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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Sneddon v Scottish Ministers [2002] ScotCS 23 (24th January, 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/23.html Cite as: [2002] ScotCS 23

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Sneddon v Scottish Ministers [2002] ScotCS 23 (24th January, 2002)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LORD MENZIES in the cause RONNIE SNEDDON Pursuer; against THE SCOTTISH MINISTERS Defender:   ________________

 

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

Defenders: Bolland, Q.C., Webster; Brodies

24 January 2002

1. The pursuer seeks damages from the defenders for personal injuries sustained as a result of an accident on 22 May 1992, when he was working in the course of his employment as a prison officer with the Scottish Prison Service at Polmont Young Offenders' Institution. On the afternoon of that date the pursuer was engaged in searching for an absconding young offender. The absconding young offender was sighted in a grass field to the south of the village of Wallacestone, and the pursuer (together with others) gave chase across the field. In the course of crossing this field the pursuer landed awkwardly on his left foot, as a result of which he sustained an injury to his left knee.
2. Much of the factual background regarding training of prison officers, the systems of the Scottish Prison Service, and the circumstances of the accident itself was not disputed by the defenders, and indeed they led only one witness, whose evidence related to quantum of damages and not to liability. The dispute between the parties on liability focused principally on the ground conditions in the field; whether the duties of care relied on by the pursuer existed in the circumstances; and questions of causation.

Uncontradicted Evidence of Fact

3. The pursuer joined the prison service in 1987, having served in the Royal Air Force for a time after leaving school, and then worked for several years for House of Fraser and thereafter as a public service vehicle driver for Midland Scottish. After joining the prison service he underwent a period of six weeks initial training at the Scottish Prison Service College at Brightons. He has worked continuously at Polmont Young Offenders Institution since then, and by all accounts he was a conscientious, responsible and able prison officer. Since the pursuer started work at Polmont YOI, young offenders have escaped or absconded from there fairly frequently. The pursuer estimated that this had occurred on about twelve to fifteen occasions in the year prior to the accident, and (having regard to the figures in No.20/4 of process) I am prepared to accept that this may be an underestimate. In any event, it is clear that such incidents were regular occurrences and that as at May 1992, the Scottish Prison Service knew that prison officers left Polmont YOI fairly frequently to search in the surrounding towns and countryside for absconding or escaping inmates.
4. The system of searching for escapers and absconders operated in Polmont in 1992 was for a number of prison officers from each hall to be told to assemble at the gate, where the search was co-ordinated by a member of the management staff. Prison officers would be sent out in teams of 2 or 4, either to static positions or on mobile patrol. Each team would be equipped with one radio (which could be used to communicate with the gate co-ordinator or other search teams, but not with the police) and a pair of handcuffs. The only written procedures for a search which were available in May 1992 were set out in a single paged document (Number 15/2 of process), which bears the handwritten note "as from 23/1/92". This suggests that 16 staff would be required for a search, but the evidence was that far more than this number would in fact be involved, frequently between 30 and 40 prison officers. This document contains no information, advice or instructions as to how prison officers should go about the search. A memo was issued by Mr David Croft, Deputy Director (Operations), to all Scottish Prison Service staff, Governors in charge and SPS College staff (Number 28/7 of process), but this was not issued until June 2001. This contained the following advice:

"Concern has been raised at the SPS Health and Safety Committee about staff responsibilities when a prisoner is attempting to escape from escorting officer and is running off. Whilst the SPS has a clear responsibility to keep prisoners in secure custody, it also has a statutory obligation and a common law duty of care for all staff in the execution of their duties. To meet the requirements of each of these priorities staff, in the event of an escape or attempted escape, should always take account of the following:- ...

(2) In the event of an escape or attempted escape, officers should, if at all possible, attempt to pursue the prisoner and to restrain him/her using approved control and restraint methods and procedures.

(3) In making the decision to pursue the prisoner, officers must take account of the environment in which the incident is taking place, ie. is it safe? Potential hazards may include high walls, fences, uneven ground, water barriers, slippy floors or traffic. This list is by no means exhaustive but the premise is simple, when officers give chase they should not submit themselves to undue risk. If during any pursuit the circumstances change and to continue would prove unduly dangerous, then the pursuit must be discontinued immediately and the establishment and police informed.

