Prisoner can sue the taxpayer for £900k
MINISTERS are facing a £900,000 damages action from a Polish prisoner after losing a legal challenge.
The Scottish Government claimed it was not liable for serious head injuries suffered by Daniel Kaizer during an attempted murder bid at Craiginches Prison, Aberdeen, in December 2009.
But Lord Carloway said yesterday a prison officer was negligent in not reporting an earlier threat of racist violence to Mr Kaizer by Keith Porter, who went on to attack him with a dumbbell in the gym.
Mr Kaizer, 36, claims the prison system failed to protect him from his attacker after he was subjected to a threat by Porter a week earlier. Porter told him he would ‘smash his f ***** g Polish face in’ and called him a ‘Polish b ***** d’.
Mr Kaizer, who was on remand for assault, told prison officer Gary Lumsden what had been said – but no report of the incident was made.
Porter, 30, was briefly transferred to Glasgow’s Barlinnie Prison and appeared at the city’s High Court, where he received a 15-year sentence for the attempted murder of another Polish national, Jaroslaw Janecak. But he was then returned to Craiginches and attacked Mr Kaizer the following day, fracturing his skull.
He was subsequently given a life sentence under an Order for Lifelong Restriction for attempted murder.
The victim raised an action at the Court of Session against the Scottish ministers, seeking compensation following the attack, after which he needed an operation to repair a depressed skull fracture. Mr Kaizer sued for £900,000 – but the question of the amount of damages to be paid is yet to be determined.
A judge ruled last year that the Scottish ministers had failed in their duty of care to the former prisoner and were liable.
Lord Ericht said: ‘I consider the assault was an incident of a kind such as might have been anticipated if there was no communication to the prison authorities by Mr Lumsden of the threat.’
Ministers appealed against the ruling, maintaining Lord Ericht should not have held that, had the earlier incident been reported, the attempted murder would have been avoided.
But Scotland’s senior judge, the Lord President, Lord Carloway, sitting with Lords Brodie and Drummond Young, rejected the challenge. Lord Carloway said in a judgment issued yesterday that Lord Ericht had found, and the ministers now accept, that Mr Lumsden’s failure to report the threat constituted negligence.
He said: ‘That finding and acceptance carry with them an inference that the absence of a report amounted to a failure to take reasonable care for the pursuer’s safety; that he was thereby exposed to the risk of injury.
‘Where negligence is established, as it is here, and thus the existence of a risk of injury is demonstrated, the court is entitled to make the reasonable assumption that the prison authorities will not only do something about that risk, but that the something will reduce the risk to such a level that it will, in all probability far less on a mere balance, not occur.’