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1. The Plaintiff in this case is thirty-one years of age. He is a single man but has been in a permanent relationship for some years and, as a result, is the father of one child.

2. At approximately 1 o'clock in the afternoon on the 1st February, 1995, the Plaintiff was admitted to Mountjoy Prison as a remand prisoner, and some hours later, was subjected to a sudden and unprovoked assault by a fellow prisoner named Jason Flynn. He said the incident occurred in the recreational hall of the prison during a recreation period; the nature of the assault on the Plaintiff being that he was attacked from the rear by Mr. Flynn, who threw a bucket of scalding water over his left shoulder and back as a result of which the Plaintiff suffered burns to approximately ten per cent of his body surface. It was not contested by the Defence that such an incident occurred and I have no doubt but that it was an extremely painful experience for the Plaintiff although, fortunately, he seems to have made a very good recovery from the injuries which he suffered and, apart from some residual discoloration of his left upper arm and back and some residual stiffness of his left shoulder in cold weather, he is unlikely to experience any long term problems as a result of them. Accordingly, the principal question that falls for me to consider is whether or not the prison authorities have any liability in damages to the Plaintiff as a result of the said occurrence.

3. The Plaintiff's complaint against the prison authorities is based on two 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 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 that 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 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 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 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 October, 1994 to be released from protective custody because, at that time, he (Assistant Governor Duffy) believed that the Plaintiff would be in danger were he released from 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 that 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 December, 1994 and that, between the date of his release from protective custody on the 16th November, 1994 and his ultimate discharge from prison both he and Michael Cahill were prisoners in Mountjoy Prison and no harm befell the Plaintiff during that period. Assistant Governor Duffy also gave evidence that, had he been requested by the Plaintiff to be placed in the protective custody, he would have immediately acceded to that request because there would have been no benefit to him, or to the prison authorities, were he to refuse to do so. On the contrary, he said that he would be inviting trouble for himself were he to refuse the request of any prisoner to be placed in protective custody if that prisoner was subsequently assaulted by another prisoner. As between the Plaintiff and Assistant Governor Duffy, I prefer the evidence of the Prison Officer. I do not believe that the Plaintiff requested that he be placed in protective custody shortly after his admission to Mountjoy Prison on the 1st February, 1995; not only because I prefer the evidence of Assistant Governor Duffy in that regard but also because I think that it would have been illogical for Assistant Governor Duffy to have refused that request, had it been made of him. Accordingly, in so far as the Plaintiff's claim herein is based on the assertion that he was refused a request to be placed in protective custody, it is my judgment that it fails.

4. The second leg of the Plaintiff's claim is that, because Jason Flynn had a known history of violent behaviour it was incumbent upon the prison authorities to segregate him from other prisoners and prevent him from having access to buckets of hot water. In this connection, there was evidence that, while he was a prisoner in St. Patrick's Institution between the months of October 1988 and March of 1989, Jason Flynn, who was then sixteen years of age had been a party to a number of incidents involving violence. In particular, he had been caught fighting on a couple of occasions and of damaging prison property but, more significantly, it was submitted, on the 8th January, 1989 he had assaulted another prisoner with boiling water. Furthermore, there was evidence that, during a term of imprisonment in Mountjoy Prison and, in particular, on the 21st September, 1994, Jason Flynn was caught fighting with other prisoners as a result of which one of them received injuries which necessitated stitches. There was also evidence that, on the 6th November, 1994, Jason Flynn threatened a Prison Officer and on the 10th January, 1995, he threw a dinner plate at another prisoner. In the light of that history, it was submitted on behalf of the Plaintiff that the prison authorities should have recognised that Jason Flynn was a person with violent propensities, and therefore, a likely source of danger for other prisoners; some much so that, in the interests of the safety of other prisoners, it was incumbent upon the prison authorities to segregate him from those prisoners and, in particular, to deny him access to buckets of hot water. In this regard, while there is no doubt but that prison authorities have a duty to take reasonable care not to expose a prisoner in their care to risk of injury, the law does not expect a prison authority to guarantee that a prisoner will not suffer injury from the action of another prisoner during a term of imprisonment C/F Muldoon -v- Ireland 1988 ILRM at page 367, and as Mr. Justice Johnson indicated in the course of an unreported judgment delivered on the 18th May, 1995 in a case of Bates -v- Ireland , 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 sixteen years of age and, up to the time of the incident of which complaint is made in these proceedings; a period of six years, he was not involved in any similar occurrence. Admittedly, he had a history of fighting other prisoners and of damaging prison property but none of those incidents warranted more by way of punishment than either a warning as to his future behaviour, or his having to forfeit a few days recreation. That history does not suggest to me that Jason Flynn was so dangerous that, in the interests of the safety of other prisoners in their custody, the prison authorities should have recognised a need to segregate him from those other prisoners. In this connection, as I understand the position, segregation in that context is tantamount to solitary confinement and given that, at the material time, Jason Flynn was serving a ten year sentence, it seems to me that it would have been an entirely excessive precaution were he to be segregated from other prisoners on account of his past history. Neither do I think that, because, six years previously, when he was only sixteen years of age, Jason Flynn had attacked another prisoner with boiling water, it was incumbent on the prison authorities to deny him access to hot water which, of course, he would require for the purpose of washing himself and, perhaps, for making himself a cup of tea, which, apparently, is a facility which is available to all prisoners. To punish an adult prisoner in that way for an offence which he had committed when only a boy would, in my view, be grossly excessive.

5. In all the foregoing circumstances, I am not satisfied that the incident of which complaint is made in these proceedings was attributable to any want of reasonable care on the part of the prison authorities for the safety of the Plaintiff while he was in their custody and, while I have considerable sympathy for the Plaintiff on account of the painful injuries which he suffered through no fault of his own, I must dismiss this claim.