Hackett v Calla Associates Ltd and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 21 October 2004
• Neutral Citation: [2004] IEHC 336
• Court: High Court
• Date: 21 October 2004

[2004] IEHC 336

THE HIGH COURT

Record Number: 1997 No. 4091P

[2004] IRLHC 336

HACKETT v. CALLA ASSOCIATES LTD & ORS

Between:

John Hackett

Plaintiff

4752 And

Calla Associates Limited, Christopher O'Reilly, Stephen Spain, Gerard Spain, and The Crooked Staff Limited

Defendants

Citations:

OCCUPIERS LIABILITY ACT 1995 S3

OCCUPIERS LIABILITY ACT 1995 S3(1)

OCCUPIERS LIABILITY ACT 1995 S5

OCCUPIERS LIABILITY ACT 1995 S3(2)

GLENCAR EXPLORATION PLC V MAYO CO COUNCIL 2002 1 IR 112 2002 1 ILRM 481

Abstract:

Tort - Negligence - Duty of care - Licensed premises - Assault by security staff on disorderly patron causing loss of eye - Whether force used unreasonable in circumstances - Public policy - Whether behaviour of plaintiff so egregious as to preclude duty of care being owed to him - Whether duty of care to plaintiff breached - Occupier of licensed premises.

the plaintiff lost the use of his right eye as a result of a heavy blow to his face from security staff allegedly employed by the first and second named defendants at the entrance to licensed premises owned and/or occupied by the said defendants. The second named defendant, who was the license holder for the said premises denied that he employed the bouncers or that he was liable for the plaintiff’s injuries. All defendants denied that they owed the plaintiff a duty of care and/or that he was guilty of contributory negligence through his disorderly conduct.

Held by Peart J in holding the plaintiff to be 50% contributory negligent and awarding him €50,000 in damages as against the first and second defendants that there could be no public policy consideration which would result in no duty of care being owed by employers of security staff to the public when dealing with disturbances outside licensed premises. It was fair and reasonable that such persons should carry out their duties in a manner consistent with a reasonable use of force and restraint and there was no reason why any special dispensation should be extended to them in the manner in which they carry out their tasks. Such duty of care extended to avoiding causing injury to the plaintiff through an unreasonable or unnecessary use of force or violence in dealing with disturbances outside licensed premises. There was such a mingling of functions between them and such a relationship created by the agreement between the first and second defendants that both defendants were occupiers of the said premises and that each owed a duty of care to the visiting public, including the plaintiff.

Reporter: P.C.

1 Mr Justice Michael Peart delivered the 21st day of October 2004:

Introduction:

2 This case arises out of an incident outside a nightclub known as Marleys Night Club, on the night of the 12 ^th January 1996 or the very early hours of the 13 ^th January 1996, when the plaintiff alleges that he sustained a very serious injury to his right eye and the area surrounding it as a result of a blow received from a blunt instrument wielded by what is commonly known as a “bouncer” employed at the premises on the night in question. The circumstances giving rise to the injury are in dispute, as is the allegation that the injury was caused by any such bouncer on that night. The defendants deny that any baton or blunt instrument was used at all when a group of bouncers came out of the premises into the car-park to break up a crowd which was causing trouble outside the nightclub, and they maintain that no more than reasonable force was used, and that if the plaintiff suffered any injury it was entirely his own fault, or at least that he was guilty of contributory negligence.

3 The first named defendant is a limited liability company which owned the licensed premises of which Marleys forms a part. The second named defendant is the person in whose name the licence itself was held following an ad interim transfer application to the District Court on the 23 ^rd September 1992. There is some dispute arising in these proceedings as to whether the bouncers on duty that night were employees of the first defendant or whether they were the employees of the second named defendant, and that is an issue which I will have to address later. Counsel appearing for both defendants stated that it was accepted by both of his clients that the bouncers in question were the employees of the first named defendant. The plaintiff does not accept that, and has attached some significance to the issue.

4 The claim is in effect only against the first and second named defendants at this stage, it being accepted that the employees in question were not the employees of the fifth named defendants, and that ground of defence has been withdrawn by the first and second named defendants.

