Danagher (plaintiff) v Glantine Inns Ltd
| Jurisdiction | Ireland |
| Judge | Ms. Justice Irvine |
| Judgment Date | 26 March 2010 |
| Neutral Citation | [2010] IEHC 214 |
| Docket Number | 182 P/2008 |
| Court | High Court |
| Date | 26 March 2010 |
[2010] IEHC 214
THE HIGH COURT
BETWEEN
AND
HACKETT v CALLA ASSOCIATES LTD & ORS UNREP PEART 21.10.2004 2004/21/4749 2004 IEHC 336
CIVIL LIABILITY & COURTS ACT 2004 S26
NEGLIGENCE
Liability
Nightclub premises - Assault by security staff - Personal injuries - Unreasonable force - Duty of care - Duty to employ competent staff - Claim exaggerated - Whether person perceived to be a danger should be removed from premises - Whether plaintiff was ejected from defendant's premises with unreasonable force - Whether plaintiff deliberately exaggerated claim - Whether plaintiff deliberately misled court in relation to material issue - Hackett v Calla Associates Ltd [2004] IEHC 336 followed - Civil Liability and Courts Act 2004 (No 31), s 26 - Claim dismissed (2008/182P - Irvine J - 26/3/2010) [2010] IEHC 214
Danagher v Glantine Inns Ltd
Facts: The plaintiff claimed damages in respect of an assault which he alleged was perpetrated on him by the security staff of the defendant in 2005 at a nightclub, where he was knocked to the ground. He claimed to have suffered soft tissue injuries to his neck and back requiring significant physiotherapy. The Court had to consider whether the plaintiff was ejected from the premises of the defendant by use of unreasonable force thus rendering the defendant liable to the plaintiff in damages for assault and/ or negligence. Counsel for the defendant sought to rely upon s. 26 Civil Liability and Courts Act 2004, on the basis that the plaintiff had knowingly given false and misleading evidence in relation to a material aspect of the claim, thus warranting the dismissal of the claim. The issue arose as to the accuracy of the evidence of the plaintiff as to the extent of his injuries and the relevance of a parachute jump undertaken by the plaintiff and its timing after the disputed events. The general physical well-being of the plaintiff in the aftermath of the incident also arose for consideration and it was contended that the plaintiff had misled the Court as to his health and recovery from the incident in question.
Held by Irvine J. that having regard to the findings of fact that the defendant had discharged its duty of care to the plaintiff and other patrons on the night in question. Having heard all of the oral evidence and seen the video recording viewed, the defendant acted in a professional and responsible fashion and the use of force was neither unnecessary nor unreasonable. The intervention was warranted. The physical resistance of the plaintiff had caused him his injuries. The claim of the plaintiff for liability on this matter thus failed. the Court was satisfied that when the plaintiff told the Court definitely that the parachute jump had taken place the year before the incident, that he did not deliberatively hoping to mislead the court on this most material issue which would undermine the extent of his injuries. The plaintiff further misled the Court in maintaining that he had attended his physiotherapist on over 70 occasions and his general practitioner on some 50 occasions. The defendant had succeeded in establishing that the plaintiff sought to deliberately mislead the court as to the extent of his alleged psychological injury. Recent entries on the plaintiff's Facebook page had recorded the participation of the plaintiff in physical activities. The plaintiff had deliberately overstated his injuries. There was no need for the Court to consider the effects of s. 26 Civil Liability and Courts Act 2004. The claim pursued would fail.
Reporter: E.F.
The plaintiff in these proceedings, Alan Danagher, was born on 15th September, 1987 and is currently a student at Cork Institute of Technology. He claims damages including aggravated damages in respect of an assault which he alleges was perpetrated against him by the defendant's security staff on 26th December, 2005, at its nightclub at the Templemore Arms Hotel, Templemore. The plaintiff maintains that alternatively he sustained personal injuries on the said date as a result of the negligence, breach of duty and breach of contract on the part of the defendant its servants or agents.
