High Court of Ireland Decisions

Neutral Citation No. [2004] IRLHC 336

THE HIGH COURT

Record Number: 1997 No. 4091P

Between:

John Hackett

Plaintiff

And

Calla Associates Limited, Christopher O'Reilly, Stephen Spain, Gerard Spain, and The Crooked Staff Limited

Defendants

Judgment of Mr Justice Michael Peart delivered the 21^st day of October 2004:

Introduction:

This case arises out of an incident outside a nightclub known as Marleys Night Club, on the night of the 12^th January 1996 or the very early hours of the 13^th January 1996, when the plaintiff alleges that he sustained a very serious injury to his right eye and the area surrounding it as a result of a blow received from a blunt instrument wielded by what is commonly known as a 'bouncer' employed at the premises on the night in question. The circumstances giving rise to the injury are in dispute, as is the allegation that the injury was caused by any such bouncer on that night. The defendants deny that any baton or blunt instrument was used at all when a group of bouncers came out of the premises into the car-park to break up a crowd which was causing trouble outside the nightclub, and they maintain that no more than reasonable force was used, and that if the plaintiff suffered any injury it was entirely his own fault, or at least that he was guilty of contributory negligence.

The first named defendant is a limited liability company which owned the licensed premises of which Marleys forms a part. The second named defendant is the person in whose name the licence itself was held following an ad interim transfer application to the District Court on the 23^rd September 1992. There is some dispute arising in these proceedings as to whether the bouncers on duty that night were employees of the first defendant or whether they were the employees of the second named defendant, and that is an issue which I will have to address later. Counsel appearing for both defendants stated that it was accepted by both of his clients that the bouncers in question were the employees of the first named defendant. The plaintiff does not accept that, and has attached some significance to the issue.

The claim is in effect only against the first and second named defendants at this stage, it being accepted that the employees in question were not the employees of the fifth named defendants, and that ground of defence has been withdrawn by the first and second named defendants.

One matter which is immediately obvious is that this injury occurred over eight years ago. The simple explanation for this is that the plaintiff has spent about six of these years in prison in relation to a matter entirely unrelated to this particular incident and I do not have to elaborate further in that regard. But it is undoubtedly a feature of this case that this passage of time has made it more difficult for witnesses called to give evidence to remember exactly what happened outside the nightclub on that night.

The injury:

As far as the actual injury itself is concerned, there is no dispute. The medical reports describe it as a very severe injury to the right eye, including a full thickness laceration of the right upper eyelid and a severe blunt trauma to the globe of the right eye which caused a dislocation of the lens and displacement of the vitreous gel from the posterior part of the eye into the ante chamber, when it was struck by a blunt object. The most recent report when describing the plaintiff's visual acuity in the right eye states "Perception of light only (totally blind)". This condition is now regarded as permanent, and his level of vision is described in a report dated 13^th May 2004 as:

"The condition of his right eye is now permanent and leaves the patient with no stereoscopic vision, diminished side of his visual field, an overall reduction in his visual acuity and an uncompensated blind spot in his left eye."

There also remains a full thickness scar in the centre of his right eyelid, although the latest report notes that the cosmetic appearance has greatly improved.

The author of these reports, Mr Hugh Cassidy, Consultant Eye Surgeon, gave evidence. He said that the plaintiff had travelled to St. Vincent's Hospital immediately after the injury was sustained and that on arrival there was extensive bruising to the right cheek and a laceration to the right eyelid. A blow over the right eye had caused the injury to the eye which is described in his reports. He described it as "a blunt trauma" which would have to be caused by a blow from a heavy solid object, and that it would require very severe force to cause a full thickness laceration of the eyelid. He said that in his practice he had seen similar type of injury caused by a blow from a hurley, and described it as a very severe injury, and one which was consistent with the account of the injury which was given. He described the right eye as being a write-off.

Summary of the evidence:

The plaintiff was born on the 9^th March 1970 and was therefore almost 26 years of age on the date of this incident. He was unemployed at the time, and apart from the six or so years spent in prison between 1998 and March 2004, his employment record has been sporadic and uncertain.

On the 12^th January 1996 the plaintiff had attended the funeral of a friend in the morning. Later in the day he and a couple of his friends "the Merediths") went to a pub called the "Furry Bog" in the Whitechurch area of Rathfarnham. They were later joined by others, including a lady who gave evidence, namely Colette McGouran. Having spent a couple of hours there they all decided that they would go up to Marleys Night Club, which is operated in a premises which was known as Taylors Grange Hotel. They went by taxi. He and his companions had been in that premises on a number of occasions previously and were known there. In fact the plaintiff was someone who had previously been barred from that premises, but on this occasion he seems to have been able to gain entry to the premises without coming to the attention of the staff controlling entry on the night. He and his friends arrived at about midnight and paid an entry fee to the Night Club. Their jackets/coats were handed into a cloakroom from which they were collected on departure – a matter to which I will again refer.

I am satisfied that the plaintiff was someone who was barred from these premises for some time prior to this night, even though I have no evidence as to the precise reason for that and whether there was a particular incident which gave rise to it, or whether it was on account of the proprietors having formed a view generally about the plaintiff on account of what I might loosely call his "local reputation". Counsel for the defendants certainly attempted by a certain line of questioning, to suggest that the plaintiff was someone who had a reputation in the area for violent behaviour, but I was not prepared to have that aspect of his character explored in detail since its relevance to what happened on the night in question is very limited indeed. Under cross-examination, the plaintiff accepted that he was 'no angel'.

