Claim dismissed for lack of causal link between pool dispute and assault and excessive search requirements infringing prisoner dignity.

Neutral Citation Number [2009] IEHC 466

THE HIGH COURT

2005 4041 P

BETWEEN

JOSEPH CASEY

PLAINTIFF

AND

THE GOVERNOR OF MIDLANDS PRISON AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

JUDGMENT of Ms. Justice Mary Irvine delivered on the 27th day of October, 2009

1. The plaintiff is a carpenter, by trade, who was born on 23rd May, 1974. He brings this claim seeking damages for

negligence against the defendants arising from an assault which he sustained whilst a prisoner at the Midlands Prison,

Portlaoise on 21st January, 2005. At that time, the plaintiff was serving a four month sentence for assault.

The facts

2. In the early afternoon on 21st January, 2005, the plaintiff participated in the second recreation period of the day at

the Midlands Prison. He went to the area in which the prisoners played pool. He was playing pool with a fellow prisoner

when another inmate announced that it was his turn next. In response to this intervention, Mr. Egan, a fellow prisoner of

plaintiff, asserted that it was he who was next play at the table and plaintiff was asked to confirm that this was so. The

plaintiff refused to confirm Mr. Egan’s statement indicating that he was only concerned with his own game. Mr. Casey was

not impressed that the plaintiff did not support his account of events and he told Mr. Egan not to be smart or he would

“break his face”.

3. There is a dispute as to what occurred next. The plaintiff alleged that Mr. Egan, following his outburst, broke a cue by

slamming it on the pool table before storming off. These facts were disputed by the defendants who were only made

aware of this detail when the case opened. The breaking of the cue had not been referred to in the pleadings. Neither

had this event been made known to Mr. Tasker, the plaintiff’s expert witness, when he was instructed in the matter.

4. As far as the plaintiff was concerned, he did not expect any repercussions to arise as a result of what had happened

at the pool table. He believed the incident was over. He had not previously known Mr. Egan. Later that evening, the

plaintiff participated in the third recreation period of the day. He chose, along with approximately ten or twelve of his

fellow prisoners, to go to the recreation yard attached to B wing. The rest of the prisoners went to the indoor recreation

area or remained in their cells.

5. The yard in which the plaintiff was assaulted is attached to B wing and is within its secure perimeter. The yard is solely

for the use of prisoners from that wing. Each wing in the prison has its own exercise yard. Access to the yard from the

cells involves prisoners going from various landings through a number of gates, two of which are manned. Prisoners are

not searched before entering the yard.

6. The plaintiff was in the yard for some minutes, talking to one of his friends when suddenly and without any warning he

was set upon by a number of other prisoners. One of those prisoners was subsequently identified as the Mr. Egan with

whom he had had the verbal exchange earlier in the afternoon. Mr. Egan hit the plaintiff over the head several times with

what the court was told was the standard white delft cup issued to all prisoners. The plaintiff sustained several

lacerations to his head and numerous kicks and blows to other parts of his body. The plaintiff managed to escape his

attackers by running to the gate of the yard which was manned by two prisoner officers. They called for reinforcements.

The plaintiff was not permitted to leave the yard until assistance arrived. It is accepted that the plaintiff was not at any

risk of assault during the short period it took for help to arrive but the plaintiff was distressed by the fact that he was not

allowed out of the yard with immediate effect. The plaintiff accepted that the assault was over before anyone realistically

could have been expected to intervene to help him.

7. Following the assault the plaintiff was seriously shocked and upset. He was taken to the Accident and Emergency

Department of the Midlands Regional Hospital bleeding from several lacerations. X-rays to the skull and chest were carried

out. The multiple lacerations to the plaintiff’s forehead and head were stitched with nylon sutures. Approximately 20

sutures were inserted in the plaintiff’s head and these were removed some five days later. The plaintiff complained of

tenderness in his abdomen and shoulder and he was found to have blood in his urine. Fortunately no adverse sequelae

resulted from the soft tissue injuries. The plaintiff, however, has been left with scaring to his forehead and head. He

experiences feelings of numbness and discomfort when showering or combing his hair. This is due to damage to the

underlying nerve endings.

Prison regime

8. Mr. Kennedy, Assistant Governor of the Midlands Prison, was called as a witness on behalf of the plaintiff. This

undoubtedly occurred due to the fact that the plaintiff wished to prove the content of certain documentation pertaining

not only to the assault, the subject matter of the present proceedings but also documentation pertaining to the plaintiff’s

assailant, Mr. Egan. This being the case, the evidence adduced by Mr. Kennedy must, of course, be considered as part of

the evidence adduced by the plaintiff.

