MISS BERNADETTE SMITH AGAINST THE SCOTTISH MINISTERS

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MISS BERNADETTE SMITH AGAINST THE SCOTTISH MINISTERS

SHERIFFDOM OF LOTHIAN AND BORDERS AT LIVINGSTON

2015SCLIVI38

[PD28/13]

JUDGMENT OF SHERIFF DOUGLAS A KINLOCH,

Advocate

In the cause

MISS BERNADETTE SMITH, residing at Bonnybridge

Pursuer;

Against

THE SCOTTISH MINISTERS, representing the Scottish Executive for and on behalf of The Scottish Prison Service, Victoria Quay, Edinburgh, EH6 6QQ

Defenders:

Act: Calum Wilson, Advocate; Messrs Digby Brown, Solicitors

Alt: Douglas Ross, Advocate; Messrs Anderson Strathern, Solicitors

Livingston, April 2015

The sheriff, having resumed consideration of the proof and whole cause, finds the following facts admitted or proved:

FINDS IN FACT

The pursuer is Miss Bernadette Smith, as designed in the instance. The defenders are the Scottish Ministers as representing the Scottish Prison Service.
On 22 September 2010 the pursuer was employed by a company called Kalyx Ltd as a Prison Officer.She was based at Addiewell Prison.On 22 September 2010 she attended a one day training course run by the Scottish Prison Service which took place at the Scottish Prison Service Industries, Fauldhouse, Bathgate, West Lothian.
Number 6/33 of process is a risk assessment prepared by the defenders in relation to training exercises carried out by them.
At the training course she was undertaking Control and Restraint Stage 3 Training.
She was participating in the final exercise of the day.
The object of that exercise was to regain control of a mock prison wing.
The mock prison wing was occupied by mock prisoners engaged in a riot.
The mock prisoners were other prison officers.
The Prison Officers who were seeking to regain control of the mock prison wing were designated as either “Shield Holders” or “Workers”.
The pursuer was designated as a Shield Holder.
The pursuer and other Shield Holders were at the front of a group of Prison Officers seeking to get into the mock prison wing and to regain control of the mock prison wing.
To do so they were required to get through a set of metal gates into the mock prison wing.
The Shield Holders, including the pursuer, held large riot shields in front of them. The pursuer was also dressed in protective clothing.
They were followed by the Workers.
Debris, including a large block of wood, had been piled up inside the mock prison wing.
As the Pursuer and the other Shield Holders advanced, they were followed by Workers with grappling hooks who were removing the debris.
Lighting conditions were dark.
The pursuer was standing with her shield in the correct position as the group of Prison Officers were advancing on the metal gate.
As she did so, the pursuer’s shield was hit by a large block or plank of wood.
The large block or plank of wood was approximately 6 x 4 inches by about 12 feet long in size.
The large block of wood was being propelled by a Prison Officer, whose identity is unknown,
The large block or plank of wood was being propelled through the metal gates while resting on the frame of the metal gates.
The pursuer’s shield was hit again by the large plank of wood being propelled by the unknown Prison Officer.
The pursuer’s shield was hit this way three times.
The pursuer was injured when her shield was hit by the large block or plank of wood, as a result of her shield being forced back into her visor, and her head being jerked back,.

FINDS IN FACT AND LAW that the pursuer has failed to prove that the accident was caused to any extent by a breach by the defenders of any statutory obligation incumbent on them, or by fault on the part of the defenders.

THEREFORE assoilzies the defenders from the craves of the Initial Writ.

NOTE:

[1] The pursuer in this action was formerly a prison officer. She seeks damages for injuries said to have been sustained on 22 September 2010 when she was taking part in a training exercise which involved a simulated prison riot. She claims that during the course of the mock riot she was injured when she was hit by a plank of wood wielded by a fellow prison officer who was acting as a rioter. She seeks damages from the Scottish Prison Service who were in charge of the training exercise, and contends that they are in breach of duties owed by them under the Management of Health and Safety at Work Regulations 1999, the Manual Operations Handling Regulations 1992, the Provision and Use of Work Equipment Regulations 1998, and contends also that they are liable at common law.

History of action
[2] The action started life as a summary cause action in Livingston Sheriff Court but ended up as an eight day ordinary cause proof. In the summary cause action the pursuer originally sought damages of £5,000. Proof in the summary cause action was fixed for September 2012, but that proof was discharged and a new proof fixed for November 2012. That proof appears to have been discharged, and a further proof was fixed for March 2013. On the day of that proof the pursuer was allowed to amend the statement of claim by increasing the sum sued for to £6,460.05, the proof was discharged, and the case remitted to proceed as an ordinary cause action. A further diet of proof was fixed for 18 October 2013, but again that proof was discharged. The proof eventually commenced before me on 11 March 2014, and the eight days of the proof were, most unfortunately, spread out over a period of a year, finally concluding on 6 March 2015.

[3] At the proof the pursuer was represented by Calum Wilson, Advocate (as instructed by Digby Brown, Solicitors, Edinburgh), and the defenders by Douglas Ross, Advocate (as instructed by Anderson Strathern, Solicitors, Edinburgh). In support of the pursuer’s case I heard evidence from the pursuer, from two prison officers (Mr Andrew Fraser and Mr David Smith), and from two expert witnesses (Mr Eric Baskind and Mr James Skilling). On behalf of the defenders I heard evidence from three witnesses employed by the Scottish Prison Service, namely a manager (Susanne Wilson), a “residential officer” (Alistair Callum), a training manager (David McKay), and heard evidence from an expert witness (Nicola Coote).

Background
[4] At the time of the accident the pursuer was working as what is described in the record as a “prison custody officer”, which in more traditional terminology is simply a prison officer. At the time of the accident she was working at Addiewell Prison, one of the new privately run prisons in Scotland. As it was a private prison her employer at the time was a company called Kalyx Limited, rather than the Scottish Prison Service. The accident happened during the course of a training exercise run by the Scottish Prison Service, and the pursuer accordingly sues them rather than her employers.

[5] Prior to the accident the pursuer had already undergone some training in what is referred to in prison officer parlance as “control and restraint”. She had completed both “Phase 1” and “Phase 2” of the control and restraint training, and wished to undertake the final phase of the control and restraint training, namely “Phase 3”. Attendance at Phase 3 was voluntary, but the pursuer gave evidence that she wished to become a control and restraint trainer, and in order to do this she had to undertake Phase 3 of the training. Part of the Phase 3 training involved taking part in a mock prison riot. The mock riot took place at premises operated by the Scottish Prison Service for training purposes, which are situated in Fauldhouse near Bathgate, West Lothian. One part of the premises is set up to resemble the inside of a prison. The layout of the mock prison is best seen in a floor plan lodged by the defenders as a production in their fifth inventory of productions (number 6/31), and also a further three dimensional floor plan (number 6/32).

[6] It was not in dispute that the pursuer arrived at the Fauldhouse training facility at about 11.00am, and that the accident took place during the final exercise of the day, which commenced at about 5.20pm. The training exercise involved a simulated riot that was taking place in the prison. The prison officers being trained, including the pursuer, had to regain control of the prison wing where the riot was taking place. Other prison officers played the part of the rioters (or “perpetrators” to use prison officer terminology). Debris, such as filing cabinets, blocks of wood and wooden crates, had been piled up in one part of the prison wing in order to prevent the prison officers gaining access to the wing. The prison officers, including the pursuer, who were trying to regain control of the prison were dressed in full riot gear, which consisted of a helmet with a full face visor, various items of body armour (including shoulder guards, thigh and shin protectors, protective boots, and gloves) and had a full length transparent shield. There are various photographs to be found in the defenders’ eighth inventory of productions (as part of 6/34 of process) which show prison officers wearing the type of riot gear in question.

Circumstances of accident

[7] The precise way in which the pursuer claims to have been injured remained controversial throughout the proof. The pursuer’s averments regarding this were as follows:-

“The pursuer and other prison custody officers were designated as either shield holders or workers. The pursuer was designated as a shield holder … As part of the exercise she required to get through a set of metal gates. Between her and the gates had been piled filing cabinets, blocks of wood and wooden crates. The workers were provided with grappling hooks. They were using the grappling hooks to remove the debris so that the prison custody officers could advance. The pursuer was standing with her knees bent in a brace in front of the barricade of debris. As she did so, she was aware of a large block of wood coming towards her. A mock prisoner hit her shield with a block of plywood. Her head was knocked back and she felt shooting pain up her left wrist. She was instantly aware of pain. The mock prisoner hit her again. Due to the pain in her wrist she required to let go of her shield with her left hand. On the second occasion she was hit with more force than on the first occasion. Her neck jerked again. She was then hit a third time by the mock prisoner with the plank of wood. On each occasion the pursuer was hit with excessive force. … Her shield was knocked into her head. Her head was jerked backwards on each occasion that she was struck. She was immediately aware of pain in her wrist following the second strike to her shield, she was dazed and unsure of her surroundings. Another prison custody officer pulled her out of the way. She was relieved of her shield. She began to feel sick and was crying … She was taken to hospital … She was assessed and diagnosed as having sustained nerve damage in her wrist and a muscular strain of the neck.”