The plaintiff stated that after getting to the nightclub he and his friends stayed in a group together and that there was no trouble of any kind. He said that at about 2am on the 13^th January 1996 they began to leave the nightclub. It appears that when they arrived the plaintiff had left the coats into the cloakroom but had given the tickets to Keith Meredith, and that the latter joined a queue to collect the coats. This queue was just inside the door of the night club which leads to the car-park outside. In other words, it is between the night club space itself, and the exit door. At any rate it appears that the plaintiff felt that this queue was not moving fast enough for his liking, and he also stated that there were others coming into the queue from his left, and that it was not what he called "a proper queue". He took the tickets from Keith Meredith and made his way to the top of the queue, thereby giving rise to some difficulty with patrons at the head of the queue. The plaintiff stated in his evidence that when he went to the top of the queue he asked those at the head of the queue if they mind if he stepped in to get the coats, and that they agreed. It is relevant to say at this point that a man named James Clarke, and who was an off-duty security man on this night and who was situated at the head of the queue had some sort of altercation with the plaintiff in relation to his skipping the queue, and the plaintiff accepts that they exchanged words about it and that he "tipped" Mr Clarke in the face. What that means is that he appears to have slapped Mr Clarke's face with an open hand, not a fist. One way or another I am satisfied that the plaintiff had an aggressive altercation with Mr Clarke at the head of the queue. In cross-examination the plaintiff also accepted that he suggested to this Mr Clarke that if he had any problem with the plaintiff they could settle the matter outside, meaning by way of a fight as far as I am concerned.

Neil Meredith was at the queue at this time also and while he heard some verbal exchanges between the plaintiff and Mr Clarke, he did not see the slap to Mr Clarke's face or hear exactly what was being said. Similarly, Colette McGouran also was aware that there was something going on at the cloakroom queue but saw nothing and did not know who was involved.

Ms. Sharon Lawless, the Manager of the premises and who says she was employed since 1995 by Calla Associates to manage the night club, states that she heard raised voices at the cash desk and saw James Clarke a man, having an argument about the queue. She was told that the man was the plaintiff in these proceedings. She says that the plaintiff was being belligerent and aggressive and more than was necessary even making allowances.

The plaintiff states that he went to exit the premises into the car-park, but that at this point four or five other security men arrived and he was pushed from behind as he put on his jacket. He says that there was what he called "give and take" on both sides in the altercation, and he was eventually pushed out the door which was then closed behind him. This door is a double door which opens outwards, there being a crush bar in position on the inside of the doors. The fact that the doors do not open inwards is of some relevance because the evidence of the security men is that after the plaintiff was forcibly ejected from the premises, the plaintiff was attempting to push the door inwards from the outside and with such force that the plasterwork around the door frame was beginning to become loose and damaged.

The plaintiff states that after he was ejected there were about 20 or 30 other people in the car-park outside the premises. It was also raining and he says that a number of people were standing under a veranda immediately outside the doors. He says that some of these people, whom he did not know, started to kick at the door but that he ignored them and was intent on putting on his jacket. It was just at this point he says that a small door to the left (as one looks out of the premises) of the double doors was opened and that a number of bouncers emerged. With this, he says, all the others under the veranda disappeared and he was left there as he was still at that stage putting on his jacket. It is immediately after this moment that he says that he received a blow to his head which has caused the injury to his eye, but I want to deal with the other evidence which I heard in relation to this particular point of the evidence, because there are differences between what the plaintiff and his witnesses say happened and what the defendants' witnesses say happened.

Neil Meredith:

Neil Meredith stated in relation to the kicking of the door that there were a lot of people gathered outside the double doors and that there was a lot of commotion, with some people trying to get back in to get their coats and the bouncers trying to get people out as quickly as they could. He says that after he went out and down the ramp he saw the plaintiff and a bouncer having an altercation. This man was not Mr Clarke. He says that three or four bouncers emerged then from the small side door and ran towards the plaintiff. He says that one of these men was carrying a baton about 12 inches in length and that he caught hold of the plaintiff. He says that two of the other bouncers were carrying larger batons which were maybe about three feet in length. He says that these bouncers ran generally at everybody who was gathered outside the premises and that there was an element of panic in the situation. He says that he saw the plaintiff stumble forward. Under cross examination he was asked whether he saw people outside throwing glasses and stones at the windows of the premises, but he said he did not see that happening. He said also that he did not see the plaintiff doing anything outside the door in the way of kicking the door and so on. It was asked, if that was so, then why did the bouncers come running out the small door and head straight for the plaintiff. Mr Meredith reiterated that they just came out and that one of them hit the plaintiff in the face with a baton and that it was something that he would never forget. He thinks that there were four or five bouncers and that they generally laid into the crowd, but he does not know if any other persons besides the plaintiff were hit.

Under cross examination he was asked to explain how certain aspects of the statement which he made to the Gardai after the incident differed from what he was now stating in his evidence – for example that in his statement he had described the weapons used by the bouncers as "iron bars" rather than batons. Mr Meredith sought to minimise the distinction by saying that a baton is a long object made of either wood or iron, or words to that effect. He could not remember using the term "iron bars" but that it was about eight years ago at this stage. There was also a reference in his statement to the bouncers "swinging digs", but he could not remember saying that either. It was also put to him that in his statement he had referred to some of the people throwing stones and breaking windows, but that now he says in his evidence that he did not see that happening. He accepted that the statement contained what it contained, but that nothing could take away from the fact that he saw the plaintiff being hit with a bar, and that things would have been fresher in his mind eight years ago.

