Barry McLoughlin v Martin Carr, trading as Harloes Bar

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 04 November 2005
• Neutral Citation: [2005] IEHC 358
• Court: High Court
• Docket Number: [2002 No. 13260P]
• Date: 04 November 2005

MCLOUGHLIN v CARR T/A HARLOES BAR

BETWEEN:

Barry McLoughlin

Plaintiff

And

Martin Carr, trading as Harloes Bar

Defendant

[2005] IEHC 358

No: 13260P/2002

THE HIGH COURT

NEGLIGENCE

Employer's liability

Breach of statutory duty - Whether causal link between breach of duty and injuries - Whether reasonably foreseeable - Walsh v Kilkenny County Council [1978] ILRM 1 considered; Bradley v CIÉ [1976] IR 217 and Christie v Odeon (1957) 91 ILTR 25 followed - Safety, Health and Welfare at Work Act 1989 (No 7), s 6 - Plaintiff's claim dismissed (13260P/2002 - Peart - 4/11/2005)

MCLOUGHLIN v CARR T/A HARLOES BAR

Facts: The plaintiff, who worked as a barman, claimed damages for negligence and breach of statutory duty against his employer arising out a violent armed robbery in the bar.

Held by Peart J. in dismissing the plaintiff's claim that the plaintiff as an employee had rights to sue his employer for a breach of statutory duty created by the Safety, Health and Welfare at Work Act 1989. However, the plaintiff could not recover on the basis of breach of statutory duty. The plaintiff had failed to establish that any act or omission on the part of the defendant was the cause of his undoubted injury.

Reporter: R.W.

WALSH v KILKENNY CO COUNCIL 1978 ILRM 1

SAFETY HEALTH & WELFARE AT WORK ACT 1989 S48

SAFETY HEALTH & WELFARE AT WORK ACT 1989 S6(1)

SAFETY HEALTH & WELFARE AT WORK ACT 1989 S6

SAFETY HEALTH & WELFARE AT WORK ACT 1989 S9

MCMAHON & BINCHY IRISH LAW OF TORTS 3ED 61

BRADLEY v CIE 1976 IR 217

CHRISTIE v ODEON LTD 91 ILTR 25

1 Mr Justice Michael Peart delivered on the 4th day of November 2005:

2 On the 2nd April 2001 the plaintiff, then a young man of 19 years of age, was working as a barman in a pub owned by the defendant, and which is situated in Maugheraboy, a residential area about one mile outside Sligo Town. This was his first job as a barman and he had been working there since December 2000.

3 He described his job as part-time, although he was doing full-time hours. The significance of this is simply that he was paid a part-time wage, rather than the wage a full--time worker would get for the same hours of work.

4 According to the plaintiff's evidence he was at work in these premises on the evening of the 1st April 2001 and into the early morning of the 2nd April 2001, along with others. It appears that after closing time, which may have been 11pm or 11.30pm, one of his colleagues, Yvonne Gorman, took a phone call in the bar after closing time while they were clearing up. This may have been sometime between 12 midnight and 1am. She told the plaintiff that a person had told her that he was a friend of the owner, the defendant and that he was tipping her off that the Gardai were going to visit the premises that night, so that she could make sure that there were no persons on the premises at a time when persons were not permitted to be on a licensed premises. At the time this call was taken, it appears that there were indeed persons on the premises finishing their drinks, and that after the call was received these persons were informed of the impending arrival of the Gardai, and eventually they all left the premises.

5 The staff set about their normal cleaning up operations once the last of the patrons had left. The plaintiff himself was doing this work in the snug area of the premises when he heard a knock at the door. This is a timber framed door with nine small glass panels in the upper half of the door. One can see out through these panes of glass, provided one pulls aside a roller blind which was down at that time of the night. The plaintiff went to the door, took a look out and saw a man in a Garda pullover and Garda cap. He was told to open the door, and he complied with this request and immediately he did so, the man outside pulled a mask down over his face and entered the premises, whereupon a shotgun was placed against the plaintiff's neck. He was then pushed backwards and told not to do anything stupid. He was also told to put his hands up and to tell his two workmates not to do anything stupid. There were two other men who were with the man holding the shotgun and they entered behind him. They also had masks over their faces. They were all told to lie down on the floor, and they did exactly what they were told to do.

