[2004]JRC045
royal court
(Samedi Division)
15th March 2004
Before: |
F.C. Hamon, Esq., O.B.E., Commissioner, and Jurats Georgelin and King. |
Between |
Nicholas George Gosselin |
Plaintiff |
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And |
Capital Properties Limited (trading as All Sport) |
Defendant |
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Action for damages for injuries sustained by the Plaintiff as a result of alleged assault or negligent treatment by employees of the Defendant Company
Advocate C.J. Scholefield for the Plaintiff.
Advocate N.M. Santos Costa for the Defendant.
judgment
the COMMISSIONER:
1. On 20th December, 1999 - a few days before Christmas - the Plaintiff and his friend Danny Cabot set out at about one o'clock in the afternoon to celebrate Mr Cabot's first week in a job after a period of unemployment. He had found employment at the All Sports Bar and this was his first day off in seven days.
2. Mr Gosselin, who worked for his father, had been rained off work. They first went to the "Cock and Bottle" public house in Halkett Place. There they drank "snakebites" (a mixture of cider and lager) and Jack Daniels Whiskey and Coca Cola. They had three or four drinks there and then went on to the All Sports Bar. It was very quiet and they drank "Shooters" (a mixture of Sambuca and Jack Daniels Whiskey) and pints of lager. There were five free "shooters" given by the Management to its new employees and Mr Gosselin seemed to recall that he drank two and Mr Cabot drank three. They left at about 5 o'clock.
3. Mr Gosselin told us that they left because it was so quiet (Mr Cabot did not give evidence). There is a conflict of evidence. Mr Besant, the proprietor, happened by chance to be in the bar that afternoon (he usually took Monday off) and he noticed that both men were a bit noisier than was usual. He felt that they had had enough to drink and he signalled his disquiet to the barman. Mr Byrne the manager said that he asked Mr Cabot to leave. Mr Gosselin has no recollection of that. Whatever actually happened is of no great moment. There was no trouble and the two men left. They returned to the "Cock and Bottle" for more drinks. Finding it "too loud" they left.
4. We next hear of them in Woolworth's. Their behaviour was such there that a member of staff called the police. PC Collier-Webbe, a very experienced police officer with 29 years service, went there in a marked police car. He was joined by WPC Fiona Kibble who was with WPC Fiona Holt in a Police van.
5. It was now about 7.30 in the evening. The Police van parked in Halkett Place outside Woolworths. We saw what happened by watching the CCTV camera recording. Because there was a suspicion that they might have been shoplifting, both men were cursorily searched. They co-operated. WPC Kibble said that although they had clearly been drinking, they were no trouble. She had at one point considered charging them for being drunk and disorderly. WPC Kibble recalled that she might have warned them to go back home and "get their heads down". PC Collier-Webbe said that he thought on the scale of 1-10 they were 6-7 under the influence of drink. The police constable went back inside Woolworths and while there he received an urgent call to return outside. He felt this was because the "situation had deteriorated". We think the explanation is far more mundane. WPC Holt had to move the police van to let a fire engine pass.
6. WPC Kibble was then alone with the two men and the Controller seeing this on the CCTV probably required the police officer to join her as quickly as possible. PC Collier-Webbe gave both men what he called "the benefit of the doubt" and allowed them to leave. He did not feel that any licensee should have served them at that time. We see both Mr Gosselin and Mr Cabot walking towards the precinct. Mr Gosselin appears perfectly steady on his feet. It is Mr Cabot who appears a little unsteady. Because there was an obscure family relationship between PC Collier-Webbe and Mr Cabot (he was the stepson of his former father-in law) there was strong feeling by Mr Cabot against the Police officer. That may have made him verbally aggressive. Be that as it may, both men decided to return to the All Sports Bar. It was a fateful decision. By this time, Mr Gosselin had consumed about ten alcoholic drinks. He admitted that he was not sober.
7. What happened next is not clear. Mr Gosselin says that he spoke briefly to a girl, made a visit to the toilet and went upstairs where he rejoined Mr Cabot. According to Mr Gosselin, Mr Cabot told him that they could not stay. He had been so told by Mr Wallace, the doorman. Mr Gosselin approached Mr Wallace and there were very few people upstairs. It was early on a Monday evening. A conversation took place. "You've got to go" "Why, everything was fine earlier?" So far, so good. Mr Gosselin says that Mr Wallace became belligerent. "You're fucking going now". "I'm not fucking going anywhere" was the reply. Mr Wallace grabbed his black leather jacket. He grabbed Mr Wallace's shirt. Mr Wallace pushed him with some force and he fell heavily to the parquet floor, landing on his back. He felt three really hard blows to his face. The first blow was really hard - it was in the middle of his face. He described it to us - "boom, boom, boom" with a fourth blow that grazed his face as he turned. He got to his feet. He was grabbed and hit again and then remembers vaguely being dragged out with blood coming down his throat. He was adamant that he had never head butted Mr. Wallace. It should be stated that at this point that Mr Gosselin is a trained boxer. He is a member of the Leonis boxing club. He was last in the ring in 1994 and of his eight fights, he won five and lost three. He described the blow that he received as quite different from any punch he had ever received. It went straight through his head.