Colette McGauran:

Ms. Mc Gauran says in relation to this part of the incident that she had heard people banging on the double doors and also that a group of bouncers came running out of the small door, and that one of them charged at the plaintiff and hit him over the head with a baton, and that the plaintiff staggered and went towards the road beyond the car park . In cross examination it was put to her that what she had said in her statement to the Gardai after this incident was somewhat different to what she was now saying in court. She could not remember exactly how she had described matters in her statement and agreed that what was in her statement was likely to be correct given the length of time which has now passed since the incident. However her statement was not put into evidence, but it is suggested on behalf of the defendants that her evidence should not be relied upon given the differences. It is a factor which I will bear in mind as going to the weight of her evidence, but it is necessary for me to reach any conclusions on the evidence heard before me, and the statement is not in evidence. The same applies to the criticism made of the evidence of Mr Meredith in so far as his evidence differs in some respects to what is contained in his statement.

Mrs. Sandra Hackett:

Mrs Hackett is a sister in law of the plaintiff and she was at the nightclub on this night. She had not gone there with the plaintiff but saw him there. As she was leaving the premises at the end of the night she remembers seeing the plaintiff and saying goodnight to him. She did not have to collect any coat from the cloakroom. She said it was slow to get out of the premises because of the amount of people at the entrance lobby. She remembers being just outside the main doors a few feet from a pole which is identified in the photographs produced to the court. She had moved onto a grass area and was just moving through the crowds when she heard a bang. She said there was what she described as total confusion and a lot of people burst out of a door. These were the bouncers, and she said it felt as if there might have been about ten of them, but that it was probably about five and that they had batons in their hands. She described these as being like American baseball bats. She did not see the plaintiff being struck. She described seeing what she called "a scrum" but does not know exactly was involved in that, but she said that some bouncers were involved in it and they would have had batons. She thinks about fifteen minutes might have passed between her exiting the premises and the trouble starting. She thinks that she became aware that the plaintiff had been hit when somebody shouted that he had been hit. She saw blood on his face when he was coming towards her in the car park. She said there was blood everywhere and that the plaintiff was holding his eye. There was also blood on a white car that she was standing at. She says that at this stage the bouncers were looking out of the door down towards the car park where she and the plaintiff were. They did not have anything in their hands at that time.

Under cross examination it was put to her that in her statement to the Gardai after this incident she had stated that she had seen a bouncer hit the plaintiff. She said that it was eight years ago at this stage and that what she has stated in her evidence to this court is what she now can remember. It was suggested to her by Counsel that at this stage possibly she can remember nothing well.

Sharon Lawless:

For the defendants, Ms Lawless stated that after the bouncers had removed the plaintiff from the premises, he was standing outside the double doors shouting back at the bouncers who were inside, and that there was a lot of people outside at that time, presumably waiting for taxis. She says that she telephoned the Gardai as a result of the commotion and what was happening in relation to the kicking of the door. She says that she rang the Gardai because she did not want what she described as "a situation to arise", because the plaintiff had been barred from the premises and she feared that something might arise outside on account of that fact. She thinks she called the Gardai at about 2.30am. While she did not see exactly what was happening outside because she was inside behind the doors, she says that the doors were being kicked with such force that the hinges at the top of the doors came loose and she was afraid that they would give way under the force of the kicks. She also heard a group of people chanting "One, two, three" and that was followed by more kicking of the door. She says that it was at this point that the bouncers went out into the crowd by means of the small door to the left (as one looks out). She said that she heard glass breaking, and she stated also that a glass bottle came into the premises just past her face and landed beside the cash desk. She went upstairs to call the Gardai and at that point she says that she saw some windows of the premises broken. The bouncers returned to inside the premises and she says that one of the bouncers, a Mr Leydon, had a cut on his head as far as she recalls. She described the incident as being "a riot" and as being "under siege" and that it was very frightening. She was cross-examined of course and she was asked why the bouncers had been sent out to deal with the crowd. She said that when people become aggressive with drink, sometimes the situation can be diffused quickly and this was the reason they went out – in order to "show a presence". She stated in fact that they were successful in this since the incident died down after a few minutes. The kicking of the doors ceased during this time and the crowd dispersed. She agreed that she did not see exactly what took place outside the doors as she was inside.

She also gave evidence relevant to the issue as to whom the bouncers were employed by, and her own employment at the premises. She stated that she was employed by calla Associates Ltd to manage the night club. She stated in cross examination that she had never worked at any other premises owned by Calla, or even in any other premises owned by Mr Philip Smyth or any other company of his. On taking up her position there was already in place what is referred to as a "suits policy". All security personnel were obliged to wear suit and bow tie, so that they would be recognised a part of the security team. According to her, Mr O'Reilly was simply the licencee of the bar and had charge of that area, but that she was responsible for the premises as a whole as manageress. She said that it was part of policy that no batons would be used by security personnel and that they were never used at any time and that there were no batons on the premises at any time. She also stated that the person to whom she reported within the company was Brenda Flood and that she was not aware of who the other directors of Calla were. It was put to her that the reason why the bouncers emerged into the crowd through the small side door and not out the main double doors was so that they could fetch their batons from a room behind that small door on their way out. She denied this completely saying that they never used any weapons on that night and that they never have weapons. She said that the reason they did not go out the double doors was that the crowd was outside those doors trying to kick them in.

She also stated that the plaintiff had been barred from the premises for as long as she had been employed as a manager of the premises, and that he must have gained entry through a fire-door entrance as the doormen would surely have recognised him coming through the main door. In any event the plaintiff was known to be in the premises on the night and was not ejected or asked to leave because a decision was made that it would probably cause more trouble to do so, and that in fact there had been no trouble that night before the incident after he had left the premises. She felt that it was better simply to keep an eye on him during the course of the evening.