6 These raiders demanded to know where the safe was kept and they were told that it was in a store area at the back of the premises, and the plaintiff told them where the key to the store was located. The plaintiff and his two colleagues were lying on the floor at this point and were terrified. Yvonne Gorman had the added difficulty that she suffers from asthma, and the fear and stress she was going through was causing her to become very distressed and to have difficulty controlling her breathing. The plaintiff was trying as far as he could to encourage her to try and be calm in order to ease her breathing.

7 The raiders were conducting themselves in a very menacing and threatening way. They demanded to know where the safe was, as I have said. They also wanted to know on what day the slot machines in the premises were emptied of money. This information was given. The plaintiff described these men as manic and said they were smashing the place up. He said also that their hands were tied behind their backs with plastic ties as they lay on the floor. After they had been lying face down on the floor for some time, the raiders told them all to get up. This was done with some difficulty, and all three were then brought to a very small storeroom and they were locked into that small room without light. There was insufficient room in that space for all three to stand or sit in any comfort. The plaintiff was very terrified by all of this, but he was also very concerned about Yvonne Gorman on account of her asthma attack and the effect that the stress of the ordeal was having on her. Once all three were huddled together in that small room the door was locked and they were in complete darkness. There was a lot of noise outside the door. The plaintiff seemed to think that the raiders were throwing things against the door of the storeroom where they were, and the door was also being kicked û all of this creating a great deal of noise. Eventually all went quiet. The three colleagues were in a terrified state by this time, and the plaintiff stated in evidence that he could not describe the fear that he felt at this point, yet at the same time he was relieved that all was quiet.

8 After about ten to fifteen minutes they managed to extricate themselves from the plastic ties by melting them with the aid of some cigarette lighters which happened to be stored in the small room where they were. He burned his hand a bit during this procedure. They all fortified themselves somewhat with some drinks of Pernod which was also located in the storeroom, and eventually the plaintiff managed to kick a hole in the partitioning which divided this small room from the main premises. They got out and the plaintiff immediately pressed a "panic button" whi9ch was located beside a small bank of light switches at the bar counter, and he also telephoned the Gardai. The panic button when pressed set off an alarm in the premises itself, as well as, presumably, sounding an alert either in the Garda Station itself or an alarm monitoring company. In due course the Gardai arrived and the three employees made statements.

9 The plaintiff described two of these raiders as having "deep Dublin accents", but that the third man did not speak during the raid.

10 It is against this background that the plaintiff seeks damages for negligence and breach of statutory duty against his employer, the owner of this licensed premises. There are a great many allegations of negligence contained in the Statement of Claim, as is to be expected, but in essence, John Finlay SC has refined all these heads of negligence down to the following:

11 1. failing to provide the plaintiff with any training, or any adequate training in relation to security matters, such as how to use the panic button, or how to deal with situations where persons may call to the premises after closing time and seek entry to buy goods, such as by switching on the outside lights when callers arrived at the door after hours in order to assist in establishing the identity of such persons.

12 In this regard there was evidence that it was not uncommon for persons to knock at the door after hours in order to try and buy cigarettes or some take-out order. The outside lights were turned off after closing time in order to deter persons from trying to gain entry.

13 The plaintiff stated that their normal practice was to allow into the premises for these purposes anyone who they recognised as being local, and he would check with the senior person on the premises whether it was in order to sell whatever had been asked for by the entrant.

14 The plaintiff also gave evidence in this respect that when he commenced his employment in the premises the only training which he received was in relation to the work itself as a barman, such as how to change the optics at the bar, how to change kegs in the coldroom, what had to be done in relation to cleaning up after patrons left, what had to be done in relation to the till and so on; but that he received no training in relation to any security matters. He did however accept that he was made aware of the existence of the panic button at the bar, but only because he asked what it was and he was told, but not how to use it.

15 The plaintiff submits that if there had been the sort of training which he says the defendant ought to have provided, this would have resulted in him requiring the persons who arrived at the door dressed as Gardai to produce to him evidence of their...