Judgment of Mr. Justice O’Neill delivered on 14th June 2013

1. On the 19th January 2003, the plaintiff was a prisoner in Wheatfield Prison, serving a sentence of four years. He was located in Unit 10F.

2. The plaintiff was then aged 24 years of age, was a drug addict and was on the Methadone programme in the prison. Each morning, all prisoners getting Methadone were brought from their cells to either a surgery located adjacent to Unit 8 and known as the cage” or to a dispensary at the other end of the prison. In total, 90 prosoners received a dose of Methadone on the morning of 19 January 2003, which was a Sunday. About a half of these got their dose at the “cage” and the other half at the dispensary at the other end of the prison.

3. The system operating in the prison for the dispensing of Methadone was that a single dose was given to each prisoner early in the morning. The reason for this was to settle prisoners in need of Methadone early in the day. Because only one dose per day was given, many of those on Methadone would be quite edgy or agitated or “sick” in anticipation of the medication and anxious to receive their dose. Because of all of this, the prison authorities devised a system for getting prisoners from their cells to the dispensing point, so as to minimise any delay in prisoners receiving their dose, all consistent with maintaining, as they saw it, proper security within the prison.

4. To do this prisoners were taken off their landings in groups of six or eight and escorted to the ‘cage’. On arrival at the ‘cage’, they we’re put into the ‘cage’ through Gate 6 which would be locked after each group of prisoners entered. From there, the prisoners could migrate through Gates 5, 4 and 3 into Space ‘B’ as shown in a sketch or plan prepared by Mr. Outram, an expert witness called for the plaintiff.

5. From Space B, prisoners were admitted one by one through Gate 2 into Space A. Gate 2 was controlled by a Prison Officer and on 19th January 2003, this was Prison Officer David Hughes. His duty was to keep the gate locked and admit a single prisoner from Space B, only after the preceding prisoner had exited Space A through Gate 1.

6. In Space A, there was one other Prison Officer. On 19th January 2003, this was Prison Officer Sharon Murray. Her job was to establish the identity of each prisoner, their claimed dosage of Methadone, at which stage the dose would be handed out through a hatch by a nursing Prison Officer who in turn would cheek the correct dosage before dispensing same. The ethane was given in liquid form in a plastic cup. The prisoner would be required to consume the dose in the presence of Prison Officer Murray who would then ask the prisoner to recite his date of birth. The purpose of this enquiry was merely to ensure that the dose was swallowed. Both Prison Officer Murray and the nursing Prison Officer would tick each prisoner off the list, indicating that each identified prisoner had been given the prescribed dose of Methadone and consumed it.

7. When all of this was done, Prison Officer Murray would open Gate 1 and release the prisoner into the ‘thoroughfare’. She would then lock the gate at which point Prison Officer Hughes would open Gate 2 and admit the next prisoner into Space A.

8. In Space B, the evidence given for the defendants was to the effect that up to 15 prisoners would congregate there waiting for their Methadone. The plaintiff, in his evidence, put this figure higher at about 20 prisoners. In my view, it is probable that on 19th January 2033, there were not less than 15 prisoners in Space B when the plaintiff was there.

9. There was some controversy as to whether Gate 3 which separates Space B from Space C as set out in Mr Outram’s plan was kept locked. thus confining the foregoing prisoners within Space B. The plaintiff said that it was locked once all the prisoners were put into Space B. Assistant Chief Officer (ACO) Hickey and Prion Officer Hughes said that it was not locked and the prisoners were free to roam between Spaces B, C, D and E as they pleased, but because the prisoners were edgy and anxious to get their Methadone that they tended to congregate or queue close to Gate 2 within Space B.

10. I am satisfied that Gates 3, 4 and 5 were not locked and prisoners could, if they wished, have waited for their Methadone in Spaces B, C, D or E, but having regard to their general anxiety to get their Methadone quickly, it is probable that they were all in Space B. The fact that there was no predetermined order in which the Methadone was distributed, such as by being called in a particular order from a list, but rather, by establishing that order amongst themselves by queuing, persuades me that they were almost all certainly in Space B. Also, the fact, as emerged in the evidence of ACO Hickey that after the incident which is the subject matter of these proceedings, occurred, two prisoners forced their way out through Gate 6, demonstrates conclusively that Gates 3, 4 and 5 were not locked at any time while the plaintiff was in the ‘cage’.

11. On 19th January 2003, at about 10.00am, the plaintiff was in Space B awaiting his Methadone amongst approximately 15 prisoners. His evidence was that he got up on the bench against the outer wall ad squared there. He described himself as feeling “sick”. His location on this bench was in the position of the bag in photograph 6 taken by Mr. Frank Abbott, a consultant engineer who gave expert evidence for the plaintiff.