Clive Leydon:

Evidence for the defendants was also given by Mr Clive Leydon, who was a barman and who also had some responsibility for the bedrooms and function room within the hotel itself as opposed to the night club area. He was responsible for the cash receipts in the bars and as part of his duty he would remove the cash to an office upstairs. He was employed by the company named as the fifth named defendants, Crooked Staff Limited. He said that in all his time in these premises he had never seen any security men with batons or other weaponry, and that most of the doormen were older men with families. He said that on this night he had gone to the night club area to do the cash, and he became aware that an incident had occurred which had resulted in some windows being broken on the bedroom corridor of the hotel. He was concerned that the residents in some of those bedrooms were alright. He said that the incident itself had been a very frightening and traumatic experience. As he looked down a corridor he was hit on the head by a bottle which had come through a window. He retreated to the night club area, and also stated that there was quite a crowd outside and that he briefly saw a bouncer whom he named as John Murphy, in confrontation with somebody. He felt that this crowd was very agitated and ready to use force. Under cross examination he conformed that he worked for Calla Associates Ltd, and that all the bouncers worked for Calla. He also said that in fact it was Mr Christopher O'Reilly, who was involved in the bar area, who paid the bouncers and himself their wages, and that his P60 refers to Crooked Staff Limited as his employer. He also confirmed that Mr O'Reilly was there most days from about 10am, and he would enquire about whether there were any problems with staff or functions, and that in relation to annual leave, it was Mr O'Reilly he would go to. He was asked whether the bouncers would report to him (Mr Leydon), but he said they did not and that he had no responsibility in relation to security matters.

Liam Connolly:

Liam Connolly gave evidence that he had been a part-time doorman for about 8 years, and that at the time of this incident he would have been about 40 years of age. He has never had any trouble as a doorman, and has never either used or even carried a baton as part of his duty as a bouncer. He also said that he had never worked with any other bouncer who used a baton. He has never brought a baton to work, and that this night club was not a dangerous place, and that if it was he would go and work elsewhere.

He remembered that on this night there had been a bit of trouble at the cloakroom queue and that a man had received a blow with an open hand, and that it was not a punch as such. He and another bouncer walked the man to the front door of the night and that there was no resistance. This man was of course the plaintiff, and while Mr Connolly remembers a bit of shouting he took no particular notice of it. He says that at this time the plaintiff asked for what he referred to as " a straightener". I gather this is a somewhat euphemistic reference to an opportunity to settle differences outside. He remembers a crowd gathered outside the doors, and that when the doors were closed, some people started to kick the doors. He says that the plaintiff and others were kicking the doors, and that the doorframe was beginning to give because the door itself was plated with steel. He says that he and some other bouncers went out by the side door in order to try and calm things down. He says that when they went out they were jumped upon by the crowd and that there was a lot of glasses and bottles being thrown. He says that he saw the plaintiff on the back of the bouncer named John Murphy and that he pulled him away from Mr Murphy. He goes on to state that he was knocked into the corner at the double doors, and saw what he described as "sticks, stones, bottles and ashtrays" thrown at the double doors. It would appear that at this point those still inside the doors pulled Mr Connolly back inside the premises. He said that he had never seen anything like this before. There were windows broken in the hotel corridor and he says that people in the crowd were pulling stones up from the grass verge and throwing them at the premises.

Mr Connolly was cross examined and was asked about whether the plaintiff was wearing a jacket when he saw him outside. He could not remember. It was put to him that one of the bouncers must have struck the plaintiff but he denied that this had happened and stated that he had simply seen some wrestling going on with John Murphy, and that he had pulled the plaintiff off Mr Murphy's back. He does not know how the plaintiff sustained his injury. He says that he certainly used no baton but said he could not speak for the others. He also suggested that perhaps the injury was caused by a glass being thrown. In relation to how he was paid his wages he stated that he would be paid in cash at the end of an evening by Sharon Lawless, and he has no knowledge as to who she works for.

John Murphy:

He was employed as a doorman at these premises since about 1987 and he says that his wages were paid to him by Ms. Lawless. He stated that the doormen were not permitted to have batons or iron bars. On this night he was on duty at the night club from about midnight. He walked around and saw some people who he knew to be barred from the premises, but that it was decided to leave them alone as there had been trouble with them before. Nothing in fact happened that night until the incident giving rise to this case. Mr Murphy gave evidence about the incident at the cloakroom queue, and he said that after the plaintiff was put out there were a lot of people coming and going at the entrance lobby. Eventually, he say that they got the doors closed, but that people outside then started kicking at the doors. He says that he looked out through a spy hole in the door and saw maybe seven or eight men, some of whom he recognised, including the plaintiff, and who were all engaged upon kicking the door and shouting abuse at those inside. He described how the force of the kicks was beginning to disturb the plaster around the door frame, some of which was falling to the ground. He stated that at that point they were in some trouble with the crowd. He stated that they decided to use the small side door and when it was opened he states that sticks, bottles, glasses, stones etc came raining down on them. He described being grabbed and that it was "complete mayhem".He also stated that some windows had been broken prior to this. He says that he was grabbed by the plaintiff, and that the plaintiff had pulled Mr Murphy's coat over his head and that at this point someone pulled Mr Murphy off him and was pulled back into the premises. He says that the plaintiff was on his back, but that there were no blows, and that he was very frightened as was everybody else. He understood that the Gardai had been called on two occasions and were on their way at this time. He says that when the Gardai arrived they were shown the broken windows and the damage to the doors. He says that about one month later the Gardai returned to the hotel in the company of the plaintiff who identified him (Mr Murphy) as the man who had assaulted him that night.

