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

• Jurisdiction: Ireland
• Judge: Mr. Justice Hanna
• Judgment Date: 28 July 2009
• Neutral Citation: [2009] IEHC 416
• Court: High Court
• Docket Number: [No. 351 P./2008]
• Date: 28 July 2009

[2009] IEHC 416

THE HIGH COURT

[No. 351 P./2008]

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

BETWEEN

TERENCE GAMMELL

PLAINTIFF

AND

WILLIAM DOYLE T/A LEE'S PUBLIC HOUSE

AND

DAVID WHITE

DEFENDANTS

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

WARD v CHIEF CONSTABLE OF THE ROYAL ULSTER CONSTABULARY 2000 NI 543

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

CIVIL LIABILITY ACT 1961 S35(1)(H)

CIVIL LIABILITY ACT 1961 S34(1)

CIVIL LIABILITY ACT 1961 S2

HACKETT v CALLA ASSOCIATES LTD & ORS UNREP PEART 21.10.2004 2004/21/4749

PLAISTOWE v DALEY 1832 NSWSC 22

THORN v HUNT & ORS 1838 NSWSC 95

GREALY v CASEY 1901 1 NIJ 121

CIVIL LIABILITY & COURTS ACT 2004 S26

CIVIL LIABILITY & COURTS ACT 2004 S26(1)

CIVIL LIABILITY ACT 1961 S34

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

TORT

Negligence

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

1 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.

2 The incident giving rise to this case is simply described. On 26^th 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 17^th July, 2007, and received a sentence of two and a half years' imprisonment which was suspended.

3 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.

4 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.

5 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.

6 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.

7 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.

8 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.

9 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.

10 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...