12. As the plaintiff was in this position, another prisoner got on the bench to his right-hand side. Without warning and without any provocation on the part of the plaintiff, this other prisoner now known to be Jeffrey Mitchell launched a vicious attack on the plaintiff. This commenced by insidiously drawing a sharp blade along the plaintiff’s right cheek, inflicting a horrendous deep laceration extending from the plaintiff’s nose to behind his right ear. So unexpected was the attack that the plaintiff, initially, was almost unaware of what was happening. The plaintiff, when he reacted, tumbled from the bench to the floor. Whilst so doing, Jeffrey Mitchell continued a vicious onslaught on the plaintiff, inflicting a 10cm v-shaped scar on his right mastoid and scalp; three lacerations to his left posterior flank, one, 10cm long by 5mm wide, the second, 8cm long by 6mm wide, and the third, 12cm long. I addition, the assailant lacerated the plaintiff’s left abdomen, leaving a 23cm scar extending from his umbilicus towards the left side of his abdomen. The laceration to the plaintiff’s cheek included a 2.5cm cut into his nose.

13. In summary, there was a total of 78cm i.e an excess of two and a half feet of lacerations inflicted on the plaintiff in this extraordinarily vicious assault, all of which have left obvious disfiguring scars.

14. When this attack took place, Prison Officer Hughes was manning Gate 2 and Prison Officer Murray was at Gate 1. Prison Officer Hughes was looking sideways towards Gate 1 to see it locked before admitting the next prisoner. His attention was initially drawn to the incident by the noise or commotion associated with it. He then saw the plaintiff in the ground and Jeffrey Mitchell kicking him. He did not see Jeffrey Mitchell or anyone else use a knife or a blade to lacerate the plaintiff.

15. Prison Officer Murray was attending ti Gate 1 and had just let a prisoner out when her attention was attracted by the noise of the scuffle.  Likewise, she did not see Jeffrey Mitchell use a weapon to inflict lacerations on the plaintiff. Her evidence was that her view of the scene of the attack was partially blocked by prison Officer Hughes and ACO Hickey whom, she said, had entered Space A through Gate 1 and come between her and the scene of the attack.

16. There was considerable controversy concerning exactly where ACO Hickey was when the incident erupted. ACO Hickey did not give evidence on the first trial in this matter (this is a retrial following an appeal to the Supreme Court). His evidence in this trial is that he came to Gate 1, and as a prisoner exited, he entered while the gate was still open. His intention was to introduce himself to Prison Officer Hughes who was then a recent recruit to the Prison Service. As he approached Prison Officer Hughes, he heard a commotion in Space B and immediately saw the plaintiff on the ground being kicked and punched by Jeffrey Mitchell. He did not see Jeffrey Mitchell use a weapon of any kind to inflict lacerations on the plaintiff. His evidence was that he immediately ordered Prison Officer Hughes to unlock the gate, which was done. He immediately went into Space B and grabbed the plaintiff by his shoulders and pulled him out along the ground through Gate 2, which as soon as the plaintiff was clear of the gate, was closed and looked by Prison Officer Hughes.

17. When he was safely inside Space A, the plaintiff was raised from the ground by ACO Hickey and Prison Officer Hughes. It was apparent to either then that there was a serious laceration to his right cheek which was of sufficient depth and length to cause the cheek to hang down. The lacerations to his abdomen were not then apparent to either ACO Hickey or Prison Officer Hughes.

18. Both of these officers then helped the plaintiff into the surgery which was beside Space A where he was put sitting on a bench. At this stage, Prison Officer Hughes was covered in the plaintiff’s blood. In compliance with protocol, he immediately washed his hands in the surgery and left the scene to shower himself and change his clothes. He took no further part in dealing with the incident.

19. As soon as ACO Hickey had left the plaintiff in the surgery, he immediately went out to take charge of the incident. At this time, all the prisoners who were present in the cage when the attack occurred were still locked in the ‘cage’ or so ACO Hickey thought. On going to Gate 6, however, he encountered a Prison Officer who had come to the scene in response to a shout of “staff” which was the standard method of summoning assistance from other Prison Officers, when required to deal with an incident. This Prison Officer informed ACO Hickey that when he arrived on the scene, he immediately proceeded to open Gate 6 to gain access to the scene of the incident and to allow other Prison Officers to follow him in. However, as he was unlocking Gate 6, Jeffrey Mitchell and another prisoner forced their way past him and escaped in Unit 8G.

20. On learning all of this, ACO Hickey locked down Unit 8G. He ordered full body searches on all the prisoners still in the cage. This was done by other Prison Officers in a room adjacent to the cage. ACO Hickey’s evidence was that Unit 8G was thoroughly searched and all prisoners in it subjected to full body searches. In addition, the area immediately outside Unit 8G onto which a small window opened was searched, notwithstanding that no prisoner had any access to this area.

21. All of the searches, including thorough search of the cage and the corridor outside it, failed to find the weapon used in the attack on the plaintiff.

