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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hendrie v. Scottish Ministers [2002] ScotCS 7 (10th January, 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/7.html Cite as: [2002] ScotCS 7

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Hendrie v. Scottish Ministers [2002] ScotCS 7 (10th January, 2002)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LORD KINGARTH in the cause GARY HENDRIE Pursuer; against THE SCOTTISH MINISTERS Defenders:   ________________

 

 

Pursuer: Clancy, Ketchen & Stevens, W.S.,

Defenders: Brodie, Brodies, W.S.

 

10 January 2002

1. This claim for damages arises out of an incident on 14 November 1994 when the pursuer, acting in the course of his employment as a prison officer with the Scottish Prison Service in the West Wing Hall of Polmont Young Offenders' Institution, intervened to try to break up a fight between two inmates, Derek James Barnes and Keith Duncan. There was little or no dispute on Record, or at the proof, as to what then happened. At or about 8.30pm the pursuer was instructed to supervise certain inmates in a closed off television area which formed part of the recreation area. Duncan was one of the inmates in the television area and was sitting watching television. Barnes came through the door to the area and proceeded immediately to assault Duncan by kicking and punching him in a vicious attack. The pursuer who was sitting at the back of the area immediately tried to intervene and pull Barnes off Duncan. Barnes, in a rage, struggled violently. The pursuer managed to pull him away from Duncan, but he and Barnes fell to the ground as he did so. Barnes was still trying to attack Duncan. As the pursuer fell he felt immediate pain in his back.
2. Since then, on the evidence, it is plain that the pursuer has suffered significant pain and disability in his back. This continues. The future prognosis is not good. Apart from a brief but unsuccessful return to work between February 1995 and April 1995 the pursuer has not worked since the accident. He was medically retired with effect from 26 December 1997. It appears there are no reasonable prospects of him obtaining alternative employment. He has suffered substantial earnings and pension loss. At the end of the proof the parties were agreed on all aspects of damages, save in relation to the question of whether, and if so when, the pursuer would have been promoted.
3. By the end of the proof it was clear that certain other basic facts were not seriously in dispute.
4. In 1994 Polmont Young Offenders Institution housed male young offenders aged between 16 and 21. Both remand and convicted prisoners were accommodated, the convicted prisoners being those serving both short and long term sentences. The Institution was divided into a number of separate units or wings. Generally each housed a particular class of inmate. There was a remand wing and an induction wing. The north wing generally housed short term prisoners. The west wing which had a capacity of about 78 generally housed long term prisoners. The east wing generally housed both long and short term prisoners who had graduated to certain privileges. In general, subject to capacity and security considerations, a progression system was operated.
5. Each wing was a separate building. The inmates in one wing generally had no contact with the inmates in another. There could, however, still be - unless there were reasons to prevent it - some contact, for example during work parties or in the gym. Officers working in the west wing worked on a two shift system on weekdays between Monday and Friday. The early shift started at 6am and finished at 2pm. The back shift started at 1.15pm and finished at 9.30pm. There was thus an overlap between 1.15pm and 2pm. On each shift there were six prison officers and a Senior Officer - a uniformed officer of promoted grade. Above them there was a Principal Officer, and above him an officer of Governor grade with responsibility for the wing. At weekends it appeared the shift pattern was different (with broadly one day time shift), although the same number of prison officers and a Senior Officer would work together on duty. Above them, however, the Principal Officers (who worked on two shifts) would then have responsibility for the whole Institution as would the officer of Governor grade above him. Generally the officers who worked on a Saturday and Sunday would work on the early shift on a Monday.
6. Between 1.15pm and 2pm on a weekday there was a handover meeting between the officers of the outgoing early shift and the officers of the incoming back shift. During this period the inmates were locked in their cells. There were two phases to the handover meeting. The first phase involved all officers from both shifts who were available, and included Senior Officers from both shifts. During the second phase those officers who worked in the upper flat and those who worked in the lower flat of the west wing would separately meet. Senior Officers did not generally attend the second phase. The purpose of the handover meeting was to enable the outgoing shift to pass on, and the incoming shift to receive, information about the whereabouts of prisoners (for example whether there were any attending Court etc) and in relation to any noteworthy incidents which had occurred earlier or in relation to any potential problems which might be anticipated. On 14 November 1994 the Senior Officer working in the west wing on the early shift was Mr McGarry. The Senior Officer working in the same wing on the back shift was Mr Kerr. Mr McGarry had worked as Senior Officer over the weekend. The Principal Officer working on the early shift on the Monday was Mr Innes Cameron. He had also worked as Principal Officer over the weekend.