[8] The evidence at the proof revealed that the prison officers who were trying to regain control of the prison were split into two groups. The first group, of which the pursuer was one, were carrying shields, and stood side by side forming themselves roughly into a semicircle of the type shown in the top photograph on page 3 of production 6/34. The second group were positioned closely behind the first group. As I understood the pursuer’s description she and the other prison officers were positioned in a large room of the mock prison called the main visit room (to be seen in the floor plan 6/30 of process). The visit room leads on to the cells area, and access from the visit room to the cells area is gained through a set of metal gates positioned in the side wall of the visit room (to be seen in the 3D plan 6/32 of process). The scenario being enacted, as I understood it, was that the rioters had blocked access to the cells area by piling up debris and, in order to gain access to the cells area, the prison officers had to remove the debris and also had to go through the set of metal gates.

[9] The purser’s description of the accident in her evidence, as I understood and noted it, was as follows. She explained that the aim of the exercise was to enter the “section” which was barricaded by the mock rioters, and then once they were in the cells area they had to get the rioters under control. There were between nine and fifteen prison officers who were trying to gain entry into the cells area and she was one of the group who were carrying shields. The pursuer said that she was hit by an object which came through the gate, and then hit by the same object once more. She did not know who had the object which struck her, but it was another prison officer who was playing the part of a rioter. She said that this person was behind the gate, and was balancing the object on a horizontal bar of the gate and pushing it through. She was holding her shield with her left foot in front of her and her knees slightly bent. The shield was resting on the ground. She said it was a long piece of wood which hit her and thought it was about 12 feet long and perhaps four inches by six inches thick.

[10] She described the piece of wood hitting her shield for a first time, and feeling a lot of pain in her left wrist when that happened. She said that the piece of wood hit her shield a second time, only this time it was a lot harder, and the blow caused the bottom of her shield to move. She said that her shield was hit a third time and she felt pain shoot up her wrist. The shield shuddered and she was put off balance. She could not remember how quickly the blows came. She said that after the third blow she lost her balance and as she and the other shield holders moved forward, one of the rioters took her shield off her. At this point, as I understood her evidence, having lost her shield she moved back behind the front row of prison officers. Later on in her evidence-in-chief the pursuer said that on the third occasion when her shield was hit, the top of her shield came back towards her face and made contact with the visor of her helmet, jerking her head backwards.

[11] Later again in her evidence the pursuer said that after she had lost her shield and had moved back from the front line of prison officers, a “lassie” (by which she meant a female supervisor) hit her between her shoulder blades with her stave (or baton), apparently to attract her attention, and shouted something like: “What are you doing there?” The pursuer said that the female supervisor then grabbed hold of her shoulder straps and pulled her backwards.

[12] The pursuer’s evidence as to the manner in which she says she was injured is, to my mind, generally consistent with the averments made in her pleadings. She also came across as a personable lady and I did not obtain the impression from watching her and listening to her evidence that she was trying to deceive me. She gave her evidence without hesitation. Impressions, however, although important, only take an assessment of credibility so far. In relation to her credibility, there is one very important point that has to be considered, and that is that immediately after the accident she gave an account of events which is not entirely consistent with the case now put forward.

Account of events immediately after the accident
[13] In her evidence-in-chief the pursuer said that at the end of the exercise she felt sore and in pain. She approached another prison officer and told him that she was in pain, but he said that he was not a first aider and was not able to help her. She said that she found someone else who took her into a room and introduced her to someone she assumed was a “medical person”, and she told him that she had pain in her wrist, shoulder, back and neck. This person (David McKay, a training manager) told her to go and take off her riot gear and once she had done that he told her that she needed to fill in a form. She said that by this point she was crying. She said that she told this person what had happened and that he wrote it down on a form. She said that “he reiterated back to me what I’d said to him” and that she signed the form once it had been completed, but she never read it before signing it. She said that after that she was sick and phoned her mother to come and pick her up. After that she went to the hospital.

[14] The form to which the pursuer referred is now to be found as part of the defenders’ first inventory of productions, number 6/1 of process. It can be seen that the form is headed up as being an “Accident Investigation Report”, and that on page 1 of the form it is recorded that the “event” took place on 22 September 2010 at 18.00 hours in “A Hall ground floor”. It is said that the pursuer was “working as part of a section clearing area of perps”. At part VI of the form, which deals with “preliminary findings”, it is said that “immediate causes” of the accident were: “Possible excessive force in moving Ms Smith into position”. At part VII, which states that the manager “must summarise the witness statements” it is said as follows:

“Appears that Ms Smith sustained the injury whilst being moved into position by her shoulder strap. This is a recognised means of assisting in protecting individuals whilst involved in C&P Phase III training events. No further action required.”

In part VII it is also recorded that certain CCTV of the training areas was “backed up to disk” and that this would be reviewed and a follow up report provided. The form is signed by David McKay, but I am unable to locate the pursuer’s signature.

[15] When the pursuer was cross-examined about the form she agreed that it contained no mention of being struck by a plank of wood, or of her shield hitting her visor. She said that she did not know why this was, but she maintained that she had told Mr McKay that she had been struck three times by a piece of wood. She could not really understand why this did not appear in the accident report form. She did not know whether Mr McKay had written down all that she had told him.

Mr McKay’s evidence
[16] Mr McKay gave evidence. He was called as witness for the defenders. At the time of the proof he was 49 years old and was a training manager with the Scottish Prison Service, based in Falkirk. He had been with the prison service for 26 years. He has a first aid qualification which he obtained about six years ago. On the day of the accident he was the duty first aider at the training centre, although he had no involvement in the training itself.

[17] His recollection was that the pursuer was brought round to the reception area to see him and he was told that she had reported an injury. He said that his recollection was that the pursuer had told him that someone had pulled her to the side by grabbing her shoulder strap, causing an injury to her neck. He was shown the accident investigation report and confirmed that he had completed the form. It had been completed in the first aid room. He said that he did not remember the pursuer telling him that she was struck by a plank of wood. He said that he had a clear recollection of what she told him and his evidence was that she never told him about being hit by a plank of wood. He told me that the pursuer had become distressed during their meeting and this seemed to be because she had been on a final warning regarding absences from work, and she was frightened of losing her job if this incident was reported.

[18] Mr McKay said that the training exercise was being filmed on CCTV by means of fixed cameras. The following day he reviewed about two hours of video to see if he could identify the incident that the pursuer had complained of. He said that he was not able to identify the pursuer on the video and was unable to say from the video whether she had been where she claimed she was. He said that he was not able to find any video recording of the pursuer being moved to the side after having been grabbed by her shoulder strap. He said that he never saw any participant in the exercise appearing to be in distress or sustaining an injury when he reviewed the CCTV. He said that the CCTV footage “would have been deleted”. He said that he would have “put it in the recycle bin and deleted it” because at the time he watched it he felt there was nothing on it that had any value. He said he probably deleted it shortly after watching it. He watched the video twice, once by himself and once more at the request of another training manager (Susanne Wilson). He had tried to find out if anyone had witnessed the incident, but no one claiming to be a witness had come forward. He said that the pursuer had never said anything to him about any injury to her wrist. If she had done so he would have put it in the form. He confirmed that the pursuer did not sign any form.

[19] There is no doubt that the fact there is nothing recorded in the accident investigation report as to the pursuer being struck by a plank of wood or having pain in her left wrist, raises some doubts about the reliability or credibility of her evidence, but there are other factors which have to be examined before any conclusion can be reached as to the pursuer’s evidence.

The pursuer’s account at hospital
[20] The first of these factors is the account of the accident which the pursuer gave when she attended St John’s Hospital in Livingston on the evening of the accident. The hospital records were recovered by the pursuer and have been lodged in process. Production 5/2 of the pursuer’s first inventory of productions is the relevant page of the medical records. It is agreed by the parties, by way of a Joint Minute of Admissions, number 16 of process, that production 5/2 contains “a true and accurate account of … the representations of the pursuer to the employees of said hospital …”.

[21 It is not entirely clear to me who completed this particular page of the hospital records, but the pursuer said in her evidence when shown the form that it was what she said to the doctor at the accident and emergency department, and the abbreviations used in the records do indeed suggest that the entry was made by a doctor.

