Court dismisses prison negligence claim due to plaintiff's damaged credibility and lack of causal link between searches and assault.

Record No: 2019/02113

Neutral Citation: [2024] IECC 14

AN CHÚIRT CHUARDA

THE CIRCUIT COURT

DUBLIN CIRCUIT CIVIL COURT COUNTY OF THE CITY OF DUBLIN

IN THE MATTER OF

EAMON SHIELD

Plaintiff

and

THE GOVERNOR OF MOUNTJOY PRISON, THE IRISH PRISON SERVICE, THE

MINISTER FOR JUSTICE AND EQUALITY, IRELAND, AND THE ATTORNEY

GENERAL

Defendant(s)

Judgment of Her Honour Judge Jennifer O’Brien delivered this 25th day of July 2024

1. This case comes before the Court by way of personal injuries summons issued on 28 March 2019. The plaintiff claims that on 16 September 2016 he was present on the staircase from C2 wing going into C1, Mountjoy prison, when owing to the negligence and breach of duty including breach of statutory duty on the part of the defendants, their servants and or agents, the plaintiff was caused to suffer and sustain severe personal injury when a prisoner was caused or permitted to violently assault him with a weapon, with dual razor blades, which was used to lacerate his face. The plaintiff has not included the assailant in these proceedings and the claim is made against the defendants, in that it is alleged that they permitted the assault, they failed to take any adequate steps to prevent its occurrence, they acted negligently and in breach of the duty owed to the plaintiff and that the defendants were guilty of infringing the plaintiff’s constitutional rights, including the plaintiff’s rights to bodily integrity.

2. The plaintiff gave evidence that he was a victim of a traumatic and brutal attack and that he suffered slashes to his face with a dual razor blade. He was taken to the Mater Hospital. It was noted that he had two parallel lacerations to his face which extended from two centimetres from the right angle of the mandible. The wounds were oblique in direction and extended to the right lateral upper lip. The wound measured approximately 6 centimetres in length and was 7 millimetres deep in the central portion.

The wound was closed with 30 sutures under local anaesthetic. The plaintiff is left with permanent scarring. The plaintiff also alleged that he suffered significant trauma and psychological injuries as a result of the nature of the assault and the permanent reminder. The plaintiff said he would require assessment by a plastic surgeon to ascertain whether revision can improve its appearance. The plaintiff seeks damages for personal injury loss and damage.

3. In the course of exchange of pleadings, a notice for further particulars was raised on 19 June 2019 in which the defendants sought particularization as to whether the plaintiff sought protection in advance of the incident. By way of reply to notice for further particulars on 30 July 2019 it was confirmed that the plaintiff instructs that he informed the staff of the prison of the potential threat, and they failed to take adequate steps to remove the plaintiff from the area until investigation was carried out. The reply went on to state that the plaintiff further instructs that he was advised by another inmate of talk and rumours about him and the prospect of an attack. The plaintiff states that he immediately reported same to ACO Woods who was the member of staff on duty in the office of the C1 landing on the date of the incident. It was confirmed that the plaintiff instructs that he was never incarcerated previously and as such was not aware that he was required to specifically seek protection. He understood that by notifying staff of the threat, action would be taken. The plaintiff instructed there were no other threats made to him. The plaintiff further instructed that the inmate was CC. It was further confirmed that the plaintiff advised ACO Woods that there was a threat against his safety.

4. This Court heard evidence from the plaintiff where he described that before the attack took place on 16th September 2016, he made a report earlier in the morning to ACO Woods. He said in evidence that he had explained to ACO Woods that he'd been approached by another inmate with regards to rumours on C3 relating to the plaintiff’s interaction with members of An Garda Síochána. He said that the Garda had presented him with a traffic summons. This was the reason he was talking to the Garda. He said he was approached by another prisoner who thrust against him and warned him that there were rumours and that he should watch out. He said that he could tell by the other prisoner’s demeanour that he was serious and as such the plaintiff believed it to be a credible threat. He said that he reported this interaction to ACO Woods in the office and he thought that this would result in him being moved. He gave evidence that ACO Woods made a remark to the effect that threats like this were made all of the time and that if he heard anymore, he should come back to one of the prison officers.

5. The plaintiff gave evidence that he was attending C1 for food just before 12 noon on 16th September 2016 and that he entered the stairwell and had made the turn taking a few more steps when he felt something cross his face and he realized he was cut. His face felt hot, and he looked back and saw someone running back up the stairs. After the fact he discovered the identity of the assailant. He gave evidence that there were no guards or staff nearby and the only assistance he obtained was when he went to the office on the ground floor level.

6. The Court watched CCTV footage which showed the plaintiff and the assailants entering the stairwell and it also showed the plaintiff running from the stairwell on the ground floor and the assailant and his associate leaving the stairwell from the floor through which they had entered it. There was no sign of any prison staff in any of the CCTV footage that was shown to the Court. There were no cameras in the stairwell itself and as such there was no CCTV footage of the actual attack.

7. Evidence was given that a search had been carried out against the assailant approximately five months prior to the attack and he was found to be holding a shiv in his cell, which was clearly a blade designed to cause injuries. The plaintiff had sought discovery in the course of the proceedings and there was no formal evidence of any further searches being carried out against the assailant after the discovery of the shiv on 17th April 2016.

8. The plaintiff described his initial shock in the aftermath of the attack, and he was holding his face and that he attended the emergency department in the Mater Hospital.

He said he couldn't believe that it happened, and the cut was deep and that he has a permanent scar. He had two very deep cuts and he described that he lost a huge amount of blood. He gave evidence that he suffered a significant cut to the right side of his face and he had to attend A&E in the Mater to get stitches and treatment. The medical reports in the case have been agreed. The plaintiff gave evidence that he's very conscious of his scar, he's also very conscious of anyone walking behind him and he finds social situations very difficult. There are also difficulties when he's shaving and the area becomes very raw and that the injury is to a very prominent part of his body.

He stated that facial hair doesn't grow along the scar line. He gave evidence that his mental health is okay but that he found the episode very difficult and that he never spent that much time in prison and that he had to attend the prison psychiatrist to deal with the consequences of the attack. He said that even months after the attack he was still shocked and paranoid and experiencing trauma. There is no psychiatric or psychological report in the case.

