O'Neill v Dunnes Stores

 
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[2010] IESC 53

THE SUPREME COURT

Fennelly J.

O'Donnell J.

McKechnie J.

APPEAL NO. 77/2007
O'Neill v Dunnes Stores
[2010] IESC 53
BRENDAN O'NEILL
PLAINTIFF/RESPONDENT

AND

DUNNES STORES
APPELLANT/DEFENDANT
Plaintiff
Defendant

77/2007 - Fennelly O'Donnell McKechnie - Supreme - 16/11/2010 - 2011 1 IR 325 2011 1 ILRM 461 2010 42 10490 2010 IESC 53

HETHERINGTON v ULTRA TYRE SERVICE LTD & ORS 1993 2 IR 535 1993 ILRM 353 1993/8/2095

O'TOOLE v HEAVEY 1993 2 IR 544 1992/12/3982

BRADLEY v CORAS IOMPAIR EIREANN 1976 IR 217 1976/1/72

MORTON v WILLIAM DIXON LTD 1909 SC 807 1909 1 SLT 346

PARIS v STEPNEY BOROUGH COUNCIL 1951 AC 367 1951 1 AER 42

KENNEDY v HUGHES DAIRY LTD 1989 ILRM 117 1988/5/1448

CHARLESWORTH & PERCY CHARLESWORTH & PERCY ON NEGLIGENCE 8ED 1990 PARA 6.06

PHILLIPS v DURGAN 1991 1 IR 89 1991 ILRM 321 1990/10/2925

RYAN & MAGEE THE IRISH CRIMINAL PROCESS 1983 341

PAYNE v HARRISON & ANOR 1961 2 QB 403 1961 3 WLR 309 1961 2 AER 873

AG, RUDDY v KENNY 1960 94 ILTR 185

WAGNER v INTERNATIONAL RAILWAY 1921 133 NE 437 232 NY 176

HOME OFFICE v DORSET YACHT CO LTD 1970 AC 1004 1970 2 WLR 1140 1970 2 AER 294

BRESLIN v CORCORAN & MOTOR INSURERS BUREAU OF IRELAND 2003 2 IR 203 2003 2 ILRM 189 2003/6/1316

DOCKERY v O'BRIEN 1975 109 ILTR 127

WALSH v SECURICOR (IRL) LTD 1993 2 IR 507 1993/5/1483

SMITH & MALOCO v LITTLEWOODS ORGANISATION LTD 1987 AC 241 1987 2 WLR 480 1987 1 AER 710

FLEMING THE LAW OF TORTS 8ED 1992 170

PRACTICE & PROCEDURE

Non-suit

Appeal against non-suit - Evidence - Test - Whether appellate court can consider entirety of evidence - Payne v Harrison [1961] 2 QB 403 followed; Hetherington v Ultra Tyre Service Ltd [1993] 2 IR 535 and O'Toole v Heavey [1993] 2 IR 544 considered - All evidence to be considered (99/2007 - SC - 16/11/2010) [2010] IESC 53

O'Neill v Dunnes Stores

TORT

Negligence

Duty of care - Vicarious liability - Member of public attacked while assisting supermarket security guard - Expert evidence - Whether expert evidence required - Common practice - Whether sufficient to have only one security guard on duty - Whether means of communicating with supermarket managers sufficient - Liability for injuries suffered by rescuer - Whether liability for injury to rescuer extends to wrongful act of third party - Whether liable where precise nature of attack not foreseen - Wagner v International Railway Co (1921) 133 NE 437, Breslin v Corcoran [2003] 2 IR 203, Dockery v O'Brien (1975) 109 ILTR 127, Dorset Yacht Co v Home Office [1970] AC 1004 and Attorney-General (Ruddy) v Kenny (1960) 94 ILTR 185 followed; Bradley v Córas Iompair Éireann [1976] IR 215, Morton v William Dixon Ltd [1909] SC 807, Walsh v Securicor (Ireland) Ltd [1993] 2 IR 507 and Smith v Littlewoods Ltd [1987] AC 241 considered; Phillips v Durgan [1991] 1 IR 89 distinguished - Defendant's appeal dismissed (99/2007 - SC - 16/11/2010) [2010] IESC 53

O'Neill v Dunnes Stores

Facts: The plaintiff saw a security guard employed by the defendant struggling with two shoplifters and sought to intervene to assist the security guard. The plaintiff was the subject of a very violent attack. The defendant had sought a non-suit at the close of the plaintiff's case which the Court had refused. The High Court had held that having only one security guard on duty was inadequate and that the communication system of the defendant was less than adequate, where the security guard had to communicate by way of mobile phone and not a two-way radio system. The trial judge concluded that the guard had breached Protocol by attempting a citizen's arrest and had awarded damages. On appeal, the defendant complained as to the refusal of a non-suit by the trial judge, the lack of evidence to support the case of the plaintiff. The defendant argued that Dunnes Stores were not liable because their action or inaction did not cause the peril or give rise to the necessity for rescue.