(4) An assessment of the type of hazard/level of risk at the time of an incident can only be determined by the officers involved who must appreciate that danger expresses a relative exposure to hazards, ie. a hazard may be present, but there may be little danger because of the precautions taken by experienced officers."

5. No such written information, advice or instruction existed in May 1992. The pursuer had received no training (apart from control and restraint training) as to procedures for searching for absconders, nor in the decision whether or not to pursue an absconder in the face of potential hazards. He was never instructed when not to chase an absconder, nor was he given any general warning to take care of his own safety when chasing an absconder, nor did he receive any training or instruction along the lines of paragraph 3 of Mr Croft's memo (number 28/7 of process).
6. With regard to the events of 22 May 1992, in the early afternoon the pursuer was working on the late shift in the north wing of Polmont YOI when he was told by his principal officer to report to the gate, together with prison officers Smith, Fulton and Stewart, to take part in a search for an absconder named Fitzpatrick. All four prison officers reported to the gate where the search operation was being co-ordinated under the control of one of the staff training officers (either Robert Clark or James Chisholm). They were provided with a radio and a set of handcuffs, and instructed to go in Smith's car to Lathallan Roundabout, some distance to the east of Polmont. They drove to Lathallan Roundabout and parked there. Over their radio they heard of sightings of the absconder in Shieldhill and after just over 15 minutes of waiting at Lathallan Roundabout they received radio instructions to go to Shieldhill.
7. On their way to Shieldhill they heard of another sighting of the absconder at the village of Wallacestone, and they were instructed to go there. They went to Wallacestone, and drove down a side road where they came across an elderly man who told them that an absconding young offender had broken into his caravan and stolen his hairdressing scissors and a set of clothing. The pursuer then passed this information by radio to the gate, and his message was acknowledged, but no particular instructions were given as a result. A police dog handler nearby told them that his dog had got the scent but then lost interest, and the pursuer then radioed to the gate to report that they were moving. (The pursuer had a clear recollection of this event, and of speaking to the elderly man himself, obtaining the information about the theft of the scissors, and then passing this information by radio to the gate. The recollection of the other members of the team, Kevin Stewart, Alan Smith and William Fulton was not nearly so clear. They each thought that the information about a break-in to a caravan was received over the radio. Stewart remembered that he stayed in the car while the others got out and spoke to someone - he did not know who this was, nor what was said. Smith and Fulton remembered a radio message that a caravan had been broken into and scissors taken, but had no recollection of a conversation with the caravan owner. I found the pursuer's evidence in this respect to be both credible and reliable, and I preferred it to the evidence of the other members of the team.)
8. After this event, Smith drove the car back to the main road in Wallacestone, where an old lady flagged them down and asked them if they were looking for an escaper. They replied that they were, and she said he had just run through her garden and into a field to the south side of Wallacestone. At this, the pursuer and Stewart got out of the car and walked to the car park of a public house, which car park overlooked the field (this field is the field on which the word "Wallacestone" appears on the Ordnance Survey map, Number 28/14 of process). The field sloped gently downwards from the car park, generally in approximately an easterly or southeasterly direction. Once in the car park, they could see a young man in the field at a distance variously estimated at a quarter to a half mile away, and one and a half to two times the length of Ibrox football pitch. They also saw a police officer some distance away, who waved them after the young man. The pursuer then radioed to the gate that they were about to enter the field looking for the absconder. The young man then began to run away. The pursuer radioed the gate and said that they had seen the absconder running in the field and were going to pursue him. There was no reply to this, so the pursuer repeated the message, to which he received the response, "Message received and go ahead". He gave no description to the gate of the ground conditions in the field, and he received no instructions or warning from the search co-ordinators at the gate to take care for his own safety or to take any particular precautions. The pursuer estimated that he was in the car park for a total of 30 to 40 seconds. He was asked about his emotional state at this time, and he said it was pretty clear: he was not "hyped up", but pretty calm. Public safety was uppermost in his mind - his priority was to recapture the young offender, and he was concerned that the absconder might use the scissors as a weapon. The pursuer gave chase across the field, closely followed by Kevin Stewart. When asked about the pace at which he was running, the pursuer replied that he was not running at full pelt, as he was restricted by the radio on his belt, which he had to hold. He described his pace as a jog. He did not increase his pace, and Kevin Stewart was running with him keeping pace with him (Stewart's evidence was that he was running at the same pace as the pursuer and behind him, watching the pursuer's feet and that they were "one half to three quarters flat out" - faster than a jog). As the pursuer was crossing the field, and at a point when he was narrowing the distance between him and the absconder (the pursuer estimated that he had run about one and a half lengths of Ibrox football pitch) the back part of his left foot went into a slight indentation, when his left leg was fully extended. He described this as "one of the most painful things I have ever done" - the pain was severe and in his left knee. He did not fall to the ground, but had his arms outstretched to catch himself, and described himself as looking like a swan landing. He took no further part in the chase (the absconder apparently lay down in the field and gave himself up some 10 to 20 seconds later), and subsequently received medical treatment at the hospital wing of Polmont YOI, and on the following Monday from his general practitioner.