When cross examined he stated that he was the head doorman on the night. He also said that he could not be certain if he had pulled the plaintiff's jacket off. It was put to him that security had broken down on this night, but he replied to the effect that it depended how you looked at the situation, and that people were there who ought not to have been there. It was possible, he said, that some of the doormen may not have known who these people were when they arrived. He also confirmed that some of the people who had been outside the doors kicking the door and shouting were some of those who were barred from the premises.

In relation to putting the plaintiff outside the door he stated that it was not a major problem. Mr Murphy stated that because of the scale of the melee outside the premises it was necessary to go out all together rather than one person going out on his own. He says that he may have been the first man to exit, possibly the second, and certainly was not the last. He says that he did not head straight for the plaintiff. He described again the hail of stones, bottles, rocks etc that came down upon them when they went out. He said also that what happened in relation to pulling the plaintiff's jacket in fact occurred during the earlier encounter when he was putting the plaintiff out of the premises, and not after the bouncers went out of the small door. He says that on this latter occasion he did not go anywhere near the plaintiff, and that he never carries a baton and did not have one. He presumes also that none of his colleagues had batons as it was not permitted by the Management. He also stated that he was not aware that the plaintiff had received any injury until the occasion when the Gardai called to the premises about a month later.

Evidence was also given by Ms Ann Groome who had a franchise for the kitchen on the premises. She says that at about 1.45am she set up her stand near the exit in order to serve hot food to patrons leaving the premises. She saw a good deal of what took place, but her evidence adds nothing further to what has already been set out by way of summary of the evidence given.

Garda Pat Hession from Rathfarnham Garda Station also gave evidence of having been called to an incident at the Grange Hotel on this night. When he arrived he saw a man standing beside a telegraph pole with blood on his face. He spoke to the man and enquired if he wanted any medical attention and whether he had any complaint to make. The man said he did not. This was a short distance from the hotel premises and the Gardai then proceeded to the premises where he saw a lot of broken glass in the car-park and there may have been stones also. He also saw two broken windows near the entrance to the disco area. By this time the crowd had disappeared from the car-park.

Mr Sean Moylan SC on behalf of the defendants submitted at the close of the evidence that there was no evidence whatsoever that any of the bouncers was employed by the second named defendant, Christopher O'Reilly. It will be recalled that at the commencement of the case, he had accepted that these men were the employees of the first named defendant. He submitted that the evidence showed that the bouncers were all paid by Calla. This is a reference to the evidence that they received their wages at the end of the night in cash from Ms. Lawless, the Manager employed by Calla. He urged that there was one body in control of these premises and that was calla, and not Mr O'Reilly who was the holder of the licence and who had charge of the bar facility.

Mr Richard McDonnell SC on behalf of the plaintiff urged on the other hand that under the provisions of the Occupiers Liability Act, 1995 an occupier is a person exercising control , and that where there is more than one such person, the critical factor is the degree of control exercised by each. Mr McDonnell stated that the plaintiff was led to believe that the 2^nd named defendant was a mere licencee, but that the reality was that he was certainly in control of the bar areas, including the entrance fee paid by patrons to the night club, and that there was no evidence as to who benefited from that fee. He also stated that the evidence had shown that in fact Mr O'Reilly was very active on a day to day basis in relation to the management of the premises. Therefore Mr McDonnell submitted that since the plaintiff was a visitor to the premises on this night, Mr O'Reilly cannot abrogate his responsibility on the basis that he does not pay the wages of the bouncers. He submitted that Mr O'Reilly was not a mere licencee but was to be regarded as a joint occupier with a joint responsibility for what happened on this night.

In response Mr Moylan highlighted the need to look at the degree of control; exercised by a person in relation to a premises when deciding whether they came within the definition of an occupier under the said Act.

Before stating my conclusions, I want to refer to a document which was handed to the Court, namely a copy of an Agreement dated 22^nd September 1992 made between Calla Associates Limited and Christopher O'Reilly. By this document, Calla lets the premises in question to Mr O'Reilly, including all contents and fixtures and equipment on a week to week basis until terminated, and it is stated that "This letting is made for the temporary convenience of the Lessor until such time as it may require the premises for its own use for trading purposes, or for the use of any person nominated by the Lessor…"

Paragraph 4 thereof states that the Lessee shall carry on the business of a licensed hotel and public bar business "and with the right to hold public dances in the premises in accordance with the licences in force from time to time………and shall do all things necessary to ensure that the premises are conducted as an hotel in accordance with the standards and requirements of Bord Failte………"

Paragraph 5 provides that the "lessee shall fully comply with all the requirements of the Intoxicating Liquor Acts in relation to the conduct and management of the premises and in particular in relation to the non-admission of persons under a legal age, the hours of opening and closing the premises whether the statutory provisions in force, or by virtue of special exemptions or otherwise granted in respect of the premises and he shall co-operate with the Garda authorities in relation to such matters as required from time to time."

The Agreement contains many more covenants on the part of Mr O'Reilly which one would expect to find in a document of this kind, including one which states that a weekly rent of an unspecified amount but one which shall be agreed from time to time, shall be paid to Calla by Banker's Order; another which obliges Mr O'Reilly to keep the premises in good order; another by which the Lessee shall be responsible for all claims which may be brought by members of staff under the heading of Employers Liability; and another by which Mr O'Reilly covenants to conduct business in the hotel "in a manner consistent with the grading and status of the hotel, as a licensed hotel having a Public Dance Licence.

