Douglas v Michael Guiney Ltd

JurisdictionIreland
CourtHigh Court
JudgeMr Justice Bernard J. Barton
Judgment Date08 April 2019
Neutral Citation[2019] IEHC 301
Docket NumberRECORD NO. 2014 891 P
Date08 April 2019

[2019] IEHC 301

THE HIGH COURT

Barton J.

RECORD NO. 2014 891 P

BETWEEN:
SABRINA DOUGLAS
PLAINITFF
AND
MICHAEL GUINEY LIMITED

AND

ROGERIO JOAO
DEFENDANTS

Negligence – Breach of statutory duty – Quantum – Plaintiff seeking damages – Whether the defendant was liable in negligence and for breach of statutory duty

Facts: The plaintiff, Ms Douglas, alleged that, on the 21st September, 2011, in the course of her employment at the shop premises of the first defendant, Michael Guiney Ltd, William Street, Limerick, she was first subjected to verbal abuse and was then assaulted by the second defendant, Mr Joao, with a bicycle locking chain; she was struck on the right hand and on the right-hand side of her head. The incident was captured by closed circuit television cameras (CCTV) located in the shop. The footage was retained and featured prominently in the course of the trial. The second defendant was arrested at the scene and was subsequently charged with assault contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997. He was legally represented and having viewed the relevant portions of the CCTV footage pleaded guilty to the offence. The case against the second defendant was brought in trespass to the person, however, he did not appear and the plaintiff did not proceed against him. The case against the first defendant was brought in negligence and for breach of statutory duty pursuant to the provisions of the Safety, Health and Welfare at Work Act 2005 and the Safety Health and Welfare at Work Act Regulations 2007. A defence confined to traversing the pleas and particulars of negligence and breach of statutory and pleading no vicarious liability for the second defendant’s wrong was delivered on 17th December, 2015. This was followed much later by an amended defence delivered the 15th February, 2019 which put the assault in issue and for the first time raised a plea that the plaintiff was the author of her own misfortune and was guilty of contributory negligence.

Held by the High Court (Barton J) that the plaintiff had discharged the burden which the law placed on her to establish, on the balance of probabilities, the case made against the first defendant; it followed that the first defendant was liable in negligence and for breach of statutory duty for what befell the plaintiff and the consequences thereof. As far as the question of contributory negligence was concerned, Barton J found that it would be wrong in law to find the plaintiff guilty of contributory negligence and breach of statutory duty in circumstances where she had received no training or instructions on how to deal with a confrontational situation such as that in which she found herself with the second defendant.

Barton J held that that a fair and reasonable sum to compensate the plaintiff for pain and suffering to date commensurate with and proportionate to her physical and psychological injuries was €40,000 and for pain and suffering into the future €10,000. Applying the principles of law to the assessment of damages for pecuniary loss, Barton J held that if the plaintiff was to be restored to the position she was in when the wrong was committed her net weekly income at the time must be taken into account. The Court had no discretion in that regard, she had to have the pecuniary loss suffered restored to her and in Barton J’s view, having taken account of the amount of the RBA certificate, her net loss of earning claim was €18,136.14 to which must be added a small sum in relation to travel, medical and miscellaneous expenses which had been agreed in the amount of €500 making in total €18,636.14.

Relief granted.

JUDGMENT of Mr Justice Bernard J. Barton delivered the 8th day of April 2019
Introduction
1

The Plaintiff was born on the 27th July, 1980, and is a separated mother of two children aged eleven and nine. She resides at 20 Pike Avenue, Garryowen, County Limerick and lives in difficult social circumstances. At the material time giving rise to these proceedings the Plaintiff was employed by the 1st Defendant as a part time sales assistant. The incident in respect of which these proceedings are brought occurred in the course of the Plaintiff's employment on the 21st September, 2011, at the 1st Defendant's shop premises William Street, Limerick.