22. Although none of the Prison Officers in the vicinity saw the knife attack on the plaintiff, ACO Hickey was of the view that the culprit was Jeffrey Mitchell, whom he did see punching and kicking the plaintiff, as did Prison Officer Hughes, who saw Jeffrey Mitchell kick the plaintiff. In addition, in his cell immediately after the incident, ACOHickey reported, in a P19 report to the Governor, that Jeffrey Mitchell admitted to him cutting the plaintiff, although the inquiry by the Governor on foot of the P19 report, Jeffrey Mitchell appears to have denied making that admission.

23. It i not surprising that the Prison Officers present did not see the knife attack. In the first place, the attack was carried out by Jeffrey Mitchell with great stealth, approaching the plaintiff from the side and rear and taking advantage of the large number of prisoners in Space B, whose bodies would have obscured the attack from the view of the Prison Officers in Space A. The height of the wall separating Space B from the corridor outside it and adjacent areas would, likewise, have made it unlikely that the attack would have been visible to any Prison Officer unless he was very close to the wall separating Space b from the corridor.

24. The reason there was controversy about the location of ACO Hickey when the attack commenced was because of evidence given in the first trial by Prison Officer Murray which appeared to imply that when the attack commenced, ACO Hickey was out in the corridor and came into Space A after the attack started. In this trial, Prison Officer Murray was adamant host ACO Hickey cmd in the gate just after a prisoner had excited, namely while it was still open. This was just before the commotion or scuffle commenced. She did not accept that she was changing her evidence i this trial to conform to the evidence of given by ACO Hickey.

25. Having considered the evidence of Prison Officer Murray given in the previous trial, and in particular, her answers to Question 66 through 75, I do not see any necessary inconsistency between her evidence in this trial and her evidence in the previous trial on this point.

26. I am satisfied that this assault occurred with great speed and within a matter of seconds, so that it would be difficult for a witness present at the time to be precise concerning the timing of a movement which undoubtedly occurred, namely, the entry of ACO Hickey into Space A. The distance between Gate 1 and where Prison Officer Hughes was standing was no more than two paces, so that no more than two to three seconds would cover the time taken to get from immediately outside the open gate, from where Mr. Keane S.C. in cross-examination suggested he was, to where Prison Officer Hughes was standing.

27. It would seem to me that in either eventuality, namely, ACO Hickey just outside the gate i the corridor or just inside the gate when the attack started, is immaterial. I am quite satisfied that ACO Hickey reacted instantly to the commotion and entered Space B to rescue the plaintiff’s as quickly as was humanly possible in the circumstances. I do not think, having regard to the stealth ad speed with which the attack was carried out, that it would have been possible for a Prison Officer in Area A to have intervened in time to prevent the infliction of any of the lacerations, and most particularly, the lacerations to the plaintiff’s face.

28. Another controversial issue in the case was the precise nature used to lacerate the plaintiff.

29. The plaintiff’s evidence was that in the course of the attack, he saw the weapon used and he described it as a “Stanley” type of knife, namely, a long blade housed within a plastic handle, and that it was yellow in colour. A knife was introduced in evidence which he said was exactly the same as the one used by Jeffrey Mitchell, apart from the colour of the plastic handle. which in the case of the knife put in evidence was grey. The knife put in evidence had been purchased by Mr. Abbott on the basis of the plaintiff’s description. This type of knife is readily available and consists of a long, sharp blade which is housed in a plastic handle and can be retracted into or extended from the handle depending on the length of exposed blade required. It is commonly used in workplaces for cutting open cardboard containers. When the blade is fully retracted into the handle, I am satisfied it could easily be concealed within the body, a practice common amongst prisoners.

30. The manufacture of cutting weapons by prisoners is a common feature of prison life. Generally, these are made by melting the blade or blades of a razor into the end or head of a toothbrush by using fire for the purpose. A selection of about six of these was put in evidence by the defendants. The evidence offered by the defendants, and in particular from ACO Hickey, was to the effect that the wounds inflicted on the plaintiff could have been the result of this type of homemade prison cutting implement and it was much more likely that such weapon was used rather than a proprietary weapon such as that identified by the plaintiff which would have had to have been smuggled into the prison from outside, either by being passed over by a visitor during a prison visit, or thrown in over the prison external wall into a prison yard and successfully retrieved by a prisoner

31. Mr. Outram, a retired Prison Governor from the United Kingdom who gave expert evidence for the plaintiff, was adamant that the homemade type of weapon as described could not have inflicted the lacerations on the plaintiff’s torso because it was most unlikely that these types of weapon would penetrate through the clothing the plaintiff was wearing, namely, a tracksuit top over a t-shirt. His evidence was that the blades used in the homemade prison taken as they were from a dismantled razor, were very light, flimsy and flexible and would almost certainly snag in the material in the plaintiffs garments rather than cutting through these into the plaintiff’s flesh. On the other hand, the long and deep lacerations suffered by the plaintiff were entirely consistent with the use of a strong sharp blade as found in the proprietary knife put in evidence by the plaintiff.