8. We need to examine with some care the other side of the story. It is in some ways a complex one. The video tape was not put in the machine. No one can explain why. Mr Byrne the Manager told us that he forgot to put the CCTV tape in. He was in the bar and had told Mr. Cabot that he would not be served again but he had his back turned when the incident took place. He heard a loud thud - like two stones coming together - and he says that when he turned he saw Mr Wallace with his hands on his knees, crouched down. He saw Mr Gosselin, who he says was "putting up a fight" being ejected from the premises by Mr Murray down the carpeted stairs. Mr Paul Murray the other doorman described how Mr Gosselin became belligerent when told to leave by Mr Wallace. Both Mr Wallace and Mr Murray grabbed Mr Gosselin's arms and at that point he head-butted Mr Wallace, who was "a bit stunned". There was a distinct and not very nice noise when the heads came together. Mr Murray did not let go of Mr Gosselin and, in the struggle, glasses on a plinth near the stairs were smashed. Although Mr Wallace and Mr Murray lost their grip on Mr Gosselin on the landing, Mr Gosselin did not fall. The injury to Mr Gosselin could only, in Mr Murray's opinion have been caused by the clash of heads. Mr Murray was adamant that Mr Gosselin never went down on the floor.
9. There is one independent witness: Mr David Hewitt. He had just heard that he had been accepted in the Jersey Police force and he is now a detective constable in the C.I.D. When the argument started he immediately went to help restrain Daniel Cabot. He heard what he described as a hollow "thunk". He had his back turned to the main incident. It was, he estimated, no more than five seconds before he turned round. He did not think that it was possible for Mr Gosselin to have been on the floor. As he said, "If it did happen then I did not see it". Mr Gosselin was certainly not on the floor when he turned round. He helped to escort Mr Cabot from the premises. Mr Cabot was, in Mr Hewitt's words, "totally compliant".
10. Mr Wallace's view is quite different to that of Mr Gosselin.
11. Mr Wallace told us how both men had come up the stairs together. They were clearly drunk. He saw Mr Byrne give the "cut-throat" sign to say they were not to be served alcohol.
12. He told both men to leave. Mr Cabot agreed. Mr Gosselin stepped forward and put his head on Mr Wallace's. "Who the fuck is asking me to leave?" Mr Wallace took his hands from his pockets and pushed Mr Gosselin away. He demanded to speak to the Manager. Mr Wallace said that he was not going to allow this man in his condition to speak to the manager. Mr Gosselin started arguing. He threw a punch. Both doormen (Mr Wallace and Mr Murray) grabbed Mr Gosselin's arms. At this point Mr Gosselin threw himself backwards and Mr Wallace says that he was pulled towards him. Mr Wallace, a trained doorman, anticipated what was about to happen and lowered his head. Mr Gosselin head butted him. Mr Wallace received a swelling to his head and two chipped teeth as a result of the head butt and was dazed. When he looked up Mr Gosselin was fighting with the other doorman. He grabbed Mr Gosselin and then took Mr Gosselin down the stairs. On the landing Mr Gosselin started fighting again having broken free. He threw several punches. Mr Wallace took his legs away and with Mr Murray helping, they managed to get Mr Gosselin outside. At 9.30 that evening Mr Wallace made a complaint to the police which led to Mr Gosselin being charged with a grave and criminal assault. On this charge he was acquitted by Mr Terence Cubitt-Sowden QC. Mr Paul Murray, the other doorman said that Mr Gosselin originally went to the bar and ordered a drink. It is at this point necessary to say that we did not hear from the barman, nor any of the staff not concerned in the fracas, nor, (apart from Mr Hewitt) one single member of the public who was there some of whom must surely have been known to the staff. We have no video tape. We only have the evidence of Mr Gosselin and his injuries and the evidence of Mr Byrne, Mr Murray, Mr Hewitt and Mr Wallace and his injuries.