[22] It can be seen that it is recorded on the form that the pursuer attended at 8.43pm and that the incident happened at 6.15pm. It is recorded that she was seen at 10.00pm. It is recorded that she was “hit with plank of wood”, that she “had shield + helmet on” and that she sustained a “Forced hyperextension of neck x 2”. It is recorded that she was complaining of “pain neck + L post. shoulder”. It is recorded that she had some pain on movement and the diagnosis was of a “muscular strain of neck”.

[23] So a very short time after the accident the pursuer told a doctor that she had been hit with a plank of wood and, it appears, that this had forced her neck back twice.

The pursuer’s account to her GP

[24] The pursuer was also referred to medical records recovered from her GP. These are contained in the pursuer’s first inventory as number 5/3 of process. It is agreed by way of the Joint Minute that these records are the GP records. There is an entry to be found at the page which is numbered at the top “page 7 of 15” which is dated 24 September 2010, that is two days after the accident. The entry is as follows:

“injury during training exercise via her work on wed – hit with plank of wood on visor, which caused her neck to jerk forward and back; didn’t fall; afterwards became aware of pain and felt sick and dizzy; went to St John’s Hosp, Livingston on wed evening, was diagnosed severe whiplash …”

[25] This is a further account of the accident by the pursuer which was given quite a short time after it took place. It is very similar to the account that she gave to the doctor at the hospital and both accounts are broadly similar with her evidence at the proof.

Evidence of Andrew Fraser and David Smith
[26] It is also necessary to take into account the evidence of two fellow prison officers who were both involved in the training exercise. They were Andrew Fraser and David Smith.

[27] Andrew Fraser (aged 44 at the date of the proof) was, at the time of the accident, a colleague of the pursuer who worked as a prison officer at HMP Addiewell. He attended the Phase 3 training at Fauldhouse on 22 September 2010. He, like the pursuer, explained that various prison officers were acting as prisoners who were involved in a riot and the rioters had built a barricade to make life difficult for the prison officers trying to regain control of the prison wing. He said that the barricade was behind the gates which the prison officers had to get through and was made up “of all sorts of stuff”. The prison officers had to remove the barricade to regain control of the wing.

[28] He said that the pursuer was standing next to him at the gates, although he did not know at the time that the person next to him was the pursuer because everyone was wearing full riot gear. He said that he saw the pursuer’s shield being hit with planks of wood and that at one point the pursuer fell forward onto the barricade, when people from behind lifted her up by her body armour. He said that her shield was being struck quite violently and that the force of the impact was moving her shield around and flipping it up into the air. He described the plank of wood in similar terms to the description given by the pursuer, that is it was about four inches by two inches or six inches by four inches and about 12 feet long. He said that he saw the pursuer stand up, but the next time he looked she was not there and he thought that she had gone back towards the rear of the group. In cross-examination he said that he remembered the plank hitting the pursuer’s shield maybe “half a dozen to one dozen times”, although he said it was difficult to remember how often it happened.

[29] David Smith (aged 39 at the proof) is now a prison officer at HMP Polmont. At the time of the accident he was working as a prison officer in Addiewell prison. He also was attending the Phase 3 training exercise. In his evidence he said that he could no longer remember exactly what his role was and could no longer really remember what he saw. Any recollection he had really came from reading a statement which he had prepared at an earlier stage. He said that he could remember seeing the pursuer later on that evening, although he could not remember exactly when, and he remembered that she had an injury and was being sick into a plastic bag. Apart from that his memory was “non-existent”.

[30] The statement which the witness David Smith referred to in his evidence is now to be found as number 5/10 of process, having been lodged by the pursuer. Mr Smith confirmed that the statement was in his handwriting. He said in his evidence that he did not know when he wrote it. He said he prepared it when he was asked by the pursuer to produce a statement in order to give an account of what happened. He said that his statement was based on his recollection at the time he was asked to prepare it – it can be seen that it bears a stamp with the date 01 July 2011. He said that the pursuer would have asked him at work about the incident, but he did not recall if they discussed matters before he wrote out his statement. For ease of reference it is convenient to set out the statement in full here:

“To whom it may concern,

I am writing at the request of PCO [Prison Custody Officer] B Smith regarding an incident which occurred during C+R Phase 3 on Wednesday 22 September 2010 at the SPS training facility in Fauldhouse, West Lothian.

We were working through the final exercise and I had been deployed on the top landing to secure a door as part of a six man section. As I was the rear most officer I was standing back from the section and below me the other sections had been deployed in an arc across the double grill gates leading into the ‘wing’. I could clearly see PCO B Smith and A Fraser below me as they had their respective helmet codes clearly visible. Both officers had been deployed into the shield wall in the front rank/second rank and as I observed from above I saw one of the ‘perps’ bashing a long length of wood into the shields. The ‘perp’ bashed the length of wood into PCO Smith’s shield near the top and as the shield flipped back the wood hit PCO Smith in the front of her helmet causing her head to be violently knocked backwards and to the side, the wood was withdrawn and again bashed into PCO Smith’s shield with the same result.

At this point I moved back into my section and continued with the exercise. When the exercise ended SPCO Simon Jamieson informed me that he would need to take PCO Smith to hospital and I travelled in the rear of the bus with PCO Smith who was in a lot of pain and being violently sick.

This is a true and accurate statement of the events witnessed by myself on the date in question.”

Submissions regarding credibility
[31] On this evidence, and for the reasons set out in the written submissions which the parties have helpfully lodged, I am asked, on the one hand, to find the pursuer a credible and reliable witness, and on the other, to reject her evidence as being unreliable.

[32] On behalf of the pursuer it is said that her evidence was in general supported by the witness Andrew Fraser and by the statement written out by the witness David Smith. It is said that her evidence in court is consistent with the version of events she gave when she attended at hospital shortly after the incident and when she attended at her GP two days later. It is also suggested that the fact that CCTV footage was deleted shortly after the accident is something which must be seen to count in favour of the pursuer. On behalf of the defenders it is said that the pursuer’s account in evidence when first given contained no reference to her shield striking her visor. It is pointed out that there are discrepancies between the evidence of the witness Andrew Fraser and the account of the pursuer. It is said that these discrepancies are significant, in that Mr Fraser said that the plank of wood struck the pursuer’s shield half a dozen to a dozen times and the pursuer said three times. It is pointed out that Mr Fraser made no mention of the shield striking the visor. It is said that the other witness to the accident, David Smith, had virtually no recollection now as to anything that had happened and that there were significant discrepancies between his written statement number 5/10 of process and the accounts given by the pursuer and Andrew Fraser. It is pointed out that Mr Smith speaks of the wood twice hitting the front of the pursuer’s helmet. It is said to be very important that the account of the incident given to David McKay immediately after the accident contains no reference at all to the pursuer being struck on the shield with a plank of wood. It is suggested that the obvious reason for this is that the pursuer never said anything about it. The evidence of Susanne Wilson, one of the defenders’ managers, is also founded on by the defenders. It is said that when Ms Wilson came into the first aid room and asked the pursuer what happened, the pursuer did not say anything about being hit with a stick.

Decision regarding evidence of pursuer
[33] Having considered the evidence and submissions made to me I can say, first of all, that I have no doubt that something happened to the pursuer on the day in question which affected her quite badly. It is not in any way in dispute that she went to see the first aider, David McKay. He has a clear recollection that during his meeting with the pursuer she became somewhat distressed. Another prison officer, the witness Andrew Fraser, also remembers her looking “sick and clammy” at the end of the exercise. He thought he remembered her being sick. Another prison officer, David Smith, has a specific recollection of the pursuer being sick into a plastic bag which he was holding, and that he wanted her to go to hospital. Later that evening the pursuer did actually go to hospital.

[34] It is impossible to believe that any of the symptoms which those other prison officers saw could have been feigned. It is also impossible to believe that the pursuer would have gone to hospital had nothing happened to her. To my mind all of this makes it abundantly clear that something happened to the pursuer during the course of the training exercise which resulted in her sustaining an injury to her neck. The only question, therefore, is precisely how did she sustain that injury?

[35] The pursuer, as I have said, came across as a very pleasant and personable person. At the time she gave her evidence I formed a favourable impression of it as whenever she was asked to describe what happened she seemed to me to do so in a clear way and without any real hesitation, and I did not notice any internal discrepancies in the way she gave it.

[36] Nevertheless, her apparent failure to mention at all to the first aider on the day of the accident that she had been struck by a plank of wood is something that I have had had to think about carefully. Had Mr McKay understood the pursuer to be complaining of being struck by a plank of wood then I feel sure that he would, as he said, have recorded this. There was no reason for him not to. There are really, as I see it, only two explanations for the fact that the accident investigation report contains no reference to the pursuer being struck: either she did not mention it to Mr McKay, or she did mention it but Mr McKay did not really understand the significance of what she was saying and therefore failed to record it, perhaps because he was concentrating on what he thought was the pursuer’s main complaint. I cannot really say which of these explanations is the correct one.

