Breen v Governor of Wheatfield Prison and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Gilligan
• Judgment Date: 11 April 2008
• Neutral Citation: [2008] IEHC 123
• Docket Number: No. 17694 P/2001
• Court: High Court
• Date: 11 April 2008

[2008] IEHC 123

THE HIGH COURT

No. 17694 P/2001

Breen v Governor of Wheatfield Prison & Ors

BETWEEN

GARY BREEN

PLAINTIFF

AND

THE GOVERNOR OF WHEATFIELD PRISON, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

RSC O.39 r46(1)(ii)

MULDOON v IRELAND 1988 ILRM 367

PRISONS

Assault

Duty of care - Allegation that prison authorities knew plaintiff about to be assaulted - Conflict and contradiction in plaintiff's evidence - Whether prison authorities negligent and in breach of duty in failing to prevent attack on plaintiff - Whether adequate steps taken to prevent assault - Whether court satisfied on balance of probabilities that events described by plaintiff correct - Muldoon v Ireland [1988] ILRM 367 considered - Claim dismissed (2001/17694P - Gilligan J - 11/4/2008) [2008] IEHC 123

Breen v Governor of Wheatfield Prison

Facts: The plaintiff sought damages from the defendant for personal injuries sustained by him as a result of an assault by a fellow inmate, Mr. Daly, whereby Mr. Daly poured a bucket of boiling water over the plaintiff. The plaintiff claimed that the prison authorities allowed Mr. Daly to carry out the attack, or were in breach of duty and negligent in allowing Mr. Daly carry out the attack or failed to take any adequate steps to prevent the attack. The plaintiff was serving a sentence for an assault perpetrated upon Mr. Daly’s cousin. The plaintiff gave evidence that he had complained to the prison authorities that he was in fear for his safety by reason of a perceived attack upon him by Mr. Daly. The plaintiff gave evidence that he made complaints regarding his treatment by certain prison officers and complained to Governor Riordan a few months prior to the attack. The plaintiff alleged he was set up by the prison officers. A number of prison officers gave evidence and denied that complaints were made by the plaintiff. They also gave evidence that prisoners were permitted to obtain boiling water in order to clean their cells and there was no procedure in place at the time in respect of boiling water.

Held by Gilligan J. in dismissing the claim: That there was a contradiction in the plaintiff’s own evidence. There was no record of the plaintiff having made any complaint and in particular no record of the plaintiff having visited Governor Riordan a few months prior to the incident complained of. The evidence in this case did not support the plaintiff’s allegation that he was set up by the prison authorities. Having regard to all the circumstances, the prison authorities were not negligent or in breach of duty in failing to prevent the attack on the plaintiff.

Reporter: L.O’S.

Mr. Justice Gilligan

1 The background circumstances to this case are that the plaintiff who was born on the 19^th day of May, 1977, and is unemployed, was lawfully incarcerated at Wheatfield Place of Detention, when on the 16^th day of January, 1999, at approximately 6.30p.m. in the recreation area of landing 4G a fellow inmate poured a bucket of boiling water over him causing him very significant personal injuries involving burns to almost his entire back, neck, left hand, upper anterior chest and neck which injuries required extensive hospitalisation and treatment and resulted in the plaintiff suffering very severe and extensive scarring to his back and upper body and psychological injury. The case brought by the plaintiff against the defendants' is clearly set out in the pleadings to the effect that Mr. Daly, the fellow inmate who poured the bucket of boiling water over the plaintiff, was in effect allowed to do so by the prison authorities or that alternatively the prison authorities were negligent and in breach of duty in allowing Mr. Daly attack the plaintiff. In particular it is alleged that knowing that the plaintiff was about to be assaulted the prison authorities did not take any or any adequate steps to prevent the assault.

2 The background scenario appears to be that on a previous occasion on a Dart train travelling in the South of the City of Dublin, the plaintiff using a Stanley knife cut the throat of Mr. Daly's cousin who was a student at the time. Charges had been brought against the plaintiff but had at an earlier Court sitting been struck out and that was the situation that prevailed on the 16^th of January, 1999, when this assault took place. Subsequently the charges were re-entered in relation to the incident on the Dart train and the plaintiff pleaded guilty and was sentenced to a term of eight years imprisonment.

