McCarthy v James Kavanagh t/a Tekken Security

• Jurisdiction: Ireland
• Judge: Mr. Justice Cross
• Judgment Date: 06 March 2018
• Neutral Citation: [2018] IEHC 101
• Docket Number: [2013 No. 8223 P.]
• Court: High Court
• Date: 06 March 2018

[2018] IEHC 101

THE HIGH COURT

Cross J.

[2013 No. 8223 P.]

BETWEEN

CIAN MCCARTHY

PLAINTIFF

AND

JAMES KAVANAGH TRADING AS TEKKEN SECURITY

AND

HERLIHY SUPERMARKET GROUP LIMITED

DEFENDANTS

Damages – Injury – Negligence – Plaintiff seeking damages – Whether defendants owed duty of care to the plaintiff

Facts: The plaintiff, Mr McCarthy, attended the supermarket premises of the second defendant, Herlihy Supermarket Group Ltd, in the early hours of 31st October, 2011, and after an incident was evicted by the security staff of the first defendant, Mr Kavanagh, and was shortly thereafter assaulted by a third party. The plaintiff suffered serious injuries and claimed that these injuries were caused by reason of the negligence of the defendants. The defendants denied liability, denied that they owed any duty of care to the plaintiff, pleaded a novus actus interveniens and further pleaded the provisions of s. 35(1)(i) of the Civil Liability Act 1961.

Held by the High Court (Cross J) that the defendants did owe a duty of care to the plaintiff and were in breach thereof. Cross J held that the defendants’ plea of novus actus interveniens must fail in this case. Cross J held that the utilisation by the defendants of s. 35(1)(i) did not offer a defence; accordingly, the plaintiff was entitled to recover in full against the defendants.

Cross J assessed damages as follows: Special damages to date €75,243.39; Future loss of earnings €325,000; General damages to date €200,000; General damages into the future €150,000; Total €750,243.39.

Relief granted.

JUDGMENT of Mr. Justice Cross delivered on the 6th day of March, 2018

1 The plaintiff was born on 13th July, 1985. He is a psychiatric nurse by profession. After secondary school, he went to University College Cork where he completed a BSc in psychiatric nursing in 2008 and was employed thereafter by the HSE in North Lee Mental Health Services from 2008. After his employment, he decided for promotional purposes to get a higher diploma in acute and in enduring mental illness and in October 2011, he was in the course of studying for this diploma.

2 Briefly put, the plaintiff, who throughout the incident was the innocent party in all altercations, attended the second named defendant's supermarket premises in the early hours of 31st October, 2011, and after an incident was evicted by the first named defendant's security staff and was shortly thereafter assaulted by a third party. The plaintiff suffered serious injuries and claims that these injuries were caused by reason of the negligence of the defendants or either of them.

3 The defendants initially were separately represented and filed full defences including each blaming the other but both defendants are now represented by the same firm and no issue arises between them. The defendants deny liability, deny that they owed any duty of care to the plaintiff, plead a novus actus interveniens and further pleaded the provisions of s. 35(1)(i) of the Civil Liability Act 1961.

4 The facts in this case are not greatly in issue save for two matters which will be considered later and considerable evidence was furnished by the witnesses and also by CCTV footage and stills which will be discussed below. I find the essential facts are as follows:-

(i) On the evening on 30th October, 2011, Halloween weekend and also the weekend of the Cork Jazz Festival, a very busy weekend, the plaintiff and his then girlfriend (now his wife) went to a well known public house, Costigans in Washington Street, had a number of drinks there and went on with friends to the nearby licensed premises and indeed, nightclub, known as Reardans, opposite the Courthouse.

(ii) The plaintiff had a number of drinks in both premises and he says he would not have been fit to drive but there is no suggestion and no evidence exists that alcoholic drink or indeed any other act of Mr. McCarthy was in any way to blame for what happened. Mr. McCarthy was, at all stages, an innocent party. Though contributory negligence was pleaded against the plaintiff, this has not been maintained and no evidence exists of any contributory negligence. For the avoidance of doubt accordingly I hold that there is no contributory negligence against the plaintiff.

(iii) At some time after 2am, Mr. McCarthy and Ms. M decided to go to the first named defendant's Centra shop on the Grand Parade, Cork, to purchase some rolls to eat. The CCTV cameras show a very large number of people milling around in front of the Centra supermarket. It was Halloween weekend. There was clearly a fancy dress engagement going on nearby as people are to be seen in ‘ drag’ and other fancy dress outfits. It is common case that the gardaí had just left the front of the premises having to deal with an incident or disturbance in front of the shop moments before the plaintiff arrived. However, though the crowd outside the supermarket was very large, the CCTV films show, apart from the central actors in the affair that other citizens were milling around and took no part in what occurred.

