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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV2012- 02211

BETWEEN

SHELLY ANN RICHARDS-TAYLOR

Claimant

AND

THE ATTORNEY GENERAL OF

TRINIDAD AND TOBAGO

Defendant

BEFORE THE HONOURABLE MADAM JUSTICE JONES

Appearances:

Mr. R. Heffes-Doon instructed by Mr. K. Saney for the Claimant.

Ms. M. Belmar instructed by Ms. P. Rampersad for the Defendant.

JUDGMENT

1. On 5th

June 2008 the Claimant, a prison officer, alleges that while on duty

and responding to a request by sister prison officers to place a prisoner into a cell, she

sustained an injury. The Claimant contends that the injury is a result of the negligence

and/or breach of the duty of care owed to her by the Trinidad and Tobago Prison

Service (“the Prison Service”) as her immediate employer. The Defendant is sued

pursuant to the State Liability and Proceedings Act, Chap 8:02.

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2. Since the Claimant’s damages have not as yet been fully ascertained this is a

trial on liability only. Essentially to succeed the Claimant must establish that:

(i) as a result of the relationship between the parties she was

owed a duty of care;

(ii) this duty of care was breached in at least one of the ways

alleged in her statement of case; and

(iii) she suffered damage as a result of the breach.

3. The Defendant does not dispute that there exists a duty of care by the Prison

Service. What is in dispute is that there was a breach of that duty of care and that the

Claimant suffered damage as a result. Alternatively the Defendant pleads that the injury

was caused wholly or partially by the negligence of the Claimant.

4. The Claimant bases her case on the common law duty owed to her by the

Prison Service. The Defendant accepts that, at common law, it is the duty of an

employer to provide competent staff, adequate plant and equipment, a safe system of

work with effective supervision and a safe place of work. With respect to the extent of

the duty of care however the Defendant submits that an employer is not liable for

damage suffered arising out of the ordinary risks of the particular service where there is

no negligence on the part of the employer or his employees. I accept that submission.

5. What an employer is required to do is to take reasonable care not to subject

an employee to unnecessary risk, that is, not to subject the employee to any risk that the

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employer can reasonably foresee and guard against by any measures the convenience

and expense of which are not entirely disproportionate to the risk involved.1 In

discharging its common law duty to an employee therefore the responsibility of the

employer is to take care to reduce the risk involved in the particular undertaking as far

as is reasonably possible.

6. The Claimant avers that the Prison Service was negligent in exposing her to

the risk of damage or injury in that it: (i) failed to provide adequate staff to control the

prisoner; (ii) failed to take any or any adequate precaution for her safety while engaged

in her work or provide a safe system of work; (iv) failed to provide up-to-date training

to handle regularly sane and mentally challenged prisoners; (v) failed to provide the

necessary tools, implements and other apparatus to assist in moving and/or lifting

prisoners; and (vi) failed to ensure that the handling of prisoners was free from risk of

injury to the officer on duty. The particulars at (ii) and (vi) address an employer’s

responsibility to provide a safe system of work.

7. The issues for my determination therefore are:

(i) whether there was a breach of the duty of care owed to

the Claimant by the Prison Service in the manner

contended by the Claimant; and

(ii) if so (a) did the Claimant sustain injury as a result of

that breach; and (b) did the Claimant, by her actions or

non-actions, cause or contribute to the injury sustained.

1 Per Lord Herschell: Smith v Baker &Sons [1891] A.C. 325

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Essentially these are all issues of fact. Except for the question of contribution, the

burden of proof of which is on the Defendant, the burden of proof is on the Claimant.

8. It is perhaps appropriate here to deal with the Claimant’s submission that

the fact that the Claimant’s suffered a back injury around 5th

June 2008 is undisputed.

This, she submits, follows from the admission into evidence by consent of a medical

report dated the 23rd

June 2014. On the pleadings it is clear that, in accordance with the

Rules2, the Defendant has not admitted that the Claimant sustained injury to her back on

the 5th

June 2008. Indeed by the defence filed the Defendant required the Claimant to

prove her injury.