13. We have, most unusually, no photographs of Mr Wallace's injuries (we say this because, as we know, Mr Gosselin was to be charged with a grave and criminal assault on Mr Wallace). Mr Wallace told us how Mr Gosselin continued to be belligerent after he had been ejected. The Court has had the opportunity to watch both in slow motion and in real time, on several occasions, a CCTV recording of the events outside the All Sports premises. The recording starts at 20.34. There is no doubt in the Court's mind (and it was agreed between the parties) that the serious injuries suffered by Mr Gosselin occurred within the premises during the short time that Mr Gosselin and his erstwhile friend Mr Danny Cabot had been inside the premises during this, their second visit that evening. What does the recording show? It is silent and we do not know what was being said at any time. No doubt there was shouting and swearing. We first see Mr Gosselin being dragged head first and backwards from the premises. Mr Wallace has his back to the street. Mr Gosselin has had his jacket pulled down, his arms (perhaps to immobilise him). The other doorman Mr Murray is holding Mr Gosselin by the jacket. Mr Wallace turns and as though he were depositing a sack of rubbish, throws Mr Gosselin to the ground, and walks back into the premises.
14. Mr Murray hurls Mr Gosselin's hat into the road. Mr Gosselin sits for a long time and holds his face which as we know was bloodied. Mr Cabot comes out unescorted. There is however a long period where a girl comes from the premises and tries to calm both Mr Gosselin and Mr Cabot. We formed the impression that this girl knew Mr Gosselin and that she worked at the "All Sports Bar". She returns to the bar at the end of the incident. This impression was emphatically refuted by those members of staff who were questioned on the matter. We found this perplexing. Though both men, and particularly Mr Cabot, try to remonstrate with the two doormen, there is no violence whatsoever. At one point Mr Gosselin actually tries to draw Mr Cabot away from the door. Twice during this period Mr Gosselin is pushed away by Mr Wallace, but not over forcefully. Then PC Breuilly arrives. The CCTV recording belies his statement which was read to us. The relevant part of this statement records:
"I travelled through Town and stopped in Wharf Street, on the opposite side of the road to the entrance of the bar. I could see a male person in dark clothing remonstrating in the doorway to the premises. He appeared to be trying to get into the premises. A female was pulling him from behind. I could see the male had a large amount of blood on his face.
As I walked over to the entrance way I could see members of the door staff, whom were dressed in white shirts "cornered" in the entrance to the bar. They had their hands raised up as if in defence as the male was fervently trying to gain access and was shouting. He appeared to be very aggressive in his actions and threw his arms down at the staff who were trying to prevent his entry.
Due to his apparent aggressive actions I hooked the male around the neck and took him back away from the door. As a result of this movement we both fell to the floor. The male struggled against me and had to be forcibly restrained on the floor. He began to calm and allowed me to place a cuff on his left wrist. A member of the door staff had by this time come to assist me. I told the male not to resist and told him to roll onto his stomach. He rolled over as I held onto the cuff. He then got onto his knees and tried to pull the cuff hand away. He also refused to supply his other wrist. This resulted in him being again forced to the floor by the door staff and myself. He was then cuffed on both wrists. Police Constable 234 Christopher Beechey then assisted me searching the male. He was then taken to the waiting Police van. He sat quietly throughout the journey to Police Headquarters. I now now this person to be Nicholas George Gosselin."
15. It is not possible to reconcile what we saw with the statement of PC Breuilly. He did not see a female pulling Mr Gosselin from behind. The lady in question was to the left of the doorman and out of sight. We cannot conceive that PC Breuilly saw a large amount of blood on Mr Gosselin's face. Mr Gosselin had his back to him.
16. The doormen were not "cornered". They were standing where they had been in the doorway since the two men had left the premises. The doormen did not have their hands raised up as in defence. PC Breuilly does not "walk over" to the entrance: he runs, grabs Mr Gosselin by the neck and throws him forcefully to the ground. We can see nothing that shows either aggression or any struggling on the ground by Mr Gosselin. Why it took four men to cuff him is not understandable. We must recall that PC Breuilly was in full protective uniform wearing his crash helmet. All this evidence is not expressed to discredit PC Breuilly but to show how even an experienced police officer can be mistaken in his recollection of what happened.
17. Both men were placed in the police van. Mr Wallace went to some lengths to tell us how reasonable Mr Cabot had been. He told us that Mr Cabot was apologising for the idiotic behaviour of his friend. That, in our view, is not borne out by the CCTV recording.
18. It is Mr Cabot who appears belligerent. Indeed WPC Kibble told us that Mr Gosselin (not unnaturally) was very placid in the van. It was Mr Cabot who continued to fight and struggle and at one point he tried to head butt PC Collier-Webbe. Indeed PC Collier-Webbe said that Mr Cabot tried to head butt him more than once.