[37] The pursuer’s evidence, however, is also supported by the evidence of the other two prison officers. While there are discrepancies in the description given by Andrew Fraser compared with that of the pursuer, and while the written statement of David Smith does seem surprisingly similar to the evidence of the pursuer (even to the extent of talking of the shield “flipping”), I cannot bring myself to believe that the evidence of these two prison officers has simply been fabricated in order to support a colleague.

[38] The Defenders’ counsel in his submissions accepted that, given the nature of the training exercise being undertaken, the pursuer’s shield may well have been struck by a piece of wood. I think that concession was sensibly given. It is a conclusion to which I have also come, as I do not believe that the pursuer has simply fabricated a story about being struck by the plank of wood. While, I have to say, she did perhaps seem rather too confident in her evidence as to how many times she was struck, being very precise as to it being three times, I have come to the conclusion that her evidence ought to be accepted. Having accepted that her shield was struck, it is only a small step to accept also that when her shield was struck it hit her visor and that her neck was jerked back on two occasions. That this happened is consistent with the fact that at the hospital she was complaining of neck and shoulder pain and this is also what she told her doctor two days later. Some sort of “whiplash” type injury is consistent with all that the pursuer describes.

[39] When everything is taken into account, namely that something significant happened to the pursuer at the training exercise as shown by the fact that she became very upset, that only a short time later at hospital she complained of having been struck by a plank of wood, that she repeated this claim to her doctor two days later, that there are two witnesses who say they saw her being struck, that it is accepted even by the defenders that she may well have been struck by a piece of wood during the training, that she created a favourable impression on me in the witness box, I conclude that the pursuer has proved on the balance of probabilities that she was injured in the way that she claims.

LIABILITY

[40] The injury which the pursuer received on 22 September 2010 was diagnosed by Mr Angus MacLean, Consultant Orthopaedic Surgeon at the Glasgow Royal Infirmary as a “simple soft tissue injury to her neck”, (production 5/1 of process), in other words it was similar to a whiplash injury. Nevertheless, after the accident she was off work for a period of 67 days, which would suggest that the accident affected her quite badly. She argues that an injury of this apparent severity should not have happened, and could have been prevented had the Scottish Prison Service taken greater care. She argues that certain failures by the defenders put them in breach of various regulations, thus rendering them liable in damages, and also argues that the defenders are similarly liable under the common law of negligence.

The Management of Health and Safety at Work Regulations 1999

[41] The pursuer contends first of all that the Scottish Prison Service is in breach of the Management of Health and Safety at Work Regulations 1999.

[42] It was common ground that the Management of Health and Safety at Work Regulations imposed a duty on the prison service in terms of regulation 3 to carry out a “risk assessment” of the training exercise. This duty applies to them even though they were not the pursuer’s employers because regulation 3(b) requires them to assess “the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking”. The pursuer contended that it could not be said that there had been any risk assessment at all, but if there had been then it was inadequate, and that on either basis the defenders were accordingly in breach of their statutory duties and liable in damages.

Admissibility of expert evidence

[43] In support of the pursuer’s case the pursuer led two expert witnesses, namely Mr Eric Baskind, a senior lecturer in law at John Moore’s University in Liverpool, (who was not led as a legal expert but as an expert in “the use of force, physical interventions, restraints, management of violence and martial arts systems”), and James Skilling, who is described as a health and safety expert. The defenders led the evidence of their own expert Nicola Coote, who is also described as a health and safety expert.

[44] A preliminary point arises, however, in relation to this expert evidence, which is that, despite having led their own expert witness the defenders’ argued, as I understood it, that their evidence would be of no assistance to the court, that in fact the experts were not expert at all, and that all this expert evidence was inadmissible, and should be disregarded.

[45] In essence (although greater detail is given in the defenders’ written submissions) it is argued that I do not need the evidence of experts to decide as to whether or not any risk assessment was “suitable and sufficient” (to use the words of the regulations), as I can form a proper judgement on that question without the assistance of expert evidence. It is argued that expert evidence is only admissible where it is necessary to explain to the court something which it could not understand without specialist advice. It is also argued that (as it is put in the defenders’ written submissions) “Mr Baskind’s credentials as an expert witness are not established and that his evidence can and should be disregarded”. The same argument seems to be put forward in relation to Mr Skilling.

[46] In relation to this argument there is an immediate observation which must be made, which is that the defenders accepted that if I ruled that the pursuer’s experts were inadmissible, it followed that I had to rule that the evidence of the defenders’ expert was also inadmissible. The result of the defenders’ argument is that although they have led an expert witness, they seem to say that I should not accept her as being an expert, and in any event even if she is an expert I do not need her evidence to decide upon the issue before the court. I have to say that I think it is very difficult for the defenders to put forward their own expert, but at the same time say that I should disregard her evidence.

[47] However, I am aware, and was reminded of the fact, that the Inner House has very recently stressed again that expert evidence, especially perhaps from witnesses who are described as Health and Safety experts, is not needed in many cases involving accidents at work (Kennedy v Cordia (Services) LLP 2014 SLT 984), and I bear that reminder in mind.

[48] The criteria to determine the admissibility of expert evidence is helpfully summarised in the book Evidence: Principles, Policy and Practice, by Fiona Raitt, 2^nd Ed. At paragraph 4-14 it is said as follows:

“In addition to an expert only testifying to matters within their area of expertise, an expert witness may not testify as to matters that are well within the knowledge and experience of the trier of fact. This rule was established in 1975 in the English case of R v Turner and it remains the guiding principle today in English and Scots law.”

[49] In order to deal with the defender’s argument that the expert evidence is not admissible, it is necessary to understand the nature of their evidence. Each of these witnesses lodged a report and the terms of the reports are available for reference. I think it is sufficient therefore for me to say that Mr Baskind is a martial arts instructor, and his evidence related largely to the use of physical force, and as such I do not think that it could be said that he was merely speaking to matters which were clearly within common knowledge. In relation to Mr Skilling and Nicola Coote, their evidence related to the question of what ought to be in risk assessments. While all courts are assumed to know of health and safety law, the way in which health and safety law is put into practice by employers is not something of which a court would necessarily be aware.

[50] It therefore seems to me that each of these witnesses could not be said to be speaking, at least entirely, to matters which were “well within the knowledge and experience of the trier of fact”, and I regard their evidence as being admissible in principle.

[51] The next question is whether the expertise of the expert witnesses has been sufficiently established to allow their opinions on the particular matters raised in this case to be received. A summary of the criteria for admissibility in this respect is again provided in Raitt at paragraph 4-12 as follows:

“What matters is not so much the academic qualification or their formal recognition as proof of the expertise. The source of that proof does not determine admissibility provided that the court is satisfied that it exists, and that the person called as an expert witness is fated to guide the court in an area beyond its experience.”

[52] In relation to the experts in this case, where one has an unusual area of expertise (Mr Baskind) and two profess an area of expertise which the courts have sometimes looked at very critically, each of the witnesses came over as being competent and professional witnesses, even if their knowledge seemed to me to come more from practical experience than from the gaining of academic qualifications. Largely as a result of the nature of their evidence, but also from observing the way that they gave it, I was satisfied in relation to each of them that they demonstrated sufficient specialised knowledge to allow me to take their opinions into account in this case.

Have the defenders proved that a risk assessment was carried out?

[53] In relation to the risk assessment, it is argued, as set out in the pursuer’s written submissions, that, despite the reference in evidence to the document 6/33 of process, which is headed “Risk Assessment” the defenders have not actually proved that any risk assessment had ever been carried out. It is argued that the defenders “have failed to prove that the Risk Assessment 6/33 of process was in force at the time of the incident, as no evidence was led in support of the defenders’ averment in answer 6 that ‘Eddy Davidson carried out a suitable and sufficient risk assessment of the control and restraint phase 3 in August 2010’”. It was pointed out that Eddy Davidson was not led as a witness at the proof. It is argued that the “date, origin and status of this document are wholly unclear”.

[54] I cannot accept the argument that the defenders have failed to prove that a risk assessment had been carried out. Mr Baskind was referred to the risk assessment in his evidence-in-chief, which I think can be seen as a tacit acceptance that the document existed. Mr Skilling was also referred to it in his evidence-in-chief. Nicola Coote was referred to the document in cross-examination on behalf of the pursuer, and I think that all of this questioning on both sides was really carried out on the tacit assumption that the document had been prepared and did exist. Although its existence could have been more clearly established, I think that the evidence allows me to find that the document which had clearly been prepared as a risk assessment did exist and was in force at the time of the accident.

Was the risk assessment suitable and sufficient?

[55] The pursuer’s argument that the defenders’ risk assessment was not “suitable and sufficient” has, as I see it, greater substance. The evidence of the pursuer’s expert witnesses was that the risk assessment was deficient, and I turn now to the evidence they gave in support of this contention.