9. At best all the medical report proves is that on 6th

June 2008 the Claimant

attended that Health Facility, complained of injuring her back while lifting a patient,

and on examination was found to have suffered certain injuries. It does not prove that

the injury was sustained on the 5th

June 2008 merely that the injury was found to be

present on the 6th

. What is undisputed therefore is that fact that on examination on 6th

June 2008 the Claimant was found to be suffering from a back injury which she alleged

was sustained the day before while lifting a heavy person.

10. Evidence was led from the Claimant and from three witnesses on behalf of

the Defendant. Two of these witnesses: Lisa- Maiden Roberts (‘Roberts”) and Helen

Farria-Trotman (“Trotman”) were prison officers who were present and on duty at the

time. The other witness for the Defendant was Senior Superintendent of Prisons Acting,

2 Part 10.5(3)(c) of the Civil Proceedings Rules 1998 as amended.

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Dennis Pulchan (“Pulchan”), a prison officer for about 30 years and who, at the time of

the hearing, was responsible for identifying the training needs and conducting

development training programmes for the Prison Service at the Prisons Training

College.

11. Pulchan’s evidence dealt with the training provided to Prison Officers.

Insofar as the Claimant relies on the lack of training to establish negligence on the part

of the Prison Service I am satisfied that there is no evidence to support this. According

to the Claimant in her evidence in chief she received no training in sound self defence;

basic skills in analyzing and adopting an effective course of action; working knowledge

of safety and security procedures in a penal institution; basic knowledge of the

behaviour of individuals in confinement and basic knowledge of health and safety

practices. In the context of the evidence I interpret this to mean formal training.

12. One of the problems with the Claimant’s evidence in this regard is that, even

if I accept her evidence, she has not demonstrated what training would have better

equipped her to deal with the situation as described by her. In any event the undisputed

evidence is that the Claimant had been employed as a prison officer for some 18 years

prior to the incident. It would seem to me that with respect to some of the aspects of

training she says she did not receive, as for example analyzing and adopting effective

courses of action, health and safety practices and a working knowledge of safety and

security procedures, even if she did not receive specific formal training in these areas

she must have been exposed to same by virtue of her work experience.

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13. That said I accept the evidence of Pulchan with respect to the training

provided to recruits into the Prison Service and, in particular, the training provided to

the Claimant. Unlike the Claimant’s evidence his evidence was precise, to the point and

not shaken in cross-examination. Indeed much of his evidence was not challenged in

cross-examination. He was a credible witness.

14. While there was some confusion with respect to the status of the documents

tendered by him as coming from the Claimant’s personal file I am satisfied that the

copy of the document identified by him forming a part of the Claimant's personal file is

a true copy of a document contained in the Claimant’s file at the training centre

identifying the training received by the Claimant in 1992 as a recruit. I am satisfied that

this is a document to which he has access by virtue of his role with respect to training.

This in my opinion is not to be confused with documents contained in her confidential

personal file to which he has no access.

15. Pulchan’s evidence is that the training received by the Claimant in 1992 is

the same training received by recruits today. According to him under cross-examination

the only additional training has been training, since 2002, with respect to restorative

justice. I am satisfied that restorative justice and its principles have no relevance to this

case. According to Pulchan the records of the Prison Service show that the Claimant

received training as a recruit for some 14 weeks. This training included: supervision and

party control, operation of restraints, treatment of inmates, treatment of special

prisoners, emergency response and use of force.

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16. He says that in the use of force training the Claimant was taught: (i) ‘control

tactics’ which teaches the recruit how to manipulate limbs and how to use pressure

points to bring a person under control and (ii) ‘empty hands and baton’ which teaches a

recruit how to use her or his body as a leverage tool to bring an inmate to compliance.

17. Under cross-examination the contents of a document dated 28th

November

2012 signed by a W. Bramble suggesting that the Claimant received no use of force

training was put to Pulchan. While acknowledging Bramble as a colleague Pulchan did

not accept the contents of that document to be correct. Bramble did not give evidence. I

accept Pulchan’s evidence in this regard. Indeed under cross-examination the Claimant

admits some 18 weeks of training which training included using restraints and dealing

with unmanageable inmates.