32. On this aspect of the case, I am impressed by the evidence of Mr. Outram and having had the opportunity to examine the proprietary knife and the selection of homemade prison weapons, I agree with Mr. Outram that it was highly unlikely that any of these or similar ones could have penetrated the plaintiff’s clothing to inflict so many long and deep lacerations to his torso.

33. I note that all of the toothbrush cutting weapons put into evidence have multiple blades melted into them. It is clear that the weapon used on the plaintiff was a single blade. Whilst there could have been a single-bladed homemade prison weapon used, I am satisfied that such a blade would not have had the strength or depth to get through the plaintiff’ s clothing and lacerate his torso as was done in this attack.

34. Thus, I have come to the conclusion that the plaintiff’s wounds were probably caused by the use of a proprietary knife of’ the kind put in evidence by the plaintiff.

35. In these proceedings, the plaintiff claims damages for his injuries by reason of the negligence and breach of duty on the part of the prison authorities in failing to have prevented or protected the plaintiff from the assault perpetrated on him by Jeffrey Mitchell on 19th January 2003.

36. Relying upon the expert evidence of Mr. Outram, the case that the plaintiff makes is as follows:

(i) That the system for bringing prisoners from the cells to the “cage” to receive Methadone was dangerous insofar as it resulted in the congregation of an excessively large number of prisoners in Space B, thereby facilitating attacks of the kind that occurred, to the extent that it became a venue of choice for such attacks as evidenced by two other assaults carried out there in the six months preceding the attack on the plaintiff.

(ii) That no more than four prisoners should have been permitted to be in Space B awaiting Methadone and there should have been a Prison Officer in Space B with these prisoners.

(iii) That there should have been in place an arrangement to n=bring prisoners from their cells two at a time to ensure that the number of prisoners in Space B was kept at four or below.

(iv) That prisoners going for Methadone should have been subjected to a pat down search and to have the “wand” run over them to reveal any metal objects on leaving their residential unit. This would have detected the knife Jeffrey Mitchell brought with him to the “cage”.

(v) That because of the inadequacy of the reporting systems in operation, no lessons were learned from the occurrence of previous attacks, and on particular, two attacks in the “cage” in the previous six months, one of which appeared to be a mirror image of the attack on the plaintiff in this case.

(vi) That the searching of visitors on entry to the prison to visit inmates was wholly inadequate and that X-ray equipment consisting of a portal arrangement through which all visitors must pass, together with the use, as necessary, of a handheld wand, should have been in place. These would detect metal objects and would ensure that a knife such as used in the attack on the plaintiff would to get into the prison.

(vii) That there should have been suitable netting erected at the perimeter of the prison where the wall of the yard could be accessed from the outside by the public.

37. The defendants reject all of these criticisms of the prison regime and contend that all necessary care was taken to ensure the safety of the plaintiff and that it is not possible in a prison, an inherently dangerous place, to guarantee the safety of a prisoner and ensure his protection from attacks by other prisoners.

38.  In response to Mr. Outram’s criticism of not allowing more than four prisoners to congregate in Space B, the defendants, through the evidence ofACO Hickey, contended that the system used was devised to ensure that all prisoners who needed Methadone got it early in the morning, namely, close to 10.00am. ACO Hickey said in evidence that if the system recommended by Mr. Outram was implemented, it would take much longer to dispensc the Methadone, perhaps up to lunchtime, .the wall of the yard could be accessed from the outside by the public. regard to the number of Prison Officers available to supervise prisoners going from their cells to the “cage” for Methadone.

39. Furthermore ACO Hickey said in evidence that it would be dangerous and contrary to established practice to put one Prison Officer in a locked space with four prisoners. This could lead to attacks on the Prison Officer or hostage taking, and in the Irish prison system, this was never done. Specifically, he said, a single Prison Officer would never enter a cell with four inmates on his own.

40. Mr. Outram countered this evidence by saying that whilst agreeing with ACO Hickey’s contention on a single Prison Officer going into a cell with four inmates, the “cage” was a very different place, with easy visibility into it from all sides, unlike a cell, and where, as in this case, there were two Prison Officers in Space A who had a good view of Space B and ready access to it, he did not think there was an unacceptable risk to the safety of a single Prison Officer in Space B with four prisoners.

41.    Furthermore, he contended that with appropriate systems of communications, it was easy to devise a system for sending prisoners down in twos so that the prisoners did not congregate in Space B. As the corridor outside was a long, straight corridor, easily supervised from both ends, he didn’t see any need for prisoners released from their residential unit onto this corridor to be escorted from the residential units which opened onto this corridor or thoroughfare to the “cage”.

42.    His evidence was that it would take about three minutes to process two prisoners through Space A or one and half minutes per prisoner, so that with proper communications between the Prison Officers manning Space A to the residential units, which was not available in this case, the release of prisoners from the residential units could be timed so as to coincide with the departure of prisoners from Space A, having got their Methadone so as to ensure no congregation of prisoners in Space B beyond four prisoners, and at the same time, a timed coordination of the movement of these prisoners would ensure no delay in prisoners getting their Methadone.