Held by the Supreme Court per O'Donnell J (Fennelly, McKechnie JJ. concurring) that this was a case where there was a particularly close connection between the negligence established against the defendant and the injury caused to the plaintiff. The appeal would be dismissed, which was a result which accorded with both legal principle and common sense. It would be regrettable if the message delivered by the law of tort to a member of the public faced with a cry for help was that to intervene was at their own risk. The Court would be slow to impose a rule through the law of negligence that two security guards were required as a minimum in any store. The trial judge was entitled to come to the conclusions reached as to a two-way communication system. Per Fennelly J. concurring: that no finding of negligence was justified and any question of rescue simply did not arise. The trial judge did not have any basis in the evidence for concluding that the absence of a two-way radio was relevant. There was no foundation in the evidence for concluding that more than one guard was necessary. It was not negligent to pursue the shoplifters.

Reporter: E.F.

1

JUDGMENT of Mr. Justice Fennelly delivered the 16th day of November 2010.

2

Judgment delivered by Fennelly J. & O'Donnell J. McKechnie J. concurring with O'Donnell J.

3

1. I gratefully adopt the summary of the facts of this case set out in the judgment which is about to be delivered by O'Donnell J. In effect, the plaintiff came to the assistance of the security guard at Dunnes Stores, while the latter was seeking to overcome a suspected shoplifter who was in flight. The shoplifter's companion joined the fray and violently attacked the plaintiff, who had voluntarily come to the aid of the security guard, by swinging a bicycle chain across his face. The plaintiff suffered severe facial injuries.

4

2. The first and striking fact about the case is that it was decided that the defendant, Dunnes Stores, was negligent in the absence of any expert evidence that the standard of their security provisions departed from any objective or generally accepted norm. The second is that all the evidence upon which the learned trial judge (Kelly J) based his judgment was given on behalf of the defendant.

5

3. A first procedural point needs to be considered. In circumstances where the defendant applied unsuccessfully for a non-suit, but then went into evidence, can the defendant ask this Court, on appeal, to allow the appeal by ignoring the evidence called by the defendant? On this point, I am in full agreement with O'Donnell J. It is true that the non-suit application presents the defendant with somewhat of a dilemma. The procedure outlined in Hetherington v Ultra Tyre Service Ltd [1993] 2 I.R. 535 and O'Toole v Heavey [1993 2 I.R. 544 requires the defendant, when applying for a non-suit, to indicate whether or not he intends to call evidence. He is not; it appears, entitled to have a ruling on whether the plaintiff has established a prima facie case unless he informs the court that he intends to go into evidence. In that case, where he fails in his application, he will call evidence and the High Court decision will be based on the entire of the evidence. If the defendant informs the Court that he will not go into evidence, in the event that his non-suit application fails, the court makes no ruling on the existence of a prima facie case; it decides the entire case on its merits on the evidence called by the plaintiff. Thus, the defendant cannot obtain a ruling on the existence of a prima facie case unless he is prepared to opt in advance to call his own evidence.

6

4. Nonetheless, in the situation presented by the present appeal, it seems clear that, as a matter of justice, the Court must look at the entirety of the evidence. The alternative could be that, because the trial judge should have granted a non-suit, this Court would have to close its eyes to actual evidence of negligence called on behalf of the defendant, which would be patently unjust. The final result is not unjust. If the defendant has been shown to have been negligent, it is no injustice that he should have to compensate the plaintiff, merely because he has suffered a procedural disadvantage.

7

5. Kelly J expressed his opinions on the question of liability, firstly, in the following terms:

"The security arrangements which the defendant had in place on the evening in question were substandard. To ask one person to take responsibility for the security of the entire of the defendants shop consisting of drapery, grocery and off-licence was not reasonable.

The absence of a two-way radio was a considerable impediment to Mr Byrne being able to carry out his duty and deprived him of the ability to call for backup from the defendant's personnel as a matter of urgency.

Mr Byrne attempted to do his duty as best he saw it. Given that he was dealing with two intoxicated persons it would have been more prudent not to have attempted to detain Colville. He was alone and outnumbered. They were armed with bottles. It was very likely that the already violent Colville would be joined by McCormack when he was being arrested. Both were intoxicated.

Under the terms of the protocol he ought to have sought help rather than attempt an arrest."...

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