18. I am satisfied that it is the training identified by Pulchan, in particular that

provided in the use of force component, which equipped the Claimant to deal with the

situation that arose with the Prisoner. While there is no evidence of the Claimant being

provided with any training in these areas after 1992 there is, as well, no evidence that

the tactics and strategies taught to the Claimant in 1992 were outdated, obsolete or, if

used, would have been inadequate to deal with the situation. In any event it is clear from

the evidence of the Claimant under cross-examination that she chose not to use the

control tactics taught to her because at the time she was of the opinion that the prisoner

was not violent.

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19. There is no evidence therefore that the training provided was inadequate to

meet the situation. In the circumstances I am of the view that there is nothing to support

the Claimant’s allegation that her injury was caused or contributed to by the lack of

training provided by the Prison Service.

20. With respect to Pulchan’s evidence of particular assistance was his opinion

on the options available to a prison officer when faced with a situation as described by

the Claimant. Except perhaps as to the use of the Emergency Response Unit this

opinion was not challenged in cross-examination. I accept the witness’ evidence as to

the options that he considered were available to the Claimant in such a situation. In my

view his length of service and the position held by him in the service qualifies him to

proffer such an opinion. The question here is whether these options were real options

given the circumstances as described by the evidence.

21. According to Pulchan, in the particular situation, the Claimant had the

following options: (i) to instruct other officers to place the inmate in her cell; (ii) call on

the Emergency Response Unit for back up if the inmate was acting violently; (iii) to re-

route officers posted elsewhere to deal with the issue; (iv) to call on the infirmary

officer if the inmate was acting abnormally; or (v) to make use of the suppression holds

taught to her in the use of force training.

22. Before dealing with the evidence as to what occurred on the day in question

it is perhaps appropriate to deal with the Claimant’s allegation that the Prison Service

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failed to provide the necessary tools, implements and other apparatus to assist in

moving and/or lifting prisoners. The Claimant herself gives no evidence of there being

any apparatus or equipment that would have adequately dealt with or assisted in the

situation. At best, under cross-examination, the Claimant suggests that handcuffs would

have assisted.

23. The problem is that in the circumstances as described by the Claimant it is

difficult to see how handcuffs could have assisted one officer acting alone since the

prisoner would first have had to be approached and restrained in order for the handcuffs

to be placed on her. In any event, again under cross-examination, the Claimant accepts

that, as the officer in charge, handcuffs were available to her. According to her she did

not leave the office with the handcuffs because the situation did not warrant it at the

time. I am satisfied that even if handcuffs was the appropriate tool or equipment to use

in the situation this equipment was available to the Claimant for use by her. The failure

by the Claimant to equip herself with and use handcuffs was, in my opinion, an error of

judgment on her part and cannot be attributed to the Prison Service.

24. With respect to the shortage of staff alleged by the Claimant the question to

be answered here is not simply whether there was a general shortage of staff at the

Women’s Prison on that date but whether there was a shortage of staff that resulted in or

contributed to the Claimant being injured. In this regard the Claimant’s suggestion that

if there was a full compliment of staff then she personally would not have been required

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to go to the assistance of her junior officers is to my mind too simplistic an approach

and does not deal with the real point at issue.

25. Assuming that there was a shortage of staff the question to be answered is not

whether the Claimant would have been deployed to assist her junior officers but rather

whether, by not having that full compliment of staff, the systems in place for ensuring

the safety of staff could be maintained and, if those systems could not be maintained,

did that failure cause or contribute to the Claimant’s injury.

26. In these circumstances it now becomes necessary to examine the evidence of

what occurred on that day to ascertain whether the Claimant can establish that there was

a failure by the Prison Service to: (a) provide adequate staff to control the prisoner; (b)

take any or any adequate precaution for her safety while engaged in her work or provide

a safe system of work; or (c) ensure that the handling of prisoners was free from risk of

injury to the officer on duty; and, if so, did that failure cause her injury.

The day in question

27. The evidence as to what occurred that day was given by the Claimant,

Trotman and Roberts. With respect to the setting there is no dispute. The incident

occurred in the Women’s Prison in Division B of the Main Prison. The Main Prison

comprises 6 divisions. Each division has 12 cells six on either side of a corridor. Each

Division has its own entrance gate, the division or ‘riot gate’, separating the Main

Prison from the cells. In addition each cell has its own gate. All the gates have locks.

