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JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Murray
Judgment Date08 December 2020
Neutral Citation[2020] IECA 344
Date08 December 2020
Docket NumberCourt of Appeal Record No. 2008/134

[2020] IECA 344

THE COURT OF APPEAL

CIVIL

Costello J.

Power J.

Murray J.

Court of Appeal Record No. 2008/134

BETWEEN:
CIAN McCARTHY
PLAINTIFF/RESPONDENT
- AND -
JAMES KAVANAGH T/A TEKKEN SECURITY

AND

HERLIHY'S SUPERMARKET GROUP LIMITED
DEFENDANTS/APPELLANTS

Negligence – Personal injuries – Liability – Defendants appealing against the finding that they were liable to the plaintiff for the injuries sustained by him – Whether there was a breach of duty and causation

Facts: The plaintiff, Mr McCarthy, on 31 October 2011, was seriously assaulted on the public footpath outside a convenience store in the centre of Cork city. The store was occupied by the second defendant, Herlihy’s Supermarket Group Ltd, with the first defendant, Mr Kavanagh, providing security services at the premises. The plaintiff claimed that the injuries he sustained as a result of that assault were attributable to the negligence of the defendants in the management and operation of the store. Cross J determined that the defendants were liable to the plaintiff for the injuries sustained by him. He awarded damages of €750,243.39 in favour of the plaintiff and against both defendants. The defendants appealed to the Court of Appeal against the finding of liability. The appeal presented three broad issues: (i) whether the defendants owed a duty of care to the plaintiff of such scope that the defendants were, in the circumstances, in breach of that duty in failing to re-admit the plaintiff to the premises; (ii) if there was such a duty and it was breached, whether the injuries suffered by the plaintiff were a foreseeable consequence of that breach of duty and/or the chain of causation between the breach and the injuries sustained by the plaintiff was broken by a novus actus interveniens; (iii) if there was a breach of duty and causation, whether in the circumstances presenting themselves in this case and in particular the fact that the defendants and the individual who administered the blow to the plaintiff which resulted in his injuries were concurrent wrongdoers, the plaintiff was precluded by the provisions of s. 35(1)(i) of the Civil Liability Act 1961 from maintaining this claim.

Held by Murray J that the owner of a convenience store has a duty of care to its customers to take reasonable steps to protect them against a foreseeable risk of harm inter alia at the hands of other customers; that duty of care extends to taking reasonable steps to control access to the property and to ensure that there are persons on the premises in a position to intervene where altercations take place in the shop, to either diffuse such altercations or to eject some or all of those involved. Murray J held that where the owner of the premises knows that a person who was involved in an altercation and who has been ejected from the store in order to diffuse that dispute was the innocent party, and where it knows that those who attacked him in the store have followed him out of it with a view to continuing the altercation, the owner was under a duty to readmit him so as to protect him from the danger to which he had been, by reason of his ejectment, exposed. As applied to the facts of this case, Murray J held that this duty of care required the defendants to take reasonable steps to protect the plaintiff against a danger of any injury that might reasonably be foreseen to follow from his being assaulted by Mr O’Callaghan and the O’Mahony sisters on the crowded footpath outside the store. Murray J found that the injury inflicted by Mr Cullinane arose because and only because of the altercation between the plaintiff, Mr O’Callaghan and the O’Mahony sisters. Murray J held that the injury was of the type against which the defendants were required to protect the plaintiff and, accordingly, the fact that this injury was inflicted by a third party who had no connection with the dispute inside the store did not constitute a novus actus interveniens.

Murray J held that, having concluded that the defendants were not entitled to rely upon s. 35(1)(i) of the 1961 Act so as to render the plaintiff responsible for the actions of Mr Cullinane, the decision of the trial Judge should be affirmed.

Appeal dismissed.

JUDGMENT of Mr. Justice Murray delivered on the 8 th December 2020
The issues
1

In the early hours of the morning of 31 October 2011 the plaintiff was seriously assaulted on the public footpath outside a convenience store in the centre of Cork city. The store was occupied by the second named defendant, with the first named defendant providing security services at the premises. In this action the plaintiff claims that the injuries he sustained as a result of that assault were attributable to the negligence of the defendants in the management and operation of the store.