The Lessor on the other hand covenants with the Lessee, Mr O'Reilly in a number of matters of relevance, including the following:

"B. To keep the premises hereby let insured against all risks which the Lessor shall decide, such risks including fore insurance on the premises and contents thereof, and all public liability insurance, but excluding Employers Liability which shall be the responsibility of the Lessee and the Lessor covenants to indemnify the Lessee against all public liability claims that arise from incidents or occurrences during the term of the letting, save and except such claims that may be repudiated by the Lessors Insurers or Underwriters by reason of breach on the Lessee's part of conditions contained in the relevant insurance policies in force………The Lessor shall have the interest of the Lessee as occupier noted on all relevant policies and the Lessee covenants to cooperate with the Lessor in relation to the making of all claims under the various Insurance Policies in force …….." (my emphasis)

Neither Mr O'Reilly nor Mr Philip Smyth gave evidence to this Court, so I am entitled to assume that this agreement was still in force at the time of this incident. The precise nature of the arrangement between the two parties is somewhat unclear, given the fact that under the terms of the agreement it is the Lessee and not Calla who are to be responsible for staffing, whereas the evidence has been that Ms Lawless paid the security staff who say that they were employed by Calla as was she also. I have no idea of the precise nature of the arrangements as far as who received the proceeds of the night club's takings are concerned, such evidence being quite easily provided by the defendants if they had chosen to lead it. Mr Moylan was obviously instructed to indicate to the Court that it was accepted by the first named defendant that the bouncers were in the employment of Calla, but in view of the fact that the only evidence which I received in relation to that matter was from Ms. Lawless and not from either of the principals, I am entitled to look behind that concession or admission in the particular circumstances of this case. I prefer to look at the matter from the point of view of the documents, and in particular the said Agreement, which must have formed the basis of the Ad Interim Transfer of the licence to Mr O'Reilly, and as I understand the position to remain that Mr O'Reilly was on the date of this incident still the holder of the licence.

It is clearly recognised in this Agreement that Mr O'Reilly's interest as occupier is to be noted on the insurance policies which the Lessor Calla has covenanted to put in place. It is also clearly stated as one would expect that Calla will indemnify Mr O'Reilly against all Public Liability Claims arising from incidents at the premises. That implies that Mr O'Reilly is intended to be the first target of any such claim, and that Calla will simply indemnify him in respect of same. I do not believe that the fact that the bouncers are stated to have been paid in cash at the end of the night by an employee of Calla can render nugatory the terms of a legally binding agreement which has formed the basis of a licence transfer in the District Court and under which Mr O'Reilly holds the licence to run the premises. I am not privy to what precise arrangements have or have not been made outside the terms of that agreement, and they ought not to interfere with what appears to be the legal position arising from the document itself.

It is also relevant that under the Agreement, as set forth above, Mr O'Reilly has responsibility for Employee Liability insurance claims, as well as ensuring that the premises are run properly.

In my view there is such a mingling of functions between both Calla and Mr O'Reilly, according to the evidence, and such a relationship created by the Agreement, that it can reasonably and properly be said that both the defendants are occupiers of the premises and that each owe a duty to the visiting public, including the plaintiff. Since the Agreement actually refers to Mr O'Reilly as an occupier for the purposes of insurance, he cannot now say that he is not an occupier, particularly as he is the holder of the licence by virtue of the Transfer of the licence to him by virtue of this agreement. Equally, Calla has accepted that as a matter of fact the bouncers were their employees. I am satisfied therefore that the liability to the plaintiff is one which is joint and several. The plaintiff ought to be entitled to recover from either defendant, and the paying defendant will be entitled on the basis of joint ands several liability to recover appropriately from the non-paying defendant.

As far as the facts giving rise to the injury to the plaintiff is concerned, I make the following findings of fact. The plaintiff and some of his friends were lawfully upon the premises on the occasion having been admitted, even though the plaintiff and possibly some of his friends were barred. I have no doubt that the disturbance at the cloakroom was orchestrated by the plaintiff and that the security staff at the entrance were entitled to remove the plaintiff in the manner they did prior to closing the double doors. I am satisfied that the plaintiff then orchestrated further disturbance from outside which commenced with the kicking of the doors and the shouting of abuse, and I am also satisfied that this initial disturbance led inevitably to the wider disturbance which resulted in the hurling of missiles of various kinds at the premises and which resulted in some damage to windows. In my view up to this point, it is on the balance of probabilities reasonable to attach full blame to the plaintiff, who I am satisfied was the ringleader of what occurred, although I am not fully aware of what grievance he had that night having been allowed remain in the premises, or why so many people outside the premises would have seen fit to join him in his violent exploits outside. It was not simply the few friends he was with. I am satisfied that up to 25-30 persons may have been involved.

