Gammell v Doyle (t/a Lee's Public House) & White

JudgeMr. Justice Hanna
Judgment Date28 July 2009
Neutral Citation[2009] IEHC 416
CourtHigh Court
Docket Number[No. 351 P./2008]
Date28 July 2009

[2009] IEHC 416


[No. 351 P./2008]
Gammell v Doyle (t/a Lee's Public House) & White







LANE v HOLLOWAY 1968 1 QB 379 1967 3 WLR 1003 1967 3 AER 129

FONTIN v KATAPODIS 1962-3 108 CLR 177

MURPHY v CULHANE 1977 QB 94 1976 3 WLR 458 1976 3 AER 533


COOPER-FLYNN v RADIO TELEFIS EIREANN (RTE) & ORS 2000 3 IR 344 2001 1 ILRM 208 2000/4/1394







GREALY v CASEY 1901 1 NIJ 121




CARMELLO v CASEY 2008 3 IR 524 2007/9/1716 2007 IEHC 362



Personal injuries - Assault - Prior criminal proceedings - Defendant convicted - Claim of contributory negligence - Reduction of damages -Claim for aggravated damages - Alleged provocative words and conduct by plaintiff - Evidence - Concurrent wrongdoing - False and misleading evidence by plaintiff - Whether plaintiff contributorily negligent - Whether aggravated damages should be awarded - Whether evidence of plaintiff false and misleading - Hackett v Calla Associates Ltd [2004] IEHC 336 (Unrep, Peart J, 21/10/2004) and Carmello v Casey [2007] IEHC 362 [2008] 3 IR 524 applied; Plaistowe v Daly [1832] NSWSC 22, Thorn v Hunt [1838] NSCW 95, Grealy v Casey [1901] NIJR 121, Lane v Holoway [1968] 1 QB 379, Fontin v Katapodis [1962] 108 CLR 177, Murphy v Culhane [1977] 1 QB 94, Ward v Chief Constable of the Royal Ulster Constabulary [2000] NI 543 considered; Cooper Flynn v RTE (Unrep, SC, 19/5/2000) distinguished - Civil Liability and Courts Act 2004 (No 31), ss 2, 26, 34 & 35 - Action dismissed (2008/351P- Hanna J - 28/7/2009) [2009] IEHC 416

Gammell v Lees Public House

Facts: The plaintiff sustained serious injuries when the second named defendant punched the plaintiff in the face at a licensed premises and the proceedings resulted in a settlement. The Court heard extensive evidence so as to assess damages. The issue arose as to the relevance of s. 26 of the Courts and Courts Officers Act 2004 and the penalty contained there for giving false and misleading evidence, in light of the account provided by the plaintiff, which would entail that the proceedings of the plaintiff be dismissed. The issue further arose as to whether the language used by the plaintiff amounted to contributory negligence.

Held by Hanna J. that the plaintiff was prima facie entitled to an award of damages at common law. There would not be any level of responsibility on behalf of the first named defendant. The contemptible behaviour had been confined to a limited circle of people. No finding of contributory negligence would be made against the first named defendant. The plaintiff on the other hand substantially contributed to the injury he suffered. The behaviour of the plaintiff would weigh heavily against him. It would be hazardous to award contemptuous damages where statute provided for such situations. General damages would be assessed at €15,000 to date and €25,000 in the future, which would be reduced by 50% together with any special damage. The account of the plaintiff of what had occurred was both fanciful and self-serving and deliberately so. The plaintiff came within the scope of s. 26 of the Act of 2004. The plaintiff gave evidence which was false and misleading, that materially affected the outcome of the case and the action would be dismissed.

Reporter: E.F.

Mr. Justice Hanna

The plaintiff in this case is a labourer and resides at 25 Cedarwood Crescent, Kilcoole in the County of Wicklow. The first named defendant is the owner of public house situated in Kilcoole. The second named defendant is a road haulage operator. He resides at 44, The Crescent, Greystones in the County of Wicklow.


The incident giving rise to this case is simply described. On 26th December, 2005, the plaintiff was in the first named defendant's licensed premises at Kilcoole. After a sequence of events, which was the matter of much controversy at the hearing of this action, the second named defendant punched the plaintiff in the face, thereby causing him to suffer a significant injury. There is no dispute that the second named defendant assaulted the plaintiff. No issue arises as to the fact that the plaintiff had inflicted upon him a fracture of the left cheekbone. Mr. White pleaded guilty to a charge of assault on 17th July, 2007, and received a sentence of two and a half years' imprisonment which was suspended.


Much controversy raged during the trial concerning the status of the plaintiff in the said licensed premises and his general demeanour, state of inebriation and behaviour prior to the punch administered to him. The plaintiff denied that there was any question over his right to be present in the pub, denied any allegations of misconduct on his part and contended that the punch administered to him, quite literally, came out of the blue.


Prior to this matter coming on for trial, the plaintiff entered into a settlement with the first named defendant, Mr. William Doyle. Therefore, Mr. Doyle involved himself as a witness only when the matter proceeded before me for two days. At no point were we told the amount of this settlement but it was acknowledged by Mr. Declan McGovern S.C. for the plaintiff that the second named defendant was entitled to credit for any payment made to the plaintiff.