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28. At the time of the incident the Claimant was the most senior officer present

and the officer in charge of Batch C. She says that her duties, in this regard, included

supervising the other prison officers on duty to ensure that security was maintained.

This has not been disputed. She does not, in her evidence, complain of any inability to

supervise or lack of training or experience in supervising her junior officers that

rendered her unable to perform the duties of the senior officer on duty.

29. Except with respect to the number of officers on duty in the Women’s prison

on that day the Claimant’s evidence with respect to the deployment of officers was not

challenged. The Defendant says that there were 11 officers on duty that day in the

Women’s Prison the Claimant says there were only 5 officers. This, she says, was an

unusually low number. According to her as a result there were no officers assigned to

the Main Prison, Juvenile Block, Cell Block, Ration, Infirmary and Dis-association.

30. With respect to the Main Prison, where the incident occurred, she says that

there are usually 2 or 3 officers assigned to the Main Prison. As I understand her

evidence this usually includes a Prison Officer II who would be in charge. This

evidence has not been challenged. I accept therefore that there were no officers posted

to the Main Prison on that day. This accords with the evidence of Roberts as to where

she was posted prior to the incident and is not in conflict with Trotman’s evidence. I

also accept the Claimant’s evidence that there are usually two to three officers assigned

to the Main Prison one of whom would be a Prisons Officer II.

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31. According to the Claimant at around 6:45 pm junior officers Trotman and

Roberts informed the Claimant that they were going to lock down the Main Prison.

Accordingly she gave them the keys, which were in her possession, for that purpose.

At around 7.30 pm Trotman called and informed her that an inmate, Martinez, was

giving trouble; that she and the other officer were trying to get Martinez into the cell

and she was not going. Trotman requested that the Claimant come to the Main Prison.

32. The Claimant says that when she got to the Main Prison both officers were

standing outside Division B (“the Division”) with the riot gate locked. She says

Martinez was the only inmate out of her cell. She was on the ground in front of her cell

in a half sitting half lying position. Martinez’s cell was the first cell on the right

immediately inside of the riot gate. According to the Claimant Trotman opened the gate

and the Claimant went into the Division, approached Martinez and from about 4 feet

away instructed her to get off from the floor and go into the cell. She repeated these

instructions but Martinez refused to obey and remained in her position on the ground.

33. After giving Martinez the instructions, the Claimant says, Martinez got off

the floor and began moving away from her cell towards the back of the Division.

According to the Claimant Martinez attempted to push pass her to go towards the back

of the Division. The Claimant says she sought to restrain Martinez by standing in her

way and pushing her back towards her cell. Martinez resisted “and began beating up

like she was out of control”. She then tried to hold onto Martinez and push her back. At

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that time she felt a pop or snap in the lower back and excruciating pain causing her to be

immobilized.

34. She says she received no assistance from her fellow officers instead she had

to be assisted by three inmates. According to her the other inmates held on to Martinez

while Martinez continued fighting, kicking and swinging her arms violently at them.

The inmates restrained Martinez and managed to place her in her cell. Thereafter, the

Claimant says, while in excruciating pain, she was able to lock the cell door.

35. According to the Claimant by that time Roberts and Trotman were outside

the Division with three other male officers from the Emergency Response Unit. None of

the officers, including those of the Emergency Response Unit, assisted her. She limped

out of the gate, held on to the wall and made her way downstairs to the office. She says

that shortly thereafter while she was crying in pain her supervisor arrived and she was

sent off duty. She was subsequently collected by her husband and went home.

36. According to her evidence it was only at the time of her injury that she

realised that the officers were not behind her and they had left the Division. She says

that some time before she made physical contact with the inmate the officers were

behind her. She noticed them following her as she began walking towards the inmate.

But immediately before or after feeling the snap they were not standing behind her.

According to her at the time she sustained her injury they were out of the Division

behind the gate some three to four feet away.

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37. Under cross-examination the Claimant admits that she knew how to deal with

unmanageable inmates and control tactics that taught her how to use pressure points to

get an inmate under her control. According to her however Martinez was not violent so

she could not use those tactics. She says that when she got to the Division Martinez was

quiet. She only became aggressive after she was given the instructions to go back to her

cell. Much is made, in cross-examination, of the apparent contradiction in her evidence

as to when she first realized that the other two officers were not behind her in relation to

the time of her injury.