The expert evidence

[56] A report prepared by Eric Baskind has been lodged as a production for the pursuer and is now to be found as number 5/4 of process. Mr Baskind sets out his qualifications in the report. He is what might be called an expert in “self-defence”. At paragraphs 16 - 19 of his report Mr Baskind criticises the amount of force used in striking the pursuer, where he states as follows:

“16. The exercise being undertaken by the pursuer was one to restore order to a prison wing. For this training to have any real benefit it was necessary to create a scene similar to that which the officers might expect to find during such a disturbance.

17. This can be achieved in a number of ways including creating a setting partly in darkness, having debris on the floor, barricades, noise, and the like. The debris on the floor referred to in paragraph 6 above was almost certainly placed there intentionally to replicate a serious disturbance and was part of the training. This is quite normal.

18. It would also have been perfectly normal during this kind of training for the mock prisoners to throw missiles at the officers for which the officers were adequately protected against the same. The pursuer was wearing full protective gear including a helmet with visor and was carrying a shield. This would provide a good level of protection against injury although not complete protection. It is perfectly normal for an officer’s shield to be struck during this kind of training although for reasons of safety not with anything like the kind of force that might be expected from a real prisoner during such a disturbance. Striking a shield with excessive force would not only give rise to a foreseeable risk of injury but would serve no useful training purpose. Striking the shield with a moderate amount of force will provide a sufficient degree of realism for the purpose of the training.

19. In addition to creating a scene of disturbance, the purpose of striking at an officer’s shield is to test the response of that officer and, depending on the exercise, their colleagues. This can be adequately achieved by striking the shield with much less force than a prisoner might use during a real disturbance.”

[57] In his evidence, Mr Baskind expanded on his report by putting forward his view that it was not sufficient for the Scottish Prison Service to use trained instructors to play the role of rioters, but argued that the rioters had to be given clear instructions as to how much force they could use. His argument was that this was a crucial part of advanced planning, although he accepted that he did not know what verbal instructions were given to participants and instructors on the day. He argued that it was essential that the perpetrators should be told not to act like real prisoners, and should be told that if they were striking prison officers’ shields they should not do this too forcefully. He accepted that the Scottish Prison Service had put “quite a bit of planning into the exercise” but he felt that the key risk, i.e. how much force in striking shields the rioters should be allowed to use, had not been sufficiently addressed.

[58] He was referred to one of the defenders’ productions, namely number 6/33 of process, which is headed up as being a “Risk Assessment Safe Systems of Work” and according to the heading applies to the training facility at Fauldhouse. The document consists of a number of pages, and is quite detailed. It is available for reference and it can be seen that on page 1 of the risk assessment one of the hazards of the training exercises is said to be “Uncontrolled Aggression”. On page 2 the matter of “violence” is highlighted as a hazard. On page 3 “Impact/Strike Against – Barricades or Objects” and “Uncontrolled Aggression” are both highlighted as hazards. These and other hazards are assessed in terms of their “likelihood” and “severity” as part of Appendix 3 of the risk assessment. Mr Baskind agreed that the risk assessment had identified uncontrolled aggression as a risk, but argued that simply identifying the risk did not go far enough, and that in his view the risk assessment should have ensured that excessive force was not used. He also argued that safety marshals present at the training exercise should have stopped the training exercise as soon as it was obvious that excessive force was being used.

[59] James Skilling in his evidence confirmed that number 5/14 of process was a report prepared by him. His qualifications are set out in the report. It seems clear from his report that Mr Skilling has had sight of the risk assessment referred to above, and he suggests that the risk assessment document should have identified as a hazard “over enthusiastic striking of an officer’s shield”, and that this was a “eminently foreseeable activity” which had not been properly identified. As I read his report, he argues that the risk assessment should have identified this hazard and should have ensured that perpetrators were given strict instructions as to how much force could be used. In his evidence he expanded on this by saying that, “You would want explanation to people as to what they can do and can’t do, as everyone has a different view as to what might be acceptable or not.” He said, “There should be an indication of how far perpetrators should go.” Like Mr Baskind, he accepted that a substantial number of control measures had been put in place, but felt that nevertheless there was an omission in the planning.

[60] In relation to the risk assessment, I also heard evidence from an expert led by the defenders, Nicola Coote. She confirmed that she had prepared a report which has been lodged as a production by the defenders and is now to be found as 6/35 of process. She described it as a “desktop review”, by which I understood her to mean that she had been supplied with certain documents and had prepared a report on the basis of the documents given to her, rather than having visited the locus. It can be seen from her report that she considered a number of regulations which commonly apply, she has looked at the risk assessment no. 6/33, she has looked at the safe system of work document referred to above, she has looked at the Manual Handling and Work Equipment Regulations, and is of the opinion that there were no significant failings in any of the documents produced by the defenders, or in any of the procedures which they operated.

[61] In her evidence in court she offered the view that it was simply not possible to anticipate every eventuality which might arise, and that even if a risk assessment or other similar document could be improved, that did not suggest that it was deficient. She suggested that it was impossible sometimes to completely eliminate the risk of injury, and this was simply the result of the fact that risk could not be eliminated when there was human interaction. In relation to Mr Baskind’s argument that more precise instructions should have been given as to the level of force which the rioters should have used, she suggested that it was impossible to define to people how much force they should use. She suggested that this was a very subjective matter. That was why there had to be so much reliance on the experience of mock rioters. They learned through their experience what could be done and what could not. She suggested that “telling perps to use ‘moderate’ force would be like teaching your grandmother to suck eggs”. She suggested that Mr Skilling’s argument that clear understandable language should be used was an impossible objective in the context of instructions to the rioters, as “we are dealing with something that cannot be defined”.

Decision on risk assessment

[62] Despite the detail of their reports, as supplemented by their evidence in court, I think it can be said, with only a little over simplification, that the main criticism put forward by Mr Baskind and Mr Skilling as to the defenders’ risk assessment and safety briefings was that the prison officers acting as rioters had not been given some form of precise instruction as to how much force they could use in the mock riot situation. However, the difficulty with this argument is that when pressed in cross-examination Mr Baskind really had to concede that because force is such a subjective concept it was very difficult to put into words just how much force should be used. A burly male prison officer might have a very different idea of what constituted moderate force than a slightly built female officer. When pressed as to the precise form of wording which Mr Baskind felt should have been in the risk assessment or other documents, he could only suggest that the rioters “should have been told to strike the shields but not too forcefully”. Similarly, Mr Skilling could only suggest that the rioters should have been told “what would be acceptable”.

[63] Having considered the criticisms of the risk assessment, I find that I am not persuaded by them, but rather am persuaded by all that is said on behalf of the defenders in their written submissions at paragraphs 82-86. Although these submissions are with the papers, for ease of reference I will set the relevant paragraphs out here. They are as follows:

“82. … there was a good deal of common ground between Mr Skilling and Ms Coote. They were agreed that there is no set form or manner in which a risk assessment should be set out. What is important is the identification of risks and appropriate control measures. When matters are approached in that practical, common sense way, it is respectfully submitted that there is no foundation for the assertion that the defenders failed to perform a suitable and sufficient risk assessment.

84. It is respectfully submitted that, looked at fairly and in the round, the importance of safety and identification of sensible and practical measures to reduce the risk of injury infuses the risk assessment documents …

85. As noted above, the main criticism of the risk assessments offered by the expert witnesses led by the pursuer was failure to identify uncontrolled aggression as a risk and to instruct perps as to the level of force which could be used. It is submitted that such criticism focuses inappropriately on the minutiae rather than looking at the risk assessment and control measures in the round. That such criticism was pedantic rather than substantial was well illustrated by the difficulties which both Mr Baskind and Mr Skilling had in specifying what additional instruction or guidance ought to have been given to the perps. When pressed on the matter, both ended up resorting to generalities which, it is respectfully submitted, added nothing of substance to what the perps already knew and had been told.

86. The employers’ duty in terms of regulation 3 is to carry out a suitable and sufficient risk assessment. The required standard is not of perfection. The fact that the risk assessment could be improved upon does not in itself give rise to a breach of duty. It is respectfully submitted that when looked at fairly and in the round there was no breach of regulation 3 in this case.”

[64] I find that I also agree with the evidence of Nicola Coote. She said that she has very great experience of risk assessments, something that is not within the experience of most judges. She regarded 6/33 of process as being “an adequate risk assessment”. She suggested, as I understood her, that a risk assessment had to involve a balance. She suggested that some risk assessments could “be tortuous in detail, but this very detail could lead to the risk assessment not being understood and applied, and it would then be ineffective”. Nicola Coote also reminded me that risk assessments are primarily to alert managers and others responsible for organising work or other activities to the risks which arise, so that these risks can be reduced. I found this evidence to be persuasive.