43. On the other hand, allowing 15 or more prisoners to congregate in Space B gave rise to foreseeable hazard i.e. that it would be a venue of choice for attacks for the following reasons, namely, that the assailant, i.e. Jeffrey Mitchell could calculate or anticipate the presence of the plaintiff on any given day which would not be the case if not more than four prisoners were allowed to congregate in Space B. The presence of a Prison Officer in Space B made it unlikely that this venue would be selected for a planned attack. All the witnesses agreed that the attack on the plaintiff was a carefully planned attack.

44,    On the basis of Mr. Outram’ s evidence, which was unchallenged, that it took a minute and a half to process a prisoner through Space A, the minimum time it would have taken to process 45 prisoners through Space A was 67 and a half minutes. It would seem to me that this minimum period of time afforded ample time to have brought the prisoners down in pairs to the “cage” and there was no necessity whatsoever to have caused or allowed large numbers of prisoners to congregate in Space B as was the practice. I accept Mr. Outram’s evidence to the effect that with rudimentary means of communication between the Prison Officer in Space A and the Prison Officers controlling the residential areas, the timing of release of the prisoners from their residential units could be co-ordinated with the Prison Officer in Space A, to coincide with the sequential release of prisoners from Space A, so as to avoid the congregation of large numbers of prisoners in Space B. I also accept Mr. Outram’s evidence to the effect that because the corridor through which all of these prisoners would have passed in going from their residential unit to the “cage” and in returning could be supervised from end to end, there was no need for the level of escorting that seemed to bc suggested by ACO Hickey.

45. I am quite satisfied that with relatively minimal Ievels of coordination and communication, the number of prisoners in Space B awaiting their Methadone could have been kept to four or less without at all delaying the process of getting prisoners their Methadone early in the morning.

46. If that were done, even without placing a Prison Officer within Space B, I think it highly probable that this alone would have been sufficient to have deterred the attack which occurred on the plaintiff, in the first place, it would have been much more difficult for the assailant to have calculated or anticipated or arranged that he would be in the “cage” at the same time as the plaintiff on any given day. Thus, if the assailant wished to use the “cage” as the venue of the attack, it was likely that he might have several unsuccessful journeys. Bearing in mind the huge risk he took in carrying a weapon of the kind he used on his person or perhaps securing the assistance of an accomplice for that purpose, it would seem to me have been extremely unlikely that the “cage” would have been chosen as the venue for this assault, if the number of prisoners in it were always kept at four or less. In addition to the foregoing risks from the point of view of the assailant, with only four or less prisoners in the “cage”, what went on in there would be much more visible to the two Prison Officers in Space A. Their vision would not be obscured by the bodies of numerous prisoners.

47. I do not think it would have been necessary, as suggested by Mr. Outram, to have a Prison Officer in Space B with four prisoners. A Prison Officer standing in the corridor outside Space B, observing Space B, would be equally effective in superviaing that space without the attendant risks associated with being in a locked space with four prisoners. The effectiveness of this Prison Officer would derive from the fact that e would be easily able to see everything that would happen in Space B which, of itself, would be a powerful deterrent to the kind of attack that was perpetrated on the plaintiff.

48. The critical factor here was keeping the number of prisoners in Space B to four or less, which would, in all probably, of itself have been sufficient to have prevented this attack on the plaintiff.

49. In response to this contention in the evidence of Mr. Outram, the defendants, through the evidence of ACO Hickey and by way of submission, made the case that even if this attack did not take place in the “cage”; because it was clearly, a planned attack, it would have happened elsewhere in the prison where large numbers of prisoners can, in the course of the ordinary regime of the prison, congregate. In this respect, a variety of places were canvassed, namely, the gym, the yard, the workshop, the food area and the church. The evidence was that in all of these places, prisoners regularly and on a daily basis congregate in large numbers, and whilst every effort is made to properly supervise prisoners in these situations, because of the careful planning, stealth and the organisation of prisoners, it is not possible to prevent these attacks in this type of location. Various examples were given in evidence by ACO Hickey of the kind of attacks that. can occur in these situations and of the way in which prisoners cooperate to facilitate such attacks, including creating barriers to prevent access by Prison Officers. it was the evidence ofACO Hickey that the immediate presence of Prison Officers frequently will not deter such attacks. He instanced one occasion where a prisoner was stabbed to death within ten feet of himself.

50.    Evidence was also given on behalf of the defendants and cases were referred to in submissions relating to the balance that must be struck in the prison regime between the necessary level of security and the permission of a sufficient degree of liberty so as to preserve the human dignity of prisoners and to preserve a minimum level of harmony in the domestic life of the prison.