19. There is no evidence from any of those called by the defendant company that any injury to Mr Wallace was caused other than from the head butt. Mr Gosselin emphatically denies head butting Mr Wallace.
20. We must now, on the balance of probabilities decide how the two injuries were caused. We have no doubt that Mr Wallace's injuries were caused in the Sports Bar that evening. Advocate Scholefield made some argument that it had been caused the day before playing rugby, but if that had occurred it would have been not beyond per-adventure to have called the referee, a match official, a coach, or even a reporter to say that an injury had occurred to Mr Wallace. No such evidence was called.
21. Dr Holmes was asked to see Mr Wallace on the 21st December at his surgery. Dr Holmes is, of course, known to the Court, as a vastly experienced Police surgeon. Mr Wallace was seen at about 4 p.m. He told Dr Holmes that he had been assaulted by an intoxicated male the evening before. He had grabbed his assailant by the upper arms, saw a head butt coming in and ducked his head downwards. Contact was made to the top of his head which was bald. There was, Dr Holmes noted, appreciable swelling on the top centre of the skull and two upper incisors were slightly chipped. There was no injury to Mr Wallace's fists. While the chipped teeth were not noticeable, you did not need to be a doctor to notice the swelling which, in Dr Holmes' opinion, would have been more obvious the day before. Dr Holmes, whose experience in these matters is extensive said that the appreciable force of the head butt - and he thought that the injury was totally consistent with a head butt had been applied with such force that it had caused the jaw to clash together, chipping the teeth. While Dr Holmes agreed that it was very difficult to date bruises and swellings he thought that the injury to Mr Wallace's head was recent.
22. We have to repeat that it is very surprising to us that there are no photographs of Mr Wallace who was to be presented as the complainant of a grave and criminal assault by Mr Gosselin at the Magistrate's Court - a charge which was dismissed with costs. Mr Holmes recalled that, of course, the full extent of Mr Gosselin's injuries were not well known at the time but he did comment that it was difficult to understand why he was not asked to see Mr Gosselin until the 10th January. His opinion at the time that he saw Mr Gosselin was that his injury had been caused as a result of a massive blow. He would have expected, if Mr Gosselin had been kicked, to have seen some evidence of shoe marks and while he was happy at the time to have rested on the argument that Mr Wallace's injuries were caused by a head butt, having read later medical reports he was candidly prepared to concede that his original diagnosis might not have been correct.
23. What do the medical reports say? The medical evidence is agreed and we did not hear either from Dr B. T. Evans FRCS, FDSRCS, FFDRCSA a consultant Oral and Maxillofacial surgeon at the BUPA Chalybeable Hospital in Southampton or from Mr Hugh Cannell O.Sr.J., RD, MD, FDSRCS, MRCS, LRCP, DPMSA, a consultant Oral and Maxillofacial Surgeon or the London Independent Hospital. Mr Cannell is an Honorary Surgeon (D) to Her Majesty the Queen. Both Jurats have extensive medical knowledge and they have studied the medical reports with great care. There is no doubt that the injuries suffered by Mr Gosselin were very severe and the skilled surgery that was carried out gives credence to that.
24. There were three surgeons concerned in the operation and it may be as well to set out Mr Evans report on what was performed in order to underline the seriousness of the injury.
"Following a limited head shave (strip shave) a bicoronal scalp flap was turned down in the usual fashion extending from the junction of the pinna and the scalp at the helix bilaterally. A curvilinear incision was used. The temporalis fascia was incised appropriately and incorporated within the scalp flap to avoid damage to the frontal branches of the facial nerve. A generous pericranial flap was elevated with the scalp flap to allow for anterior fossa repair later.
Comminuted fractures of the frontal bone were noted to be present and there was significant retrusion of the fronto-nasal suture and nasal bones.
A bifrontal craniotomy was performed by Dr Hans Westergren commencing from a temporal burr hole on the left side. A generous frontal craniotomy bone flap was fashioned to allow later harvesting of inner table calvarial grafts.
Following completion of the craniotomy the spinal drain was opened. Gentle exploration of the anterior fossa/orbital roofs bilaterally was then carried out. A small (5mm) dural tear was noted at the left frontal pole immediately subjacent to the displaced fracture of the posterior wall of the frontal sinus. No basal dural tear was detected either on the right or the left side. It was not felt necessary to continue the anterior fossa exploration intradurally. There was no disruption of the cribiform plate on either the right or the left sides.
At this point the nasal bones were disimpacted by gentle traction using appropriate forceps. A satisfactory reduction was achieved.