9. Counsel submitted that the guidelines take into account mental illness. Three expert reports were furnished to the Court, and these are agreed, the medical report of Doctor Vinny Ramiah dated 20th July 2017 and 6th June 2024 and a further report of Doctor Katherine Brown dated 6 June 2024. The first report notes that the plaintiff received six-centimetre parallel incision wounds to the right side of his face. The plaintiff gave evidence that the sutures were removed at the prison clinic. The medical reports note

that the plaintiff will have permanent scars to the right side of his face as a result of these incisional wounds.

10. The final report notes that the scars are matured, pale and 1 to 2mm in width running parallel. The overall length of the scar is 70mm and the width of both portions together was 12 millimetres. There's no evidence of hypertrophy and the scars were mobile to the deep tissue. There is some evidence of pin cushioning in the medial portion of the scar, in close proximity to an area where the two scars appear to have central bridge.

There are small areas of telangiectasia in close proximity to the lower scar. The prognosis is that the plaintiff’s scar is unlikely to improve in appearance in the future as the scar is now fully matured. The plaintiff may wish to have the appearance of the scar improved and excision of the central portion of the scar is suggested, converting these two scars into one linear scar in the first instance. This could be carried out under local anaesthetic. The scar might also be further modified with a W- plasty scar revision in the future if required, though this may not be necessary. Laser treatment was not recommended. Private fees vary but the cost of scar revision would be approximately €2,000 to €2,500 per stage of the procedure.

11. The plaintiff confirmed that the attack took place one or two steps down from the landing where the stairwell turns. He said he didn't see or hear anyone, there was no opportunity to defend himself as it was a very sudden attack. He said he did nothing to provoke it. He said that he had made a complaint earlier that day about the warning he had received, and he felt something should have been done to protect him. It was put to him that he had made a very broad case against the defendants, and he was asked to say what steps should have been taken. He responded that his case is as set out by the lawyers in the paperwork. He stated that earlier that morning he had gone to another office to make the report. He said he would have been in the kitchen or the gym earlier that day and that at whatever time he received the information from the other prisoner he went straight to the office where he notified ACO Woods of the situation. It was put to him that ACO Woods has no recollection of this discussion and that there is no record of it and if it had been reported then certain procedures would have taken place. The plaintiff reiterated that he reported the threat and that nothing was done and that he went straight to ACO Wood’s office and reported the threat. It was put to the witness that the detail of this was not set out in the PIAB form which merely states that the incident occurred due to inadequate supervision. That form says nothing about having made a complaint first.

12. It was put to the witness that at the time of his committal he would have been taken through the prison procedures and the plaintiff responded that he did not recall that meeting. It was put to the witness that he would have given a number of blocks of information in the course of that initial meeting. It would have been explained to him that he can request protection if necessary to do so. The plaintiff, under cross examination acknowledged that he had a short stay in prison previously for a road traffic matter a number of years previously. He said again that once he received the information he just went naturally to the office and that he said he was farmed off and told that this stuff is quite common in the prison. He was told that if he heard anymore, he should come back to the office. The plaintiff said he'd never been in that situation previously and this is why he went to the office to report the matter to ACO Woods. He said he was obviously concerned but he did not know the extent to which he was exposed to danger at the time. He reiterated that there was no gap in time and that he went straight to the office of ACO Woods to inform him of the situation and the plaintiff himself was concerned that perhaps he was overreacting to the situation. It was put to the plaintiff that his demeanour when entering the stairwell was not one of a person who was suffering from intimidation or fear. The plaintiff did not respond to this point.

13. ACO Pauric Woods was called into evidence, he is now the chief officer at Limerick Prison, but he was the ACO in Mountjoy having started there in 1998 and worked there until 2017 when he moved to Cork and then Limerick. He said that in his role as ACO he was in charge of 45 to 50 prisoners and that there were 35 prisoners on C1. He said that there would be 12 to 13 staff on at any time. The staff worked variously at the exercise yard and that during dinner time there would be up to 50 prisoners walking around. He said there is a level of supervision with three staff patrolling however he said in evidence that it would be too much of a risk to put a staff member on the stairwell at a time when 25 to 30 prisoners were moving to the dining area. He said that if a concern had been notified to a member of staff, then the prisoner against whom a threat was being made would be returned to their cell and interviews would be carried out to identify the source of the concern. He said that prisoners were searched for weapons on arrival at the prison and this included a body search. He gave evidence that two cells are randomly searched every day but that they wouldn't be able to operate the prison, the school and the food services if they were to carry out a search of every cell every day. He referred to the P19 report to the Governor in respect of an incident which took place on 17 April 2016 during which the offending articles were found in the cell of the assailant including a shiv. This disciplinary report would be brought before the Governor and there would be a form of punishment for this infringement, such as loss of recreation and calls restricted from family. He gave evidence that you cannot just lock each prisoner up for these contraventions of the prison rules.

14. ACO Woods said in evidence that he had no recollection of that conversation taking place with the plaintiff. He said he hadn't heard anything about the reports made by the plaintiff. He said that if he had received such information there would be no reason to ignore it and that the protocol is as set out in Rule 63. An interview takes place, and the prisoner is returned to his cell until the officer gets the information required. He gave evidence that if that conversation took place and they cannot identify a specific threat the prisoner would be returned to a cell, and they would take the time to interview the person who had made the accusation. He said they would seek to identify the issue and put protection in place such as moving a prisoner to a separate division or a division for protection prisoners.

15. He said care was taken to investigate whether an inmate had an issue with another inmate. They would be placed in separate divisions of the protection wings. He said there were various factions, and they were color-coded and exercised at different times and fed at different times in order to ensure that inmates were segregated where there were known issues between them. He said that a prisoner would be taken out of circulation if there were known issues regarding their behaviour towards another inmate.

16. He said he had seen that kind of double blade before and that these shivs were fashioned in different ways using plastic knives or from a razor and they were sharpened and sometimes strapped to an object, such as a toothbrush. He reiterated that if a matter is brought to their attention that it wouldn't be ignored and that the appropriate steps would be taken. He referred to Rules 62 and 63 of the Prison rules and he said rule 63 deals with the protection of vulnerable prisoners such that “a prisoner may, either at his or her own request and or when the Governor considers it necessary, in so far as is practicable and subject to the maintenance of good order and safe and secure custody, be kept separate from other prisoners who are reasonably likely to cause significant harm to him or her.”