On the plaintiff's account of events, he and a number of members of his family decided to go to the defendant's nightclub on the evening of 26th December, 2005. He was accompanied by his brother, David, his sister Bernadette and her boyfriend, Seán McCarthy. They initially went to the Night Rise public house for a drink before proceedings to Mr. O's nightclub where they paid to enter the premises at approximately 12.30 on the morning of 27th December, 2005. Later, according to the plaintiff, after he had another few drinks, his sister Bernadette went to the ladies toilet leaving him her coat to mind. A fight started close by with two customers ending up on the floor. He states that he was knocked to the ground. He dropped his sister's coat and drink in the process. He subsequently retrieved the coat from underneath the two men. He states that he immediately moved away from the fight. He claims that neither he nor any member of his group was involved.
According to the plaintiff, a number of security staff arrived to deal with those involved in the fight and they were removed from the premises. The plaintiff then maintains that without warning, a security man came up behind him, grabbed him around his neck and dragged him backwards towards the double doors and out to the foyer area. He stated that his brother David and his sister's boyfriend Seán McCarthy were also being removed by the other members of the security staff. One of them allegedly inflicted a spear like tackle on Seán McCarthy and this caused everyone in the group, which he described as a scrum, to collapse in a heap. He told the court that in the process of being removed out to the foyer area and that he was strangled by the neck and felt he was being asphyxiated as a result of pressure applied around his throat. He later remembered lying on the ground in the foyer area for some time prior to finding himself outside in the open air at which stage he told the court he felt very cold. He complained that the defendant's staff did nothing to assist him following his injuries and that the only attention paid to him was by way of directions given to staff members to get him off the premises.
As a result of these events, the plaintiff was taken by ambulance to Nenagh Hospital where he was treated for his injuries. He had pain in his neck and back. He was discharged home sometime later.
At the time of this assault, the plaintiff was due to sit his college examinations in January 2006. He maintains that he was unable to sit these examinations and lost the rest of that academic year due to the severity of his injuries. He recommenced his studies in September 2006 but again experienced difficulties studying due to his injuries. He advised the court that he was forced to abandon his studies for that year also prior to enrolling in a building services engineering course in Cork Institute of Technology in September 2007.
As a result of his assault, the plaintiff claims that he has suffered soft tissue injuries to his neck and back which have required significant physiotherapy. He maintains that these injuries forced him to abandon what he described as his previous high profile involvement in rugby, boxing and GAA. He further maintains that he developed Post Traumatic Stress Disorder with symptoms of low mood, nightmares and flashbacks of the assault. He complains of becoming irritable and of developing an anxiety in certain social situations making him a reluctant and infrequent attendee at nightclub and discos where he always feels apprehensive.
In terms of psychological problems, the plaintiff relies upon the report of Dr. Niall Pender, Clinical Psychologist, dated 25th November, 2009 who stated that Mr. Danagher was still feeling depressed and worthless and that he had been unable to return to his previous sporting activities. In terms of his physical condition, his last medical review was by Mr. Jack Phillips, Consultant Neurosurgeon on 8th October, 2008. He reported the plaintiff's physical examination as being normal and ascribed his failure to return to sport to his professed fear that he might not, if he returned to his previous activities, perform at as high a level as he had done prior to the assault.
The defendant maintains that a serious fight involving perhaps as many as fifteen to twenty people broke out on the dance floor of Mr. O's nightclub on St. Stephen's Day 2005. Security staff had to remove those involved in the fight. According to two of the defendant's witnesses, Mr. Danagher was seen to have been involved in the fight and was noted to have stood on the head of one of those on the floor fighting before moving away from the scene. The security personnel decided that Mr. Danagher needed to be removed from the premises and a number of them approached him to this end.
The defendant's evidence was that Mr. Danagher was told that he was being removed from the premises but that he protested that he had done nothing wrong and resisted his removal. Mr. Tracey, one of the security staff, told the court that from his position behind the plaintiff he loosely put his two arms underneath the plaintiff's arms and reversed him out as far as the double doors leading to the foyer. He states that the plaintiff was on his feet walking backwards with him towards the double doors when the plaintiff's family and group of friends became involved in obstructing his removal by grabbing hold of him and trying to pull him back into the premises. A number of other security staff then became involved in trying to separate the plaintiff...
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