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Kaizer v Scottish Ministers [2018] CSIH 36

Causation is at the heart of this appeal. In July 2009 Mr Porter had attempted to murder a fellow inmate in a racist attack, carried out in the prison gym.

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 occurring a week prior to the assault.

The pursuer had reported the threat to  prison officer Mr Lumsden who was on duty at the time. The officer did not make any report about the incident, as a result of which no further action was taken.

It was accepted that Mr Lumsden had been negligent, and that his employers were vicariously liable. The question was whether the assault would have taken place but for that negligence.

The defender’s position was in many ways remarkable. They tried to argue that  nothing effective could  have been done by the prison authorities that the attack was inevitable and  would have happened in any event.

The court held that it was unable to accept that “unattractive position”.

“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.”

It was held that 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.

An expert witness had given evidence that it was much less likely that the assault would have happened if close supervision had been in place and the Lord Ordinary had indicated he agreed with that. His evidence was that if there had been a serious threat made it would go to senior management for a determination on what to do. It would have enabled officers close to the actual incident, to take positive steps to deal with any threat.

The reclaiming motion was refused. 

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