibly (but not necessarily) accompanied by some minor physical scuffle. In such circumstances I consider that Mr. Comyns was well-entitled to exercise his judgement as he did, concluding that, in the particular circumstances, it was unnecessary to remove one of the two prisoners from association, or to report one or both to the prison governor, in order to separate the two or to provide for the special observation of one or both. It will be seen therefore that even if the pursuer were to be permitted to advance a case based on vicarious liability, I would not be persuaded that any breach of duty or negligence had occurred.

Quantum

[53] Although the defender is to be assoilzied, it is necessary to address the question of quantum.

[54] Details relating to the injuries came from the evidence of the pursuer and his general practitioner, Dr. Watson; a report commissioned by the pursuer from Roy Mitchell, Oral and Maxillofacial Surgeon, dated 11 February 2000 number 6/1 of process; a report commissioned by the defender from D. I. Russell, Consultant Oral and Maxillofacial Surgeon, dated 30 October 2000 number 7/11 of process; and some photographs of the pursuer number 6/16 of process, taken several weeks after the incident.

[55] The pursuer suffered a fractured jaw and a laceration to his left temple. He required an operation to have metal plates inserted, and his jaw wired up. A further operation was required to remove the wire. He has been left with permanent after-effects, namely a scar on his left temple and an operation scar under his right jaw, loss of sensation in the lower lip and chin, difficulty drinking, a tendency to drool out of the right side of the mouth, a tendency to bite the inside of the lip when eating, a sensation of tingling or pins and needles in the lip with sensitivity to touch, such that he suffers discomfort when kissing, shaving, brushing his teeth, or washing his face. The pursuer also felt that, following upon the assault, his memory was not very good. He had been released on being acquitted on the final day of his trial on 23 September 1996, but had noticed that he felt scared to go out of his house. He suffered from depression, although the pursuer agreed in cross-examination that he had previously been suffering from depression, for which he had been prescribed Lustral. The pursuer further complained of an intermittent ringing noise in his right ear which he attributed to the incident. Dr. Watson, the pursuers' general practitioner, gave some evidence concerning the pursuer's complaints about tinnitus, but agreed that he did not have the expertise to give his own view about the cause of any tinnitus. He also agreed that the pursuer had complained of a blow to the head with a hammer in January 1998.

[56] The solicitor-advocate for the pursuer referred to Woodhouse v Normanton, Kemp & Kemp C2-084; Bryan v Euroguard Ltd., Kemp & Kemp C2-083; Lamont v Monklands D.C., 1992 S.L.T. 428; Laidler v Yarrow Shipbuilders, 1990 S.L.T. 261; Vaughan v Moogan, Kemp & Kemp D3-030. He submitted that damages for solatium including the tinnitus, should be within the range £14,000 to £17,000, with three quarters allocated to the past. In addition to solatium, the pursuer required a replacement denture plate at a cost of £300. That sum has not yet been expended, and accordingly no interest fell to be added.

[57] Counsel for the defender submitted that any tinnitus suffered by the pursuer had not been proved to have been caused by the assault. Nor should any complaint of depression or low mood be attributed to the assault, as the evidence disclosed that the pursuer had been prescribed the drug Lustral for depression prior to the assault. Damages for solatium should be within the range £8,000 to £10,000, with three quarters attributable to the past. Reference was made to Todd v Butler, 1996 G.W.D. 9-514; Lamont v Monklands D.C., 1992 S.L.T. 428; the Judicial Studies Board Guidelines, in respect of a "serious fracture with permanent consequences such as difficulty opening the mouth or with eating or where there is paraesthesia in the area of the jaw"; Re Carroll, Kemp & Kemp C6-015; and Fraser v Southampton C.C., Kemp & Kemp C6-007.

[58] In my view, the evidence has not established that any tinnitus suffered by the pursuer was caused or contributed to by the assault. I am prepared to accept that he suffered some low mood attributable to the assault and its consequences. I assess damages for solatium at £14,000, three quarters of which is attributable to the past. Damages of £300 would also be recoverable in respect of the dental plate. Interest would run on past solatium, but not in respect of the damages for the dental plate.

Conclusion

[59] For the reasons given above, I repel the pursuer's pleas-in-law, sustain the defenders' first three pleas-in- law and grant absolvitor.


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