(iv) There were a large number of patrons in the shop, along with the staff and two security guards who were on duty on behalf of the second named defendant. One of them, Mr. F was back near the counter and the other, Mr. P was near the front door. A queue formed up on the right hand lane as one looks at it from the front door which queue then turned slightly to its left in front of the deli counter.

(v) The plaintiff and Ms. M entered the shop and made their way up the queue with a number of people in front of them including two ladies, who turned out to be the O'M sisters who wore fancy or distinctive dresses.

(vi) A man, who turned out to be Mr. O'C, entered the shop with a cardboard box on his head by way of fancy dress presumably. He attempted to go to the deli counter direct without going through the queue but were redirected by the guard, Mr. F, back to the queue. Mr. O'C then is seen attempting to jump the queue, by moving upwards towards where the O'M sisters were placed in front of the plaintiff. The plaintiff and his fiancé, not unreasonably objected to this. It is possible that one of the O'M sisters who were in front of the plaintiff indicated that Mr. O'C was with them and that one of them would leave the queue to enable Mr. O'C to take his place.

(vii) In any event, Mr. O'C is seen, and is noticed by the guard, Mr. F, to be manhandling his way up to the front and this, apparently, caused some protest from the plaintiff and his girlfriend. One of the O'M girls went over to the security guard and the plaintiff is seen calling out probably to her or to the guard, something to the effect that people should mind their manners. Both Mr. O'C and in particular the O'M sister who was left in the queue objected to the plaintiff's conduct and words followed and the remaining sister in the queue is assaulted the plaintiff around his jaw and mouth.

(viii) The security guard, Mr. F, went over to the queue and because he apparently wanted to separate the plaintiff who was, as he saw it, one person in a row with three people, he escorted the plaintiff out of the shop. Mr. F was not it seems aware of Ms. M's connection to the plaintiff or that he was in fact separating the plaintiff from her. He handed the care of the plaintiff over to the second security guard, Mr. P, and omitted to tell Mr. P, as he now accepts to be the case, that the plaintiff was the innocent party in the affair.

(ix) The plaintiff was followed almost immediately from the shop by the O'M sisters and by Mr. O'C. Mr. F apparently did request them not to follow but did not communicate to Mr. P that the three persons exiting the store immediately after the plaintiff were the perpetrators of the row against him.

(x) When the plaintiff exited the premises he was chased by the three pursuers who attempted to hit him about the head while at all times the plaintiff offered no resistance and backed away trying to cover his head to prevent these assaults.

(xi) The plaintiff then managed to break loose from his pursuers and made for the front door of the shop seeking safety. He was pursued by Mr. O'C.

(xii) Mr. P did not know that the plaintiff was the innocent party in the initial row and did not witness the plaintiff being beaten and pursued outside. Mr. P barred the plaintiff's re-entry and either pushed him away or puts his hands up so as to cause the plaintiff to bounce off him. Whether Mr. P merely barred the plaintiff with his two hands as he maintains or pushed the plaintiff back is one of the few factual matters of dispute.

(xiii) The plaintiff states that he was pushed backwards by Mr. P and fell over an unconnected person, Ms. H. In this, he is supported by Ms. L O'S an independent witness who was inside the store and also another independent witness, Mr. C O'S who was outside. Mr. P says that he blocked the plaintiff with his two hands and Ms. AG, a third independent witness heard Mr. P telling the plaintiff to stop and did not see him push the plaintiff. Examining the photographs, it is clear that whatever occurred and whether or not Mr. P's hands were moving towards the plaintiff in a push or were merely held up, the force of the impact of the plaintiff on Mr. P's hands caused him to stumble back towards Ms. H and towards the assaulting arms of Mr. O'C. I believe that all witnesses were attempting to tell the truth as they saw it but examining the CCTV and the still photographs especially from Camera 5, none of them show Mr. P with his two hands raised in a blocking position as he maintained. The photographs do show the plaintiff in collision with Mr. P and being pushed or falling backwards and in particular one photograph taken at 02:25:34:64 exhibited in Mr. Romeril's report shows Mr. P with not two hands but one hand raised and I conclude that what Mr. P did was, in fact, to push the plaintiff back towards the...