The evidence of what happened after the bouncers emerged from the small side door is less clear. There is conflicting evidence which has been given by each side. In addition some of the evidence given in court by the plaintiff and his eye witnesses is inconsistent in at least some respects with what they may have stated to the Gardai when they made their statements. Indeed if it were not for the undoubted fact that the plaintiff attended immediately at St. Vincent's Hospital that night and for the evidence of Mr Cassidy as to the serious nature of the injury and that it must have been inflicted by a heavy blow from a blunt instrument, this Court may not have been able to be satisfied to the degree necessary that the injury was sustained in the scuffles that took place outside these premises. But it is the independent evidence of the injury itself, the manner in which it must have been inflicted and the fact that the plaintiff was immediately brought to the hospital which satisfies me on the balance of probabilities that he was injured by a heavy blow to the face outside the premises. The remaining question is who may have inflicted the blow given the sworn evidence of some of the men who formed part of the security team on this night that none of the men used weapons of any kind. It is not possible to reconcile that evidence with the objective evidence of injury. I accept the evidence that it was not management policy that weapons of any kind should be available for use or used at the premises. But I am not satisfied that the suggestion that the plaintiff may have sustained his injury from a flying glass or other missile, rather than from a blow delivered by one of the security staff, given the very clear and convincing evidence from Mr Cassidy that this injury must have resulted from a heavy or severe blow from a blunt instrument. While I cannot go so far as to accept everything that was said in evidence by each of the witnesses called by the plaintiff, I am sufficiently satisfied on the balance of probabilities that at least one of the bouncers must have had a weapon even if he ought not to have under the management guidelines. There is no other plausible or reasonable explanation for the injury to the plaintiff which I am satisfied was inflicted outside these premises.

Another matter to be addressed is whether in the circumstances which have been described the actions of the bouncers were justified in the sense that if the plaintiff was injured in the way he was, whether those actions constitute more than reasonable force, and therefore amounted to negligence, and whether the claims of negligence as made out in the Statement of Claim are properly made out. In my view the owners/occupiers of a premises such as that in this case are reasonably entitled to employ suitably trained staff in order to ensure as reasonably and lawfully possible the business of the premises is conducted in a proper fashion, and that the safety of those who patronise the premises, as well as those who work in the premises, and the premises themselves are properly safeguarded against violent or other improper conduct by other persons. The owners and occupiers of the premises are also obliged to ensure to a reasonable extent that the said staff members are supervised in the sense that there is some management control and guidance as to how they carry out their duties. It is alleged in this case that the first and second named defendants failed to employ competent security staff. I do not find that plea made out. The only evidence which I have heard satisfies me that the staff concerned were experienced and that the manager provided appropriate guidelines.

It is also pleaded that that they failed to adequately or at all supervise the conduct of the security staff on this occasion. Again, there appears to have been a management presence at the entrance area on the night in question.

It is pleaded also that the defendants:

"caused allowed or permitted the said servants or agents acting for and on behalf of the defendants on the occasion to act in a violent, aggressive, bellicose, threatening and intimidating manner on the occasion and to assault and beat the plaintiff as occurred on the dates in question."

The relevant plea contained in the Defence delivered is that contained at paragraph 9 in which it is pleaded that:

"the staff present used no more force than was reasonably necessary in the circumstances to defend themselves, their colleagues, the premises and other patrons."

The defendants have also pleaded contributory negligence on the part of the plaintiff on the basis that he was violently attacking the premises and was violently attacking members of the staff and was "engaging in behaviour whereby it became essential for the members of the staff present at Marley's Club to protect themselves and others from assault."

I should perhaps at the outset deal with the plaintiff's plea in the Statement of Claim that the defendants are in breach of statutory liability to him by virtue of failing to comply with Section 3 of the Occupiers Liability Act, 1995. Section 3, subsection (1) of that Act provides that an occupier of premises owes a duty of care towards a visitor, except in so far as the occupier extends, restricts, modifies or excludes that duty in accordance with section 5. Section 3(2) provides that this duty is to take such care as is reasonable in all the circumstances to ensure that a visitor to the premises "does not suffer injury or damage by reason of any danger existing thereon." It is important to note that the word "danger" is defined in Section 1 as meaning "in relation to any premises, means a danger due to the state of the premises." It must follow from this that the plaintiff's claim is not one coming within the duty of care imposed by Section 3 as the allegations of negligence are not related in any way to the state of the premises but rather the behaviour of the bouncers on the night in question. It is necessary to consider this claim by reference to the more usual non-statutory criteria in relation to the possible breach of the common law duty of care owed to the plaintiff by the owners/occupier of the premises, diluted possibly by the contribution which the plaintiff's own behaviour made to what befell him at the hands of their employees, servants or agents.

As I have stated the defendants are perfectly entitled, indeed it could be argued that they would be obliged, to employ suitably trained and supervised security staff, bearing in mind the nature of the premises to which they admit their patrons, namely a night club where the sale of intoxicating liquor is sold, and a large number of persons are in all likelihood going to congregate, in order to ensure that the safety of the patrons, staff and the premises is safeguarded. In this case there is no doubt in my mind that since the plaintiff gained admission and his presence there was at least permitted throughout the evening, the necessary relationship of proximity exists for the purpose of establishing the duty of care. The fact that he had been barred previously and ought not to have gained entry is irrelevant since he was known to be there and was observed throughout the evening. A decision was apparently taken that he would not be removed.