9. Mr. Kennedy had extensive knowledge of the Irish prison system having also worked in Mountjoy, Wheatfield, Limerick,

Cork and Fort Mitchell Prisons. He gave the court substantial detail regarding the operation of the Midlands Prison and its

security system. He also, where appropriate, referred to the security regimes in other prisons with which he was familiar in

Ireland.

10. According to Mr. Kennedy, prisoners when admitted to the Midlands Prison are thoroughly searched for any potential

weapons. Thereafter, they are only searched if going outside the security perimeter of their wing. By way of example, if a

prisoner was leaving their wing to go to the workshop they were searched on their way back into the wing. Similar

searches were carried out if a prisoner attended any other facility beyond their own wing such as the medical centre.

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.

11. Mr. Kennedy told the court that all prisoners, on arrival, were given their own delft mug and plate which thereafter

they kept in their cell. They were issued also with heavy duty plastic cutlery and were supplied with a kettle and

television for their cell. Prisoners were advised of the rules which prohibited delft being taken outside their cell other than

for the purpose of collecting food which was served in another area of the prison. Food was taken back to the cell and

eaten there during a period when the prisoners were locked up. Several cells had single occupancy whilst others cells

were occupied by two or four prisoners. Giving prisoners a delft mug and plate was an effort on the part of the

defendants to humanise the environment in which the prisoners were living. There had never been an incident, according

to Mr. Kennedy, where delft had been used as a weapon against another prisoner.

Relevant case law: the duty of care

12. The parties to this action relied upon a number of decision 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 [1998] 2 I.R. 81)

Liability

13. Apart from the evidence of Mr. Kennedy, the plaintiff’s liability case was made through the evidence of Mr. Ronald

Tasker. Mr. Tasker has had over 40 years experience in the United Kingdom Prison Service. He has been the Governor of

five different prisons, all of which he stated were maximum security prisons. These prisons, whilst designed to deal with

high security prisoners were often not full. Hence, ordinary prisoners were often sent there. He agreed that the ordinary

prisoners were subjected to the standard regime in such prisons which was somewhat harsher than in non-high security

prisons. However, he stated that the incidents of assault that occurred in high security prisons were, in his opinion, no

more frequent nor severe than those which occurred in ordinary prisons.

14. Mr. Tasker was also familiar with a significant number of non-high security prisons in the United Kingdom and other

parts of the world. Since 2004, he has worked as a consultant in the custodial field in England, Wales, Scotland and

Northern Ireland, where has been involved in investigating the circumstances in which a number of prisoners have died

whilst in custody. Mr. Tasker was not afforded an opportunity of inspecting the Midlands Prison and he accepted that he

had no direct experience of prisons in the Republic of Ireland. For the purposes of his evidence, he had prepared an expert

report on 22nd September, 2009.

15. The defendants, in these proceedings, did not call any evidence themselves. They relied upon the evidence that had

been given by Mr. Kennedy, Assistant Governor of the Midlands Prison, when he was called as a witness on behalf of the

plaintiff. Mr. Kennedy, as already advised, had worked not only in the Midlands Prison but also in several other prisons in

this country.

16. Whilst many potential areas of negligence were canvassed with Mr. Tasker in the course of his evidence, the plaintiff’s

claim was ultimately reduced to the two principal allegations of negligence which had been canvassed in the pleadings,

namely:-

(i) The failure on the part of the defendants to carry out a search of prisoners entering the prison yard thus

exposing prisoners to the risk of an assault from a weapon that could thereby be concealed on the person of

another prisoner. In this case, the defendant’s alleged default permitted to the delft mug to be brought into the

yard where it was used to attack the plaintiff. Had there been a search of a patting down nature, this potential

weapon would have been detected and the plaintiff’s injury avoided.

(ii) The defendants failed to act, on the day of the assault, with due regard to the known propensities of Mr. Egan.

His alleged propensity for troublesome behaviour when taken together with the incident that had occurred in the

pool room earlier in the day, warranted the authorities engaging with Mr. Egan to find out what was going on or to

at least “think about” the potential upshot of that event.

17. In relation to the first of these issues, Mr. Tasker advised the court that there should have been a search of prisoners

moving from their cells to the yard. This he described as the prisoners moving “off the wing”. They should, in his opinion,

have been subjected to a search which would have involved each prisoner being patted down to ensure that a potential

weapon such as the mug in question was not taken out into the yard. The same search was not required, according to

Mr. Tasker, if prisoners were moving from their cells to one of the indoor recreation areas. The search was required

because:-

(a) The movement to the yard was, in his opinion, a movement “off the wing”;

(b) Scores between prisoners were more likely to be settled in a prison yard than in an indoor recreation area. This

was due to the fact that prison officers were normally in much closer proximity to prisoners when they were

indoors;

(c) Prisoners going outside would often be wearing outdoor clothing making it easier to hide a potential weapon from

a visual inspection.