In view of the severely comminuted nature of the central portion of the frontal bone, ie anterior wall of the frontal sinus, this was discarded and a new central frontal bone section was fashioned from an inner table calvarial bone graft. The nasal bones and reconstructed frontal bone were then fixed in situ by means of bone plates (1.7 mm) titanium plates and screws.
The medial portion of the orbital roof on the right and left sides being significantly comminuted, was discarded and these areas reconstructed by means of further inner table calvarial bone grafts which were fixed rigidly in situ by means of 1.7 mm titanium bone plates with screws.
Prior to the reconstruction of the orbital roofs bilaterally, the frontal sinuses were cranialised bilaterally with meticulous removal of the frontal sinus mucosa. The fronto-nasal ducts were obliterated/sealed by means of temporalis muscle sealed in situ with human fibrin glue (Tisseel).
Following reconstruction of the frontal bone and orbital roofs and fixation of this region, a pericranial flap was laid in situ over the frontal sinuses bilaterally - the fronto-nasal ducts having previously been sealed. The pericranial flap was secured/sealed by means of human fibrin glue.
At this point the correct craniotomy bone flap was then replaced and rigidly fixed in situ by means of 1.7 mm plates and screws with care being taken not to compress the vascular pedicle of the pericranial flap. The bicoronal scalp flap then replaced and closed in the usual fashion with 2/0 braided dexon sutures to the galeal layer with skin clips to the skin. A vacuum drain was inserted beneath the scalp flap prior to closure.
Preoperative antibiotics were administered intravenously (Augmentin) with further intravenous antibiotics prescribed for the post operative period.
Note: Prior to replacement of the craniotomy bone flap 4 drill holes were placed in the region of the mid portion of the bone flap to allow for suspension of the frontal dura by means of hitch stitches which were then secured to the bone flap via the holes.
During the procedure the eyes were protected by means of scleral shields - the conjunctiva liberally coated with chloramphenicol eye ointment. These shields were removed at the completion of the procedure and the eyes gently irrigated with normal saline. At the completion of the procedure the pupils were noted to be reactive to light and equal.
The patient was returned to the Neurosurgical High Care Ward as planned".
25. Mr Gosselin was examined at the London Independent Hospital by Mr Hugh Cannell, who was retained by the Defendant's lawyers. He saw Mr Gosselin on the 21st February, 2003. Mr Gosselin under went surgery on 17th February, 2000 - some three years earlier. Nevertheless, both Mr Evans and Mr Cannell were able to agree a joint medical opinion which is dated the 22 September 2003. It reads as follows:
(A) Is it likely that the injury was sustained as a result of a head butt?
No.
Within the limits of our clinically based experience and, within the limits of what we understand by a head butt, that an unprotected head used to butt an opponent, was not consistent with an injury such as that demonstrated in Mr Gosselin.
(B) What are the other possible causes of the injury?
Each of us has seen in our entire practice lifetime, very few isolated injuries such as that found in Mr Gosselin. Those we can readily recall were equine kicks or sports implement associated as blows to the mid-face landing directly on the bridge of the nose. Or other localised forces to the area, such as might have been alleged to have occurred during a road traffic crash sequence. Even then, the nasal bridge area alone would have had to impact hard against a blunt object of car or street furniture.
(C) What is the likelihood of the injury being caused as a result of the Plaintiff being kicked, stamped upon or punched?
To ascribe likelihood of causation is outside our professional expertise and knowledge. Although we have some knowledge of the probable aetiology of these types of injuries (see Reports and Appendixes), specifically we do not wish to comment upon the likelihood of causation.
Nevertheless, the isolated injury in Mr Gosselin was compatible with the results of a large force applied directly to the area of the nasal bridge and lower part of the forehead.
(D) To attain the naso-ethmoidal orbital-fracture patterns of the Plaintiff a large amount of energy would need to be exerted upon the nasal frontal region of the Plaintiff. This area is approximately 3cm x 3cm in the Plaintiff and the force exerted to this area would need to be exerted by an object of within these measurements. On the basis of these facts, is it more likely, considering the isolated nature of the injuries, that they were caused as a result of a kick or stamp, as opposed to striking an object after a fall?
Yes.
A large force as described above, applied over the centre of the localised area of the nasal bridge and lower forehead area. It is the whole area which is approximately 3 x 3 cm. Please refer to our Reports.
We cannot state other than, the force seems to have been applied by a blunt instrument.
(E) In the experts' experiences, are injuries such as these more often accompanied by other injuries when sustained from the result of a fall but more likely to be occasioned by a kick when they feature alone.
No.