It is trite law that these security staff members are not entitled to use more force than is reasonably necessary in any particular circumstances which might present during the evening. Each case will have to be considered on its own facts, since the variety of situations giving rise to intervention by security staff in this type of premises is infinite. But the requirement to use only reasonable force never disappears. It is beyond doubt that it is reasonably foreseeable that an excessive use of force by staff of this nature has the potential to cause injury to others. The next hurdle to be overcome under the test for liability as pronounced by Keane CJ in Glencar Exploration Limited v. Mayo County Council [2002] 1 ILRM 481 is to exclude any public policy consideration which ought to exclude liability arising. In my view there could be no public policy consideration which should result in no duty of care being owed by employers of security staff to members of the public in the circumstances of facts such as have occurred in this case. In fact the opposite would be the case, since a situation would then exist in which security could go about their tasks with complete impunity regarding the level of force they might use, and in effect a situation would exist where it was permissible for the owners of licensed premises and other such premises to hire their own private army in order to enforce their version of law and order. That could never be acceptable. The final hurdle to be overcome by a plaintiff under the Glencar principles is that the Court must be satisfied that it would be fair, just and reasonable that the law should impose a duty of care on the defendants for the benefit of the plaintiff in this case. That consideration is for the purpose of this case quite closely linked to the public policy consideration, and there is also some blurring between consideration of that concept of fairness and reasonableness and the concept of any contributory negligence on the part of the plaintiff. One could consider the concept of fairness, justice and reasonableness also from the point of view of the 'ex turpi causa' principle. In other words, the actions of the plaintiff as proven in this case are so egregious that he ought not to be allowed to recover damages for an injury sustained which results from that behaviour.

The latter methodology must in my view be reserved for the very worst type of behaviour in order to serve the punitive purpose of denying an injured plaintiff any remedy for otherwise culpable behaviour on the part of a defendant. I believe that in the present case it is fair, just and reasonable that the defendants remain under the duty of care towards the plaintiff and other patrons even in the unpleasant and potentially dangerous circumstances which arose outside the premises on this night. The whole purpose of the job of being security staff member is to deal with situations which arise in premises of this kind and which cannot be reasonably dealt with by what I might conveniently describe as 'ordinary staff'. It is part of the normal working life of such security men to encounter patrons in various states of intoxication, and who even when not intoxicated, are nevertheless aggressive and sometimes violent. Such staff ought to be, and in most cases, are trained to deal efficiently with such situations. It is perfectly fair, just and reasonable that such persons should carry out their duties in a way which is consistent with a reasonable use of force and restraint, and I can see no reason why any special dispensation should be extended to them in the manner in which they carry out their tasks.

I am satisfied therefore that a duty of care was and ought to be owed by the defendants and their servants and agents towards the plaintiff, and that this duty extended to avoiding causing injury to the plaintiff through an unreasonable or unnecessary use of force or violence in dealing with the situation which existed outside the premises in the car park. In this case, a decision was taken at some stage that the appropriate action to take was to allow the bouncers to run out of the side door and get in amongst the crowd outside and disperse them. In my view the appropriate course of action was to contact the Gardai and to wait for them to arrive in order to deal with the situation. In the present case that was done according to the evidence, but the management did not wait for the Gardai to arrive. This was not a disturbance within the premises themselves. It was a disturbance outside. The staff of the premises were inside the premises, and even though there may have been some shouting and kicking of the doors, and even a couple of windows broken, it does not seem to me that it was appropriate for the management to send out their own troops, so to speak, in order to break up the disturbance. That action led to direct confrontation between the troublemakers outside and the security staff and it was inevitable that somebody would be injured.

In the case of the plaintiff, as I have said, I am satisfied on the balance of probabilities that he was the ringleader of the trouble which happened. As such he would have been the object of the Garda attention following any complaint by the defendants when the Gardai arrived. The fact that he may have been the instigator of much of the disturbance does not mean that the security staff can single him out in any way or treat him with more than reasonable force. There is no doubt in my mind that it was an unreasonable use of force to hit him so severely in the face with some sort of heavy blunt instrument that he has effectively been rendered blind in his right eye. I am satisfied that this is how the injury was sustained. Even if a security man did not intend to cause an injury of that magnitude, it matters not. It was a reckless, negligent and dangerous act committed after the security staff had taken the inappropriate step of going out to themselves deal with the trouble outside, rather than allowing the members of An Garda Siochana to arrive and intervene. What happened amounts to negligent behaviour giving rise to a right of recovery on the part of the plaintiff.

However, the plaintiff has to share in the responsibility for what happened to him that night. His involvement, as found by me, amounts to contributory negligence. The question as always is to what degree. One is more accustomed to assessing contributory negligence in the context of a car accident or an accident at work. In such cases it would be unusual to make a large deduction on account of contributory negligence, because in most cases the element of contributory negligence arises due to perhaps not wearing a seat-belt, exceeding a speed limit, failing to observe an on-coming car and so forth. What I am trying to convey is that in such cases the plaintiff is guilty of relatively minor negligence not worthy of being severely marked by a large reduction in damages. In the present case the plaintiff's behaviour is of a different character. It was criminal behaviour such as should not be implicitly condoned by a sympathetic approach to contributory negligence. It cannot be equated to the type of contributory negligence more commonly found in road accidents or workplace accidents. It is culpable behaviour for which the plaintiff must retain responsibility. In my view, even though the defendants are liable to him for an unreasonable use of force, and even though the Court feels great sympathy for the fact that the plaintiff has now only the use of one eye, he has himself to blame to a significant extent, and to an extent far in excess of the more normal type of case to which I have referred. In my view it is right to attribute to the plaintiff a finding of contributory negligence to the extent of 50%.

As far as damages are concerned, I assess general damages for the loss of sight in the right eye, and the scarring due to the blow received in the sum of €100,000. I take into account the fact that the plaintiff is a young man and that given the normal expectation of life, he could have to live with this disadvantage for about 50 years. His employment prospects have not in my view been affected adversely given his employment history to date, and it has not been urged upon the Court that such ought to be taken into account in any specific way.

Allowing for the finding of contributory negligence, I therefore give against the first and second defendants for the sum of €50,000, and the usual order for costs, to include all reserved costs, to be taxed in default of agreement.

Approved Peart J.