17. He also referred to, in response to further questioning, rule 62 which provides “Subject to Rule 32 (exercise) a prisoner shall not, for such period as is specified… be permitted to (a) engage in authorised structured activities generally or particular authorised structured activities, (b) participate in communal recreation, (c) associate with other prisoners, where the governor so directs.” He explained that this is to deal with the situation where a prisoner is a threat. He said that they couldn't remove all of the prisoners, there had to be a significant threat prior to taking a decision to remove a prisoner from ordinary activities. He said that if the plaintiff had notified him of the threat that he would have taken steps to conduct interviews and that he would have also taken steps to protect the plaintiff. He said there's no record of the plaintiff having made this report and he said that no such report was made to him. He said that he would have started the process straight away had he received such a report.

18. It was put to the witness that given the assailant had an established and recent track record of behaviour including holding a shiv in his cell that he should have been subjected to further searches or that searches should have been carried out on a regular basis. It was put to him that the searches must be recorded and that it's mandatory to carry out such searches. There's no record of any subsequent search being carried out against the assailant and that it would have been a reasonable thing to search his cell again given what had been discovered in the initial search. The witness responded that there are lots of weapons in prison and no extra searches were carried out of prisoners who were caught previously with weapons. He said that they randomly pick two cells each day which are recorded whereas the other searches are not.

19. He stated that the incident happened quickly, and it was put to him that there was not sufficient staff in the area even to come to the aid of the plaintiff after the incident occurred. It was put to the witness that no officers were visible on the CCTV footage patrolling up and down in the area. In the long shot where the plaintiff is holding his face there are no guards visible. The witness described that there were officers at their posts throughout the ground floor area and that assistance would have been working on lock and feeding time. He said there were prison officers at the tuck shop and that the tuck shop was only around the corner on the same level of C1. He also said that they kept a record of razor blades and that same are handed back after use for shaving.

20. Counsel for the plaintiff referred to the book of legal authority and to the paper produced by Professor Binchy regarding Prisoners and the Law of Tort. He said there was no dispute regarding the authorities and that there was a theme which runs through the caselaw, that each case is fact specific and the facts here can be distinguished from the cases contained in the booklet of authority. Counsel referred to the decision of the Supreme Court in Peter Creighton v Ireland, The Attorney General, The Minister for Justice, Equality and Reform & The Governor of Wheatfield Prison [2010] IESC 50, and to the decision of Mr. Justice Fennelly delivered on 27 October 2010. At page three of that decision reference is made to the judgment of Singleton LJ in Ellis V Home Office [1953] 2 ALL ER J0514-1, which states;

“The duty on those responsible for one of her Majesty's prisons is to take reasonable care for the safety of those who are within, and that includes those who are within against their wish or will, and of whom the plaintiff was one. If it is proved that supervision is lacking, and that accused persons have access to instruments, and that an incident occurs of a kind such as might be anticipated, I think it might well be said that those who are responsible for the good government of the prison have failed to take reasonable care for the safety of those under their care.”

21. It was submitted to ACO Woods under cross examination and stated that inspections were carried out regularly however the six months prior inspection in April resulted in the finding of a weapon. If all searches were documented there's no record of any further search being carried out subsequent to that point which contradicts the proposition that searches were carried out regularly. It was submitted that this is not a reasonable level of care on the part of the defendants and that they fall short. Counsel submitted that ACO Woods in his evidence anticipates regular checks but that this is not what happened.

22. Counsel referred to the decision of Ms Justice Mary Irvine delivered on 27 October 2009 in Joseph Casey v The Governor of Midlands Prison, The Minister for Justice, Equality and Law Reform, Ireland & The Attorney General [2009] IEHC 466 at page 5 which sets out a series of propositions as follows:

“Relevant Caselaw: The Duty of Care:

12. 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 so simply be summarised as follows:

1. 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)

2. 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 & Others [1998] IESC 266)

3. 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 & Others [1998] IESC 266)

4. Cases of assault from 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 & Others [1998] IESC 266)

23. Professor Binchy in his commentary at page eight of his article then deals with the duties of protecting prisoners from attacks by other inmates and makes the observation that he says is perhaps an obvious one; Prisons are dangerous places, and some prisoners are dangerous people. He refers to the decision of the High Court of Australia in New South Wales v Bujdoso [2005] HCA 76, at paragraph 44:

“It is true that a prison authority, as with any other authority, is under no greater duty than to take reasonable care. But the content of the duty in relation to a prison and its inmates is obviously different from what it is in the general law-abiding community. A prison may immediately be contrasted with, for example, a shopping centre to which people lawfully resort, and at which they generally lawfully conduct themselves. In a prison, the prison is charged with the custody and care of persons involuntarily held there. Violence is, to a lesser or a greater degree, often on the cards. No one except the authority can protect a target from the violence of other inmates. Any of the people in prisons are there precisely because they present a danger, often a physical danger, to the community. It is also notorious that without close supervision, some of the prisoners would do grave physical injury to other prisoners.”

24. Reference was made to the decision in Peter Creighton v Ireland, The Attorney General, The Minister for Justice, Equality and Reform & The Governor of Wheatfield prison [2010] IESC 50 where Fennelly J stated: “Prisons may, as an inevitable consequence of the character of persons detained, be dangerous places. Prisoners are entitled to expect that authorities will take reasonable care to protect them from attack by fellow prisoners. What is reasonable, will always depend on the circumstances. As the cases recognise, prison authorities may have to thread a delicate line between the achievement of the objective of protecting the safety of prisoners and the risks of adopting unduly repressive and inhumane measures. They must balance the protective function and possible demand for intrusive searches against the need to permit prisoners an appropriate degree of freedom of movement and human dignity.”

25. It is submitted by counsel for the plaintiff that the balance in this case is out of kilter and in fact that it's going in the other direction in the sense that at no point after the first search were any steps taken to carry out further searches against the assailant. ACO Woods in his evidence said that a lot of prisoners have weapons, and it is submitted that this does not meet the standard of reasonable care towards the plaintiff in this instance.