The plaintiff, who is 52 years of age and describes himself as a builder's labourer, said that on St. Stephen's Day, 2005, he went into Lee's Public House to see his daughter. His youngest daughter, Laura, worked there; his older daughter, Emma, drinks there. The plaintiff had earlier been in two pubs in Bray. He arrived at approximately seven p.m. The plaintiff said that he went into the lounge; his daughter Emma was not there. The plaintiff ordered a drink. He spoke to the owner of the pub and the owner's daughter. He spent one hour in the lounge and had two pints. He then went around to the bar to see if his eldest daughter was there. There was a crowd in the bar because of the Tighe funeral. The deceased was a young man. The plaintiff said that he knew the deceased very well. Their employers in the building trade were brothers, although not in business together.


He checked around for Emma. He did not see her. Mr. David White, the second named defendant, called him over and bought him a drink. He was sitting in the corner near the hatch. There were four people there including Mr. White's wife. She was there with another woman sitting to her right. Both ladies were sitting and the plaintiff was on Mr. White's left-hand side; they were sitting on bar stools.


The plaintiff had a conversation with Mr. White. He enquired of Mr. White if he had had a good Christmas and enquired after his business. It was noisy and busy in the pub. There was no conversation with Mr. White concerning his wife or the other lady. The plaintiff says he just said "hello." He knew Mr. White and his wife's family fairly well. Maybe Mr. White took up something wrong. The plaintiff says he had turned around to say hello to a Mr. Coyne but Mr. White punched him on the left- hand side of his face. He was turned to the right at the time; he was facing the toilets. He fell to the floor and was dazed.


The barman, Mick Doherty, came over and took him outside. His daughter, Laura, also came out. He made his own way home. He felt terrible and was bleeding and sick. The next morning his son brought him to Loughlinstown Hospital. After initial treatment there, he was referred the following Friday to St. James's Hospital where he came under the care of Professor Stassen. The plaintiff had suffered a significant fracture of the left cheekbone. The professor operated upon him. The plaintiff was discharged the following evening. He was experiencing considerable pain for which he took pain killers. He had also received stitches.


Subsequent to this, when he was on the way to visit his doctor, he met Mr. White who apologised to him and remarked, according to the plaintiff, words to the effect of "I hear you are going to take me to the cleaners." Mr. White allegedly went on to say "fuck you, I don't care what you do" or words to that effect. The plaintiff says he went to his solicitor Mr. Neville Murphy the next day. At the District Court, prior to the matter being sent forward for trial, the plaintiff said that Mr. White asked if they could sort it out and the plaintiff said it was too late.


At this point in the evidence in chief the plaintiff's counsel, Mr. Declan McGovern S.C., put to the plaintiff certain particulars of negligence and breach of duty on the part of the plaintiff and acts by him of provocation of the second named defendant which were set out in Mr. White's defence. The first particular alleged that the plaintiff was provocative towards the second named defendant on a number of occasions, asking him about his past sexual experiences with local women. The plaintiff denied this and says that there was no conversation at that level at all. A second particular was then put to him alleging that he was provocative towards the second named defendant in that he made lewd and/or improper and/or sexual references and/or threats and/or suggestions in relation to the second named defendant's wife. "No, not at all" was the plaintiff's reply. Finally, when the allegation was made that he was provocative towards the second named defendant in that he pushed his face into...

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4 cases
  • Comcast International Holdings Incorporated v The Minister for Public Enterprise
    • Ireland
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    • 31 Julio 2018 Manning v. The National House Building Guarantee Company and Anor [2011] ... to dis-apply it, as occurred in Gammell v. Doyle [2010] 1 ILRM 358 . It was submitted ......
  • Shaughnessy v Nohilly
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    • High Court
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    ...of this case the approach adopted in Wasson, in Hackett, and in Gammell v. William Doyle trading as Lee's Public House & Anor [2009] IEHC 416 commends itself and is appropriate; accordingly, this aspect of the defence should be dealt with by way of and as a matter of contributory negligence......
  • Trevor Murphy v Helen Palmer
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    • High Court
    • 4 Marzo 2021
    ...enacted in 2004. The Defendant relied upon to Carmello v Casey & Anor [2007] IEHC 362, Gammell v. Doyle T/A Lee's Public House & Anor [2009] IEHC 416, Meehan v. BKNS Curtain Walling Systems Ltd & Anor [2012] IEHC 441, Lackey v. Kavanagh [2013] IEHC 341, Platt v. OBH Luxury Accommodation Ltd......
  • Nolan v Mitchell & O'Neill
    • Ireland
    • High Court
    • 20 Enero 2012
    ...Defendant CIVIL LIABILITY & COURTS ACT 2004 S26 CARMELLO v CASEY 2008 3 IR 524 GAMMELL v DOYLE & WHITE UNREP HANNA 28.7.2009 2009/22/5512 2009 IEHC 416 FARRELL v DUBLIN BUS UNREP QUIRKE 30.7.2010 2010/19/4716 2010 IEHC 327 DUFFY v BOYLAN UNREP O'KEEFFE 8.10.2010 (TRANSCRIPT NOT AVAILABLE) H......
1 books & journal articles
  • Trends and Issues in Personal Injury
    • Ireland
    • Irish Judicial Studies Journal No. 1-20, January 2020
    • 1 Enero 2020
    ...has a jurisdiction to make an award in an amount that is reasonable to expect. The Court held that it is now incumbent upon a Trial 64[2009] IEHC 416. 65[2011] IEHC 232. 66ibid [38]. 67ibid. 68[2011] IESC 44. 69[2017] IECA 221 [61]-[77]. 70[2018] IECA 240. [2020] Irish Judicial Studies Jour......

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