The High Court has awarded €750,243.39 to a customer who suffered a serious brain injury after being assaulted outside a Cork supermarket in 2011. Mr Justice Cross found that the defendants, James Kavanagh trading as Tekken Security and Herlihy Supermarket Group Limited, breached their duty of care by failing to protect the customer after removing him from the shop.
The plaintiff, Cian McCarthy, had gone to the Centra shop on Grand Parade in the early hours of 31 October 2011 with his then fiancée. A dispute developed in a queue, and a security guard escorted him outside. The guard did not tell a second guard that McCarthy was the innocent party or that three people involved in the altercation were following him.
The judgment records that the pursuers assaulted McCarthy outside. When he broke free and tried to get back into the shop, the second guard refused him entry and, the judge found, pushed him back towards the crowd. McCarthy fell into Ms H, who had not been involved in the dispute. Her boyfriend, Mr C, then struck McCarthy in the head. The assault caused a severe brain injury. The interval between the guard pushing McCarthy and the blow was about two seconds.
The defendants accepted that they owed customers a duty to take reasonable care inside the premises, but argued that it did not extend to third-party conduct outside. They also argued that Mr C’s criminal assault broke the chain of causation. The court held that the duty extended to this situation because McCarthy was a customer whom the defendants had placed in danger and could have readmitted to safety. The judge found that some assault and injury were foreseeable, even though the precise injury was not.
The court rejected the defendants’ argument that section 35(1)(i) of the Civil Liability Act 1961 barred recovery because McCarthy had not joined Mr C to this case. McCarthy had issued separate proceedings against Mr C for assault and trespass to the person within the applicable limitation period and offered the defendants the benefit of those proceedings. The court held that his claim against Mr C was not statute-barred, so the statutory defence did not apply. It did not decide any contribution or indemnity between the defendants and Mr C.
The judgment assessed past special damages at €75,243.39, future loss of earnings at €325,000 and general damages at €350,000, comprising €200,000 for pain and suffering to date and €150,000 into the future. The court described the brain injury as serious and found that McCarthy would have a permanent deficit affecting his independence, career and ability to complete further study. The total award was €750,243.39.