It is submitted that the particular circumstances of this case where the plaintiff was informed that he was a likely target and then he says in his evidence that he informed ACO Woods and there's a conflict of evidence as the plaintiff says that he reported the incident to ACO Woods and then he was subsequently attacked. The plaintiff gave evidence that his concerns were assuaged when he spoke to ACO Woods. There is a strong conflict of evidence as ACO Woods doesn't remember being approached and that this event occurred seven to eight years ago. It is submitted that it is understandable that he may not now recall that such a meeting took place.

26. It was further submitted that the weapon used was fashioned by the assailant. The evidence given by ACO Woods states that there was nothing that could have been done realistically to prevent the weapon being fashioned from a razor blade. It is submitted that in this case a shiv was found in the assailant’s cell previously and razor blades that have been given were taken back and there was a record or a note of the return of such blades. In a case where a blade is used, something has gone wrong, and the inmate shouldn't have had this blade in order to fashion a Shiv. It was submitted that the Court can look at the supervision regime and the design of the prison premises and the deployment of staff on the occasion in question. It was submitted that no one even ran to the plaintiff’s aid at the time of the incident. It is acknowledged that it was a quick assault and the nearest person that the plaintiff could find was sitting in the office and that was the first that anyone knew that an attack had taken place. There was no real response by the prison officers to this attack as they were simply unaware of it at the time of it’s occurrence.

27. Reference is made to the Bolger case and the High Court decision of Mr. Justice O’Donovan in Martin Bolger v The Governor of Mountjoy Prison, Ireland & The Attorney General [1997] IEHC 172. At page 4 of the judgment the Judge prefers the evidence of the prison officer and does not believe the plaintiff requested that he be placed in protective custody. Counsel seeks to distinguish that case from the instant one as the plaintiff here reported his concern and he gave very credible evidence to that effect, but it is expressly pleaded that albeit he did not ask for protective custody as such. Counsel submitted that no magic words were required as he had notified the officer of a threat and he cannot say more than he knows at the time of this notification.

He should have been put in his cell. ACO Woods has no recollection of this notification taking place.

28. It is submitted that in the instant case there is a known history on the part of the assailant of holding shivs and there is prior conduct. In the other case prior conduct took place over a decade earlier whereas here the prior conduct took place a mere five months previous to the incident. It was submitted that this is a factor that makes the instant case very distinguishable from the Court’s decision in Bolger as the knowledge was current.

29. Counsel referred the Court to the decision of the High Court in Marius Howe and The Governor of Mountjoy Prison & Others, a decision of Mr. Justice O'Neill delivered on

31 October 2006 [2006] IEHC 394 at page 4:

“The prison authority depended on prisoners to bring these things to their attention and when prisoners are taken into custody they are asked if they have fears or concerns about other prisoners and if they disclose as such they can be and regularly are isolated to prevent apprehended violence. Neither the plaintiff nor Phillip Byrne gave any such information to the prison authorities.”

30. It is submitted that in the instant case the plaintiff here in evidence states that he did report his concerns to ACO Woods, whereas ACO Woods doesn't recall such a meeting taking place. It was submitted that in this case there was a report five months prior to the incident as a weapon had been discovered in the assailant’s cell. As such the instant case cannot be described as a wholly unexpected attack. In this instance, the attack could be expected and when it occurred there were no prison officers nearby. It was acknowledged that the incident was sudden, but any officers nearby could have rendered assistance to the plaintiff in the aftermath. It is acknowledged that it probably wouldn't make any difference to the event occurring in the first instance. It is submitted that the determining factor in the Howe decision is that no such report was made, and it is submitted that the instant case can be distinguished as the report was made based on the evidence of the plaintiff, if the Court accepts the evidence of the plaintiff.

31. Reference was made to the decision in Casey v Governor of Midlands Prison [2009] IEHC 466 at page 10 which sets out:

“The defendants are not the insurers of the safety of their prisoners. They must use reasonable care to avoid foreseeable injury occurring. I accept Mr. Kennedy’s evidence that a balance has to be struck between the safety of prisoners on the one hand and the need to avoid a regime which may dehumanise and punish other prisoners who, as citizens, are entitled to be treated with dignity and respect. An assault of the type that occurred in this case by one prisoner on another using a prison mug could have happened in any cell shared by two or four inmates. Such an assault could equally, on Mr. Tasker's evidence, have occurred in an indoor recreation area or on the way back from the area where food is served. In respect to such an assault, the defendants would not have been culpable given that Mr. Tasker advised that it was not necessary for the prison authorities to search prisoners leaving their cell other than when they were going to the recreation yard.”

As to the foreseeability of injury from a weapon brought into the yard, no evidence was produced to show that delph was ever used in any assault in the Midlands prison.

Similarly, there was no evidence that any other type of weapon was used in such an assault. If assaults with weapons were occurring in the recreation yard and these were denied by Mr. Kennedy, I am convinced that some evidence in this regard would have been obtained on discovery and made available to the Court. In the absence of such history, I cannot accept that the defendants were mandated to implement a system whereby each prisoner moving to what was described by Mr. Kennedy as the exercise yard and designated for the use of prisoners in B wing would have to be searched.”

32. Counsel sought to distinguish the instant case given that five months prior to the incident a similar weapon was found in the assailant’s cell. It was submitted that there is a foreseeability issue in this case in terms of the prisoner’s propensity and his prior possession of a similar weapon. Reference was made to paragraph 24 of Irvine J's

decision which sets out:

“The fact that it might not have imposed an undue burden upon the defendants to provide for the type of search contended for by the plaintiff, is not fatal to the defendant’s defence.

The plaintiff must show that a failure to implement such a procedure was, on the evidence, negligent. This, the plaintiff has failed to do. I am not satisfied from Mr. Tasker's evidence that searches of the nature contended for by him are routinely carried out in non-high security prisons in the United Kingdom where prisoners are moving from their cells to a recreation yard which is not “off” the prisoner’s wing. If this was so, every prison in the United Kingdom would have a set of written regulations or rules setting out that safety procedure. No such readily available documentary evidence was furnished to the Court.

Even if the Court is incorrect in this regard, the fact that such searches may be routinely carried out in the United Kingdom’s prisons does not mean that the system in this country is necessarily defective.”