7. Barnes was serving a six year sentence for armed robbery and assault. Prison records indicated that he had been involved in two incidents involving fights with other inmates in 1993. Following that he had been temporarily liberated but had returned to commence his six year sentence in 1994. A number of witnesses offered comments about him. The general impression appeared to be that he was not a particularly bad inmate and as a passman had been given a degree of trust. On the other hand it seemed to be the general view that prison officers would not be inclined to trust him - any more than any other inmate - not to retaliate if he was attacked or injured.
8. Duncan's prison records disclosed someone who was persistently involved in fighting with other inmates. He had been on report eight times since June 1994, on five occasions in respect of fighting with inmates. Although it was generally agreed that his record was not good and indicated that he could be violent, there was also evidence that he would not be regarded as by any means the worst. Rather he was seen by most as not untypical. Prior to November 1994 there was no history of any particular feud between Barnes and Duncan. It was a matter of agreement that Barnes was in due course transferred from Polmont Young Offenders Institution to Dumfries Prison on 15 November 1994, the day after the pursuer suffered his injury.
9. At the end of the proof counsel for the pursuer sought to advance broadly two cases of fault. The first proceeded on the basis that it had been proved that on or about Sunday 13 November 1994 prisoners Barnes and Duncan had been separated by one of them being moved out of the west wing, in circumstances in which it was known that Duncan had assaulted Barnes once, or more than once, and that notwithstanding that, the transferred prisoner had been returned to the west wing by about the beginning of the back shift on Monday 14 November. In these circumstances it was argued that the officer or officers of Governor grade who had responsibility for the west wing on Sunday 13 November and in the morning of Monday 14 November, or the Senior Officer with responsibility for the west wing on the weekend and on the morning shift (Mr McGarry), were negligent in allowing the two inmates to be reunited. Secondly, it was argued that if it was not proved that Barnes and Duncan had been separated on or about 13 November the same officers should nevertheless have taken steps, then or at any rate prior to the pursuer's injury (and in particular by or about the beginning of the back shift) to separate them into different wings, and to maintain that separation, prior to Barnes' transfer out of the Institution. In this respect it was argued that Mr Kerr could also be said to have been negligent.
10. Leaving aside for the moment detailed consideration of whether circumstances existed and were known to exist such that Barnes and Duncan should have been kept apart prior to the pursuer's injury, and as to whether they had in fact been separated but reunited, I propose to deal with the evidence which bore on the circumstances in which it would be thought appropriate in practice to transfer a prisoner to another wing and upon who had authority to institute or to take such a decision.
11. As to the first of these matters I generally accept the evidence given by two of the defenders' witnesses, both of whom held senior positions and who spoke from considerable personal experience. The first was Mr Innes Cameron who had served for many years as a prison officer and latterly as Principal Officer at Polmont prior to his retirement in March 1995. The second was Mr David Croft who was now Deputy Director of Operations in the Scottish Prison Service. Although he had limited experience in Polmont itself he had held many different Senior Officer and management positions in other institutions in Scotland. Although the language in which these two witnesses expressed themselves was somewhat different, the tenor of their evidence was that if there was clear, direct (in particular eye witness) evidence of a fight or fighting between two prisoners, or other clear, direct evidence of a breach of prison rules, the prisoner or prisoners concerned would be put on report and disciplined by the Governor. Such discipline, in accordance with prison rules, could involve confinement in a separate cell area. Pending a decision by the Governor, the prisoner or prisoners involved could be confined in their cells. Where such circumstances did not exist (turning now to the practice with which the pursuer's case is more particularly concerned) both agreed that if information became available sufficient to cause serious concerns about likely trouble between two inmates, it would be appropriate in practice to separate them by transferring one into a different wing for a period. Although they were agreed that this would not be done on the basis of "mere" rumour (Mr Cameron in particular gave convincing evidence that rumour was rife in such an institution and that it would be