The ground conditions in the field

9. Five witnesses gave evidence about the ground conditions in the field in which the accident happened - the pursuer, Kevin Stewart, Alan Smith, William Fulton and Robert Lyons. The pursuer's evidence differed significantly from that of the other four witnesses. In examination-in-chief the pursuer said that the field had a very slight, pretty even slope down from the car park. The field was grass, with an even covering like a meadow; it was fairly flat, and there was nothing uneven that came to his attention. When asked if it was like a lawn or long grass, he said that it was like the lawn of a suburban bungalow - it was a bit longer than a football pitch, and looked to him as if it was getting ready for grazing, although there were no livestock in the field. When he was asked if it was necessary to look where he was putting his feet, he replied, "Not really - there was no obvious danger that I could see." The surface of that part of the field where the accident occurred was not different from the surface which he had crossed earlier in the field - it was a relatively even field of grass, with patches of sparse reeds. In cross-examination he repeated that there was nothing uneven in the field that he was aware of. When he was asked to look at the list of potential hazards in the second sentence of the third numbered paragraph of Mr Croft's memo (Number 28/7 of process) he observed "I wouldn't say uneven ground applies here", and even if that memo had been written before his accident and he had been aware of it, he was asked what would have stopped him going into the field and he answered, "I didn't see any risks - there was no risk or dangers".
10. In contrast to the pursuer's evidence, the other four witnesses in the field said that the ground conditions were not as good as the pursuer said they were. Kevin Stewart thought the field felt quite bumpy - it was a typical field, full of lumps and bumps. The grass was quite long (up to the middle of his shins) with a generally even covering of grass. He said that there were holes in the field which you might not see: it was unpredictable ground, so you had to watch where you were putting your feet. Robert Lyons, who came into the field from a different point to that at which the pursuer and Stewart entered it, said that the grass was long (between ankle and knee height), and the ground surface was quite rutted and uneven, so that he had to pick his steps carefully. He said that there was an uphill slope or embankment between the pub car park and the field. Alan Smith entered the field at yet another point (together with William Fulton). He said that the ground was undulating and never level, it was a very uneven field with long grass between shin and knee height with divots or clumps. He had no recollection of the field sloping. Finally, William Fulton who was with Smith remembered the field sloping upwards from where he was, and the ground conditions in the field were very uneven - it was obviously rough terrain, with long, rough patchy grass and rutted ground. In cross-examination he accepted that he had discussed the circumstances of the accident, and the locus, with Alan Smith earlier on the day in which he gave evidence, although in re-examination he stated that his evidence had not been influenced by his discussions with Smith.
11. I preferred the evidence of the pursuer to that of the other witnesses with regard to the ground conditions in the field. I found the pursuer to be an impressive witness, and I regarded him as both credible and reliable. He gave his evidence clearly and without exaggeration. His recollection of the events of 22 May 1992 was clearer (and appeared to me to be more accurate in many respects) than the recollection of the other four witnesses - and, in fairness to them, this is hardly surprising. The pursuer has reason to remember that day - he has been significantly disabled since then, and for much of the intervening period he has been engaged in this litigation over the events of that day. By contrast, there was no reason for the other four witnesses to keep their recollection of the events of that day, and the ground conditions in the field in particular, fresh and accurate. Their recollection of many other details in the sequence of events prior to the accident was vague or non-existent. For example (although not an exhaustive list) Stewart had no recollection of going with the pursuer to the pub car park, although he accepted that it was possible, and he pointed out that it was nine years ago. He didn't remember being told to go to Lathallan Roundabout, or being issued with handcuffs, or a police officer pointing towards the absconder in the field. Smith could not remember where they were told to go, or who operated the radio, or anybody speaking to the owner of the caravan, or how they received information about the absconder being in the field behind the pub, or which way he was moving. The pursuer spent some 30 to 40 seconds in the pub car park looking out over the field while he awaited radio instructions. He was calm at this time, and was alert to the potential danger of the scissors which the absconder might have. He had a good opportunity to form an opinion as to whether there were any apparent hazards or risks in the field, and he did indeed form an opinion on this - namely that there were none, and that the ground was not uneven. I accepted the pursuer's evidence both as to the actual ground conditions in the field, and as to his assessment of any hazards or risks at that time.

