Killian Flood BL

The plaintiff, Mr Cian McCarthy, suffered significant brain injuries when he was assaulted by a pedestrian after he was ejected by security staff from the shop, located at Grand Parade in Cork city. Mr McCarthy had been awarded €750,000 in the High Court.

The defendants had unsuccessfully defended the case in the High Court, where it was argued that the accident was primarily caused by the criminal acts of the assailant, Mr Aidan Cullinane and that the defendant should not be liable for the damage caused by his crimes.

The defendants also claimed that the criminal act was a novus actus interveniens, or intervening act, for which the defendants could not reasonably assume responsibility.

Background

The plaintiff was injured during the Cork Jazz Festival in October 2011. After a night out with friends, he went to the 24-hour Centra shop to buy some food. The shop was owned and operated by Herlihy Supermarket Group Limited. At the time, the shop was full with other customers, many of whom had come from nightclubs. Inside the store, the plaintiff got into a row with three people and who then assaulted him in an unprovoked attack. The security staff, employed by Tekken Security, decided that it was safer to remove Mr McCarthy from the shop than the other three people.

However, the attackers followed Mr McCarthy outside and continued to assault him. Mr McCarthy tried to get back in the shop to protect himself, but he was pushed back by security and stumbled back into the street.

As he was pushed back, Mr McCarthy also knocked a woman to the ground. In response, Mr Cullinane, the woman’s partner, reacted angrily and punched Mr McCarthy. The plaintiff fell back and hit his head on the ground, causing significant brain damage. The entire incident took less than 40 seconds.

In the High Court, Mr Justice Kevin Cross had determined that the defendants had breached the duty of care owed to the plaintiff. The judge said that, while a property owner or security staff were entitled to evict people from a premises, it could not result in the person being “thrown to the wolves.” He awarded €750,000 in damages to the plaintiff, which the defendants appealed.

Court of Appeal

On Tuesday, the Court of Appeal dismissed the appeal and upheld the trial judge’s decision. The 73-page ruling, written by Mr Justice Brian Murray, determined that a shop owner had a duty of care to its customers to take reasonable steps to prevent foreseeable harm, which included harm coming at the hands of other customers.

This duty will vary depending on the circumstances of the individual premises, the court said. In this case, where a shop was in the vicinity of late-night venues and was open 24 hours a day, the Centra had to account for the fact that there would be times where the premises was crowded with people, many of them drunk. At these times, the duty of care extended 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.”

The court accepted the arguments made by the defendants that they were not required to police the public footpath and that it was not their job to break up fights outside the shop, even if the fight started in the venue. The court also noted the “real dilemma” for shop owners in readmitting an ejected customer because of the risk to other customers if an altercation continued.

However, this case fell outside those general rules because the defendants had known that the plaintiff was an innocent party to the row when they ejected him. The defendants were under a duty to readmit the plaintiff to the premises when it became clear that the three assailants were continuing the fight outside, the court said.

Mr Justice Murray rejected the defendants’ arguments that the punch by Mr Cullinane was an unforeseeable, intervening act which they could not be responsible for. He said that the injuries caused to Mr McCarthy were clearly foreseeable in the context of an assault by the three individuals and the mere fact that a third party struck the devastating blow was not a novus actus interveniens which could break the chain of causation. The injuries were inflicted “because and only because” of the altercation between the plaintiff and his three attackers, which the defendants had a positive duty to guard against.

The court also rejected submissions that there needed to be a “special relationship” established between the defendants and Mr Cullinane in order to impose liability on the defendants. The defendants relied on several cases, including Dorset Yacht Co. v. Home Office [1970] AC 1004 and Ennis v. Health Service Executive and Egan [2014] IEHC 440, to show that no proximate relationship existed between them and Mr Cullinane and that they could therefore not be liable for his actions. However, Mr Justice Murray observed that the real rationale of these cases was “that the defendants brought the ultimate source of foreseeable harm to the plaintiff and were accordingly under a duty to take reasonable steps so as to protect the plaintiff against the consequent risk”.

Conclusion

The court dismissed the appeal and affirmed the ruling of the High Court judge.