33. Counsel submitted that in the instant case the defendants did not take any steps whatsoever and it is submitted that the failure to conduct further searches was negligent on the facts of the instant case. Reference was made to paragraph 28 which provides: “The second finding of fact that I make in relation to this aspect of the case is that I'm not satisfied that Mr. Egan had any characteristics which justified the defendants taking any special precautions following the exchange of words between the plaintiff and Mr. Egan in the pool room. I accept Mr. Kennedy's evidence that Mr. Egan was a nuisance and somewhat of a thorn in the side of the Prison Service. He undoubtedly was involved in a number of incidents which generated P19 disciplinary procedures. However, he had had none of these in the three weeks before this incident. Further, whilst he had committed two previous assaults on fellow prisoners, these incidents involved what Mr. Kennedy described, as regular type fighting between inmates. No weapons had been used. I also take into account the fact that Mr. Egan was not known to the plaintiff which, I think would have been likely if he was a prisoner of some repute. Finally, I cannot infer merely because of the fact that Mr. Egan was moved to Cork and /or Limerick prison for short periods of time that this was due to the fact that he generated any particular danger to his fellow prisoners. Even if it be either case that the plaintiff’s evidence is correct that a prison officer told him that no prison wanted Mr. Egan that does not prove he had any propensity to carrying out a vicious assault on fellow inmates.”

34. It is submitted by counsel that steps should have been taken with regard to the prior discovery of a weapon in this case and that at least one further search should have been carried out on the assailant’s cell and it was not reasonable that nothing further was done in this regard. It is submitted that this amounts to negligence on the part of the defendant in the instant case.

35. The Court was also referred to the decision in Sage v Minister for Justice & Others [2011] IEHC 84 at paragraph 29 which sets out:

“The question to be answered in the present case is whether, on the facts known to the prison authorities, they discharged their duty of care to the plaintiff by transferring him to Fort Mitchell as an ordinary prisoner, or whether they knew or ought to have known of factors at play that required them to make special enquiries regarding the presence of any known associates of Roche in that prison, or to maintain him in isolation until he could be transferred to another prison where he could be afforded protective custody.”

36. It is submitted that in the instant case the facts were known to the prison authorities as a report had been made and it is accepted that thereafter the appropriate procedure was to remove the plaintiff to his cell. ACO Woods doesn't recall this conversation. It was submitted that the plaintiff gave credible evidence that there were rumours circulating regarding an impression of him talking to the Gardaí and that he had better watch out as people were not happy and that something might be coming. ACO Woods doesn't remember being informed of this conversation. It was submitted by counsel that both of these versions may be true in that the plaintiff’s recollection of events and ACO Wood’s failure to remember the events occurring are not necessarily inconsistent with each other.

37. It was submitted that when we look at the facts known about the attacker, that he had a shiv in his cell five months prior, so the defendant did know. There's no question of it ought to have known as the defendants actually did know that the assailant was a person who had previously held a similar weapon. It was submitted that despite that knowledge not even one further search was carried out against the assailant and that this does not meet the reasonable threshold standard.

38. Counsel for the defence brought the Court through the points of similarity in terms of the relevant caselaw. Counsel noted the conflict of fact as to whether the plaintiff notified ACO Woods of the threatened attack and acknowledged that if this question is then answered in the positive the Court must impose liability on the defendant. Counsel finds himself having to prove a negative in that ACO Woods has no recollection of the event and no written record of having been told. This comes down to a question of the plaintiff’s credibility and the Court is entitled to take into account that the plaintiff was convicted of an honesty related offence, and it was submitted that he was vague with regard to the detail in his recollection of this matter. The Court can also have regards to the demeanour of the plaintiff on the CCTV footage and regard can be had to the timing of when various pieces of information were made available. For instance, there is no reference in the PIAB report nor are details of this event furnished in the pre-action correspondence. The personal injuries summons makes no reference to the allegation with any specific information, and it only emerges in the rejoinders that he had been working in the kitchen. Certain details only emerged on the day in evidence and the Court can take into consideration the staggered nature of the flow of information from the plaintiff with regard to whether he made a notification to ACO Woods. It was submitted that the plaintiff has contradicted himself because he says he had a conversation with an acquaintance and that he was in shock but then he goes on to say in oral evidence that he didn't believe anyone had the need to target him, so it's open to the Court to consider the contradictions surrounding the forewarning of an attack. It is submitted the Court must consider whether the prison authority demonstrated reasonable care. It was submitted that the preponderance of case law weighs against the plaintiff. When asked, the plaintiff said his case was that he notified ACO Woods and that there was inadequate supervision, inadequate searching and inadequate signing in and out of razors.

39. Counsel referred the Court to Section 35 (1)(i) of the Civil Liability Act of 1961, which provides as follows: “For the purpose of determining contributory negligencewhere the plaintiff’s damage was caused by concurrent wrongdoers and the plaintiff’s claim against one wrongdoer has become barred by the Statute of Limitations or any other limitation enactment, the plaintiff shall be deemed to be responsible for the acts of such wrongdoer.”

40. Counsel referred the Court to the decision of the Court of Appeal in Cian McCarthy v James Kavanagh trading as Tekken Security & Herlihy’s Supermarket Group Limited [2020] IECA 344. In that case, the plaintiff was lawfully present at a convenience store premises when he was subject to an attack by third parties, who were non-parties to the proceedings issued against the defendant. Despite their knowledge that the plaintiff was innocent of any wrongdoing, security staff employed at the premises removed him from the premises. The plaintiff’s assailants followed him out of the premises and continued the assault on the public footpath. The security staff were aware of this pursuit. The plaintiff broke free of his attackers and sought re-entry to the premises for his own safety, which was refused by the security staff. In the course of that refusal, the plaintiff collided with another third party, whose boyfriend responded with the blow that caused serious injury to the plaintiff. The plaintiff instituted proceedings against the first and second named defendant. The plaintiff’s third-party assailants were sued in separate proceedings. The proceedings against the third party who carried out the final assault on the plaintiff were issued without prior authorisation from the Personal Injuries Assessment Board. Damages were sought therein for assault and trespass to the person.

Authorisation was secured one month after those proceedings were issued and judgment in default of appearance was subsequently granted. In respect of the other third-party assailants, prior authorisation from the Board was secured. An appearance had been entered but no further steps have been taken in those proceedings. The defendants in the proceedings at issue accepted that they owed the plaintiff a duty of care but submitted that this duty did not extend to interference with the conduct of third parties whose actions also comprised a novus actus interveniens. The third party who delivered the final blow had never set foot on the premises, his actions were completely unforeseeable and there was no special relationship between him and the defendants.