What duties of care were owed by the Scottish Prison Service to the pursuer in the circumstances, and were they breached?

12. The pursuer averred numerous breaches of duties of care allegedly owed by the Scottish Prison Service and its employees to the pursuer, but in his submissions counsel for the pursuer relied on only four, being those set out in the fifth and sixth sentences of Article 4 of Condescendence, and the third and fourth sentences of Article 5 of Condescendence. Article 4 was based on the duty of the Scottish Prison Service to take reasonable care to provide the pursuer with a safe system of work, and the particular duties relied on were (1) to instruct prison officers engaged in searches for absconders to have due regard for their own safety for searching for and chasing absconders, and (2) to instruct those prison officers not to run over rough ground or into other potentially hazardous locations. Article 5 was based on the search managers' duty to take reasonable care for the safety of prison officers engaged in the search for this particular absconder, and the particular duties relied on were (1) when the pursuer reported to them that the absconder was armed and that he was pursuing him into a field, to instruct and advise the pursuer to have due regard for his own safety, and (2) to instruct the pursuer not to chase the absconder across the field.
13. In addressing me on the first of these duties, namely the duty to give general instructions to prison officers to have due regard for their own safety, Mr Clancy for the pursuer relied heavily on the evidence of Mr David Croft, the Deputy Director of Operations of the Scottish Prison Service, who was the author of the memo dated 5/6/01 (Number 28/7 of process). Mr Croft was the second in command of the operational side of the Scottish Prison Service, and had 33 years experience of working in it, starting as a prison officer and being promoted from there. He had spent about 10 years at Polmont YOI, between 1968 and 1978. He said that his memo was meant to reinforce normal practice, and what he believed the SPS college taught prison officers in their initial training - something which he had been taught during his training, and which he assumed was still taught at the SPS college (although he could not assert that it was still taught: he said that he would be surprised and disappointed if a trainee prison officer was not taught the basic principles set out in his memo).
14. Mr Clancy submitted that I should infer from Mr Croft's evidence, taken together with the evidence of the pursuer and his several supporting witnesses that they received no instruction at the SPS college or thereafter about the need to have due regard for their own safety when chasing absconders, that there was a duty on the SPS to provide this instruction, and that this duty had been breached. He submitted that such an inference could be reached all the more readily because the defenders had led no contradictory evidence on this matter, under reference to the well-known passages in the speeches of Lords Upjohn and Wilberforce in O'Donnell v Murdoch McKenzie & Co 1967 S.C. (H.L.) 63 (at 71 and 73) and of Lords Reid and Upjohn in Ross v Associated Portland Cement 1964 1 W.L.R. 768 (at 775 and 785). He submitted that the failure by the SPS to continue the previous practice of such general instruction could only be regarded as a lapse or departure from what had been regarded as a necessary part of a prison officer's training and that in the heat of the chase a prison officer could not be relied upon to have due regard to his own safety: he ought to be instructed to do so, and to continually reassess and reappraise the risks facing him as circumstances changed. He relied on the dictum of Lord Oaksey in General Cleaning Contractors v Christmas 1953 A.C. 180, and while accepting that the decision as to whether a duty of care existed was ultimately one for the Court, he observed that Mr Croft had expressed the view that prison officers should be given training and instruction in this area. He sought to distinguish the case of John McGinlay v Edward Nuttall Sons & Co (London) Ltd (unreported except in the Times of 28 December 1956, but referred to in Munkman on Employer's Liability (12^th Ed.) at page 98), in which the Inner House held in a case of an employee who had to work out of doors in rough country that his employer could not be expected to protect him against ordinary natural risks. The basis for the distinction, he said, was twofold - (a) that the present pursuer was not an outdoor worker, but had worked outdoors on relatively few occasions, and the accident occurred outwith his normal place of employment, and (b) that there was no question of urgency or "heat of the moment" in McGinlay.
15. With regard to the second of the duties relied on in Article 4 of Condescendence Mr Clancy submitted that there was a greater onus on the SPS to give specific objective instructions, having regard to the heat of the chase and to the fact that a risk assessment may have to be taken by a prison officer in a split second - the prison officer should be told to err on the side of caution, and the matter could not safely be left to common sense.
16. With regard to the duties of care relied on in Article 5 of Condescendence, Mr Clancy observed that on the evidence the search manager was a training officer, so should be mindful of the safety of prison officers conducting the search under his control; he knew that the absconder might have scissors which could be used as a weapon, and that the pursuer was about to chase him across a field. He submitted that the conjunction of these two hazards (namely the scissors and the field) meant that the search manager ought to have realised that the pursuer's ability to assess the risks to his own safety would be compromised, and so he ought to have at least warned him to take care for his own safety, and possibly ought to have instructed him not to enter the field.