unfair to proceed solely upon that basis) and although both were agreed that it would not be done, as Mr Cameron put it, "willy-nilly", there being in general good reason to maintain the composition and make-up of the various wings in accordance with the general policy (and it being possible for officers to keep an eye on one or two inmates rather than to transfer) it would nevertheless, they thought, be appropriate to transfer one inmate for a period if the information available was such as to suggest a serious risk of trouble between two inmates (particularly if prison officers themselves, who were best placed to assess such risks, were concerned). It could not be described as a routine step to take. I did not understand the pursuer himself to disagree. He accepted that it would require some serious apprehension. He had had experience of it happening only two or three times before. The only witness who appeared to give clearly differing evidence was another prison officer Murray Thomson. He thought that such a transfer was something that could happen quite often, but his evidence on this matter I found to be unreliable and not in accord with the bulk of the remaining evidence. That said, it was Mr Cameron's evidence that if the circumstances were such as to indicate the desirability of a transfer of one prisoner it would not ordinarily be for just one day but rather for a period of about a week to allow things to cool down and there would be no question of reuniting the prisoners unless it was absolutely clear that the original reason for separating had ceased to operate. It was further Mr Croft's evidence that if one of the prisoners was due to be transferred out of the prison within a short time, there would need to be very good reason indeed to return the two together prior to his transfer.
12. As to who had authority to institute or take such a decision to transfer, there was general unanimity amongst the witnesses that the officer of Governor grade with responsibility for the wing would have the authority to make the decision, and that Senior Officers or Principal Officers would expected to play a part at least by bringing to the attention of the officer of Governor grade information which suggested that such a decision was, or might be, called for. It appeared to be clear from the evidence of Mr Cameron and Mr Croft that, in general, a Senior Officer or Principal Officer would not have the authority to make such a decision, but equally the weight of the evidence suggested that if for any reason the officer at Governor grade was not available - which could it seems happen at weekends or possibly on other occasions, - then a Senior Officer or Principal Officer could himself make the decision. This was certainly the evidence of the pursuer and another officer, Mr Leadbetter, and also the evidence of Mr Croft. Insofar as Mr Thomson appeared to think that Senior Officers and Principal Officers had wider authority to make such a decision, he was contradicted by the remaining evidence.
13. Against that background I turn now to the critical question of whether it can be said that circumstances existed such that Barnes and Duncan should have been kept apart by the transfer of one out of the west wing prior to the pursuer's injury and the related question of whether the two prisoners had indeed been separated over the weekend and then reunited on the Monday of the incident.
14. The only direct evidence of any kind of fight between Barnes and Duncan came from one of the defenders' witnesses, John McTavish. At the time he was a prison officer although he has since been promoted to the position of Resident Manager. He recalled, prior to 14 November, seeing the two offenders grappling together and exchanging punches in the main corridor outside the separate cells. Neither, however, was visibly injured and Mr McTavish did not put either inmate on report, taking the view at that time inter alia that the incident did not seem that serious. He thought, however, on reflection that he should have. This incident happened some time before Monday 14 November (on which date Mr McTavish was working on the back shift) but he was unable to say whether it had happened at the weekend or in the days before that. It seems likely, given that he would probably not have been on duty at the weekend, that it must have happened earlier than that. At the end of the proof this appeared to be accepted on all sides. Although Mr McTavish recalled concerns being expressed during the course of his shift on Monday about an apparently recent incident between Duncan and Barnes and about the potential for further trouble, his recollection now that the incident being referred to was the one he had seen, must I think, be mistaken. Insofar, however, as he remembered concern amongst his fellow prison officers on the back shift on Monday 14 November that Barnes was likely to try to save face by seeking some form of retribution against Duncan and concern that a weapon might be used, I have no reason to doubt his apparently clear recall.