2

The Plaintiff alleges that she was first subjected to verbal abuse and was then assaulted by the 2nd Defendant with a bicycle locking chain; she was struck on the right hand and on the right-hand side of her head. The incident was captured by closed circuit television cameras (CCTV) located in the shop. The footage was retained and featured prominently in the course of the trial. The 2nd Defendant was arrested at the scene and was subsequently charged with assault contrary to section 3 of the Non-Fatal Offences Against the Person Act 1997, (the 1997 Act). He was legally represented and having viewed the relevant portions of the CCTV footage pleaded guilty to the offence. The case against the 2nd Defendant in these proceedings was brought in trespass to the person, however, he did not appear and the Plaintiff did not proceed against him.

3

The case against the 1st Defendant is brought in negligence and for breach of statutory duty pursuant to the provisions of the Safety, Health and Welfare at Work Act 2005 (the 2005 Act) and the Safety Health and Welfare at Work Act Regulations 2007. (the 2007 Regulations). A defence confined to traversing the pleas and particulars of negligence and breach of statutory and pleading no vicarious liability for the 2nd Defendant's wrong was delivered on 17th December, 2015. This was followed much later by an amended Defence delivered the 15th February, 2019 which put the assault in issue and for the first time raised a plea that the Plaintiff was the author of her own misfortune and was guilty of contributory negligence.

4

The original defence had proceeded on the premise that the Plaintiff had been assaulted as she had alleged, consistent with the 2nd Defendant's guilty plea to the s.3 offence. The reason for what are significant differences between the two defences was advanced on affidavit by the first Defendant's solicitor, sworn the 2nd August 2018, to ground an application for liberty to deliver an amended defence. The essence of the explanation is that when the CCTV footage was analysed by a security consultant retained by the 1st Defendant, it became evident that the defence first delivered did not reflect what had actually occurred; the recorded footage disclosed no evidence of an assault.

5

The first defence had advanced the case that the 1st Defendant was not vicariously responsible in law for the assault by the 2nd Defendant; he had concealed the chain on his person and had produced it without warning momentarily before striking the Plaintiff, circumstances over which the 1st Defendant had no control or notice. On the face of it a perfectly good defence, however, for the reasons which follow I am satisfied there is no factual basis on which it could be sustained.

6

Apart from being put on proof of the assault by the amended defence the case made to found the allegation that the Plaintiff was the author of her own misfortune and was guilty of contributory negligence is that she took possession of the chain before the incident had occurred, that she escalated the situation when the second Defendant subsequently took hold of it and that she had grabbed the chain and had tried to pull it from him on two occasions, causing herself to be struck in the process. Furthermore, the Plaintiff had failed to comply with the training and safety instructions which had been given to her and had failed to comply with and observe the provisions of the Employee Handbook concerning guidance on how to behave towards customers.

Conclusion on Training and Instructions; Aggressive Customers
7

I accept the Plaintiff's evidence that she had not been trained nor had she received instruction on how to deal with an aggressive customer and having read and considered the Employee Handbook proved in the course of the evidence I am also satisfied that this did not provide sufficient guidance or adequate information on how to behave towards a customer who became aggressive for whatever reason.

CCTV Footage
8

Given the issues raised by the amended defence it was hardly surprising that the relevant CCTV footage featured very prominently in the course of the trial; the content proved to be extremely controversial. It is common case that some of the images are difficult to decipher and are thus actually inconclusive. Moreover, the footage was recorded at three frames per second rather six to eight frames which would have been the minimum required to capture everything which had occurred in real time and in this regard, I accept the evidence of Mr. Sears that at least 50% or perhaps a little more of what occurred was not captured at all on the footage.

Conclusion;
9

I am satisfied and find that the recording frame rate provides the most likely explanation for the propositions canvassed and questions put on behalf of the 1st Defendant during cross examination by Mr. McCartan S.C. as to why the footage failed to disclose elements of the alleged assault about which the Plaintiff had given evidence, such as being struck on her right hand by the chain. It follows that in determining what had occurred leading up to, at and immediately after the incident the Court is largely dependent on oral evidence, on the recorded footage and the inferences which may properly be drawn from that.

Risk Assessment and Safety Statement
10

With regard to compliance with the statutory requirement to have undertaken a “Risk Assessment” and to have prepared a “Safety Statement” which took account of the assessment findings, it was quite correctly accepted by Mr. McCartan, as I think it had to be having regard to the evidence of the store...

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