In our experience, the particular localised pattern of injuries as found in Mr Gosselin, is very uncommon, if not rare. As stated in our Reports, any evidence regarding kicks or blows as a known cause of facial fractures of any type, is witness or confession dependent. We have no other information to offer on this point.
(F) Please give a summary of the injuries sustained by the Plaintiff?
As agreed list of injuries is below:
(1) Bilateral fronto-naso-orbital fractures.
(2) A tear in the outer lining of the brain.
(3) Possible loss of the sense of smell on the right and left sides.
26. It is necessary to reiterate that these two experts decline to comment on causation but it is also necessary to reiterate that the head butt as the cause of the injury to Mr Gosselin is not, in their opinion, feasible.
27. We have to make a decision on the balance of probabilities. It has caused us much anxiety.
28. Nevertheless, two matters are pellucid. Mr Wallace received the injuries described by Dr Holmes within the All Sports Bar. We have come to the conclusion that, however, unpalatable it may be to an amateur boxer who has never used anything but his fists in a fight, Mr Gosselin did head butt Mr Wallace. It may be that he was inflamed with drink, it may be that Mr Wallace was overly aggressive in his behaviour towards him. Nevertheless, in the confrontation verbal and physical between the two men it is to us clear that Mr Gosselin head butted Mr Wallace.
29. What happened next? We must be guided by the experts. We do not believe that the injury to Mr Gosselin was caused by the head butt. The medical evidence and common sense belie that contention. We have, of course, to consider the evidence that we have heard. Of the conflicting evidence (apart from the question of the head butt) we generally accept that of Mr Gosselin. We have seen the witnesses. We have heard their evidence. We believe that, Mr Wallace in his fury at being head butted, pushed Mr Gosselin to the floor and smashed the heel of his shoe into the bridge of his nose. On "kicks and falls" Mr Evans and Mr Cannell say this: "It is noted that the toe of a boot or shoe on an average adult measure about 2 cm² and is rounded. Thus it is capable of impaction against the naso-frontal region. The energy transfer from a toe of a shoe would, in my view have been sufficient to cause plane 3 comminuted displaced NFE fractures, for example, as found in Mr Gosselin. Another possibility was a sudden impact of Mr Gosselin's glabella region against a corner, kerb or step. That type of impact could, on the balance of probabilities, in my clinical view, cause such a fracture pattern". Mr Gosselin might well have described one blow. He did not: "Boom, boom, boom" he said. A fourth blow missed as he turned his head. We believe that his description of three blows is a truthful description of the one vicious kick and the reverberation from it. In reply to a question by the Court Dr Holmes stated that he did not believe that Mr Gosselin could have got up unaided as a result of that blow - and certainly not within the short time described by Mr Hewitt. We think the explanation is that one of the doorman (perhaps Mr Murray) yanked him to his feet and he was then unceremoniously handled from the property.
30. The external nose is pyramidal in form, and its upper angle, or root is connected directly with the forehead (frontal bone).
31. The framework of the external nose is composed of bones and hyaline cartilages. The bony framework which supports its supper part, consists of the nasal bones, the frontal processes of the maxillae and the nasal part of the frontal bone.
32. We are told (see Mr Evans Report lines 45 -55):
"That Mr Gosselin's nasal bones were fractured en bloc such that the root of the nose in the region of the fronto-nasal suture (junction of the forehead and the nose) was displaced one to one and half cm. posteriorly.
Such a nasal injury can only be produced with significant force being directed precisely at the region of the root of the nose.
The lack of significant fracturing of the distal nose, ie the nasal bones closer to the tip, also supports my contention that the blow/blows had to be directed specifically at the root of the nose.
The nasal bones at this site, i.e. the root of the nose, are relatively strong hence are able to be moved posteriorly en bloc.
Had any of the force been directed more distally in the nose, i.e. as described above, there would have been significant fracturing and comminution of the delicate nasal bones themselves."
33. Therefore on the balance of probabilities: the isolated injury in Mr Gosselin was compatible with the result of a "Large force applied directly to the area of the nasal bridge and lower part of the forehead" (naso-fronto region of Mr Gosselin).
34. In our opinion this may well have resulted from either:
(i) A kick from the toe of a boot or shoe impacting against Mr Gosselin's naso-frontal region as Mr Gosselin was falling backward;
(ii) A kick from the outside edge of the heel of a boot or shoe whilst Mr Gosselin was lying on his back on the floor and facing Mr Wallace.
Both the toe and the outside edge of the heel are rounded, (convex) and could impact great force to the concave area formed by the junction of the forehead and the nose.