The defendant submitted that in the absence of a special relationship between the defendants and the third party, there was no justification to impose responsibility for the third party’s criminal actions on the defendants.

41. As such it is submitted in the instant case that any liability of the Prison Service should be apportioned on account of the plaintiff not suing the assailant as Section 35(1)of the Courts Liability Act is a shall section.

42. Counsel also referred the Court to the decision in Muldoon v Ireland [1988] ILRM 367 High Court (Hamilton P) 27 May 1987 (extempore) where he held: “(1) The prison authorities are required to take all reasonable steps and reasonable care not to expose any of the 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. (2) The prison authorities had not been negligent in relation to supervision, since the attack in this instance was unprovoked and took place without warning, and even if there had been more prison officers in the yard at the time, the incident could not have been prevented. (3) The authorities could not be expected to take more steps than they already took in relation to searches for offensive weapons, and in view of the obligation to take reasonable care it would not be open to a jury to find them negligent.”

43. It is submitted that more and more frequent searches could be regarded as excessive and harassment of an individual prisoner if they were subjected to a heavier regime of searching than other inmates.

44. The Court was referred to the decision in Martin Bolger v The Governor of Mountjoy Prison, Ireland & The Attorney General [1997] IEHC 172 which provides at page 2 as follows: “The plaintiff’s complaint against the Prison Authorities is based on 2 propositions; firstly, that they failed to accede to his request to be put in protective custody, while he was a prisoner in Mountjoy prison and secondly, in the circumstance that he had a known history for violent behaviour, they failed to segregate Jason Flynn from other prisoners and allowed him access to buckets of hot water.

In this connection, the plaintiff gave evidence that shortly after his admission to Mountjoy prison on the 1st of February 1995, he requested Chief Officer (now Assistant Governor), Duffy that he be placed in protective custody. He said that the reason that he made that request was that during a previous period of imprisonment in Mountjoy prison in October 1994, he had been attacked by a prisoner named Michael Cahill as a result of which he had suffered injuries and, following that incident, he (the plaintiff) had been placed in protective custody.

He said that Assistant Governor Duffy, as he now is, responded to that request by saying that he was a busy man and would revert to him at a later stage but that he never did. The plaintiff also gave evidence that, at the time he made that request to Assistant Governor Duffy, another prison officer, who was standing nearby, said that Michael Cahill was no longer a prisoner in Mountjoy prison. In this connection, it is, I think, noteworthy that, while it is a fact that the plaintiff was attacked in Mountjoy prison on the 1st of October 1994 by one Michael Cahill and was placed in protective custody following that incident, he was released from protective custody at his own request on the 16th of November 1994; at a time when the said Michael Cahill was still a prisoner in Mountjoy prison.

It is also, I think, significant that the plaintiff conceded in evidence that the attack on him by Jason Flynn was sudden and unprovoked and, indeed, the plaintiff said that his immediate reaction was that someone was playing a joke on him. Moreover, the plaintiff conceded that he had not previously known Jason Flynn and did not know of any reason why he (Jason Flynn) might have attacked him although he believed that Jason Flynn was a friend of Michael Cahill. Accordingly, it is clear that at the material time, there was no unrest among the prisoners and no reason why the prison authorities might have been apprehensive about the plaintiff’s safety.

For his part, Assistant Governor Duffy gave evidence that he did not even speak to the plaintiff on the 1st of February 1995 and accordingly, vehemently denied that the plaintiff had made any request of him that he (the plaintiff) be placed in protective custody. He said that he was aware of the incident involving the plaintiff and Michael Cahill in October 1994 and, indeed had personally vetoed a written request from the plaintiff on the 11th of October 1994 to be released from protective custody as at that time, he (Assistant Governor Duffy) believed that the plaintiff would be in danger were he released fron that custody.

Assistant Governor Duffy added that he was aware that, subsequently on the 16th November 1994 the plaintiff was released from protective custody at his own request but he (Assistant Governor Duffy) had not been consulted with regard to that release. Assistant Governor Duffy also gave evidence that the plaintiff had been released from Mountjoy Prison on the 15th of December 1994 and, that between the date of his release from protective custody on the 16th of November 1994 and his ultimate discharge from prison both he and Martin were prisoners in Mountjoy Prison, and no harm befell the plaintiff during that period.”

45. It is submitted that in the instant case the Court has to resolve the conflict in evidence between the plaintiff and ACO Woods. It was submitted that there's no benefit to the prison officer in not acceding to a request for protective custody. It would be illogical to refuse such protection. Reference is made to page 5 of the decision to the case of Bates v Ireland, an unreported judgment delivered on 18 May 1995, “When considering the extent of the duty of care owed by a Prison Authority to a prisoner, a balance must be struck between precautions which are acceptable and those which are excessive. The question therefore arises as to whether or not in the light of what they knew or ought to have known about Jason Flynn’s previous behaviour while a prisoner of the State, the duty of care for the safety of other prisoners in their custody which was owed by the Prison Authorities in Mountjoy Prison, required that they should segregate Jason Flynn from other prisoners or deny him access to buckets of hot water. In this connection, while it appears to be a fact that Jason Flynn had previously attacked another prisoner with boiling water, that incident had occurred when he was only 16 years of age and, up to the time of the incident of which the complaint is made in these proceedings; a period of six years, he was not involved in any similar occurrence.”

46. It is submitted that the plaintiff’s case in the instant proceedings is that there should have been more searches. It was submitted that further searching could potentially amount to harassment and further punishment to a prisoner. The balance has to be struck between safety and the rights of prisoners.

