High Court of Ireland Decisions

Callery v. Sinnan Inns Ltd. t/a Clifton Court Hotel [2002] IEHC 111 (28 November 2002)

THE HIGH COURT

DUBLIN CIRCUIT

COUNTY OF THE CITY OF DUBLIN

2002/135CA

BETWEEN:

THOMAS CALLERY

PLAINTIFF/RESPONDENT

AND

SINNAN INNS LIMITED,

trading as CLIFTON COURT HOTEL

DEFENDANT/APPELLANT

Judgment of Mr Justice Michael Peart delivered the 28th day of November 2002

1.      This is an appeal against a judgment of His Honour Judge Hogan given on the 16^th July 2002, wherein the learned judge gave judgment in favour of the plaintiff in the sum of €25394.76 together with costs and reserved costs, against the Appellant in this appeal, as well as against a second defendant Security Extra Services Limited, on a joint and several basis. That second defendant has not appealed against the said judgment.

2.      The appellant to this appeal is the owner of a premises known as The Clifton Court Hotel, (hereinafter called "the premises") situated at O'Connell Bridge in the City of Dublin. The second defendant in the hearing in the Circuit Court is a security firm who provided security services to the Appellant at the time relevant to these proceedings. They were an independent contractor in that regard, providing their own direct employees to perform the security duties in question.

3.      The plaintiff brought his claim in the Circuit Court for damages for personal injuries which he alleged were sustained by him on 18^th July 1999 during the course of an incident outside the premises, when two security men, employees of that second defendant, during the course of their employment restrained the plaintiff from re-entering the premises in circumstances which I shall outline in due course. It is alleged that during the course of that restraining action, excessive force was used in the restraint and that the plaintiff's little finger on his left hand was bitten by one of the security men in question, to such an extent that the tip of that finger was almost completely severed.

4.      Following surgical intervention, the tip of the finger was sewn back, but he is left with an unsightly and mis-shapen finger tip, which causes him embarrassment and also reduces some function in the finger, such as, according to his evidence, playing a guitar.

5.      The appellant states that any force that was used was reasonable force in all the circumstances, and denies in any event that the injury to the plaintiff's finger was caused by biting. They say that the injury may have been caused in the fracas in question, but not in the way described by the plaintiff.

The facts:

6.      The facts of this case are in dispute. There is a conflict of evidence between the parties both as to the events leading up to the incident in which the injury is alleged to have occurred, and also as to the fracas itself.

7.      The plaintiff states that earlier in the day, he had met a number of persons in another licensed premises, but that they had left that premises to go to the Clifton Court Premises. He says that he went inside without difficulty, and at that time was in the company of his uncle Paddy, his brother Mark Callely, and his aunt Margaret. He says that when they went into the premises he and his uncle Paddy went to the bar immediately and ordered some drinks. He then said in his evidence that some girl picked up his mobile phone from the table he was sitting at and went out of the premises with it. He says that he went out after her to retrieve his mobile phone. About two doors up from the premises he caught up with her and got his phone back. He then says that he went back down to the premises in order to go back in to the others but was refused admission by two bouncers on the door. He says that he asked to be let in to get his coat from the bar, but that one of the bouncers said to him "if you are man enough to get your jacket, go ahead". He says that he made to go back in, but that he was immediately attacked by the bouncers and he was put in a headlock by one of the bouncers, and was thrown violently to the ground, whereupon the bouncer, aided by the other bouncer, proceeded to kick him violently, including to his head. He also said that he was danced on by one of the bouncers, and that in the scuffle on the ground his little finger on his left hand was bitten so severely that the tip was almost completely severed. He could see the bone of his finger and there was a lot of blood. He says that apart from the injury to his finger he also received cuts and bruises to his head and his shoulder was painful.

8.      When he got up he apparently waited for an ambulance to arrive while sitting either on or against a car that was parked at the kerb outside the premises.

9.      In cross-examination he said that he had had no difficulty getting into the premises. He did not know the bouncers previously. He said that he had been in the premises for between ten and fifteen minutes before he left in pursuit of the girl he says took his phone. He was referred to the details of the claim appearing in the Civil Bill in which it is stated that the purpose of going out of the premises was to get better reception for a call he was making on his phone. He said that this had not been his purpose and reiterated that he had gone out in order to retrieve the phone from the girl already mentioned. He did not know who that girl was. He went on to say that when he caught up with the girl, she began throwing digs at him, that he put his arms out to protect himself from these blows and that he pushed her away. He says that he told her it was his phone and that he got it back from her. She had been using the phone when he caught up with her. He says this incident with the girl lasted about two minutes, and that he went straight back down to the premises and attempted to gain admission but was refused.