35. With those facts established we must now turn to the law. Although not specifically pleaded "in the defendant's Answer it is clear that the defendant relies on four main grounds of defence : "ex turpi causa", contributory negligence, "volenti nonfit injuria" and provocation. There is of course no specific reason for the plaintiff to plead law. In McCrae -v- Jersey Golf Hotels Limited (1973) JJ 2313 the Court held that it was not necessary to plead the branch of the law on which the action was based provided that all the material facts were pleaded. In this case they are. Let us deal with each of the headings in turn:
1. "Ex turpi causa non oritur actio"
36. The defendant relied on the English case of Cross v Kirby (2000) TLR 268. In that case the Court of Appeal applied the principle when the claim of the Plaintiff was so closely connected or inextricably bound up with his own criminal or illegal conduct that the court could not permit him to recover without appearing to condone that conduct. The facts of that case are not the same as this. The point is perhaps best illustrated in the judgment of Lord Denning in Lane -v- Holloway (1967) 3All ER 129 where he said:
"It has been argued that no action lies because this was an unlawful fight: that both of them were concerned in illegality; and that therefore there can be no cause of action in respect of it. Ex turpi causa non oritur actio. To that I entirely demur. Even if the fight started by being unlawful. I think that one of them can sue the other for damages for a subsequent injury if it was inflicted by a weapon or a savage blow out of all proportion to the occasion. I agree that in an ordinary fight with fists there is no cause of action to either of them for any injury suffered. The reason is that each of the participants in a fight voluntarily takes on himself the risk of incidental injuries to himself. Volenti nonfit injuria. But he does not take on himself the risk of a savage blow out of all proportion to the occasion. The man who strikes a blow of such severity is liable in damages, unless he can prove accident or self-defence.
37. It is to our mind quite inconceivable that Mr Gosselin could have received his injury as a result of his having head butted Mr Wallace. We heard how doormen are trained. Mr Ahier told us at some length how both Mr Wallace and Mr Murray were trained to use reasonable force. In our view the force used on Mr Gosselin was out of all proportion to what was required even as the result of a head butt. The attitude of Mr Wallace seemed to be one of aggression from the start. Rather than avoiding a confrontation, he set one up by his words and his action in grabbing Mr Gosselin's jacket.
2. "Volenti non fit injuria".
38. For the same reason that the "turpi causa" defence fails, so too we find that the "volenti non fit injuria" defence fails. The blow that Mr Gosselin suffered and which we find on the balance of probabilities to have been caused by his stabbing the heel of his shoe into the bridge of Mr Gosselin's nose while he was on the ground was entirely out of proportion to the reasonable force that trained doormen are required to use in evicting someone from the premises. There was no violence until Mr Wallace intervened. The matter could have been dealt with simply and effectively. This was not a crowded bar with the possibility for a dangerous flashpoint to ignite. A few minutes earlier, outside Woolworths neither man shows any physical animosity at any time
3. Contributory negligence and provocation.
39. It is well understood that the plaintiff in an action for the tort of negligence must prove that the defendant owed to him, the plaintiff, a legal duty of care, that the defendant has been guilty of a breach of that duty and that damage has been caused to the plaintiff by that breach.
40. The defendant which is in this case the company, and not Mr Wallace denies vicarious liability. We appreciate that doormen have a difficult job to perform but we heard from Mr Nicholas Ahier who had had many years experience in training not only doormen but also police and immigration officers. Mr Ahier saw the CCTV recording of the events outside the All Sports Bar. He said that the doormen's reaction that night was "according to the book". We found that evidence surprising - we regarded the depositing on the ground of Mr Gosselin by Mr Wallace as vindictive and forceful.
41. We have found, as a matter of fact, that the Plaintiff was assaulted by Mr Wallace when he was carrying out his perceived duty to evict Mr Gosselin from the All Sports Bar that evening. In Lister -v- Hesley Hall Limited (2001) All ER 769 Lord Clyde, having carefully analysed the case, made an important conclusion at 783:
"What has essentially to be considered is the connection, if any, between the act in question and the employment. If there is a connection, then the closeness of that connection has to be considered. The sufficiency of the connection may be gauged by asking whether the wrongful actions can be seen as ways of carrying out the work which the employer had authorised.
42. In our view the assault on Mr Gosselin was obviously not authorised by his employer but there is such a close connection between the authorised use of force and the improper use of force used in the case of evicting Mr Gosselin that the employer cannot avoid this vicarious liability.