38. The version of events as related by Trotman and Roberts is materially

different to that of the Claimant. Both confirm that Martinez refused to go into her cell

and that the Claimant was asked to assist. They both agree that Martinez’s cell was the

first cell on the right immediately inside the riot gate. According to both of them

however all three of them managed to get Martinez into her cell and lock her in. They

both say that the Claimant subsequently complained of back pain. According to Roberts

the complaint was made immediately after placing Martinez in the cell. Both officers

subsequently provided statements dated 22nd

September 2008 which, in almost identical

terms, stated that while they and the Claimant were attempting to place Martinez in her

cell the Claimant complained of pains in her lower back. These statements are similar to

that made by the Claimant in a letter of the 16th

September 2008 to the prison authorities

seeking to have her injury reclassified from sick leave to injury leave.

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39. Under cross-examination there is some conflict in the evidence of both

witnesses as to the procedure they followed in putting the inmates into the cells and

locking them. Trotman states that they started with the cells at the back and then came

up to the cells closest to the riot gate at the front. Roberts says that it was the opposite

they started from the front and moved to the back. Both of them say that the procedure

they outlined was the usual procedure. The Claimant does not assist with respect to the

usual procedure. There is no suggestion however that the procedure followed by them

with respect to placing the other inmates into their cells materially affected or

contributed to the Claimant’s injury. I am satisfied that, except perhaps with respect to

credibility, nothing turns on this difference.

40. According to Roberts, under cross-examination, one officer stayed by the riot

gate while the other locked the cells. From Trotman’s evidence under cross-examination

it would seem that they both locked the cells together. The effect of the evidence of

both witnesses however is that at the time of the incident all the cells doors, save

Martinez’s, were locked prior to the Claimant coming into the Division.

41. Where all three versions differ materially is with respect to how many

officers physically placed Martinez into her cell. Trotman maintains that all three

officers placed Martinez in the cell. According to Roberts the reason they called the

Claimant was because one person could not have gotten Martinez to move at that point.

According to her it took two of them to get her into the cell while the other held the

gate. Neither witness gives evidence of Martinez beating up like she was out of control.

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The evidence of them both is that Martinez was merely unresponsive. In Trotman’s

words she was ‘just there’. According to Roberts she was resistive and unresponsive.

Neither witness recalls the presence of officers from the Emergency Response Unit.

42. Much ado is made by the Claimant of the fact that neither of these two

officers remembered, in any great detail, what occurred that day. While, from their

cross-examination, this seems to be true I see nothing sinister in this. The incident

occurred in June 2008. The action was filed on the 1st June 2012 and, according to the

notice of appearance, served on the Defendant on the 4th

July 2012 over four years after

the incident. From this it is reasonable to infer that after giving their statements in

September 2008 these witnesses’ attention would not have been drawn to what occurred

on that day until sometime after the 4th

July 2012.

43. Apart from the fact that Martinez was giving trouble to go into her cell and

the Claimant complained of back pain, from the perspective of these two officers,

nothing particularly unusual or memorable happened on that day. It is reasonable to

expect that from their standpoint some of the details would be hazy. It would seem to

me therefore that the fact that the officers could not assist with certain of the details

under cross-examination does not necessarily lead to a conclusion that their evidence is

untrue and ought not to be accepted.

44. At the end of the day it would seem to me more assistance as to credibility

and whose version of the incident is to be believed is to be obtained from examining the

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Claimant’s evidence in some detail and the contemporaneous documents. The

contemporaneous documents are: the night duty book and other registers recording the

events of the night, the Claimant’s letter of 16th

September and the statements made by

Roberts and Trotman on 22nd

September 2008. and. None of these documents support

the version of events given by the Claimant.

45. One gray area that immediately arises from a consideration of the Claimant’s

version of events is the possession of the keys. How did the Claimant obtain the keys to

lock Martinez’s cell if Trotman, to whom she says she gave the keys and who opened

the riot gate for her, was some four feet away.