10.      It was put to him that the girl in question was in fact a girl named Sabrina whom he had known. He denied knowing any girl named Sabrina. It was put to him that in fact in a statement that he made to the gardai he had stated that in the premises "at about a quarter to nine, Sabrina's mobile phone rang and she went to the door of the premises to talk because it was too noisy inside. I followed her out and waited for her". He said that was not so – it was his phone. He said he did not know any Sabrina. It was put to him that the security guards would say that when he went out of the premises and up the street after the girl there was a row going on between him and the girl and that there was a lot of shouting and screaming going on and that the reason why he was not let back in was that they were sure the row would continue back in the premises and that there would be further trouble inside. He denied all this and said that the bouncers just pounced on him for no reason and that he had simply wanted to go back in and get his jacket. It was also put to him that in fact he was wearing the jacket in question when he tried to get back in. Again he denied this.

11.      It was put to him that in fact what happened was that the girl called Sabrina had run back up to the premises, had gone up to the bouncers and had been very upset and put her head on the shoulder of one of the bouncers, and that, seeing this, the plaintiff had said to one of the bouncers "Get your f…ing hands off my mot", or words to that effect, and that he had in fact attacked the bouncer to whom the girl had gone. It was put to him also that a girl had got into the ambulance with him when it arrived, but he denied this. He says that he was alone in the ambulance.

12.      The plaintiff's brother also gave evidence of being in the premises. He also said that the uncle Paddy and the plaintiff had gone up to the bar to get drinks. He said everything was alright in the premises, but that he was told that there had been trouble outside and that his brother had been injured. He went out and saw blood on the plaintiff's finger, and that he went up to one of the bouncers and said that there was no need to bite the plaintiff's finger. I presume that the plaintiff must have said to him by that time that his finger had been bitten. He says he asked why the bouncer had bitten the finger and that he was told that the reason was that the plaintiff had broken the bouncer's bracelet. This of course was denied by Mr Lowndes, the bouncer in question during is evidence. He says that there was no lady with the plaintiff in the premises prior to the incident. In relation to Sabrina he said he had not met her before or since. He also said he did not know why his brother had left the premises and did not know how the row outside had started.

13.      The plaintiff's uncle, Patrick Hughes said in evidence that at about 5.30pm the plaintiff had joined him and Mark in Morans (now O'Sheas) in Talbot Street. They had a few drinks and played some pool. He said that shortly after they had arrived in the Clifton Court someone had come in to say that the plaintiff was in a bit of trouble outside. He saw nothing of the incident itself. He did however say that there had been a girl in the premises. He did not know her name, but that she took the plaintiff's phone, and that the plaintiff had said to him that he was going out to get his phone back. He also said that he was sitting at a table separate from the table that the plaintiff was at.

14.      Garda Thomas Victory gave some evidence relating to the report of the incident to him by the plaintiff on the following day. On that occasion the plaintiff's finger was bandaged up so he did not see the injury itself. Garda Victory apparently suggested to the plaintiff that he should obtain a medical report and give it to him, but that this never happened. When he investigated the incident he said that one of the doormen stated that the plaintiff had grabbed him by the throat and that was how the row started. He said that following his investigation he did not bring any charges against any party, even though what had been alleged by the plaintiff would have constituted a serious assault.

15.      Mr Joe McKevitt also gave evidence on behalf of the Appellant. He said that he was the manager at the premises for about five years and he was the only manager. He says that every half hour or so it is his habit to go out to the door and check that everything is alright. On this occasion he was doing just this when suddenly the plaintiff rushed past him and out onto the street. A girl followed. He said that a row between started up the street, with scuffling and shouting. The girl seemed upset about something. He says that when he went back inside he said to the two doormen that if the two should try and get back into the premises they should be refused. He went back up to his office, but that a short time later he was told there was some trouble outside and he went back down. The plaintiff was outside shouting and pointing to his finger and saying that "this is thousands".

16.      Mr McKevitt also gave evidence that the premises get their security men from Security Extra Services Limited and they have been so doing for some time. It appears that Mr McKevitt recommended these doormen to that company because he had known them or at least one of them (Wesley Lowndes) from the past. The company then took him on and he in turn brought in Mr Sean Enright the other bouncer in question. Mr McKevitt apparently lays down guidelines to Security Extra Services Limited as to how the bouncers are to conduct themselves, and indeed he accepted that if for any reason a particular bouncer was not doing the job in the way he wanted it to be done, he would ring up the company and arrange for a different doorman to be provided. He would be in the habit of recommending certain people to that company and they would be taken on in order to provide security on the door of the appellant's premises. His policy is that minimum force should at all times be used in restraining unwanted persons.

