Reilly v Ryan

• Jurisdiction: Ireland
• Judge: Mr. Justice Blayney
• Judgment Date: 01 January 1991
• Neutral Citation: 1990 WJSC-HC 2226
• Docket Number: [1989 No. 6885],D 6783
• Court: High Court
• Date: 01 January 1991

1990 WJSC-HC 2226

THE HIGH COURT

THE CIRCUIT COURT

DUBLIN CIRCUIT COUNTY OF THE CITY OF DUBLIN

D 6783

(No. 6885/1989)

REILLY v. RYAN

BETWEEN

NOEL REILLY

PLAINTIFF

AND

JOSEPH RYAN

DEFENDANT

Citations:

WINFIELD ON TORT 13 ED @ 568, 570 & 574

SALMOND ON TORTS 10ED 89

SALMOND ON TORTS 18ED 437

POLAND V JOHN PARR & SONS 1927 KB 240

Synopsis:

NEGLIGENCE

Employee

Employer - Liability - Public-house - Bar manager - Attempted robbery - Invitee used as shield by manager - Invitee injured - Conduct of manager - Course of employment - Scope of authority - (Appeal from Circuit Court - Blayney J. - 18/7/90) [1991] 2 I.R. 247

|Reilly v. Ryan|

1 Judgment of Mr. Justice Blayney delivered the 18th day of July 1990.

2 The primary facts in this appeal are not in dispute and are most unusual. The Defendant is the owner of a public-house known as the Honey Pot Bar situate at 118 Parnell Street. Michael Heffernan has been the Manager of the bar for the last 14 years.

3 At about 2 p.m. on the 20th May 1987 the Plaintiff went into the bar to talk to Mr. Heffernan. He was talking to him at the counter of the bar close to a hatchway giving access to the part behind the bar. There were about 30 to 35 people in the public-house at the time. While they were talking, a man with a balaclava over his head came into the bar with a knife in his hand and shouted at Mr. Heffernan: "Give me £40 out of the till". Mr. Heffernan grabbed the Plaintiff by the shoulders and pulled him over in front of him and used him as a shield. The Plaintiff tried to get out of his grip. While in this position the Plaintiff was stabbed in the right arm by the intruder.

4 Mr. Heffernan then got a snooker cue as a weapon and when the intruder saw this he ran out of the bar dropping his knife as he went.

5 Evidence as to what happened was given by the Plaintiff and by Denis Gavin who had been standing beside the Plaintiff on his (the Plaintiff's) right-hand side. Both the Plainiff and Denis Gavin said that the Plaintiff had been used by Mr. Heffernan as a shield. This was not denied. Mr. Heffernan did not give evidence.

6 The Defendant stated in evidence that Mr. Heffernan's instructions were to look after the customers" needs and their safety. He said that if he had been in the bar when the intruder came in he would have given him the £40 in the interests of the safety of his customers. He said he had given these instructions to Mr. Heffernan about 14 years before and had renewed them from time to time. The customers always came first. He said he did not authorize Mr. Heffernan to do what he had done on the occasion in question. He said Mr. Heffernan did not get an opportunity to give the intruder the £40 he had asked for.

7 On these facts it was submitted by Mr. Seligman on behalf of the Plaintiff that the Plaintiff's injuries had been caused by Mr. Heffernan's using him as a shield against the intruder; that in acting as he had Mr. Heffernan had been acting in the course of his employment and accordingly the Defendant was liable. Reliance was placed on the following passages from Winfield On Tort (13th Edition) at pages 568, 570 and 574:

"A wrong falls within the scope of employment if it is expressly or impliedly authorized by the master or is an unauthorized manner of doing something which is authorized, or is necessarily incidental to something which the servant is employed to do. Course of employment has supplanted scope of authority, but it contains no criteria to decide when or why an act is within or outside the scope of employment and no single test is appropriate to cover all cases. It is often an extremely difficult question to decide whether conduct is or is not within the course of employment as thus defined, and it would seem that the question is ultimately one of fact to be decided in the light of general principles."

"Another application of the same principle is an act done in protection of the master's property. The servant has an implied authority to make reasonable efforts to protect and preserve it in an emergency which endangers it. For wrongful, because mistaken, acts done within the scope of that authority the master is liable, and it is a question of degree whether there has been an excess of the authority so great as to put the act outside the scope of authority."

"Similarly, if the servant has committed an assault upon the plaintiff, that will be in the course of his employment if his intention was to further his master's business, but if the assault was a mere act of personal vengeance, it will not."

8 Mr. Seligman submitted that Mr. Heffernan had been acting within the course of his employment in that what he had done was for the purpose of protecting his master's property.

9 For the Defendant Mr. Burke submitted that Mr. Heffernan had not been trying to protect his master's property but simply to protect himself. What he had done was solely actuated by self interest and accordingly was not within the course of his employment.

10 I accept as correct the statements of the law set out in Winfield. It is similar to the statement of law in Salmond on Torts (10th Edition) page 89 and 18th Edition page 437) which was approved by the Court of Appeal in England in Poland .v. John Parr and Sons 1927 1 K.B. 240:

"A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (a) a wrongful act authorized by the master, or (b) a wrongful and unauthorized mode of doing some act authorized by the master."

11 Before considering the law in greater detail, and applying it to the facts, it is necessary first to see what...