47. The Court was referred to the decision in Howe v Governor of Mountjoy Prison and Others [2006] IEHC 394, a case involving an attack with an edged blade which occurred during exercise time. It was submitted this is a similar case as it was argued that the plaintiff had never made a complaint prior to the incident. Here the incident was wholly unexpected and occurred with speed and in such circumstances, it doesn't matter how many people are on duty they simply could not have prevented the incident given the speed during which it occurred. The Howe case is similar in the sense that the defendants denied all liability and their evidence was to the effect that the conflict between the plaintiff and Philip Byrne was unknown to them and they had no means of knowing it, no reason to know it, and had they known about this conflict it was standard practice to segregate the prisoners in these situations by isolating one or the other of them to different parts of the prison or to other prisons. It was the defendant’s evidence that the plaintiff never complained of having any fear or any problem with Phillip Byrne from the time that Philip Byrne was returned to the prison. As such, it was the defendant’s case that in the absence of being given any information from the plaintiff or Philip Byrne, the prison authority had no way of knowing of the conflict between them and the prison authority and could not take upon itself the task of fully investigating the background of every prisoner to establish whether or not conflicts existed with other prisoners. Prisons authorities are dependent on prisoners to bring these things to their attention and when prisoners are taken into custody they are asked if they have fears or concerns about other prisoners and if they disclose as such they can be and regularly are isolated to prevent apprehended violence. Neither the plaintiff nor Phillip Byrne gave any such information to the prison authorities.

48. The Court was referred to page 4 of the decision of the High Court in Joseph Casey v The Governor of Midlands Prison, The Minister for Justice, Equality and Law Reform, Ireland & The Attorney General [2009] IEHC 466 which sets out: “Whilst prisoners remained within the perimeter of their own wing, the defendants, Mr. Kennedy advised the Court, tried to operate a regime which was as humane as possible whilst also trying to ensure that the prisoners remained safe. As far as Mr. Kennedy was concerned, the deprivation of the prisoners’ liberty was their punishment and he told the Court that the defendants accordingly believed that prisoners should not be subjected to any additional unnecessary dehumanising treatment and that this included unnecessary body searches, whilst they were serving their sentences.”

49. The Court was also referred to page 9 and 10 of the decision which provides as follows: “In relation to this first issue, I conclude that the defendants were not in breach of the duty of care which they owed to the plaintiff. The defendants are not the insurers of the safety of their prisoners. They must use reasonable care to avoid foreseeable injury occurring. I accept Mr. Kennedy's evidence that a balance has to be struck between the safety of prisoners on the one hand and the need to avoid a regime which may dehumanise and punish other prisoners who, as citizens, are entitled to be treated with dignity and respect.

An assault of the type that occurred in this case by one prisoner on another using a prison mug could have happened in any cell shared by two or four inmates. Such an assault could equally, on Mr. Tasker’s evidence, have occurred in an indoor recreation area or on the way back from the area where food is served. In respect of such an assault, the defendants would not have been culpable given that Mr. Tasker advised that it was not necessary for the prison authorities to search prisoners leaving their cell other than when they were going to the recreation yard.” “As to the foreseeability of the injury from a weapon brought into the yard, no evidence was produced to show that delph was ever used in any assault in the Midlands prison.

Similarly, there was no evidence that any other type of weapon was used in such assaults. If assaults with weapons were occurring in the recreation yard and these were denied by Mr. Kennedy, I am convinced that some evidence in this regard would have been obtained on discovery and made available to the Court. In the absence of such history, I cannot accept that the defendants were mandated to implement a system whereby each prisoner moving to what was described by Mr. Kennedy as the exercise yard designated for the use of prisoners in B Wing, would have to be searched.

I accept Mr. Kennedy's evidence that no weapons had been used in the only three episodes of reported fighting in the yard in the 12 months prior to the assault upon the plaintiff. In this regard, I simply cannot infer, as I have been invited to do by counsel for the plaintiff, that weapons were used in these instances merely because of the fact that in the P19 report dealing with the plaintiff’s assault, there was no mention of the weapon used to inflict the plaintiff’s injuries.” “The fact that it might not have imposed an undue burden upon the defendants to provide for the type of search contended for by the plaintiff, is not fatal to the defence.

The plaintiff must show that a failure to implement such a procedure was on the evidence, negligence. This, the plaintiff has failed do. I'm not satisfied from Mr. Tasker’s evidence that searches of the nature contended for by him are routinely carried out in non-high security prisons in the United Kingdom where prisoners are moving from their cells to a recreation yard which is not “off” the prisoner’s wing. If this was so, every prison in the United Kingdom would have a set of written regulations or rules setting out that safety procedure.

No such readily available documentary evidence was furnished to the Court. Even if the Court is incorrect in this regard, the fact that such searches may be routinely carried out in the United Kingdom prisons does not mean that the system in this country is necessarily defective.” “On the plaintiff’s evidence, I'm invited to make a finding the result of which would be to condemn as dangerous, what I understand to be accepted norm in Irish prisons of permitting prisoners to move within the wing to their exercise yard without a search. I'm invited to conclude that every prison operating this system is failing in it’s obligations to it’s inmates and that it should now alter it’s practices to coincide with the model proposed by Mr.

Tasker. This, I cannot accept on the basis of the plaintiff’s evidence. I'm satisfied that having regard to the infrequent incidence of assault in the Midlands prison in its yard, it would be wholly disproportionate and contrary to the humanitarian interests of the vast majority of it’s prisoners to require the authorities to search every prisoner who wish to avail of the recreation yard facility perhaps as often as three times a day for the whole of their sentence so as to avoid the remote risk of an assault being perpetrated against them by another prisoner using an implement that might have been found in the course of such a search.” “In coming to this conclusion, I have also had regard to the agreed evidence that even when body searches are routinely carried out that small weapons such as blades will rarely be detected thus leaving open, in any event, a continuing risk of significant injury to prisoners from those determined to injure others irrespective of any system of body searches as may exist.”

50. The Court was also referred to page 17 at paragraph 34 which sets out: “Of equal importance to the aforementioned matters is the fact that the systematic search as 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 times 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 a 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 defendant’s 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 body 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. For all of these reasons the plaintiff’s claim must fail.”

51. Counsel submitted that here we have a prior incident that an increase in the regime of searches should have been imposed, but for how long and it is submitted that the authority did all that they could do under the rules, they had taken action and it was submitted that Creighton is an outlier and can be distinguished as the weapon there was a Stanley knife that had been brought from outside the prison or from the workshop.