17.      The two bouncers also gave evidence. Firstly Mr Wesley Lowndes stated that on the day in question he was on the door with Mr Sean Enright. He had done security duty for about four years on and off. He says that he saw the plaintiff and the girl come out of the premises and go up the street a few doors. There was a row going on between them. He said that Mr McKevitt had come down and had told him that if they tried to get back in, they should be prevented from doing so as he did not want the trouble to continue inside. He said that the girl had come back down and that the plaintiff and the girl had also come back and had come up to him in a distressed state and had put her head on his shoulder. He said that when the plaintiff saw this he came up to him and told him to get his hands off his girlfriend. He explained that they were not getting back in, and that the plaintiff had made a lunge at Mr Enright and that a scuffle broke out between the three of them. He says that the plaintiff had Mr Enright pinned up to the wall with his hands around his throat. He says that they restrained the plaintiff, and put him on the ground. He had a hold of the plaintiff's legs, and Mr Enright had him gripped at the shoulder on the ground. They eventually let the plaintiff up and the plaintiff was complaining about his finger. He did not know how the plaintiff's finger got injured but said there was no question of either he or Mr Enright biting it. He expressed the opinion that it must have got cut either on the hub of a car wheel or perhaps on some glass on the pavement. He did not know. He said that after a few minutes an ambulance arrived and the plaintiff left in the ambulance. He also said that the girl had gone back into the premises at this stage.

18.      Mr Sean Enright gave evidence similar in all respects to that given by Mr Lowndes.

Conclusion:

19.      Having heard the evidence from all the witnesses, I am satisfied that I cannot rely on the evidence given by the plaintiff and his witnesses as to the sequence of events leading up to the fracas in which the plaintiff's finger was injured. There are inconsistencies in the evidence regarding the mobile phone, the girl in question, the row outside and so on. There are inconsistencies between what the plaintiff told Garda Victory in his statement and what he must have told his solicitors and also with what he has said in his evidence. On the balance of probabilities, I accept that the account of the relevant events given by Mr McKevitt and by the two doormen is the correct version of events.

20.      The question which arises then is whether, even accepting the version of the events given by the appellant's witnesses, the force used by the doormen was excessive in the circumstances. I do not believe it was. Were I satisfied that one of the bouncers had, during the scuffle, bitten the plaintiff's finger, I would find otherwise. Indeed, as submitted to me by Mr McDonnell S.C for the plaintiff, I might have been forced to conclude that there had been an assault, as opposed to an act of mere negligence, and if I had been so satisfied, I would have been able to exercise a wide discretion to permit an amendment to the pleadings to permit a specific allegation of assault to be pleaded.

21.      In the circumstances it is not necessary to deal with the matter in that way, as I am not satisfied from any evidence which I heard, that in fact on the balance of probabilities, either of the bouncers did bite the plaintiff's finger. The plaintiff says that it happened, but could not say which of them did it. Furthermore he does not appear to have mentioned biting to the doctors he attended as there is no mention of it in the medical reports provided. The report of Mr Thakore refers to a "laceration". The report of Mr Lawlor refers to "a crushing injury". The report of Dr Peter O'Connor simply states that an examination of the left hand revealed "a significant injury to the tip of his left fifth finger". Without some corroboration of the allegation of biting, I am not prepared to find that the finger was bitten by one of the bouncers.

22.      In all other respects I cannot conclude that the action taken by Mr Lowndes and Mr Enright in the circumstances which presented themselves amount to more than reasonable force to restrain the plaintiff. Their evidence, which I accept, is that the plaintiff returned to the premises in a very agitated and aggressive state, and that upon seeing the girl in question placing her head on the bouncer's shoulder, proceeded to attack that bouncer, pinning him against a wall by the throat. It was inevitable that some force had to be used to restrain the plaintiff and to put him on the ground. Given the struggle involved, the force used was not in my view unreasonable. The evidence is that eventually having been restrained from kicking out and struggling while on the ground, the plaintiff calmed down somewhat and awaited the arrival of the ambulance, while sitting or leaning against a parked car.

23.      It is of course very unfortunate that any injury was caused to the plaintiff, but the fact that there was an injury cannot be laid at the door of the Appellants in this case without believable evidence showing that the injury was caused by biting. In my view there is no such evidence given to the court on this appeal, and that in effect what happened to his finger was accidental, and that anything further in the nature of lacerations, pain and bruising was simply an inevitable consequence of the position the plaintiff put himself in, by behaving as he did on his return to the door of the premises.

24.      Since I have reached this conclusion it is not necessary for me to address the question as to whether the appellant was responsible in negligence for the acts of the employees of the security firm, and I refrain from doing so. I must therefore set aside the order of the Circuit Court in sofar as it gave judgment against the Appellant in this case. Since the other defendant was not an appellant in this appeal, there is an anomaly remaining in that there will still be a judgment in favour of the plaintiff against Security Extra Services Limited. Be that as it may, I do not think that I can interfere with that in any way since they were not an appellant before me.