3 It is of some significance that prior to the incident in January, 1999, the plaintiff had spent a very significant period of time of the previous eleven years in and out of prison for various offences. I am satisfied that at the time of this incident he was well acquainted with prison life and the rules and regulations pertaining to same.

4 The plaintiff appears to have come into contact with Mr. Daly in Wheatfield a few months prior to January, 1999, and the plaintiff alleges that Mr. Daly indicated to him that his uncles would take care of the plaintiff when he was released from prison at the expiry of the sentence which he was then serving. The plaintiff also refers to altercations with Mr. Daly and has given evidence that he was in fear for his own safety by reason of a perceived attack by Mr. Daly upon him. The plaintiff has given evidence that he was advised by a fellow prisoner whose name he did not know, but who was from Kerry that Mr. Daly was going to get him with a home made weapon. The plaintiff has given evidence that he made complaints to Governor Riordan, Governor Treacy, Officer Carroll in the workshop, Officer Baker and Officer Dowd that he was in fear for his safety by reason of a perceived attack upon him by Mr. Daly.

5 The plaintiff alleges that there was particularly bad feeling between himself and Officer Dowd, that they were continually using abusive and foul language to one another and that the plaintiff had made a complaint to the Governor as regards post not being delivered to prisoners by Officer Dowd and that as a result of having been threatened by Officer Dowd the plaintiff withdrew his complaint. Further the plaintiff alleges there was an incident in his cell involving Officer Dowd when he removed a number of pictures of the plaintiff's children from the wall of the cell and this led to an altercation whereby the plaintiff says he grabbed Officer Dowd and threatened to cut his throat. In general the plaintiff says that relations between himself and Officer Dowd were particularly bad.

6 The plaintiff makes a specific allegation that a few months prior to the incident occurring he attended with Governor Riordan and told him he was in fear for his personal safety from Mr. Daly. He says that there was a disagreement between the two of them and Governor Riordan punished the plaintiff with two days lock up.

7 In general terms the plaintiff has given evidence that he made complaints as regards his personal safety and a likely attack by Mr. Daly upon him to Governor Riordan, Governor Treacy, Officer Carroll who was in charge of the work shop, Officer Dowd and Officer Baker and that generally all these officers were aware that he was in fear of his personal safety.

8 On the morning of the incident itself, the plaintiff at his own request met with the Visiting Committee. His complaints were that his landing was being run unfairly and that he was not getting the prescribed number of phone calls. He also complained that staff had assaulted prisoners on his unit, and he said he was anxious to be transferred to another landing. The plaintiff made no complaint, either specifically or even in very general terms of being in any way in fear for his personal safety by reason of a perceived attack. His explanation in this regard, in the context of a meeting with the Visiting Committee, is that he would have been perceived as a rat within the prison system had he made such a complaint.

9 The plaintiff's request for a transfer was in fact dealt with within a few hours of his meeting with the Visiting Committee, but on the plaintiff's evidence he did not get the transfer to his requested landing. He was anxious to go to 1F and the reason he says he gave in this regard was because prisoners who worked in the kitchens were mostly housed on landing 1F. In fact the transfer the plaintiff got was to 4G and was an area where he was likely to come into contact with Mr. Daly.

10 The plaintiff says that he complained in this regard to both Officer Dowd, who was the person to bring him across from his previous landing to area 4G and Officer Baker who was in charge of landing 4G at the time of the plaintiff's arrival, sometime around 2.00p.m. on the afternoon of the incident and Officer Baker was in the plaintiff's company through until his tour of duty ended at approximately 5.00p.m.. The plaintiff has given evidence that Officer Dowd told him on his transfer across to landing 4G "to watch his back because he was in for a big surprise".

11 Furthermore, the plaintiff has given evidence that on arrival on landing 4G and being allocated a vacant cell he had a conversation with Officer Baker in which he detailed to him his fear of being on landing 4G because he would come into contact with Mr. Daly. The plaintiff says that he stayed in his cell on his new landing for the afternoon and was in fear because he realised that he was going to come in direct contact with Mr. Daly, who had access to the same recreational area, but that at around 6.00p.m. he decided to go to the recreational area and take his chances.

12 The general layout of the recreational area 4G is that when one enters there is a control room immediately on the left and further down the recreational area to the left there is a pool room....