[65] I cannot therefore accept the pursuer’s argument that the risk assessment was inadequate. When the risk assessment is looked at it can be seen, I think, that it does one way or another identify all the risks which could reasonably be anticipated as arising from the training exercise. No doubt it could be improved, but the issue in this case is not whether it could be improved but whether it was deficient. I am not persuaded by the argument that the risk assessment should have contained specific instructions to be given to perpetrators that they should only use “moderate” force, or, as suggested at one point by Mr Baskind, that they should not use force which was likely to injure someone. I agree with Ms Coote that it is just not really possible to quantify force, and to give specific instructions to experienced prison officers that they should not use so much force that they might injure someone would in my view be fairly meaningless, and superfluous.

[66] The pursuer’s case that the defenders are in breach of regulation 3 of the 1999 Regulations therefore fails.

Onus of proof

[67] Although I have rejected the pursuer’s arguments regarding the risk assessment, and therefore do not have to deal with the point, I would mention for completeness that the pursuer in submissions also seemed initially to contend that if it was established that there had been no risk assessment, or that the risk assessment was inadequate, then the onus passed to the defenders to show that such failures did not actually cause the accident. I cannot see that this contention can be correct. It cannot be right, it seems to me, that having proved that there were failures in relation to a risk assessment, a pursuer could simply sit back and expect liability to follow unless the defenders showed that these failures did not make any difference. To succeed on liability it seems to me that it also has to be demonstrated by the pursuer that had the failures in relation to a risk assessment led to an accident taking place. That may not be a difficult hurdle for a pursuer to cross in many cases, and of course an employer may seek to demonstrate that failures in relation to a risk assessment did not make any difference, and that an accident would have happened anyway, but this does not mean that the onus has switched to the employers. It can perhaps be seen really as an aspect of the “but for” test – the pursuer must prove that “but for” the failures the accident would not have happened.

Manual Handling Regulations
[68] The pursuer also contends that the defenders are in breach of the Manual Handling Operations Regulations 1992. The regulations were introduced, as I understand it, essentially to deal with the lifting of excessive weights by employees at work, but it is clear from case law now established over quite a lengthy period that the regulations go well beyond this. Even though the regulations have been held to apply in quite a wide variety of situations, the arguments advanced by the pursuer as to why the regulations apply to the present case are, at first sight, somewhat surprising.

[69] The first of the pursuer’s arguments is (as set out in the pursuer’s written submissions) “that the operation in which the Pursuer was engaged was a manual handling operation in that she was carrying a shield”. If that was indeed a manual handling operation, and if the Scottish Prison Service is to be seen as the pursuer’s employer for the purpose of the training exercise, then in terms of regulation 4 of the regulations they should have carried out a risk assessment in relation to the risks involved in carrying the shield. It is said, quite correctly, that there is no suggestion by the defenders that they ever carried out a manual handling risk assessment in relation to carrying the shield, and all of this is said to lead to liability.

[70] I am not in any way persuaded by the argument that the Regulations applied to the activities which the pursuer was carrying out. At the time she was injured the pursuer was not carrying the shield. She said in her evidence that she was holding her shield with her left foot in front of her, and her knees slightly bent, and that the shield was “resting on the ground”. In my view not only was the pursuer not carrying her shield at the time in question, nothing that she was doing with the shield could be said to be a manual handling operation which gave rise to a risk of injury to her from her own actions. The argument that the regulations applied because she was carrying a shield fails on this simple basis.

[71] However, the pursuer also argues that the mock rioter who hit her with the plank of wood was carrying out a manual handling operation when he did this. That is no doubt correct given that regulation 2 defines a manual handling operation as including the “pushing, pulling, carrying or moving” of a load. The pursuer’s argument, as I understood it, was that employers have a duty under the regulations to reduce the risks arising from manual handling operations to “the lowest level reasonably practicable”, and this, it was argued, included the risks to others from the manual handing operation which was being carried out by the mock rioter. On this analysis, it was argued, the manual handling operation being carried out by the perpetrator gave rise to risks to others, including the pursuer, and the defenders had a duty under the regulations to assess those risks, and take measures to reduce them.

[72] The argument put forward on behalf of the pursuer appears to be contrary to the view expressed in Redgrave’s Health and Safety, 8^th Ed., at page 903 that the regulations are not intended to apply to risks posed to others. It is said there as follows:

“The reference to ‘employees’ undertaking manual handling operations giving rise to a risk of ‘their’ being injured suggests that the relevant risk is the risk to the person undertaking the manual handling operation and not the risks posed to others.”

[73] However, in support of the argument that it was not just risks to the person carrying out the manual handling operation that the regulations were designed to deal with, but also to others who might be affected by the operations, I was referred to the English case of Postle v Norfolk and Norwich NHS Health Care Trust, decided on 19 September 2000, of which I was given a summary. In that case a nurse was pulling a hospital trolley which had a patient on it, when the trolley swung round and struck another nurse. The nurse who was injured founded on the Manual Handling Regulations, and the NHS Trust argued that the regulations were inapplicable because the duty imposed by them on an employer was owed only to an employee who was carrying out a manual handling operation, and did not apply where the employee was injured by a manual handling operation being carried out by another employee. It was held that the regulations should not be read in a restricted sense, and could apply to the situation which had arisen.

[74] While I am prepared to accept that there may be certain situations, probably very few in number, where the regulations apply to the risks caused to another person by someone who is engaged in a manual handling operation, it is my view that this was not one of those situations. In the English case referred to, so far as can be ascertained from the brief summary, both nurses were really involved in moving the patient. Here, the pursuer was doing one thing and the mock rioter another. While they were both engaged in training, they were not both involved in the same activity. As is said in the defenders’ supplementary written submissions, “apart from the wooden plank coming into contact with the pursuer’s shield, she had no role in handling the wooden plank at all”. The connection between the pursuer, who was standing on one side of a gate, and the rioter who standing on the other, is so tenuous to mean in my view that the pursuer’s analysis cannot be accepted.

[75] In my view this is not a manual handling case.

Regulations do not apply to the defenders

[76] As I take the view that the Manual Handling Regulations do not apply, I need not deal with an argument advanced separately by the defenders, namely that these regulations do not apply to this case because they only impose duties on employers, and the defenders were not the pursuer’s employers. It is fair to say, however, that support for this argument is to be found in Monkman on Employers Liability, 16^th Ed., at paragraph 25.27 where it is said that: “The duty is only owed by an employer to its employees”.

[77] Notwithstanding the view expressed in Monkman, and contending that the defenders’ argument was incorrect, the pursuer’s Counsel referred me to the Health and Safety (Training for Employment) Regulations 1990, and argued that the 1990 Regulations would render the defenders liable for any breach of the Manual Handling Regulations. These 1990 regulations apply to anyone receiving training by way of work experience, unless the training is provided by an educational establishment or is provided under a contract of employment. The Regulations provide that anyone who is receiving training is deemed to be at work as an employee of the organisation which is providing the training, unless they fall within the excepted categories. This is stated to be for the purpose of bringing the person receiving training within the ambit of part 1 of the Health and Safety at Work Etc. Act 1974, which provides by section 47 of part 1 that a breach of duty imposed by health and safety regulations “shall, so far as it causes damage, be actionable …”.

[78] While I need not express any concluded view about the point, and while it was not entirely clear to me whether the pursuer could be said to have been receiving her training under a contract of employment (which would take her outwith the 1990 Regulations) it would be very odd indeed, it seems to me, that where training is provided by an independent third party, as was really the situation here, and that training involved, for instance, lifting excessive weights or other manual handling operations, the provider of the training would be exempt from the duties imposed under the Manual Handling Regulations because they were not technically the employer of the person injured. Although I have held that there was no breach of the Manual Handling Regulations, I think that the Health and Safety (Training for Employment) Regulations 1990 to which I have referred above may well have had the effect that the pursuer was deemed to be at work and an employee of the defenders for the duration of the training course.

The Provision and Use of Work Equipment Regulations 1998
[79] The next of the regulations on which the pursuer founds are the Provision and Use of Work Equipment Regulations 1998. In submissions it was initially said that the defenders have breached regulations 4, 7, 8 and 9. The terms of the relevant regulations are set out in full in the pursuer’s written submissions. In short, regulation 4 provides that all work equipment must be “suitable for the purpose for which it is used or provided”. Regulation 7 provides that where work equipment gives rise to risks the employer shall ensure that the work equipment is only used by those persons given the task of using it. Regulation 8 provides that all persons who use work equipment must have adequate health and safety information, and regulation 9 provides that they must also have received adequate training.

