About this case:

• Citation:
  [2018] IECA 402
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Mary C. Irvine

In the High Court, it was found that the relationship between the two men involved “jokes, banter and the odd physical engagement” and that the man did not suffer a “vicious” strike to the buttocks.

Finding no errors of law or fact, Ms Justice Mary C. Irvine was satisfied that the High Court’s principal findings were supported by credible evidence and could not be overturned.

Background

Mr John Rice claimed that, on three occasions between May and July 2009, he was viciously assaulted by Mr Alan Muddiman. Mr Rice was a security officer employed by Tesco Ireland Limited at the time, and Mr Muddiman was a delivery driver for Joseph Brennan Bakeries.

Mr Rice maintained that as a result of the assaults, he sustained damage to his lower back and right buttock with accompanying numbness in his legs, developing depression and suicidal ideation and an addiction to benzodiazepines.

Mr Rice maintained that:

• Tesco had not provided a safe place of work and had allowed a person onto its premises who was not properly vetted.
• Brennans was liable because it had not properly supervised Mr Muddiman and failed to carry out adequate risk assessment on persons employed to distribute for them.
• Mr Muddiman had viciously assaulted him, and that all of his injuries were attributable to an incident in July 2009 where Mr Muddiman had allegedly struck him “in the buttocks and right hip with a closed fist”.

Mr Muddiman denied all the assaults. Tesco denied liability on the basis that it did not have notice of any prior incident to render the potential of assault foreseeable. Brennans maintained that Mr Muddiman was an independent contractor, not its employee, and therefore it could not be held vicariously liable.

High Court

When the matter came on for hearing in July 2016, Mr Rice applied for an adjournment on the basis that:

• He needed time to examine his doctor about the contents of his report;
• Another of his medical experts would not be able to give evidence;
• He had not yet managed to obtain legal aid.

Mr Justice Kevin Cross refused the adjournment application but agreed that Mr Rice’s expert reports could be admitted without formal proof and the medical expert could give evidence at a later stage.

In his evidence, Mr Muddiman submitted that he regularly joked around with Mr Rice, he denied punching Mr Rice and causing him to jolt forward, and said that he had given Mr Rice a slap to the bottom with an open hand.

A witness to the events in July 2009, Mr Keith Partridge supported Mr Muddiman’s evidence, stating that Mr Muddiman had given Mr Rice an open-handed tap which was so insignificant that he had never thought about it again.

CCTV did not show the precise moment of contact, however, the movements and demeanour leading up to and immediately after the point of contact were “clearly discernible” to the Court.

Following an application for a direction made on the part of Tesco and Brennans, Mr Justice Cross dismissed Mr Rice’s claim.

Mr Justice Cross concluded that even if Mr Rice had been assaulted as alleged, no prima facie case had been made out against Tesco. He said that even if Tesco had an obligation to train its employees against potential assaults, this would not have assisted Mr Rice in circumstances where the alleged assault was unprovoked. Further, Tesco could not be liable for the conduct of an independent contractor attending its premises.

Mr Justice Cross also concluded that Brennans could not have done anything to prevent the actions complained of, and it had no direct or indirect liability for Mr Muddiman’s actions.

Finding as a fact that there was no vicious strike, Mr Justice Cross noted that CCTV did not show Mr Muddiman lunging forward at Mr Rice, nor did it show Mr Rice staggering forward. Mr Justice Cross accepted evidence from Mr Muddiman and Mr Partridge that the relationship between them was one of “jokes, banter and the odd physical engagement”, and concluded that if Mr Rice had told Mr Muddiman not to touch him ever again that Mr Muddiman would have respected that direction.

Dismissing Mr Rice’s action, Mr Justice Cross ordered him to pay Mr Muddiman’s costs.

Mr Justice Cross ordered that Mr Rice pay Tesco’s costs (Tesco agreed to not execute that order if Mr Rice decided not to appeal). Brennans did not seek an order for its costs.

Court of Appeal

Ms Justice Irvine was satisfied that there was nothing unjust or unfair in Mr Justice Cross exercising his discretion to refuse the adjournment application.

It was noted that the proceedings had been listed for hearing in 2015, and that by July 2016 over 7 years had elapsed since the alleged assault. Ms Justice Irvine was satisfied that Mr Rice had ample time to seek legal representation.

Noting that the application for legal aid was made in the weeks before the hearing, Ms Justice Irvine said it was also clear that Mr Rice had advised the Legal Aid Board that he had cancelled medical witnesses on the basis that he would be granted an adjournment – despite their advice that it might not be granted and notice from defence solicitors that they would object.

Ms Justice Irvine also rejected Mr Rice’s complaints that he was not afforded fair procedures or a proper opportunity to call witnesses.

Dismissing all of Mr Rice’s arguments, Ms Justice Irvine was satisfied that the principle findings were supported by credible evidence – and therefore could not be overturned by an appellate court.

• by Seosamh Gráinséir for Irish Legal News