17. In reply Mr Bolland for the defenders did not accept that any of the duties argued for by the pursuer existed in the present case. He submitted that a general instruction to employees to take care provides no protection to the employees - in order to give content to such an instruction, more specific instructions as to what the employee should or should not do in particular circumstances would be required. The first duty relied on therefore could not stand on its own. The second duty in Article 4 of Condescendence still leaves open the question of what is rough ground, and what are potentially hazardous locations: this inevitably leaves the decision to the judgement of the individual prison officer. In any event, the argument that the pursuer was disabled from making a judgement at the time does not sit with the evidence - the pursuer was not "automatically" chasing the absconder come what may, but was pretty calm and clear, he had 30 to 40 seconds looking over the field from the car park before he entered it, and he was fully in charge of what he was doing. With regard to the Article 5 case the fact that the absconder possessed scissors was not relevant to his accident, and in the absence of any special knowledge on the part of the search manager of particularly dangerous conditions in the field, no such duties of care were imposed on him.
18. I deal with the Article 5 duties first. I have little difficulty in holding that no duties of care such as are averred in the third and fourth sentences of Article 5 of Condescendence existed in the circumstances of this case. It does not seem to me that the fact that the absconder may have been armed with a pair of scissors is directly relevant to this case, in which the pursuer sustained an injury unconnected with the scissors, did not come into the close vicinity of the absconder, and was not attacked by him. The only possible relevance of the scissors might have been if the pursuer had stated in evidence that the fact that the absconder might be armed had clouded his judgement or caused him to panic - but his evidence was quite to the contrary. He said that he was pretty calm when he was looking across the field from the car park. With regard to the other duties averred to be incumbent on the search managers, the mere fact that a prison officer is pursuing an absconder across a field does not seem to me, in the absence of any knowledge on their part of actual or potential hazards in the field, to create any duty on the search managers to instruct or advise him to have regard for his safety, far less to instruct him not to chase the absconder across the field. Such a duty might perhaps exist if the search manager was aware that the prison officer was chasing an absconder in a particularly dangerous place - for example, along a busy railway line or across a motorway, or along a cliff edge. However, there is nothing inherently or inevitably dangerous in running or jogging across a field - as the pursuer observed in answer to a question in cross-examination, people often run across fields and he did it himself frequently during his RAF training. There was no suggestion that the search managers were told, or otherwise knew, of any particular hazards in this field. As Mr Croft stated in his evidence-in-chief, the search manager could only assess the risks and instruct or advise the pursuer if he was beside the pursuer, and Mr Croft would not expect it to be the search manager's responsibility to warn a prison officer of potential risks. I do not consider that the search managers owed the duties of care to the pursuer which are averred in these two sentences in Article 5.
19. With regard to the duties relied on in Article 4, I do not consider that the second duty arose in the circumstances of this case. The pursuer himself volunteered, when looking at paragraph 3 of Mr Croft's memorandum (Number 28/7 of process) that he would not say that uneven ground applied here, and that uneven ground was not an issue. There was no "other potentially dangerous location" in the circumstances of this case. Having regard to my decision as to the ground conditions, this averment is not relevant.
20. I have had greater difficulty in deciding whether the first duty of care relied on by the pursuer, namely the duty to instruct prison officers to have due regard for their own safety while searching for and chasing absconders, was incumbent upon the Scottish Prison Service. There is some force in Mr Bolland's submission that all this amounts to is a general admonition to "take care" and that more specific instructions are required in order to give content to this. However, I have reached the view that it was incumbent on the Scottish Prison Service to give such instruction, whether by way of a memo such as that prepared by Mr Croft, or in the course of training at the SPS college, or otherwise. On the evidence, searches for absconding or escaping young offenders occurred relatively frequently at that time at Polmont YOI, and it was in my view reasonably foreseeable to the Scottish Prison Service that prison officers might lose sight, in the heat of the chase, of the need to have due regard for their own safety. In these circumstances I consider that the Scottish Prison Service ought to have given instructions to prison officers in their employment along the lines of Mr Croft's memo. On the evidence, neither the pursuer nor his fellow prison officers had been given such instructions before the accident on 22 May 1992. The Scottish Prison Service were accordingly in breach of this duty of care.
21. I do not regard the short newspaper report of the case of John McGinlay v Edmund Nuttall Sons & Company (London) Limited as being of any real assistance. From the tenor of the report it appears (although it is difficult to tell) that the case may have been presented on the basis of a failure to provide a safe place of employment, rather than a failure to provide adequate instructions. In any event, I am of the view that Mr Clancy was correct to distinguish that case from the present case, (a) because the present pursuer is not an "outdoor worker" in the sense that Lord Justice Clerk Thomson referred to Mr McGinlay, and (b) because there was no question of a chase or "heat of the moment" in that case.
22. Of the four duties relied on by the pursuer, I am therefore of the opinion that three are either irrelevant or do not arise in the circumstances of this case, but that one was incumbent on the Scottish Prison Service, and that the Scottish Prison Service failed to fulfil this duty.