46. According to the Claimant when she came to the Division Trotman opened

the entrance gate for her. None of the officers present, including the Claimant, gave

evidence of the keys being handed over to the Claimant when she first arrived in the

Division. Yet according to the Claimant after being injured, at a time when both

Trotman and Roberts were outside the Division some three to four feet away, she was

able to lock the cell door. Further if the Claimant had the keys how was the riot gate

locked after the incident. According to the Claimant after locking the cell gate she

struggled down the stairs to the office. She gives no evidence of locking the riot gate or

handing over the keys to either officer.

47. Then there is the presence of the Emergency Response Unit. The only

evidence of their presence comes from the Claimant. This is not an allegation that was

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mentioned in any of the three statements of case filed by the Claimant. The particulars

of negligence merely make reference to the failure of officers Trotman and Roberts to

provide assistance. The Claimant’s responses to the question of who summoned the

Emergency Response Unit under cross-examination are unsatisfactory to say the least.

Surely if the officers were present, as the Claimant alleges, there would be some record

of their being summoned and present in the Division that night. None has been

produced.

48. It seems to me hardly likely that Trotman and Roberts and three Emergency

Response Officers would stand by and see Martinez beating up uncontrollably as

alleged by the Claimant and do nothing to assist. Similarly, if it did happen in that

manner, that the Claimant would not have included the failure of those three officers

Emergency response Unit officers to come to her aid in her particulars of negligence in

any of her statements of case is puzzling to say the least.

49. Then there is the entry in the night duty book a document tendered into

evidence and relied on by the Claimant. According to the Claimant’s evidence the

incident occurred at around 7.30 pm. As a result of her injury she says she was

immobilised and in pain. Shortly thereafter, she says, while she was in the office crying

she was told by her supervisor to go home. She called her husband who came and took

her home. The night duty book however records that the Claimant paraded and

inspected the night duty officers at 8.45 pm that night. According to the Claimant,

despite relying on the accuracy of the document on another point, the entry is false.

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50. The discrepancies in her evidence apart there are other factors that, to my

mind, affect the Claimant’s credibility. The Claimant produced no witnesses. Even if it

is reasonable to assume that it is hardly likely that an inmate would give evidence in

support of a Prison Officer according to the Claimant three Emergency Response

Officers were present. They would have seen the two junior officers outside of the

Division at the time and the Claimant being assisted by three inmates.

51. As well there was her supervisor whom, according to her, sent her home

early that night. Her evidence could have assisted in corroborating some of the

Claimant’s version of events. She gives no reasons for not producing any of these

witnesses. It would seem to me that this is an instance in which I can quite properly

come to the conclusion that these witnesses were not produced because their evidence

would not have assisted the Claimant3.

52. Of note is the fact that the first time that there is any mention by the Claimant

that she was not assisted by her fellow officers was in her amended statement of case

filed in July 2013. While, under cross-examination, she accepts that this was a serious

dereliction of duty on the part of those officers she admits to making no official

complaint of this dereliction of duty by Trotman and Roberts that, according to her,

directly resulted in her being injured. Indeed the main thrust of the Claimant’s case, in

3 Sieunarine v Doc’s Engineering Works(1992) Ltd. HCA No 2387 of 2000; Benham Ltd.v Kythira Investments Ltd

[2003] EWCA Civ.749.

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my opinion, is the similarity between her situation and that described in the case of

Costello v Chief Constable of the Northumbia Police4

53. In an attempt to justify her failure to report the officers she says that she told

her supervisor and the Prison Officer II but never made any written report because she

proceeded on 3 months sick leave and then forgot all about it. I do not accept this

excuse. If it were true then surely her memory would have been triggered when writing

the letter of 16th

September 2008. This letter was clearly written after she returned from

sick leave. The Claimant in this letter makes reference to the circumstances of her

injury but fails to detail that it was sustained as a result of the failure of her fellow

officers to assist her. Surely that was a factor relevant to her request to have her leave

classified as injury leave. Indeed, to the contrary, she describes the injury as occurring

while being assisted by these officers.

54. In somewhat similar fashion the first time any allegation is made by the

Claimant of her having to rely on the assistance of three inmates to get Martinez into

her cell is in her witness statement. No mention is made of this in any of her statements

of case or the contemporaneous documents. In answer to a submission by the Defendant

in this regard the Claimant submits that this was first mentioned in her affidavit filed on

the 18th

April 2013 in support of her application to re-amend. To my mind this fact does

not assist the Claimant.