15. There was also direct evidence from Mr Richard Lyon, a nursing officer at Polmont, of a visit by Mr Barnes to the health centre on Sunday 13 November. The records indicated that at some point on that day Mr Barnes attended with a four inch long, deep, scratch to the neck. The prisoner claimed that he had accidentally injured himself on the toilet door. The witness could not recall at what time Mr Barnes attended, but Mr Lyon was there between 7.30am and 5.30pm. He cleaned the wound. The wound, he thought, was fairly recent or fresh - having been caused within a couple of hours of attendance on that day. Although Mr Lyon did not consider the wound to be a serious injury, he was nevertheless sceptical about the prisoner's explanation and thought the probability was that it was more consistent with a fight or tussle and that it could have been caused by the use of a weapon. It was likely to have been a visible injury. Although he did not formally report the matter there was an even chance that he would have discussed it with the prisoner officer escort. On this evidence I find that the probability is that Mr Barnes was involved in a tussle or fight at some stage on Sunday 13 November and that for his own reasons Mr Barnes was not prepared to tell the health centre what had happened. It was possible that a weapon was involved. Although Mr Innes Cameron was on duty as Principal Officer over the weekend and was not aware of an attendance at the medical centre by Mr Barnes, he accepted that this could have happened. Although Mr Lyon did not indicate what sort of weapon could have caused the injury Mr Cameron suggested that on occasions prisoners could use the sharp edges of cards to cause injury. As to whether this incident involved the prisoner Duncan, much, I think, depends upon the information apparently received and being discussed on the following day, to which I now turn.
16. The pursuer gave very clear evidence of a discussion during the course of the handover meeting - certainly at the second stage - relative to an incident which had happened at the weekend between Barnes and Duncan. He was one of the officers coming on duty on the back shift. There was information that Duncan had cut, he thought, the side of Barnes' face at the weekend. There was, he understood, visible evidence on Barnes of this attack. The information was that the matter was not resolved. It was understood that Barnes had claimed that he had injured himself on the toilet door, but this had not been accepted at the medical centre. The matter was being taken seriously by the officers. It was known that Barnes was due to leave the institution the next day and there was a real concern that he would seek retaliation before he left. There was further information that the perpetrator Duncan had been transferred from the Hall following the incident, but had been placed back again. Although he was clear that the matter had been discussed at the second phase, he also seemed clear that it was the sort of matter which would have been discussed at the first phase also when the Senior Officers were present. If not, it was the sort of information of which they would most likely have become aware at about that time.
17. Mr Murray Thomson also gave evidence that at the handover meeting there was discussion of an altercation between Barnes and Duncan which had taken place on the Sunday. It was understood that this had not been witnessed by any officer. Mr Thomson worked the early shift on the Monday during which Mr McGarry was the Senior Officer. He seemed clear that the matter was discussed at the first part of the handover meeting on the Monday, when the Senior Officers were present, and that the information received by the prison officers, and taken seriously by them, was to the effect that the matter was far from finished. It was in any event the sort of information which the Senior Officers would have made it a high priority to discuss at that time. He appeared to have little or no recall beyond that as to the detail of the incident and insofar as his recollection was that it had had happened at the gym, he seemed to me to be significantly uncertain. His recall also was that he and other officers during the first shift on Monday had expressed their concerns to Mr McGarry. This was against a background in which he had heard not only that one of the two inmates had been transferred out but that that inmate was shortly due to be transferred back in to the hall.
18. Although as previously indicated Mr McTavish had a clear recollection that at some stage on 14 November there was discussion of concern about Barnes seeking retribution to save face and about the potential involvement of a weapon, he was uncertain as to when this was. He had, however, no recollection of either Barnes or Duncan having been moved out at any stage from the Hall. Mr Cameron, who worked on the early shift on Monday, could not recall being told of trouble between the two inmates but, significantly, he was not present at the handover meeting. He had no recollection of either inmate having been transferred at the weekend (although he accepted that it could possibly have happened after he went off duty at about 2.30pm on the Sunday) and no recollection of being told of any transfer in on the Monday, which, he indicated, he would expect to have heard of. Mr John Leadbetter, one of the pursuer's fellow officers on the back shift, could not recall any discussion of trouble between Duncan and Barnes nor did he recall any transfer of Duncan out of the Hall. He did not, however, attend the handover meeting. Mr Campbell McDermott, another officer who worked on the back shift, appeared to have no clear recollection one way or the other as to what had happened or what had been discussed on 14 November, and his recollection of how the pursuer came to be injured was plainly inaccurate.