Did this breach of duty cause the pursuer's injury?

23. Mr Bolland submitted that even if there was a breach of duty on the part of the Scottish Prison Service in failing to give such an instruction to the pursuer, there was on the evidence no causal connection between this breach and the pursuer's injury. Mr Clancy submitted that there was such a causal connection, and relied particularly on the pursuer's evidence in examination-in-chief (at about 12.48 to 12.53 on the first day of the proof) that if he had been aware of instructions such as those contained in Mr Croft's memo he certainly would not have run into a field with a chance of injuring himself.
24. I found this answer surprising at the time in light of his evidence about the ground conditions in the field, and I asked the pursuer to explain further. He was also asked about this in detail in cross-examination (at about 15.51 to 15.56 on the first day of the proof), and his evidence was more detailed at that time. He said that if he had been aware of instructions such as those contained in Mr Croft's memo, "I certainly wouldn't have put myself at risk". When asked what would have prevented him from chasing the absconder into the field he replied, "If they" (ie. the search managers at the gate) "had told me not to enter." When the detailed potential hazards listed in paragraph 3 of Mr Croft's memo were put to him, he said, "I wouldn't say uneven ground applies here", and "I didn't see any risk - there was no risk or dangers". He had a good opportunity for some 30 to 40 seconds, to look out from the car park over the field; at that time he was emotionally clear and pretty calm; and he decided that there were no risks, and that he would pursue the absconder across the field. Standing his evidence about the ground conditions in the field, and the fact that these were generally the same at the place where he sustained his injury as they were earlier in the field, I consider that even if the Scottish Prison Service had fulfilled the duty which I have held to have been incumbent on them, and which they failed to fulfil, this would not have prevented the pursuer from running across this field, nor would it had avoided or lessened the risk of his injuring himself as he did.
25. It follows that the pursuer has failed to establish a causal link between the beach of duty by the Scottish Prison Service and his injury, and that the defenders have no liability to make reparation to him for the loss, injury and damage which he has suffered.