4 [1999] 1 All E.R. 550.

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55. In the first place this affidavit is neither a pleading or in evidence before me.

In the second place the Claimant is required to plead all material facts. The rationale for

this is that a Defendant must know the case it has to meet and be allowed the

opportunity of presenting opposing evidence in this regard. In my opinion these facts

were material to the Claimant’s case. A failure to plead such facts, whether

inadvertently or not, denies the Defendant that opportunity. Indeed the fact that it was

raised in her affidavit seeking the re-amendment and yet not pleaded in the re-amended

statement of case is itself curious. The reality is that, despite three opportunities to plead

same, the first time the involvement of the inmates are mentioned is some 5 years after

the incident. In my opinion, even more than her claim that she was not assisted by her

sister officers, this suggests recent fabrication and goes directly to the Claimant’s

credibility.

56. In addition, to my mind, the Claimant’s version of the incident is raises some

unanswerable questions, the question of the keys and the presence of the Emergency

Response Unit and their failure to assist being but three. For example, even if we ignore

the Claimant’s contradictions in this regard, why would Trotman and Roberts initially

follow the Claimant into the cell area and then retreat. How is it that the Claimant did

not know that they had retreated.

57. Then there is her account of the interaction between Martinez and herself.

According to the Claimant after Trotman opened the gate she entered the Division and

from four feet away instructed Martinez to get up from her position on the floor and go

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into her cell. She says Martinez got up from the floor and started moving away from

her cell towards the back of the Division. That should have been in the opposite

direction to where the Claimant was standing yet she says that Martinez attempted to

push past her.

58. Then, according to her, she sought to restrain Martinez by standing in her

way and pushing her back towards her cell. According to the Claimant Martinez “raised

resistance and began beating up like she was out of control”. In her evidence in chief,

she says, that it is then that she tried to hold onto Martinez and push her back. If at that

point Martinez was really behaving uncontrollably, as is alleged by the Claimant, surely

this was the time to utilise the control tactics taught to her or retreat to re-group with

handcuffs or issue instructions to the junior officers as to the best manner of treating

with the situation.

59. This was not a situation of a prison riot where decisions needed to be made

on the spur of the moment, on all accounts, this was a situation where one inmate was

refusing to go into her cell and had been doing that for a while. There were present,

initially, three prison officers and thereafter, on the Claimant’s evidence, three

additional officers from the Emergency Response Unit. How is it that the Claimant, as

the officer in charge, was unable to get the situation under control. Of note is the fact

that contrary to her position in her examination in chief under cross-examination she

claims that it was after she tried to hold Martinez that Martinez began to beat up

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violently. In any of her two versions, in my opinion, there would have been the

opportunity to re-group and come again better prepared.

60. Also of some concern to me is the fact that, even if I were to accept the

evidence of the Claimant of what occurred between her and Martinez, the Claimant’s

evidence of the circumstances that resulted in her injury is vague and unclear. She gives

no actual description of how the injury occurred. Is it that in beating up uncontrollably

Martinez hit her and that resulted in the pop and pain to her back? If so she certainly

does not say so. Or is it as is stated in the medical report of the 6th

June that in her

attempt to lift a heavy person she injured her back. This latter version is suggested by

the Claimant’s allegation in her statement of case that the Prison Service failed to

provide the necessary tools to assist in moving or lifting prisoners. Again the Claimant

does not say.

61. This is not a case of res ipsa locquitor. These facts do not speak for

themselves. The fact is that in the version of the incident given by the Claimant she is

the only person who can say exactly how this injury occurred and, in my opinion, she

fails to do so. This in my view materially affects the Claimant’s credibility and, as well,

my ability to ascertain exactly how the injury, if sustained, was incurred.

62. For these reasons I do not find the Claimant to be a credible or reliable

witness and I find her version of the events inherently improbable. Despite the

inconsistencies I prefer the evidence of Trotman and Roberts, with respect to what

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occurred that night in placing Martinez in her cell, to that of the Claimant. Except as to

the manner in which they rendered assistance to the Claimant on the material facts their

evidence was consistent. Roberts, in particular, struck me as being a credible witness

and insofar as she details the manner in which they assisted the Claimant I accept her

version. It makes sense.