18. As to Mr. Taker’s evidence that prisoners should be searched before being admitted to the exercise yard, Mr. Kennedy

stated that this was not practical. They were in excess of 120 prisoners on B wing. Any number of these might decide to

go to the yard. There were three recreation periods a day. It was neither practical, necessary or humane to carry out

such a search. He gave evidence that a full body search would take about seven minutes. He further disagreed with Mr.

Tasker’s evidence that any less intense type of physical search of persons entering the yard was warranted.

19. Mr. Kennedy in his evidence stated that in the Irish Prison Service it would be considered inhumane and a hardship for

prisoners to be subjected to a search of the nature suggested by Mr. Tasker, every time they wished to go the recreation

yard. He said there was no reason to distinguish the yard from any other area where prisoners might congregate such as

the indoor recreation area. The yard was solely for the use of prisoners in B wing. It was not therefore “off the wing” as

suggested by Mr. Tasker. Prisoners from other wings did not have access to that yard. It was within the secure

environments of area B. Thus there was no justification for searching inmates going into that yard. In this regard, the

Midlands Prison he believed may have been different from some of the prisons being relied upon by Mr. Tasker where

prisoners from different wings might use the same exercise yard.

20. In relation to this issue, the court heard that only three incidents had occurred in the recreation yard attached to B

wing in the twelve months prior to this assault. Twelve assaults had taken place in the indoor recreation area over the

same period. None of the three incidents in the yard, according to Mr. Kennedy, involved the use of a weapon.

21. Finally, Mr. Kennedy in his evidence stated that the system adopted in the Midlands Prison in relation to the

movement of prisoners between their cells and in the outdoor recreation yard was similar to that used in Wheatfield

Prison, Mountjoy, Fort Mitchell, Cork and Limerick. Only if a prisoner was moving to a communal yard would prisoners be

searched.

Conclusion on the issue of the foreseeability of an assault on the plaintiff by Mr. Egan

22. 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.

23. As to the foreseeability of injury from a weapon brought into the yard, no evidence was produced to show that delft

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 twelve 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

incidents merely because of the fact that in the P.19 report dealing with the plaintiff’s assault, there was no mention of

the weapon used to inflict the plaintiff’s injuries.

24. 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 prisoners 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 United Kingdom prisons does not mean that the

system in this country is necessarily defective.

25. On the plaintiff’s evidence, I am invited to make a finding the result of which would be to condemn as dangerous,

what I understand to be the accepted norm in Irish prisons of permitting prisoners to move within the wing to their

exercise yard without a search. I am invited to conclude that every prison operating this system is failing in its obligations

to it inmates and that it should now alter its practices to coincide with the model proposed by Mr. Tasker. This, I cannot

accept on the basis of the plaintiff’s evidence. I am satisfied that having regard to the infrequent incidents of assaults in

the Midlands Prison in its yard, it would be wholly disproportionate and contrary to the humanitarian interests of the vast

majority of its prisoners to require the authorities to search every prisoner who wished 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.

Conclusion on the issue of the defendants alleged negligence for failing to search all prisoners accessing the

recreation yard

26. In relation to the second allegation of negligence, I firstly find as a fact that the incident in the pool room did not

occur in the manner alleged by the plaintiff. I do not accept his evidence that, following the exchange of words between

himself and Mr. Egan, that Mr. Egan proceeded to break a cue by slamming it on the pool table. The fact that this aspect

of the plaintiff’s account of events was not directly challenged by counsel for the defendant is not fatal to the right of

this Court to reject the plaintiff’s evidence on the issue. In reaching my conclusion that Mr. Egan did not break a cue on

the pool table, I have relied on the following matters:-

(i) The fact that his allegation was first mentioned by counsel for the plaintiff in the opening of the case.

(ii) That the allegation of the breaking of a snooker cue on the pool table was not referred to in any of the

pleadings and neither were details of this event furnished to Mr. Tasker when he was first asked to report upon the

circumstances that led to the plaintiff’s injuries.

(iii) If the incident had occurred, the same would, as a matter of probability, have resulted in a paper trail being

created within the prison. The incident would have generated:-

(a) a P.19 investigation record;

(b) a record of the plaintiff’s liability to pay the prison authorities for the replacement of the cue.

