The Court of Appeal has upheld a finding that a Cork supermarket operator and its security provider were liable for injuries suffered by a customer who was refused re-entry after being attacked and chased from the shop.
The appeal concerned liability only. The court affirmed the High Court decision, which had awarded Cian McCarthy €750,243.39 in damages. It rejected the defendants’ arguments that they owed no relevant duty in the circumstances, that a third party’s punch broke the chain of causation, and that the Civil Liability Act 1961 made the plaintiff responsible for that attacker’s actions.
The incident happened outside a Centra on Grand Parade in Cork in the early hours of 31 October 2011. McCarthy had been attacked inside by three people after objecting to one of them jumping a queue. Security guard Mr Furey recognised McCarthy as the innocent party but chose to remove him because it was easier to escort one person out than the three others. The attackers followed him. Furey did not tell the second guard, Mr Pruchnicki, that McCarthy was innocent or that the others had been involved in the altercation.
Outside, the three pursued and assaulted McCarthy. He broke free and tried to return to the shop. Pruchnicki refused him entry. The trial judge found that Pruchnicki pushed McCarthy back towards the crowd; the appeal court noted that the trial judge had found the precise mechanics of the refusal did not substantially affect the outcome. McCarthy stumbled into a bystander, Ms Hartnett. Her boyfriend, Aidan Cullinane, punched McCarthy, who fell, fractured his skull and sustained brain damage. The sequence from the initial altercation to the blow took 39 seconds.
The appeal court held that the defendants were not generally required to patrol the public footpath or break up fights there. But it found the circumstances here were different: they knew McCarthy was the innocent party and that his attackers had followed him out. Once he sought refuge, the duty of care required reasonable steps to protect him from the danger created by his removal. Readmitting him was a simple step that would have avoided the injury.
The court also rejected the argument that Cullinane’s criminal act was an intervening event that absolved the defendants. It held that the injury arose from the danger created by the original altercation and fell within the risk against which the defendants had a duty to protect McCarthy. The court further ruled that the plaintiff’s timely assault proceedings against Cullinane, on which he obtained judgment, meant section 35(1)(i) did not apply. The judgment records that costs were provisionally to be awarded to McCarthy, subject to any submissions from the defendants.