2

The plaintiff's claim revolved around five undisputed facts. First, moments before the assault the plaintiff had been the subject of an unprovoked attack inside the store. Second, although known by them to be the innocent party in that altercation, the defendants decided to seek to diffuse that dispute by ejecting the plaintiff (but not his assailants) from the shop. Third, and to the knowledge of the defendants, upon the plaintiff being removed from the store his assailants immediately followed him out of the premises where they attacked him. Fourth, upon breaking free from those persons the plaintiff sought to take refuge in the shop, but the defendants refused him access to it. Fifth, in the course of being thus refused admission the plaintiff collided with a third party whose boyfriend responded with the swift and devastating blow that caused the injuries giving rise to the claim.

3

Cross J. determined that these circumstances combined to render the defendants (who were jointly represented at the trial) liable to the plaintiff for the injuries thus sustained by him. Essentially, he found that having ejected the plaintiff from the store when he was being pursued by his original assailants, the defendants owed him a duty of care which they breached by failing to re-admit him to the shop. Because an assault was the very event from which the defendants were required to protect the plaintiff, he held that the chain of causation was not broken by the fact that the injuries were inflicted by means of the deliberate and criminal action of a third party. He awarded damages of €750,243.39 in favour of the plaintiff and against both defendants.

4

This appeal is only against the finding of liability. It presents three broad issues:

(i) Whether the defendants owed a duty of care to the plaintiff of such scope that the defendants were, in the circumstances, in breach of that duty in failing to re-admit the plaintiff to the premises;

(ii) If there was such a duty and it was breached, whether the injuries suffered by the plaintiff were a foreseeable consequence of that breach of duty and/or the chain of causation between the breach and the injuries sustained by the plaintiff was broken by a novus actus interveniens;

(iii) If there was a breach of duty and causation, whether in the circumstances presenting themselves in this case and in particular the fact that the defendants and the individual who administered the blow to the plaintiff which resulted in his injuries were concurrent wrongdoers, the plaintiff is precluded by the provisions of s. 35(1)(i) of the Civil Liability Act 1961 from maintaining this claim.

The facts
5

Sunday 30 October 2011 fell on the weekend of the Cork Jazz festival, and the following day – a bank holiday - was Halloween. It was described by one of the security guards present in the store at the time as two of the busiest weekends of the year, in one weekend. That evening the plaintiff (then a twenty-five year old psychiatric nurse) and his then girlfriend (and now his wife), Mary O'Keefe, visited a public house in Washington Street and from there went with friends to a nearby licensed premises and nightclub. The plaintiff consumed a number of alcoholic drinks in both premises. A plea of contributory negligence originally advanced in the defendants’ defences was not pursued at trial, and it was not suggested that he was either intoxicated when he left the nightclub, or responsible in any way for what happened thereafter.

6

Save in two respects, what happened thereafter was not the subject of any dispute. At some time after 2 am the plaintiff and Ms. O'Keefe decided to go to the Centra shop on the Grand Parade, Cork, to purchase some food. They arrived there at 2.19 am and entered the premises. The gardaí had just left the front of the supermarket having dealt, the trial Judge found, with an incident or disturbance in front of the shop moments before the plaintiffs arrived. There were a sizeable number of persons in the shop, together with the staff and two uniformed security guards employed by the second named defendant - Mr. Furey and Mr. Pruchnicki.

7

The premises is a compact 24 hour convenience store. At the rear of the store there is a deli counter. From the front of the premises to the deli counter at the rear is a distance of 7.2 metres. The distance from the start of the aisles in the shop leading to the deli counter is approximately 4.2 metres, the aisle to the immediate right of the property on entry being 1.2 metres wide. Although the store was selling hot food this was solely for the purposes of consumption off the premises.

8

At the time of the events with which the proceedings are concerned, the store was one of the few shops still trading in the area and was extremely busy so that the security guards had to close the door into the premises to limit the numbers in the shop at any point in time. The trial Judge recorded in his judgment the CCTV cameras as showing ‘ a very large number of people milling around in front of the Centra supermarket’. The evidence was that a lot of the people in the shop and...

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