No such documentation exists.

(iv) The P.19 disciplinary documentation generated in respect of Mr. Egan’s assault upon the plaintiff, whilst

referring to the verbal exchange in the snooker room, makes no mention of any pool cue being broken.

(v) Mr. Kennedy’s evidence that it was unlikely that a prisoner would damage a pool cue as there was peer pressure

from their fellow inmates not to damage equipment used by them for their leisure activities.

27. I reject any adverse inferences that I have been asked to draw from the fact that the defendants did not seek to

investigate or call evidence from the security officers who were on duty at the pool hall on the afternoon of 21st January,

2005. I can readily understand why no such investigations or evidence was available having regard to the fact that the

defendants were made aware of the allegation that a pool cue was broken for the first time on the opening of the case.

28. The second finding of fact that I make in relation to this aspect of the case is that I am 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 P.19 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 the 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 vicious assaults on fellow inmates.

29. Even if I was satisfied, which I am not, that Mr. Egan broke the cue on the pool table as alleged by the plaintiff or

that he had a propensity towards disagreeable behaviour, the height of Mr. Tasker’s evidence was that the defendants

were mandated to make inquiries of Mr. Egan as to why he had engaged in that behaviour. Mr. Tasker did not state that

Mr. Egan’s behaviour in such circumstances would have justified denying him access to the recreation yard that evening.

Mr. Tasker stated that the onus on the defendants was to make inquiries of Mr. Egan so as to satisfy themselves that he

had not any malevolent intentions as a result of the dispute with the plaintiff.

30. I am satisfied, on the balance of probabilities, that had Mr. Egan been approached by the defendants regarding the

alleged incident that Mr. Egan would not have advised the prison authorities of his intention to assault the plaintiff. It is

highly likely that he would have stated that the incident was over. Indeed, the plaintiff in his own evidence stated that as

far as he was concerned the incident in the pool room was over and he did not anticipate any adverse consequences

arising therefrom. Accordingly, I conclude that even if the events occurred as the plaintiff contends in the pool room and

even if they had been investigated by the defendants that the same would not have precluded Mr. Egan attending the

recreation yard later that evening where he assaulted the plaintiff. Accordingly, there is no causal nexus between any

alleged negligence relating to the incident in the pool room and the events that occurred later in the day.

Conclusion

31. The assault the subject matter of this claim was not foreseeable. It is not reasonable to contend that it should have

been foreseen by the prison authorities as a result of what had happened earlier that afternoon between the plaintiff and

Mr. Egan. Neither can I conclude that the authorities, because of Mr. Egan’s past record, should have anticipated such an

assault. He had been in no trouble for the previous three weeks and had no record of violence in prison save for two

incidents of fighting which, on Mr. Kennedy’s evidence, were of no particular significance. No implements or weapons had

been used in the course of such fighting. The plaintiff himself thought the incident in the pool room was over, the parties

to the dispute had no prior history of conflict and Mr. Egan was not even known to the plaintiff.

32. Even if I were to accept, which I do not, that a pool cue was broken in the course of the verbal exchange in the pool

room, Mr. Tasker’s evidence to the effect that intervention of some nature was warranted did not go so far as to suggest

that the likely consequence of such intervention would, as a matter of probability, have precluded Mr. Egan from

attending in the recreation yard that evening. Accordingly, no nexus has been established between any negligence arising

out of the incident in the indoor recreation area and the assault which actually occurred.

33. In respect of the alleged negligence on the part of the defendants for their failure to search all prisoners moving from

their cells to the recreation yard, I have assessed the plaintiff’s evidence against the legal principles referred to earlier in

this judgment. Having done so I am satisfied that the system contended for by the plaintiff is not warranted having regard

to the anticipated risk of injury from implements such as a prisoner’s mug which might otherwise be detected if all

prisoners were to be searched every time they sought entry to the recreation yard. The system currently operated by the

defendants is the standard practice adopted in all non-high security units in this country. The evidence in relation to the

Midlands Prison was that there were only three incidents of violence in the prison yard in the twelve months prior to the

assault upon the plaintiff and none of these involved a weapon. The system which the plaintiff contends is mandated,

even if implemented, would not in any event prevent small and dangerous items being secreted into the yard by prisoners

determined to injure a fellow inmate. Further, an injury from an implement such as a delft mug could occur in a prison cell

or in an indoor recreation area even if a system of searching prisoners on entry into the yard was in place.

34. 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 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 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 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.

35. For all of these reasons the plaintiff’s claim must fail.