[2008] EWCA Civ 1068

Prison staff should not have placed prisoner likely to suffer seizures in top bunk; finding of 15% contributory negligence on basis of addiction overturned.

The Claimant, then aged 29, was serving a 4 month sentence for theft in Brixton Prison. He had been an abuser of alcohol and drugs since the age of 16. He was seen on reception at the prison on arrival on 29 October 1997 and said that he was an intravenous heroin user, that he drank heavily and had previously had withdrawal seizures. He also underwent a health screen interview. He was assigned to an ordinary unit and allocated to a top bunk. On 3 November 1997 he suffered a seizure resulting from his withdrawal from alcohol and drugs, causing him to fall 7 or 8 feet to the ground. His fitting continued without remission. He suffered severe brain damage leaving him permanently disabled. Following a finding at first instance it was accepted that there was a breach of duty in allocating a top bunk. The key issues on appeal were whether the fall had triggered the extent of the fitting (on which issue the experts disagreed) and whether there was any contributory negligence.


The Court of Appeal upheld the first instance decision that the fall did trigger the extent of the fitting. The Judge was entitled to take the view he had taken on the medical evidence and the Court of Appeal was not satisfied that his decision was clearly wrong. However, the Judge was wrong to find that the Claimant was 15% contributorily negligent. The Claimant's fault in becoming addicted to drugs and alcohol in his mid teens was not a potent cause of the injury which was triggered by his fall in 1997.


The finding of liability in relation to the allocation of a top bunk is not surprising, and it is unfortunate that this fairly basic error on the part of the prison service has meant that it will have to pay substantial damages.

The consideration of the issue of contributory negligence is of more interest. There was no direct previous authority on the issue of whether there should be a finding of contributory negligence in these circumstances. The Judge at first instance found that it was sufficient that the Claimant must have been aware that taking drugs was something that gave rise to a risk to his health. He did not have to foresee how the harm might come about. Had this judgment held it may have been of significant benefit to any Defendant who could show that the Claimant's lifestyle choices had contributed to the fact of or extent of his injuries. However, the Court of Appeal had made it clear that a finding of contributory negligence can only be supported when the Claimant's fault is sufficiently mixed up with the injury that it cannot be dismissed as mere history.