19. Looking to this evidence as a whole I find it to be clear from the evidence of the pursuer, supported by Mr Thomson, that there was discussion at the handover of an altercation between Barnes and Duncan at the weekend and of the prospect of retaliation prior to Barnes leaving. At the end of the proof there was no real dispute but that there had been discussion to that effect. I find further that the likelihood is that this information was shared with the Senior Officers during the course of the first phase of the handover meeting. Although Mr McTavish himself had no clear recollection of when such a discussion took place, it seems likely that he too was referring to the handover meeting. I also find, on the basis of Mr Thomson's evidence, that he probably did express some concerns to Mr McGarry during the course of the earlier shift, but I am unable to make findings as to the detail of that conversation. As to the detail of the information which was discussed at the handover, I accept the pursuer's evidence on this. His recall appeared to be clear. It is not without significance, given the potential importance of the matter, that counsel for the defenders at the end of the proof did not seek to challenge the reliability and credibility of his evidence on this matter. That is not to say that I am able to accept all the pursuer's evidence. In the course of cross examination he suggested that later on Monday afternoon Duncan had told him he had been cut with a sharp object and that it was not finished and that he, the pursuer, had reported this to his Senior Officer Mr Kerr. This evidence, for which there was no Record, appeared to come as a surprise to everyone. In these circumstances, though I do not go so far as to hold that these conversations did not happen (standing the generally favourable impression I formed as to the pursuer's credibility), nevertheless I am not prepared, in the absence of any corroboration, to accept that they did.
20. Given what was discussed on 14 November, and indeed Barnes' attack on Duncan later when the pursuer was injured, I find that the probability is that the incident which caused Barnes to go to the medical centre on 13 November was indeed an incident in which he had been cut by the prisoner Duncan. As I have already indicated this incident was apparently additional to an earlier incident witnessed by Mr McTavish involving these two prisoners.
21. I am unable, however, to hold on the evidence that Duncan (or Barnes) was transferred out of the west wing (and thereafter returned). Had this occurred the best evidence (in the absence of written records, all of which have apparently been destroyed) would have been direct evidence available from officers who were involved in it or who saw it happening. No such evidence was led. Instead Mr Cameron, although accepting that a transfer out could have happened at the weekend after he finished his shift, was clear that he would have expected to hear of a transfer back in on Monday but he had not. Mr Leadbetter had no recall of any such transfer. Although the pursuer and Mr Thomson gave evidence of having received information to the effect that there had been such a transfer(evidence which in the event was not seriously questioned), I am unable, standing the remaining evidence - in particular that of Mr Cameron - to find that this information was reliable. Without proof of such a transfer the case first made by the pursuer must therefore fail.
22. As to the pursuer's second case there was, in the event, no dispute between counsel as to the general law to be applied. The question was whether in all the circumstances it could be said that by not transferring Barnes or Duncan from the west wing prior to the incident occurring there had been a failure to take reasonable care for prison officers such as the pursuer. The fundamental question, subject to the possible balancing of other factors, was whether it was or ought to have been appreciated that there was a real risk that the pursuer might be injured, as opposed to a mere possibility which would never influence the mind of a reasonable man. If, on a matter of judgement such as this, a decision could reasonably be said to have been open either way, the pursuer would fail. Reference in particular was made to Ellis v Home Office 1953 2 All.E.R.149; Muir v Glasgow Corporation 1943 S.C.(H.L.) 3; Overseas Tank Ship (UK) Ltd v Miller Steamship Co (Wagon Mound No.2) 1967 1 A.C.617 at 642; Morris v West Hartlepool Steam Navigation Co Ltd 1956 A.C.552 at 574; Brisco v Secretary of State for Scotland 1997 S.C.14 and Whannel v Secretary of State for Scotland 1989 S.L.T.671.