[80] The pursuer’s arguments as to the alleged breach of the 1998 Regulations are set out in the written submissions from page 25 onwards. It is argued that the activity of the mock rioter in using a plank of wood to strike the pursuer was an activity involving work equipment, and that it was likely to involve a risk to the pursuer’s health and safety. The argument is that that there was no evidence to show that the task of using the plank of wood was restricted to any specific individual, or that the mock rioter had been given written instructions on the use of the plank of wood, or that the rioters had been given any training in the use of the plank.

[81] The first point to make, I think, in relation to the case under the work equipment regulations, is that it seems to me that the regulations are designed to deal primarily with the risks to the employee who is using the equipment. However, even if that is not the case, the pursuer was not using the plank of wood, and although she was struck by it, the connection with the plank of wood which was no doubt being used as work equipment by the mock rioter was tenuous. I think it would be very artificial indeed to regard the accident as having arisen from risks arising from the use of work equipment. It was the actions of the mock rioter which caused the injury, rather than any risks arising from the use of the plank of wood itself. Secondly, as I understood it, regulation 4 was not ultimately founded upon (it not having been averred that there was a breach of regulation 4). Thirdly, if the pursuer were to succeed under regulation 7 it seems to me that it would have been necessary for her to lead evidence to show that the use of the plank of wood had not been restricted to the mock rioters. Fourthly, she would have had to have shown similarly that the rioters had not had any written information or training regarding the use of the plank of wood, and it seems to me that such evidence was absent. The main point, however, is that to my mind the pursuer cannot overcome the point that this, looked at properly, is not a work equipment case. She may have been injured by a plank of wood wielded by another prison officer, but that does not mean that the duties under the Work Equipment Regulations have any relevance or are brought into play.

[82] The case under the Work Equipment Regulations must, it seems to me, also fail.

The Personal Equipment at Work Regulations 1992
[83] During the course of submissions it was stated on behalf of the pursuer that the Personal Protective Equipment at Work Regulations 1992 were no longer founded upon. As the pursuer was wearing full riot gear, which is intended to, and no doubt does, provide a very great measure of protection, the departure from this case is perhaps not surprising.

Summary of cases under regulations
[84] In relation to the statutory cases, in summary, it seems to me that the pursuer has failed to establish a breach of any of the various regulations founded upon. In relation to the Management of Work Regulations, she has not in my view established that there was a failure to carry out any risk assessment, or that the risk assessment which was carried out was not suitable and sufficient. In relation to the case under the Manual Handling Operations Regulations, she has not established that these regulations applied to the circumstances of the case. That is also the position regarding the Provision and Use of Work Equipment Regulations. The Personal Protective Equipment Regulations are no longer founded upon.

CASE AT COMMON LAW

[85] The emphasis in the submissions before me was on the question of possible liability under the various European regulations. That was understandable given the powerful effect the Regulations can have. However, the common law of negligence remains important, and I turn now to deal with the case at common law.

[86] In relation to the common law case, matters were simplified somewhat in that although the pursuer’s attendance at the training course was voluntary, and although she was not employed by the defenders, it was, as I understood it, accepted by the defenders that they owed her a duty to take reasonable care for her safety. In any event, as the Scottish Prison Service was providing the training course, and as they were the party responsible for the training I do not think that there can be any doubt that they owed a duty of care for the safety of those taking part in it, including of course the pursuer. It also seems to me to be uncontroversial that as part of their duty of care the prison service required to minimise, so far as reasonably possible and practicable, the risk of injury to the pursuer and others because of the nature of the training exercise being undertaken.

[87] Although the statutory cases are quite separate and distinct from the common law case, many of the issues which have been considered above in relation to the statutory cases are relevant also in relation to the question of whether the defenders failed to take reasonable care for the safety of the pursuer.

Relevant factors

[88] In order to make training for prison officers as realistic as possible the Scottish Prison Service has gone to the extent of building a mock prison which is part of their training facility at Fauldhouse. During the simulated riot the lights in the mock prison were dimmed, and as I understand it the prison officers who were playing the part of rioters were encouraged to shout and make noise, in order to try and create a realistic environment. The prison officers undergoing training were dressed in full riot gear, and this no doubt would also provide an element of realism. The pursuer’s case, however, at its most basic level, is that things became a bit too realistic and that she was hit with so much force that she sustained the injury to her neck.

[89] In analysing the circumstances of the accident it is important to note, as a starting point, that it was accepted all round that the training provided had to be realistic in order to be of any real value. It was never suggested that the idea of holding a mock riot was one which should have not have been contemplated. Rather, it was accepted as I understood it that a mock riot situation was valuable training for the type of very difficult situations which prison officers might be expected to have to deal with from time to time in a prison setting. For example, in his report Mr Baskind says that:

“It is essential for prison officers to receive training in C&R techniques so as to equip them with the skills necessary for their duties. C&R training should be delivered with a reasonable amount of realism but always subject to the confines of safety. It should be noted that when one is engaged in an exercise such as C&R training there is always a risk of injury. However, with adequate supervision and instruction such risk can be reduced to a minimum.”

Moreover, it was accepted that had training of this type not been provided, and had any prison officer been injured in a real riot, then that might well have given rise to liability on behalf of prison officers’ employers for not giving them appropriate training in how to deal with a real life riot. It is also relevant that even the pursuer’s own expert accepted that it was impossible to reduce the risk of injury completely, and it is easy to see that this is so. Moreover, Mr Baskind said that: “I agree that the Scottish Prison Service have put quite a bit of planning into the exercise”. The pursuer’s other expert, Mr Skilling, said that: “I accept that a substantial number of control measures have been put in place”.

[90] In assessing the question of whether the planning and control measures which the defenders put in place were insufficient, and whether the defenders failed to take reasonable care, I think some guidance can be obtained from the Inner House case of Brisco v Secretary of State for Scotland 1997 SC 14; 1996 Rep. LR 169. The circumstances are really remarkably similar to the present case, even though the accident happened nearly 20 years ago.

[91] Mr Brisco was a prison officer who was injured while taking part in a simulated prison riot which was part of a training exercise. The exercise involved prison officers having missiles (which included items such as fire extinguishers, metal bars and substantial pieces of wood) thrown or dropped onto them from above by other prison officers acting as rioters. The officers were provided with helmets and body armour and were holding plastic shields above their heads, which they linked together. During the exercise a heavy fence post which had been dropped from above passed between the officers’ shields and struck the pursuer on his foot, fracturing his little toe. He sought damages from the Secretary of State for Scotland as representing the Scottish Prison Service. It was held by the First Division that employers, in considering whether some precaution should be taken against a foreseeable risk, should weigh on the one hand the magnitude of the risk, the likelihood of an accident happening and the possible seriousness of the consequences if any accident did happen, against, on the other hand, the difficulty and expense and any other disadvantage of taking the precaution. There was no basis for disturbing the Lord Ordinary’s conclusion that the risk of injury was very slight, and balancing that risk against the need to provide realistic training there was no failure to exercise reasonable care. It is suggested on behalf of the pursuer that this case has to be treated with caution since it predates much of the important recent European regulations, and that the common law now has to be seen in the context of obligations incumbent on employers in terms of the various regulations. It is correct that, in many areas, life has moved on since the Brisco case was decided, but I do not think that anything which has happened since then affects the fundamental approach as suggested by Brisco. The need at common law to assess the magnitude of the risk of injury and its likelihood merely has its counterpart in the modern regulations in the need to carry out a risk assessment. The duty at common law to consider what precautions could be taken against foreseeable risks again finds its counterpart in the similar duty under, for instance, the Manual Handling Regulations to reduce risks to the lowest level possible. The need to provide safe equipment under the Work Equipment Regulations again finds its counterpart in the common law obligation to provide safe plant and equipment.

Safety measures

[92] Looking at the measures which the Scottish Prison Service put in place, the first of these was that the people playing the part of the rioters were not, as the defenders put it in their written submissions, “real prisoners, people taken off the streets or even ‘ordinary’ prison officers”. These rioters were all prison officers who were fully trained instructors. They had all undergone control and restraint training up to level 3. That was confirmed by Susanne Wilson, a witness led for the defenders. She has been working for the Scottish Prison Service since 1986, and now describes herself as a “national resilience manager”. She had also been a control and restraint instructor, although that qualification had lapsed. Her evidence was supported by Alistair Callum, a prison officer presently working at HMP Perth. He has been in the prison service since 1990. He is an experienced control and restraint instructor involved, like all instructors, in giving training to prison officers. He said in his evidence that instructors have to deliver 30 days training each year, that is that in order to remain as instructors they have to be involved in instructing other prison officers for that amount of time each year.

[93] I therefore agree with the defenders’ contention that the fact that the rioters are all fully trained instructors who were familiar with what they are doing, and who will all on average have been involved in taking part in a mock riot situation a number of times, is something which must help reduce risks to the prison officers who are receiving the training.

[94] I also heard that even though the mock rioters were all fully trained instructors, they had to attend safety briefings which took place on the day of the training exercise prior to the mock riot taking place.

