Burn & Ors v The Ministry of Justice

An employer’s duty to protect employees in a dangerous public service is judged by reasonable care in the circumstances. Employees accept risks inherent in the work, but not risks which reasonable care could avoid. The assessment must balance the relevant risk against the utility of the activity, having regard to the service’s public duties and available resources.

Where a prison doctor must decide whether to transfer a prisoner to hospital, the decision is a medical one. Security information may inform the clinical assessment, but cannot override clinical judgment. Negligence is not established merely because, with hindsight, a different examination or precaution might have been preferable.

Three prison officers sustained post-traumatic stress disorder when a prisoner escaped during an ambulance transfer to hospital after apparently suffering an epileptic seizure in prison. They claimed that the Ministry of Justice had negligently failed to manage the prisoner’s escape risk and that the prison doctor had negligently directed his transfer to hospital.

The court considered the prisoner’s history, the prison’s intelligence and risk assessments, the escort arrangements, and the doctor’s clinical decision. The central issue was whether the defendant had breached its duty to take reasonable care for the officers’ safety.

1. Duty and applicable standard. The Prison Service owed its officers the ordinary employer’s duty to take reasonable care for their safety. In a dangerous public service, employees accept inherent occupational risks, but not risks avoidable by reasonable care. Reasonableness requires a balance between risk and the utility of the activity, assessed in light of the service’s public duties and available resources, following Sussex Ambulance NHS Trust v King 2002 EWCA Civ 953 and Watt v Hertfordshire County Council [1954] 1 WLR 835.
2. Prison security allegations. The prisoner should have been placed in a higher security category and merited placement on the escape list. Those errors did not cause the escape in the relevant sense. The proposed transfer to a training prison was a duty owed to the prisoner, not to the claimants. The evidence did not establish that further security measures, including a police escort, would have prevented the escape.
3. Medical decision. The decision to transfer a prisoner from prison to hospital is a medical decision which cannot be overridden by prison security. Security information may form part of the doctor’s assessment, but the doctor must reach a clinical decision and must not allow security considerations to overrule clinical judgment.
4. Negligence. Although the doctor’s examination was limited and the prisoner was feigning illness, the doctor observed relevant features, obtained some information, and faced a potentially serious medical presentation with no definitive diagnosis. On the evidence, the decision to call an ambulance and direct transfer was one which a reasonably competent prison doctor could take. The claimants therefore failed to prove breach of duty, and the claims were dismissed.
5. The court considered whether an adverse inference should be drawn from the defendant’s failure to call certain witnesses, referring to Herrington v British Railways Board [1972] AC 877, but declined to draw one on the facts.

First-instance judgment in the High Court. No prior decision or appeal is stated in the judgment.