51. In the service of the State, there can be few tasks (if any) that are more difficult than the management of the prison system, and specifically of the prisoners incarcerated therein. In terms of the control and management of people, I think it can safely be said that prison populations are the most difficult cadre of people to manage. It was said in the evidence by various witnesses that there is a daily battle of wits between prisoners and those charged with running the prisons, for supremacy in the control of prison life. On a daily basis, prison staff must constantly apprehend and cope with the threat, if not the actuality, of the most extreme violence. Over the years, and in the many cases that have been brought before it, this court has been extremely mindful of the precarious and difficult task imposed on the prison authorities and extremely careful in considering and fashioning the duty of care owed by the prison authorities to prisoners in respect of the safety of prisoners.

52. I would respectfully adopt the following passage from the judgment of Irvine J. in Casey v. The Governor of Midland Prison and the Minister for Justice, Equality and Law Reform, Ireland and the Attorney General [2009 [ 1EHC 466, delivered on 27th October, 2009, in which she summarised the relevant principles from the authorities and said the following concerning the duty of care owed by prison authorities to prisoners:

“Relevant case law: the duty of care

The parties to this action relied upon a number of decisions arising from incidents of assault in various prisons. Each of these cases turned on their facts. However, the principles that emerge therefrom are of real import and they can succinctly be summarised as follows:-

(i)     Prison authorities are required to take all reasonable steps and reasonable care not to expose prisoners to a risk of damage or injury, but the law does not expect the authorities to guarantee that prisoners do not suffer injury during the course of their imprisonment. (Muldoon v. Ireland [1988] ILRM 367)

(ii)    The duty of care owed by prison authorities to its prisoners must be tested in the context of the balance to be struck between the need to preserve security and safety on the one hand and their obligation to recognise the constitutional rights of prisoners and their dignity as human beings on the other hand. (Bates v. Minister for Justice & Ors [1998] 2 I.R.)

(iii)    In determining what is an appropriate standard of care, regard should be had to the hardship that any proposed system might impose on prisoners and whether any such system would place an excessive burden upon the prison authorities (Bates v. Minister for Justice & Ors [.1998] 2 I.R.)

(iv)   Cases of assault upon prisoners whilst in custody in general are likely to be decided upon by reference to what should have been anticipated by their custodians. (Bates v. Minister for Justice & Ors [t998] 2 1.R. 81). ‘”

53.    Thus, it can be surmised that the courts will not impose upon prison authorities’ duties of care in this respect that are not readily and obviously capable of being performed. The courts will not send or cause to be sent, Prison Officers or Governors into the daily battle with prisoners, with one hand tied behind their backs.

54. However, where there are systems or practices in place which have obvious deficiencies and at the same time clearly foreseeable risks to the safety of prisoners, and when the evidence establishes that these systems or practices are readily remediable, it behoves the courts to intervene.

55.    In my view, the practice of congregating large numbers of prisoners in Space B for the purpose of waiting for their Methadone is such a practice and, in my view, the adherence to it breached the defendants’ duty of care to the plaintiff.

56, Against this it is argued by the defendants that the attack, if it did not take place in the “cage”, would have happened elsewhere in the prison, probably in a location where a large number of prisoners could congregate, the yard being the most popular venue for attacks by one prisoner on another. Whilst there is considerable merit in this contention, the question which has to be asked is does it absolve the prison authorities from the duty to take precautions which would have the effect of eliminating one venue, in this case the “cage” as a place where such an attack could occur, simply because the attack planned, could take place somewhere else.

57.    l find this proposition somewhat unattractive because pressed to its logical conclusion, it would promote a minimalist approach, if not outright disregard of the duty on the defendants to take reasonable care for the safety of prisoners. It is of course the case, as has been stressed in many cases, that the prison authorities cannot guarantee the safety or prisoners from attack by other prisoners and the danger of such attacks is ever present in prison life, nevertheless, where measures can be taken which make it more difficult for these attacks to occur or confine the potential circumstances or places in which they may occur, there is no doubt in my mind but that there is a duty on the prison authorities to take such measures, even though there remains a substantial risk of the same attack occurring elsewhere or in other circumstances. The prevalence of the risk of these attacks cannot be a basis for a do nothing policy. I am satisfied that the fact that there was a substantial risk that this attack might occur elsewhere in the prison cannot avail the defendants, as a defence, to a failure to have taken the foregoing reasonable precautions which would, in all probability, have prevented the attack in the “cage”.

58.  I now turn to the other grounds of criticism made in the evidence of Mr. Outram. First, I will deal with the criticism of the arrangements in place at the time for searching visitors coming to the prison. At the relevant time, namely, January 2003 or immediately preceding that time, visitors coming to the prison to visit prisoners were not subjected to any form of search. They were invited to place their belongings into a secured or locked receptacle but it was a matter for each visitor what material they placed there. They were not allowed to carry items such as handbags or other containers into the visiting area. Visitors were not subject to any form of physical search nor was the “wand” ran over them, even though these were available at the time. The practice at the time was not to use these on visitors. At that time, the prison authorities relied upon the arrangements in place in the visitors’ room together with the searching of prisoners after visits, as sufficient to prevent visitors passing contraband of one sort or another to prisoners during visits.