[95] Evidence regarding this was given by Susanne Wilson who was in attendance at the training on the day in question. She was not participating but was overseeing the training. She said in her evidence that at the start of the day she gave a brief introduction and then a national instructor (who she thought might be Alastair Callum) gave formal safety instructions. She said that everyone had to attend the health and safety briefing, and that this included a power point presentation giving information about how the rioters would be likely to behave. She said that the rioters would be told not to target the head or hands. She said that production 5/8 of process were documents produced by the Scottish Prison Service College relating to a “Safe System of Work”. She said that instructions which were in accordance with the safe system of work procedures were given to the participants in the training exercise. It is worth looking at the contents of these documents.

[96] The safe system of work documents begin with one numbered “A2” and continue on A3, A4 and A5. They are all dated 13 August 1998. The instructions given in the documents are detailed, and there is some overlap between the documents. The documents are available for reference, so it is sufficient to say that they provide in summary, inter alia, that participants in the training must wear safety equipment, that they will be given verbal instructions from the instructors before the start of any exercise which have to be strictly adhered to, that they must follow the safety marshal’s instructions at all times, that they must be “aware of everyone’s health and safety and act in a responsible and professional manner at all times, and that it is the responsibility of all participants to alert the safety marshal immediately if they suspect that a colleague has been injured or is displaying signs of fatigue. Document A3, which are instructions for perpetrators, provides that they also must adhere to the verbal instructions given prior to the start of any exercise. That they may use missiles but that certain items may not be used for this purpose, and that, interestingly, wooden pallets may be substituted for cell doors. It is said that under no circumstances will staff themselves be targeted, “only their equipment i.e. protective shields and body armour”. They are also reminded to act in a responsible and professional manner at all times. They are told to adhere strictly to instructions at all times. Document A4 gives instructions to safety marshals as to the safe system of work. They are in similar terms to the documents already referred to, but safety marshals are told that exercises “will be stopped immediately if there is the slightest chance of staff being injured”.

[97] Susanne Wilson confirmed that a document lodged by the defenders which is now to be found as 6/18 as process was a print out of the power point presentation which was given to all participants. Like many power point presentations it appears to be used to assist the instructor in the oral instructions which are being given. It is available for reference and it can be seen that on page 1 of the power point presentation it is stressed that “Safety is Paramount”.

[98] Susanne Wilson also referred to number 6/19 of process which is entitled “Safety Brief”. She said that these were notes available to national instructors which they use at the safety briefing together with the power point presentation. It can be seen from this document that various general safety matters are emphasised, such as: “Safety is Paramount”, and “Highlight the Importance of Safety”, “Stay professional and follow all instructions given”, “No Place for Horseplay”, and “Duty of care to yourself as well as others around you”.

[99] She also said that documents 6/2 and 6/3 of the defenders’ productions were pre training check lists which have to be completed to ensure that all facilities were in place prior to the training taking place. The lead instructor would be responsible for completing this document on the day in question. Again the documents are quite detailed but it can be seen that item 13 of 6/2 reads: “Have all participants read, or been advised of, the FPS Safe Systems of Work for Control and Restraint Training”.

[100] Alastair Callum, who is mentioned above, was led as a witness for the defenders. He is 46 years old and has been a control and restraint instructor for 13 or 14 years. He has been a “national instructor” for seven or eight years. As a national instructor he is responsible for giving training to prison officers in ways of dealing with different circumstances. He was in attendance as an instructor at Fauldhouse on the day in question, although he could remember very little about the day itself. He said that a lot of advanced planning and thought went into the delivery of the training exercises. He said that there was a meeting in the morning between managers and instructors, and another meeting before the exercise itself started. His role on the day in question was to be in charge of safety. He said that it would have been himself who delivered the health and safety part of the briefing which was given to the participants. He confirmed that his briefing would have included a power point presentation. Although he could not really remember giving the briefings I do not think there is any doubt that safety briefings were indeed given to participants. He said that participants would be told that their shield might get struck and that it might even be taken off them by a perpetrator. He said that the mock rioters are told that they have to be professional at all times and that safety has to be paramount. He said that the training exercises have to be quite physical and that they could even become quite stressful. He said that participants are told that shields will be targeted and that a perpetrator might try and take a shield off one of the prison officers. He said that the mock rioters are given a separate briefing by him before any exercise starts.

[101] The level of detail in these various documents and the nature of the instructions given to participants and instructors take the defenders a long way towards establishing that they did almost everything that was reasonably practicable to deal with foreseeable risks. Other steps were also taken to minimise risks. Most of these have been referred to above. In summary, and at the risk of repetition, the following are the main steps which were taken to reduce the risk of injury.

[102] First, participants in the training exercise were, as it is put in the defenders’ written submissions, “provided with about every piece of personal protective equipment imaginable and a shield”. The riot gear which the pursuer was wearing, and which self-evidently is designed to protect the wearer from injury, must have provided her with considerable protection. Secondly, the people acting as rioters were all prison officers who knew what they were doing in that they were all fully trained in control and restraint techniques, and in all probability had taken part in a number of these training exercises before. Thirdly, the instructions given to these mock rioters included instructions that they were not to use certain types of objects as missiles, that they were not to throw heavy objects directly at staff, that they were not to strike at unprotected bodies or limbs, and they were told to be aware of the health and safety of everyone in the exercise and to act in a responsible and professional manner at all times. Fourthly, participants in the exercise, such as the pursuer, were instructed that they could bring the exercise to a halt at any time and upon request. Fifthly, there was a high level of supervision by instructors and safety marshals (the safety marshals being positioned at vantage points) all of whom also had the power to bring the exercise to a halt at any time. These measures all seem to me to have been carefully and professionally thought out, and I find it difficult to see that they could have been substantially improved. That is not to suggest that there might not be areas where some improvement could take place, but in almost every area of human activity there is always room for some improvement.

[103] Further, I find that I am not persuaded that the additional safety measure on which the pursuer essentially rests much of her case, namely that propounded principally by Mr Baskind that the perpetrators ought to be given written instructions only to use moderate force, or some similar but vague terminology, has to been established as a necessary safety measure. As set out above, when pressed as to the wording of any appropriate instructions Mr Baskind eventually had to concede that all that could really be said was that enough force should be used to make the exercise realistic without being hard enough to be likely to injure anyone. Instructions of that nature would still have left so much to individual, subjective, judgement, and in my view it is also not established that even if they had been in place it would have prevented the accident.

[104] Finally, I do not think it is established by the pursuer that the exercise should have been brought to a halt by one of the instructors or safety marshals. On the evidence which I heard there really was nothing to alert anyone that anything untoward was happening.

Decision

[105] The defenders had to make the training as realistic as possible, and the pursuer’s own witnesses accepted that this even made it permissible for the mock rioters to strike prison officers shields with objects. As the pursuer’s expert Mr Baskind said, “It is perfectly normal for an officer’s shield to be struck during this kind of training”. However, given the very many steps which the Scottish Prison Service took to make the course safe I am not persuaded that the risk of injury was anything other than a small risk of a slight injury. There was no evidence before me, for example, that other people had been injured on these courses. The defenders, in my view, did as much as they reasonably could to prevent injury, but it seems to me that it was simply not possible to completely remove all risks of injury. In this respect I agree with the defenders’ expert, Ms Coote, who said that it was impossible sometimes to completely eliminate the risk of injury, and this was simply the result of the fact that risk could not be eliminated when there was human interaction.

[106] The result of all this is that, as was the case in relation to the grounds of liability as based on the various regulations, it is my view that the pursuer has failed to establish a failure by the defenders to take reasonable care for her safety, and her action must fail. While the accident seems to have affected her quite badly, and it is impossible not to feel sympathetic towards her for that, it is not in my view an accident which sounds in law in damages.

Contributory negligence
[107] In view of my finding as to liability I need not deal with the question of contributory negligence. In any event during the course of submissions the defenders’ counsel departed from the allegation of contributory negligence on the part of the pursuer. I would only add that I think it very unlikely that I would have found the pursuer to have been responsible in any way for her injury had I had to decide on the matter. The basis of the contributory negligence allegation was primarily that she had been given instructions as to how to bring the exercise to a halt if she felt that she was in any pain or danger, and that she did not do so. However, everything was happening very quickly, and it would be entirely understandable if someone in her position felt reluctant to call attention to themselves by bringing the entire exercise to an end unless something very serious was happening. I do not think that I would have made any finding of contributory negligence.

[108 ] For all the foregoing reasons I will grant decree of absolvitor to the defenders.

I was not addressed on the question of expenses, and the case will need to be put out for a hearing on expenses unless the matter is dealt with by agreement.

MISS BERNADETTE SMITH AGAINST THE SCOTTISH MINISTERS

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