23. The case made on Record is directed against the officers of Governor grade, or the Senior Officers, working on Monday 14 November, with responsibility for the west wing. On Record and initially in argument the case was presented on the basis that Senior Officers as well as the officers of Governor grade with responsibility for the wing had the authority to make an appropriate transfer. As already indicated I do not find that the Senior Officers ordinarily had such authority, albeit they did have such authority on occasion if the officer of Governor grade was not available. There was nothing however in the evidence to show that an officer of Governor grade was not available on 14 November. Equally there was no specific evidence as to whether the Senior Officers on duty on 14 November did or did not approach the appropriate officers of Governor grade in relation to any potential transfer. It was argued, however, on behalf of the pursuer that since it was clear that Senior Officers had at least a duty to pass on relevant information to the officer of Governor grade and that since on the evidence the Court should find that it would have been obvious, at least from the information available at the handover meeting, to the Senior Officers, and to those holding office above them who learned of it, that the safe and reasonable course was indeed to separate Barnes and Duncan, then - if that was proved - the case on Record was wide enough to enable the pursuer to succeed, on the basis that one or other of the Senior Officers or officers of Governor grade must have been negligent. I see no reason to question that approach.
24. The question, however, remains whether the information was such that officers above prisoner officer rank should have realised that the safe and reasonable course was to separate Barnes and Duncan prior to Barnes' departure from the Institution on the following day. The high point for the pursuer is the information available to the Senior Officers at the handover meeting (and the officers' concerns about it). That information - as I have found - included information that there had been a physical altercation between Barnes and Duncan at the weekend and that the matter between them was not regarded as being settled. If that was all that was known that would not, I consider, be enough for the pursuer. In particular Mr Cameron - a witness respected in submission by both sides - gave reasonably clear evidence in re-examination, when a similar scenario was put to him, that if that was all that was known there would not necessarily be any need to transfer, although no doubt the staff would be asked to keep an eye on things. In addition, however, it was, as I have found, known that Barnes was due to be transferred out of the Institution on the following day. (Mr Cameron, incidentally, accepted that such a decision would have been taken at least a day beforehand so it is not surprising that the prison officers at the handover meeting were apparently aware of it). Further, it was known that Barnes had been cut, that he had been to the medical centre, that he had, apparently for his own reasons, given an implausible explanation as to what had happened to him, and all this in circumstances in which it was entirely possible that a weapon had been involved.
25. I have come to the view that, taking account of all of these factors, this was indeed one of those occasions when the safe and reasonable step would have been to transfer one or other of Barnes and Duncan out of the west wing pending Barnes' removal from the Institution. Mr Cameron appeared clearly to think, absent any other consideration, that circumstances such as those described would make such a transfer appropriate. A specific scenario was put to him in cross examination which differed perhaps only from the actual circumstances in that it included a concern that a weapon could be used in the future, but that was something in my view which could reasonably have been supposed in any event given the knowledge that Barnes had been cut. It was certainly Mr McTavish's recollection that such a concern did exist. Although the language used by Mr Cameron was that the information would lead him to "show concern", it was clear to me that he did think that the scenario put was one which would appropriately have led - absent any other after consideration - to a transfer. He thought it would be particularly significant if the officers themselves showed concern and also significant that a prisoner, apparently keen to save face, was about to be transferred within the next day or so. Although Mr Croft was unable to speak about the particular factors involved in this case, it was clear from his evidence that critical factors in any decision to transfer would include whether the staff themselves were concerned, whether there was any evidence to suggest that there had been a fight and whether there had been any consequential medical attendance. It was Mr McTavish's evidence that if there was a history of trouble between two inmates, involving one or two incidents, coupled with an expectation of further trouble and the knowledge that one was about to leave the following day, then it would be sensible to move one or other out, or to lock one of them up, meantime. No evidence was led before me either from Mr McGarry or Mr Kerr - although both were on the defenders' list of witnesses - to contradict this body of evidence, or to indicate that there were any particular considerations which would have made it difficult to move one or other of Barnes and Duncan for the relatively short period in question. In these circumstances I find that the pursuer has proved that the relevant officers or officers of Governor grade or the Senior Officers on duty on 14 November were negligent in respect of the failure to transfer Barnes or Duncan out of the west wing prior to the pursuer's injury, and in particular at or about the start of the back shift, for which negligence the defenders are responsible.