Separate consideration is required in circumstances where the weapon is of an improvised nature. Counsel submitted that there's a causation issue as to whether further searches would have had the result of preventing this incident in circumstances where a shiv could have been fashioned on the morning of the event. The Court was referred to the decision of the High Court in Michael Sage v The Minister for Justice, The Governor of Cork Prison, Ireland, The Attorney General & Patrick Hogan [2011] IEHC

84 at page 17: “In Creighton, if the knife used was a Stanley knife it came into the prison having escaped detection at the point of entry after which it later smuggled into the area where the methadone was administered, avoiding detection for a second time. Those facts are in stark contrast to the evidence in this case, all of which suggests that the offending weapon was not brought into the prison. It did not therefore escape detection in the screening of those entering the prison. Also, the weapon was made from apparently innocuous items readily available in prison, namely a metal leg from a chair and batteries. There was no evidence to suggest that these items were not available in the unit containing A Wing. Thus, it cannot be stated that the weapon should have been discovered in the course of one of the other search procedures in the prison, for example those conducted on prisoners moving to and from the workshop etc. There is no evidence to suggest that the weapon was made a long time before the assault such that it should have been discovered on the daily search of the prison cells. There was no suggestion that it could not have been assembled in minutes and taken into the yard, secreted beneath clothing to be immediately used to assault the plaintiff. Thus, the existence of the weapon does not necessarily connote negligence on the part of the relevant defendants. Accordingly, this aspect of the plaintiff’s claim must also fail.”

52. Counsel for the plaintiff then raised some ancillary points and he remarked there was no evidence that the assailant had been punished at the time that a shiv was discovered in his cell. He referred to the category 11 documents sought at page five of discovery.

He said that there was a historic discovery of a shiv in his cell with one search and nothing thereafter. It was submitted that there should have been at least one further search and yet nothing had been done. There had been no regular searches and ACO Woods’ assumption is that there were further searches, but this was not in fact the case.

It was submitted that this is very important in terms of distinguishing the case from Creighton. Observations from Binchy that prisons are a dangerous place notwithstanding which there is a potential for liability in specific circumstances. With regard to the form for PIAB, this was a standard injuries board application, and you don't have to be legally represented when engaging in this mandatory process. That form really comprised a brief description of what happened in the case. The facts as alleged are set out in the pleadings, counsel submitted that he already directed the Court to the replies to particulars and indeed to the body of the summons. The point regarding notice was a fundamental part of the pleadings process and replies to further and better particulars form part of the pleadings. It was submitted that the case had been properly pleaded.

53. With regard to the Section 35 point raised by counsel for the defendant, it was submitted that for the purpose of determining contributory negligence something had to be pleaded in the defence and was actually not pleaded in the defence in this case.

There's a usual template that the defendants have not included in their defence documentation for the purpose of seeking contributory negligence under this part of the Civil Liability Act. It was submitted that the defendants are vicariously liable for the assault. It was submitted that this liability arises on account of the issues surrounding searches and also on account of the failure to act on foot of the report made by the plaintiff.

54. By way of response counsel for the defence say that the Civil Liability Act doesn't require to be raised in the pleadings as it operates as a matter of law. Paragraph 4 provides that: “Where a plaintiff is held to be responsible for the acts of another under this section and his damages are accordingly reduced under subsection (1) of Section 34, the defendant shall not be entitled to contribution under Section 21 from the person for whose acts the plaintiff is responsible.

55. It is submitted that if you let the concurrent wrongdoer get away then that converts to a fact and as such it is not something that needs to be pleaded by the defendant in the instant case.

Decision:

56. Having heard the evidence of the plaintiff and of ACO Pauric Woods (as he then was), and having considered the submissions made by counsel on behalf of each party and the case law which is set out earlier in this judgment with particular reference to the

decision in Muldoon v Ireland [1988] ILRM 367 High Court (Hamilton P) 27 May 1987 (extempore) where he held: “(1) The prison authorities are required to take all reasonable steps and reasonable care not to expose any of the 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. (2) The prison authorities had not been negligent in relation to supervision, since the attack in this instance was unprovoked and took place without warning, and even if there had been more prison officers in the yard at the time, the incident could not have been prevented. (3) The authorities could not be expected to take more steps than they already took in relation to searches for offensive weapons, and in view of the obligation to take reasonable care it would not be open to a jury to find them negligent.”

57. While the plaintiff’s evidence was compelling in a number of respects, on two occasions in his direct evidence he made the assertion that this incident occurred during his first stay in prison. He went on to say that this was one of the reasons surrounding his lack of knowledge around prison procedures where protection was sought by an inmate.

The plaintiff had to acknowledge under cross examination that this was in fact his second stay in prison. As such, the plaintiff’s credibility is seriously damaged by these assertions which seemed compelling when made under direct examination and yet were withdrawn with relative ease by the plaintiff under cross examination. The Court is also mindful of the fact that the plaintiff was found guilty on a charge relating to fraudulent conduct. Further, there was a lack of detail in the plaintiff’s description surrounding the manner in which he says he was informed by another inmate of a potential threat against him. As such, the Court does not accept the plaintiff’s evidence that he gave advance notice to ACO Woods that an attack was threatened.

58. The Court is satisfied based on the evidence given by ACO Pauric Woods that had he been informed of any imminent threat to the plaintiff, he would have taken appropriate steps for the purpose of ensuring that the plaintiff was placed in protective custody or some such similar arrangement, such as returning the plaintiff to his cell, while he carried out the relevant investigation into the alleged threat.

59. In the instant case the attack was unprovoked and took place without warning, given this Court’s findings on the facts. It was also probable given the speed with which the attack occurred that even if there were more prison officers in the area at the time, that the incident could not have been prevented.

60. With regard to the plaintiff’s claim that there was negligence on the part of the defendant in not carrying out more searches having previously discovered a shiv in the cell of the assailant five months prior to the incident. The Court is satisfied with the evidence provided on the part of the defendant that appropriate steps were taken for the purpose of carrying out searches given the balancing exercise which needs to be carried out and further, even if another search had been carried out in the intervening period same was unlikely to have the consequence of preventing manufacture of a shiv, which by its very nature could have been made on the morning of the incident. As such, the

Court is not satisfied that there is a causal link between the lack of searches in this instance and the manufacture of a shiv weapon which caused harm to the plaintiff.

61. In light of the above, the Court dismisses the claim brought by the plaintiff.

Appearances Ben Clarke BL for the plaintiff instructed by McHale Muldoon Solicitors David Boughton BL for the defendants instructed by GoodMurraySmith Solicitors