43. This was put in a far more lucid form by Ward LJ in his judgment in the Court of Appeal in Vasey -v- Surrey Free Inns Plc (1966) PIQR 373. The facts of that case are, like so many others, not at all on all fours with this case. If anything they are at the extreme edge of the spectrum. Nevertheless the dictum is very much in point:
"Ward LJ. The caricature of the bouncer at the disco door would show a gentleman of intimidating physical presence and menacing mien. Like all caricatures, it is revealing of an underlying reality which is that there is an expectation of violent confrontation with which the doorman is expected to cope. In a general sense, the job at which the defendants' employees were engaged was to control entry to the premises, to protect from harm both the premises themselves and also those persons employed there or peaceably enjoying its hospitality, to identify and, if and when necessary, to restrain the undesirable and unruly by reasonable force. Implicit therein was a discretion given to them as to whether and if so when to use force and as to the degree of force which was judged to be appropriate to contain the disturbance. Within that wide sphere of activity, an improper mode of carrying out that employment would include the use of unreasonable force exceeding the bounds of legitimate defence to person and property, and a measure of hot pursuit to confront the offender. When the plaintiff kicked at the door, the raiding party set out in such hot pursuit. Their purpose was made clear by their immediate enquiry of the group they had chased, as to the identity of whomsoever had caused the damage. They were clearly about their master's business. There was no evidence of their seeking redress for any personal injury suffered by any one of them in the exchanges which had taken place when the plaintiff and his friends had been earlier refused entry. There was no personal vendetta. The plaintiff, who had retreated into the car, was pulled out from it and beaten as had been described. This was not done just for the sake of a fight. The probability is overwhelming that the purpose of the beating was to exact retribution for the damage done to the club premises and by teaching the group a lesson and making of then an example of the bouncers' authority, to serve the general purpose of deterrence for the same, however mistaken it was, of good order at the club.
It was in my judgment, an unauthorised act which was within the province of their proper duty generally to preserve the integrity of the club. I adopt the test of Comyn J in Harrison -v- Michelin Tyre Co. Ltd [1985] 1 I. C.R. 696 and ask: "Was this incident so divergent from the employment as to be plainly alien to and distinguishable from it?" To that, on the facts of this case, I answer "No". This was not a frolic of their own, but an act for which the employer must be held vicariously liable. For those reasons, and for the additional reasons and on the additional ground given by my Lord with which I agree I would also allow this appeal."
44. Mr Wallace and Mr Murray were well trained doormen. In our judgment there was aggression and totally unnecessary violence used to deal with a situation that could have been easily and diplomatically controlled.
45. We are, of course, very well aware that we do not have to follow the expert body of professional opinion (see Bolitho -v- City and Hackney Health Authority (1997) 4 All ER 771. Every jury in a criminal trial where expert evidence is called is told just that in the summing up by the presiding judge. We have no doubt that the head butt did not cause the injuries suffered by Mr Gosselin. Equally, we have no doubt that the injury was caused in the manner that we have described.
46. We have found that Mr Gosselin did head butt Mr Wallace. It was the act of a man who was probably not fully in control of his actions. There was, in that sense, aggression by both men but it was the trained doorman who had set the aggression in train by his verbal assault and by his grabbing Mr Gosselin's jacket. We have to remember that it was the Company's policy at that time to give free drinks to its employees. That, in our view increases the duty of care that the company owes to such of its patrons that it has actively encouraged to over indulge in alcoholic refreshment on the premises. Nevertheless, Mr Gosselin had drunk too much; neither he nor Mr Cabot should have gone back to the All Sports Bar, irrespective of whether they had been told not to return when they left on the first occasion and Mr Gosselin should not have head butted Mr Wallace. In the circumstances we feel that any general damages awarded should be reduced by 40%.
47. Cases are set down in the Judicial Secretary's office and at that hearing counsel estimate the Court time required. This case far exceeded the expectation of counsel. In consequence we imposed a time limit on the only additional afternoon available for final addresses. Both Counsel filed very detailed written closing submissions and we are grateful to them. We did not hear counsel on damages and we do not think it fair to make a decision without allowing the written submissions to be supplemented by oral argument. Advocate Santos-Costa, we have no doubt, is in consultation with the defendant's insurer. If, in the light of this judgment no agreed settlement is possible we will hear the oral argument on damages within two months of today at a time to be arranged by Counsel.
Authorities
McCrae -v- Jersey Golf Hotels Limited (1973) JJ 2313.
Cross -v- Kirby (2000)TLR268.
Lane -v- Holloway (1967) 3All ER 129.
Lister -v- Helsey Hall [2001] All ER 769.
Vasey -v- Surrey Free Inns (1966) IPQR 373.
Harrison -v- Michelin Tyre Co. Ltd [1985] 1 I. C.R. 696.
Bolitho -v- City & Hackney Health Authority (1997) 4 All ER 771.