59. The visitors’ room was described in detail in the evidence. There were two tables in the visitors’ room, each of which would accommodate five prisoners on one side and five visitors on the other side. These tables were approximately 4ft. in width and there was a barrier running down the middle of each table which was approximately 1ft. in height. this prevented material being pushed across the table from visitor to prisoner or vice versa. Each table had five cubicles to accommodate a prisoner on one said and the visitor on the other. These cubicles were constructed of glass to allow the Prison Officers at each end of the tab!e to be able to see along the table. As the prisoners and visitors were at all times separated from each other with the table in between, physical contact between them was of a very limited nature. Handshakes could be accomplished without any difficulty but hugging and kissing was necessarily restrained, although I am quite satisfied from the evidence that hugging and kissing between visitors and prisoners was, in its restricted form, part and parcel of prison visits. I also accept that in the course of hugging, contraband could easily be slipped down the back of the neck of the prisoner and that this frequently occurred.

60, A Prison Officer was stationed at each end of both tables i.e. four Prison Officers, who kept prisoners and their visitors under constant surveillance. In addition, closed-circuit television kept visitors mad prisoners under surveillance.

61. At the conclusion of visits, it was ACO Hickey’s evidence that all prisoners were subjected to a pat down search and some, randomly, to a full body search. In addition, if there was any suspicion concerning contraband, the prisoner in question was subjected to a full body search. In his evidence, the plaintiff denied any routine searching i.e. the pat down search of all prisoners. He did accept that there was some searching done on a random basis. In this regard, I accept the evidence of ACO Hickey to the effect that all prisoners were subject to a pat down search after a visit.

62.    ACO Hickey’s evidence was that it was likely that a knife such as the proprietary knife put in evidence would have been found by a pat down search. His evidence was challenged on the basis that the knife, if slid down the back of a prisoner’s neck, could be manoeuvred so that it ended up inside the prisoner’s belt thereby concealing it from a pat down search. Whilst accepting that this might be possible to do, I would be inclined to the view that it was improbable that a prisoner would be able t.o achieve this type of concealment whilst under observation and in the short time period available. Thus, I would be of the view that it was improbable that a knife such as the proprietary knife used on the plaintiff in this case would have been successfully concealed from a pat down search in this way.

63. Mr. Outram criticised the lack of use of X-ray equipment to screen visitors for contraband. In particular, he mentioned the portal-type X-ray through which persons must pass which detects metal objects. This is now a familiar aspect of airport security. Similarly, he criticised the lack of use of a “wand” which can be run over the body and also detects metal objects, He said either of these would undoubtedly have found the proprietary knife used on the plaintiff.

64. This type of X-ray equipment has been in use since about 2007, on visitors entering the prison. The evidence of ACO Hickey was to the effect that it has been very successful in detecting metallic contraband. It is undoubtedly the case that this type of X-ray equipment has become a familiar feature, not just of airport security but other locations where it is necessary to screen people for security reasons to ensure that metal objects of a dangerous kind are not brought into certain locations. Although it can be said that the entrance to a prison would be one of the most security demanding locations, the evidence tendered in this case does not enable me to conclude that as of late 2002 or January 2003, this type of equipment was readily availed of generally, or that the failure to have provided this equipment at the entrance to a prison at that time was a breach of the defendants’ duty of care to the plaintiff.

65. I am satisfied that the security arrangements in place at the time for the purposes of detecting objects such as the proprietary knife in issue in this case were adequate and it is improbable that this knife could have been brought into the prison by a visitor.

66.  Mr. Outram also criticised the absence of suitable netting around the yard of the prison, the wall of which was accessible to members of the public from the outside. The evidence established that at that time, the public did have access right up to the prison wall and could throw objects into the prison yard. The evidence of ACO Hickey confirms that at that time it was a common feature of prison life that objects were thrown over the wall into this yard and successfully retrieved by prisoners or their accomplices. ACO Hickey’s evidence was to the effect that if this proprietary knife was brought into the prison it was much more likely to have been thrown in over this wall rather than brought in by a visitor. I agree with his evidence in this regard. Since about 2007, access to the wall has been restricted from the outside and netting has been erected around the yard. Undoubtedly, this would have prevented this proprietary knife successfully entering the prison by being thrown over the wall and retrieved by a prisoner.

67. Having regard to the long history of material being thrown in over the wall, it is very hard to comprehend why it was not until 2007 that the obvious precaution of netting was not introduced, particularly in a location where, from the outside, the public had easy access. The use of netting to prevent the entry of unwanted objects is a familiar feature for a long time, particularIy in sporting locations.

68.    I am unable to avoid the conclusion that the absence of such netting in January 2003 or in the months immediately preceding it was a failure on the part of the defendants which amounted to a breach of their duty of care to the plaintiff; the consequence of which was the introduction into the prison, no doubt at the behest of the plaintiff’s assailant, of the proprietary knife which inflicted such horrendous wounds upon the plaintiff

69.  This brings me to Mr. Outram’s evidence concerning the searching of prisoners leaving residential units to go to the “cage” to receive their Methadone. His evidence was that there should have been a pat down search plus the use of the “wand” for all prisoners leaving residential units to go to other parts of the prison. If such searching had been done, in particular, if the “wand” had been used, it would have detected the knife which Jeffrey Mitchell used in the assault on the plaintiff.