Damages

26. In the event that I am wrong in the views expressed above, it is appropriate that I should express my views on the damages which I would have awarded to the pursuer if he had been successful. The pursuer stated in evidence that he experienced severe pain in his left knee after his left foot caught in the indentation in the field. He reported to the hospital at Polmont YOI on his return that day, and was given a Tubigrip bandage and advised to see a doctor. His knee was very sore and he could not move it freely although he could walk. He was able to work over the weekend, but saw his general practitioner on the Monday after the accident, by which time the pain had become worse. He was given painkillers and signed off work until about October 1992. After that date he returned to work on light duties, but the knee was still very painful. It woke him in the night, and would lock up when he was standing. He described the pain as constant, although there were peaks of pain associated with activity. It interfered with his sleep. He only returned to work in October 1992 because he was not used to being off work, and because senior prison officers were sympathetic and placed him on light duties. He underwent an arthroscopy in April 1993. He also received several steroid injections, which he described as one of the most painful things that he had had in his life and he received little benefit from them. As a result of his pain his relations with his wife were adversely affected and he became short-tempered and lacking in patience. His pre-accident hobbies were affected by his injuries. He has been unable to continue with body building.
27. The only expert medical evidence came from Mr John Gibson, a consultant orthopaedic surgeon at St John's Hospital, Livingston, who prepared two medical reports on the pursuer's condition (Numbers 15/6 and 20/2 of process). He explained that the pursuer underwent a further arthroscopy in May 1997 because he was continuing to complain of pain and swelling of the knee. His opinion was that the pursuer suffered from a pre-existing condition, namely osteochondritis dissecans, and that this condition had developed some twelve to fifteen years ago. This is a common condition which is frequently undiagnosed and may never give rise to symptoms. This condition was rendered symptomatic as a result of a trauma sustained by the pursuer in this accident. He considered that the pursuer had a 75% chance of requiring a knee replacement by the age of 55. This would require his admission to hospital for about five days, followed by physiotherapy for a period of about six months. It would result in improvement in the symptoms but a reduction of flexion of the knee. He considered that the requirement for a knee replacement is likely to arise as a result of the accident.
28. The parties agreed in a joint minute that the sum to be awarded in respect of solatium should be £22,290, which sum is inclusive of interest on past solatium to 10 October 2001. If I had found in favour of the pursuer I should have been content to make an award of this agreed sum. Parties were also agreed that the sum to be awarded in respect of loss of pension rights is £60,000; again, if I had found in favour of the pursuer I should have awarded this sum in terms of this head of claim.
29. The parties were not agreed as to the position regarding past and future wage loss, although figures were agreed in the joint minute depending on the view which I took as to the pursuer's promotion prospects and the effect the accident had on these. As I have already stated, I found the pursuer an impressive witness, and I formed the impression that he would have been an able, conscientious and responsible prison officer. There were several strong testimonials as to his ability contained in the evidence - particularly in the pursuer's personal assessments (Number 15/10 of process), and in the evidence of Mr David Nelson who was a senior officer and who assessed the pursuer first as fit for promotion and later as exceptionally fit for promotion. He said that the pursuer was one of a group of four prison officers who were "acting up" as senior officers. Of this group the other three have all been promoted; only the pursuer has not been promoted. I am left in little doubt that the pursuer would have been promoted to E+ grade if had not been for the accident. Having regard to Mr Nelson's evidence that the other three members of the group just referred to were promoted after he retired, which he stated was some five to six years before the proof, I consider it likely that the pursuer would have been promoted to this grade with effect from 1 April 1997. That being so, applying the figures contained in paragraphs 2 and 3 of the joint minute (Number 32 of process) I would have awarded the pursuer the sum of £18,705 inclusive of interest in respect of past wage loss, and the sum of £140,000 in respect of future wage loss.
30. However, in the event for the reasons which I have given above, I sustain the third plea-in-law for the defenders, repel the first plea-in-law for the pursuer, and grant absolvitor.