26. For the avoidance of doubt I find that a duty of care was owed not merely to the prisoner Duncan, on the basis of a foreseeable risk of injury to him, but also on the basis that there was a foreseeable risk of injury to prison officers such as the pursuer who would have had the duty to intervene. On the evidence I find that there was a sufficiently real risk of injury to such officers. Mr Cameron's evidence was that officers could be injured when intervening - although happily it was not a common occurrence. It was clear from his evidence in general that decisions as to whether to transfer were taken with the safety of officers as the primary consideration. The pursuer also gave evidence that prison officers could be hurt breaking up fights and that in the course of such fights inmates frequently turned on the officers themselves. Mr McTavish indeed said that he was so concerned on the day in question that he advised some staff not to intervene lest they be hurt.
27. Counsel for the defenders also argued - albeit not forcefully - that it had not been proved that the pursuer's injury would have been avoided by any transfer. This argument was presented on the basis that there could still have been some kind of contact between Barnes and Duncan - for example in a work party. Mr Croft, however, gave evidence that such inmates in different halls could readily have been kept apart if there was reason to expect trouble and it was Mr Thomson's belief that there would have been no difficulty in doing that. In any event the system of transfer out of a wing was thought to be an effective way of dealing with such problems. I thus have no difficulty in finding that the pursuer's injury was causally connected to the failure to transfer either Barnes or Duncan out of the west wing.
28. As indicated above there was agreement at the end of the proof on almost all matters affecting damages. Solatium past and future was agreed at a figure of £18,000 exclusive of interest. Past wage loss, on the assumption that the pursuer would not have been promoted from the position that he held at the time of his accident, was agreed, exclusive of interest, at £101,555 (or £111,713 exclusive of interest on the assumption that the pursuer would have been promoted to Senior Officer or its equivalent on 1 June 1999). Future wage loss, assuming no promotion, was agreed at £281,020 based on an agreed multiplier of 17.25 and a multiplicand of £16,291. Future wage loss, assuming promotion to Senior Officer by the date of the proof, was agreed at £350,572 on the basis of the same multiplier of 17.25 and a multiplicand of £20,323. Pension loss was agreed at £65,000.
29. On the question of promotion, evidence was given by the pursuer himself and for the defenders by Aileen Stevenson, Human Resources Manager at Polmont. So far as the pursuer himself was concerned, he was reasonably optimistic that he would have been promoted at some stage - this, in particular, in the light of certain advice he had received after undergoing his training and having regard to previous annual assessments which were made which, though indicating he was not yet "fitted" for promotion, nevertheless were reasonably optimistic in that regard. What he particularly wanted was to be promoted to a more senior grade on the physical education side. He already begun to run a physical training course for officers in his spare time. He was willing to consider movement from Polmont. Against that it was plain from Aileen Stevenson's evidence that the whole system of promotion had changed in 1995. The previous system which had depended upon experience and assessments by fellow officers was replaced by one in which interview was the critical matter. There had been only three overall promotions to the equivalent Senior Officer grade in Polmont since 1996. In order to be promoted to a higher grade on the physical education side the pursuer would have needed to move sideways first. Only two vacancies in Polmont had arisen at that level for that work since 1996 and none in respect of the promoted grade - albeit there were 19 posts at the promoted grade throughout the Scottish Prison Service. Aileen Stevenson gave evidence about two pending reviews as a result of which it was expected that there would be fewer prison staff generally throughout the Scottish Prison Service.
30. While on this evidence I do find that the pursuer had a chance of promotion, I cannot say that it is probable that he would by now have been promoted or that it is probable that he would by a certain date have been promoted. The prospects, however, were in my view sufficiently demonstrated to justify some recognition in any award. The current net annual difference in salary between a promoted and non-promoted position was agreed to be about £4,000. I think a reasonable recognition of the prospects of promotion would be to add a figure of £20,000 to future loss of earnings.
31. In all the circumstances I find the pursuer entitled by way of damages to (a) £18,000 in respect of solatium, (b) interest on the agreed past element thereof (£12,000) at the agreed rate of 4% per annum from 14 November 1994 of £3,440, (c) past wage loss of £101,555, (d) interest thereon at the agreed rate of 4% per annum from 1 April 1995, of £27,504, (e) future wage loss (including the sum to recognise promotion prospects) of £301,020, and (f) pension loss agreed at £65,000. I shall accordingly sustain the pursuer's first plea-in-law and pronounce decree in the total sum of £516,519. Of that total £48,963 is (by agreement) attributable to compensation for earnings lost during the relevant period of five years following the date of the pursuer's injury.