Custody of Inmates

37. It is the duty of the institutional head to take all reasonable steps to ensure the safe custody of inmates committed to his care.

*Judicial Consideration* -

Hudson v The Queen in the Right of Ontario et al - Unreported, January 26, 1983 No. 3307/80 (Ont Co Ct)
	- A prisoner plaintiff serving time for non-payment of fines was assaulted without any provocation or warning by the defendant fellow prisoner. He sued for damages for personal injuries occasioned to him including the province, the Minister of Correctional Services and various officials from the prison as defendants. He was in an open area of the Sarnia Jail at the time of the assault inhabited by himself and five other prisoners. He was apparently lying on a mat watching TV when he was assaulted. He had earlier requested that he be moved because of problems with certain other prisoners. At the time of the assault the individual cells were closed and all prisoners were in a particular open area. Another prisoner was called to testify who had had trouble with some of the other prisoners and had re- quested and received a transfer. The plaintiff claimed that there was inadequate supervision by the defendants and that the defendants should have known that the defendant who assaulted the plaintiff was a person capable of sudden irrational and unprovoked outbursts of violence and that they failed to control or failed to adequately control him. The defendant who assaulted the plaintiff had a record for robbery with violence and assault causing bodily harm which assault took place in circumstances without any provocation whatsoever. While incarcerated on previous occasions he had been involved in fights with other prisoners. No evidence was called by the defendants as to the classification of the defendant who committed the assault and there was evidence that there was no guard present on the floor when the assault took place. The court held that generally prison authorities owe a prisoner a duty to take reasonable care for his safety as a person in their custody and when they fail to do so they may be liable. This was probably an exemplification of the law of negligence. The question for the court to determine was whether or not it could be reasonably foreseen that the defendant who committed the assault would cause problems in the jail which would likely result in harm to other prisoners. The second question was in the face of the information contained in the file would it have been prudent to put that defendant in with a group of his peers and two others of a different race in the area described in the evidence. The court found that it could easily have been foreseen that the defendant who committed the assault was likely to cause harm to another prisoner. The likelihood of that harm was increased by the placing of the various persons and their ethnic backgrounds in an open area with the cells closed during the day. Further it was more likely that an assault would take place when there was no guard present on the floor. The defendants in charge of the institution owed a duty to the plaintiff not to be negligent towards others who form part of our society. The plaintiff suffered substantial injuries and was awarded $15,000.00 in general damages, $13,535.00 in special damages plus a further sum of $415.00 for medical and dental accounts. He was also awarded a sum of $6,765.00 for loss of employment after his release from prison. His claim against the doctor was dismissed because there was no medical evidence before the court to indicate that the doctor's actions contributed to the injuries nor that they were caused by the fact that there was some delay in the doctor seeing him. The court could not find that the conduct of the doctor contributed in any way to the plaintiff's injury or to an increasing disability. The plaintiff was also awarded his costs and pre-judgment interest.

Editorial Note - On the question of damages the case of Hejduk v. Her Majesty The Queen in the Right of the Province of British Columbia -Unreported January 5, 1981, No. C772214 (B.C.S.C.) is of interest. In that case an accused convicted of threatening was sentenced to pay a fine of $500.00 and in default of payment thirty days imprisonment. Due to a mix-up in the Registry and between the accused and his counsel the fine was not paid because an appeal was pending and he was picked-up on a warrant for non-payment of the fine and served the thirty days imprisonment. While the court found that the Registry staff had not been negligent and were not the cause of the plaintiff's imprisonment, the court went on to assess damages for false imprisonment and after reviewing cases of a range between $500.00 and $18,500.00 assessed damages in the amount of $15,000.00 for the thirty days imprisonment. If worked out on a daily basis this amounts to $500.00 a day.

Editorial Note - Prison authorities owe a duty to prisoners to take reasonable care for their safety. This is a common law duty which is thoroughly canvassed in the decision of Ellis v Home Office (1953) 2 All ER 149. If prison authorities breach this duty of care, then the Crown is liable pursuant to the Crown Liability Act. This was sustained in the case of Timm v The Queen [1965] 1 Ex CR 174 and also upheld in Howley v The Queen (1973) 36 DLR (3d) 261. See also, Raby et al v The Queen -Unreported, May 29, 1981, No. T-3642-79 (FCTD) and A Scott v The Queen -Unreported, January 30,1985, No. T -569-82 (FCTD). This latter case involved an action for damages for the failure of the duty to take reasonable care of the plaintiff inmate who was assaulted while in custody at Matsqui Prison in British Columbia subsequent to a riot when all of the prisoners were housed in "tent city". The plaintiff had been assaulted by other prisoners while in tent city and claimed that the prison authorities could have distributed the prison population to other areas of the prison, that tent city was not adequate and did not provide sufficient safety and that the authorities were aware of and acquiesced in the volatile and dangerous atmosphere that prevailed within the com- pound. The case reviewed, in detail, the facts and circumstances surrounding the Mats- qui riot and the circumstances at tent city. The court was satisfied that the prison authorities had discharged the duty and onus upon them, given a consideration of all of the circumstances at the prison at the time and dismissed the claim. The plaintiff had suffered significant injuries to his head which included a severe skull fracture, resulting in brain damage affecting his hearing capacity. The court would have fixed non- pecuniary damages in the amount of $100,000. The court also concluded that the plaintiff's earning capacity had been reduced by at least two thirds and to make up his loss of income, the court would assess those damages at $150,000 were he an average Canadian. However, the court reviewed the plaintiff's circumstances, including all of his difficulties with the law since age 13 and his drug and alcohol abuse history and concluded that his chances of rehabilitation and adapting himself as a responsible citizen in the work place were almost nil and that the situation would probably have prevailed had he not been injured. The court would, therefore, reduce the pecuniary loss to $35,000. Consequently, general and pecuniary damages were assessed at $135,000.

Editorial Note - See also, Lebar v The Queen -Unreported, October 2, 1986, No. T -7306.82 (FCTD) which involved a suit for false imprisonment in which the court extensively canvasses the quantum of damages in false imprisonment cases. The plaintiff was imprisoned for 43 days without lawful authority and the court awarded him $10 per day in general damages for a total of $430 for the unlawful imprisonment but went on to find the detention to be high handed and arbitrary and the conduct of the defendants to be oppressive, arbitrary and fundamentally unconstitutional and awarded a sum of $10,000 in exemplary damages.
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