5 One matter which is immediately obvious is that this injury occurred over eight years ago. The simple explanation for this is that the plaintiff has spent about six of these years in prison in relation to a matter entirely unrelated to this particular incident and I do not have to elaborate further in that regard. But it is undoubtedly a feature of this case that this passage of time has made it more difficult for witnesses called to give evidence to remember exactly what happened outside the nightclub on that night.

The injury:

6 As far as the actual injury itself is concerned, there is no dispute. The medical reports describe it as a very severe injury to the right eye, including a full thickness laceration of the right upper eyelid and a severe blunt trauma to the globe of the right eye which caused a dislocation of the lens and displacement of the vitreous gel from the posterior part of the eye into the ante chamber, when it was struck by a blunt object. The most recent report when describing the plaintiff's visual acuity in the right eye states "Perception of light only (totally blind)". This condition is now regarded as permanent, and his level of vision is described in a report dated 13 ^th May 2004 as:

"The condition of his right eye is now permanent and leaves the patient with no stereoscopic vision, diminished side of his visual field, an overall reduction in his visual acuity and an uncompensated blind spot in his left eye."

7 There also remains a full thickness scar in the centre of his right eyelid, although the latest report notes that the cosmetic appearance has greatly improved.

8 The author of these reports, Mr Hugh Cassidy, Consultant Eye Surgeon, gave evidence. He said that the plaintiff had travelled to St. Vincent's Hospital immediately after the injury was sustained and that on arrival there was extensive bruising to the right cheek and a laceration to the right eyelid. A blow over the right eye had caused the injury to the eye which is described in his reports. He described it as "a blunt trauma" which would have to be caused by a blow from a heavy solid object, and that it would require very severe force to cause a full thickness laceration of the eyelid. He said that in his practice he had seen similar type of injury caused by a blow from a hurley, and described it as a very severe injury, and one which was consistent with the account of the injury which was given. He described the right eye as being a write-off.

Summary of the evidence:

9 The plaintiff was born on the 9 ^th March 1970 and was therefore almost 26 years of age on the date of this incident. He was unemployed at the time, and apart from the six or so years spent in prison between 1998 and March 2004, his employment record has been sporadic and uncertain.

10 On the 12 ^th January 1996 the plaintiff had attended the funeral of a friend in the morning. Later in the day he and a couple of his friends "the Merediths") went to a pub called the "Furry Bog" in the Whitechurch area of Rathfarnham. They were later joined by others, including a lady who gave evidence, namely Colette McGouran. Having spent a couple of hours there they all decided that they would go up to Marleys Night Club, which is operated in a premises which was known as Taylors Grange Hotel. They went by taxi. He and his companions had been in that premises on a number of occasions previously and were known there. In fact the plaintiff was someone who had previously been barred from that premises, but on this occasion he seems to have been able to gain entry to the premises without coming to the attention of the staff controlling entry on the night. He and his friends arrived at about midnight and paid an entry fee to the Night Club. Their jackets/coats were handed into a cloakroom from which they were collected on departure - a matter to which I will again refer.

11 I am satisfied that the plaintiff was someone who was barred from these premises for some time prior to this night, even though I have no evidence as to the precise reason for that and whether there was a particular incident which gave rise to it, or whether it was on account of the proprietors having formed a view generally about the plaintiff on account of what I might loosely call his "local reputation". Counsel for the defendants certainly attempted by a certain line of questioning, to suggest that the plaintiff was someone who had a reputation in the area for violent behaviour, but I was not prepared to have that aspect of his character explored in detail since its relevance to what happened on the night in question is very limited indeed. Under cross-examination, the plaintiff accepted that he was “no angel”.

12 The plaintiff stated that after getting to the nightclub he and his friends stayed in a group together and that there was no trouble of any kind. He said that at about 2am on the 13 ^th January 1996 they began to leave the nightclub. It appears that when they arrived the plaintiff had left the coats into the cloakroom but had given the tickets to Keith Meredith, and that the latter joined a queue to collect the coats. This queue was just inside...