70. The question of searching is a difficult one for prison authorities. In this respect, the appropriate balance between security and respect for the human dignity of prisoners comes very much into play. As has been noted in other cases, specifically MuIdoon v. Ireland [1988] ILRM 367, excessive searching can be experienced as very oppressive by prisoners and can lead to the creation of tensions which, in turn, can disrupt the good order of prison life.

71. The following passage at paragraph 34 from the judgment of Irvine J. in Casey v. The Governor of Midland Prison and the Minister for Justice, Equality and Law Reform, Ireland and the Attorney General [2009] IEHC 4666, delivered on 27th October 2009, clearly elucidates the problems associated with excessive searching:

“Of equal importance to the aforementioned matters is the fact that the systematic searches proposed by the plaintiff would substantially impinge upon the constitutional rights enjoyed by prisoners as citizens and the requirement that where possible their dignity as human beings should be respected. These searches, which would be visited upon all prisoners potentially as often as three time per day throughout their confinement, would I believe amount to a disproportionate interference with those rights when weighed against the risk of foreseeable or potential injury absent such system. The plaintiff’s submission, if accepted, would force the defendants to abandon much of their efforts to promote a humane model of confinement to protect against a remote risk of injury in the prison yard. To my mind, the defendants efforts to preserve dignity, generate the notion of citizenship even within the confines of prison life and avoid the unnecessary dehumanisation of prisoners by subjecting them to ongoing bey searches, justifies them accepting the remote risk that occasionally some type of injury which would otherwise be avoided if prisoners were always searched on entry to the recreation yard, may occur.”

72. I would respectfully agree with the views of the learned judge expressed in the foregoing passage from her judgment, and whilst in that case what was in issue was the searching of prisoners going to the recreation yard, it would seem to me that the views expressed have equal application to searching prisoners leaving residential units to go elsewhere in the prison. Accordingly, I am satisfied that the fact that the defendants did not routinely do a pat down search or apply a “wand” to prisoners leaving the residential unit to go to the “cage” was not a breach of any duty of care owed by the defendants in respect of the plaintiff’ s safety.

73. This brings me, finally to Mr. Outram’s criticism of the reporting of various incidents as contained in the documents discovered by the defendants which he described as “disgraceful”. There is no doubt that the information recorded in these documents is minimal. However, having heard ACO Hickey’s evidence in relation to the function and purpose of Pl9 reports, I am not at all satisfied that Mr. Outram’s criticism in this regard is justified. The purpose of a P19 report is to initiate a complaint process against a prisoner. That complaint is then heard by the Governor by way of oral enquiry with the prisoner. Generally, Prison Officers, particularly in disputes between prisoners, are anxious not to take sides or to be seen to take sides and therefore tend to confine the material recorded in the report to the minimum necessary to initiate the process of enquiry. Generally, when the Governor is conducting the inquiry, the Prison Officer will not be present and only if the Governor requires further information will the Prison Officer then be involved. Thus, the P 19 reports or similar reporting documentation are not seen as or intended to contain comprehensive reports of incidents occurring. I can readily understand the desire on the part of Prison Officers to adopt as neutral a stance as is possible, consistent with ensuring that the incident in question is adequately alerted to the Governor and dealt with by him.

74. I am not satisfied on the evidence that the type of reporting, as disclosed in the documents discovered and put in evidence in this case, was culpably inadequate or had any material connection to or made any contribution to the occurrence of the assault on the plaintiff.

75. In conclusion, therefor I am satisfied that the defendants failed in their duty to the plaintiff in two respects. Firstly, in permitting in excess of 15 prisoners to congregate in Space B, thereby facilitating the use of that space as a venue for the assault on the plaintiff and that such assault would, in all probability, not have occurred there, had the number of prisoners been kept to four or less. Secondly, they were in breach of duty in failing to have netting erected around the perimeter of the yard, as a consequence of which, in all probability, the knife which was used to attack the plaintiff was brought into the prison.

76. The plaintiff’s injuries consisted of several severe lacerations to his face and torso. Whilst these have been successfully treated, he has been left with several very disfiguring scars, in particular the scar on the right side of his face. The plaintiff has had to live with these scars since he was 24 years of age and will have to do so for the rest of his life. The scar on the right side of his face is of particular significance, especially to a young man coming from the plaintiff’s background.

77.    I would assess the appropriate sum to compensate the plaintiff for the laceration to his face as the sum of €100,000. I would further assess a sum of €50,000 in respect of the lacerations of his torso, making a total of €150,000 for general damages.

78.  No special damages are claimed.

79.  Accordingly, there will be judgment for €150,000.

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