63. On the evidence before me therefore I find that there was a general shortage

of staff in the Women’s Prison that night. In particular there were no officers assigned

to the Main Prison where usually two or three officers were assigned. At the time of the

incident however there were in fact the usual number of officers present at the Main

Prison: the Claimant, Trotman and Roberts. While none of these officers was a Prison

Officer II the Claimant was senior to the other two officers and in a position to give

instructions that both junior officers would have been obliged to follow.

64. I am satisfied that both officers assisted the Claimant in putting Martinez

into her cell. Further in accordance with the safety procedures in place one officer

remained at the riot gate leaving the other officer to physically assist the Claimant.

65. Even if I accept the Claimant’s evidence there were options available to the

Claimant to control the situation and thereby prevent the circumstances described by her

from arising. Once she ascertained that Martinez was behaving in a violent manner the

Claimant could have (a) given instructions to Trotman and Roberts on how all three of

them would proceed to put Martinez into her cell; (b) called the Emergency Response

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Unit for back up and await their presence; (c) walk with or go get the handcuffs to assist

the three of them in putting Martinez into her cell; or (d) use the suppression and control

tactics taught her as a recruit.

66. Indeed according to her evidence in chief from her 18 years experience as a

prison officer she knew that when there was a shortage of prison officers that those

were the times when inmates choose to act up, defy authority and engage in violent acts.

Why then did the Claimant not avail herself of the safety procedures in place when she

was first called to assist in getting Martinez into her cell.

67. I accept that the failure of an inmate to comply with the instructions of a

prison officer is not an unusual risk in the service and is one in respect of which the

Prison Service is required to guard against. In these circumstances, in accordance with

her plea, to succeed the Claimant must satisfy me that at the time of the incident the

Prison Service failed: (a) provide adequate staff to control the prisoner; (b) take any or

any adequate precaution for her safety while engaged in her work or provide a safe

system of work; or (c) ensure that the handling of prisoners was free from risk of injury

to the officer on duty; and that any or all of these failures caused the Claimant’s injury.

68. Even if I believe her evidence, with respect to a safe system of work, the

Claimant gives no direct evidence of the system established by the Prison Service to

deal with difficult or unmanageable inmates. Neither does she say that there is no

system. In this case the task to be performed was to ensure that all inmates were secured

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in their cells for the night. From the evidence it is clear that there was some system.

This system included the provision and locking of safety gates and involved at least two

officers working together to lock the inmates into their cells and the requirement that a

third, more senior, officer be summoned where there is a difficulty.

69. The Claimant gives no evidence of how the procedures in place were

inadequate to meet the task to be performed. In particular the Claimant does not suggest

that three officers were insufficient to place Martinez in her cell. What is clear is that,

although available to her, the Claimant did not make use of the available to her to treat

with the situation. The effect of this failure is that there is nothing from which I can

assess the adequacy or effectiveness of the systems in place.

70. The facts of this case are materially different from those as accepted by the

Court in the case of Costello relied on by the Claimant. In Costello’s case the court

found as a fact that the senior officer stood by and did not assist the plaintiff who was

herself a junior officer. For the reasons stated I do not accept the Claimant’s evidence

in this regard. In any event the Claimant, a senior officer, could have instructed her

junior officers to assist. In the circumstances there is nothing to link the injury that the

Claimant claims to have suffered with a breach of duty on the part of the Prison Service

in the manner alleged by the Claimant in her statement of case or at all.

71. In my opinion therefore, even if I accept that the Claimant was injured

while placing an inmate in her cell, the Claimant has not satisfied the requirement to

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prove that her injury is a result of the negligence and/or breach of the duty of care owed

to her by the Prison Service. Indeed, even if I accept that the Claimant was injured on

5th

June while placing Martinez in her cell, on the evidence before me it would seem to

me that the injury suffered arose out of the ordinary risks of that particular service in

circumstances where there was no negligence on the part of the Prison Service or its

employees. In these circumstances there is no need to consider whether the actions or

non-actions of the Claimant contributed to her sustaining injury. Accordingly the

Claimant’s case is dismissed.

Dated this 1st day of April, 2015.

Judith Jones

Judge