Supreme Court judge Fennelly J said there was no evidential basis for finding Dunnes Stores negligent after a customer who came to a security guard’s aid was seriously injured in an attack. He would allow the store’s appeal and dismiss the customer’s claim.
The judgment, delivered on 16 November 2010, concerned an incident in which the plaintiff, Brendan O’Neill, intervened as a guard pursued a suspected shoplifter. The suspected shoplifter’s companion attacked O’Neill with a bicycle chain, causing severe facial injuries, according to Fennelly J’s account.
At trial, Kelly J found Dunnes Stores negligent. The findings included that one guard was insufficient to cover the premises, that he lacked a two-way radio, and that he breached a protocol by pursuing the suspected shoplifter rather than seeking help. The trial judge held the store vicariously liable for the guard’s conduct and said the risk to a rescuer was foreseeable.
Fennelly J said the Supreme Court had to consider all the evidence, including evidence called by the store after its unsuccessful application for a non-suit. He said the trial findings rested on the guard’s testimony, with no expert evidence or comparison with accepted industry practice to establish that more than one guard was required. The security protocol was not produced in court, and the guard’s evidence about its contents was fragmentary. He said the guard understood that he was not outnumbered and did not consider himself to have breached the protocol.
Fennelly J also rejected the findings about the radio and the guard’s decision to pursue the suspected shoplifter. He considered the radio issue depended on proof that having only one guard was negligent. Although calling gardaí would have been safer, he said no departure from an established standard had been shown in the decision to pursue.
On that reasoning, Fennelly J concluded that no finding of negligence was justified and that the necessary basis for the plaintiff’s rescue claim was absent. He left open the broader question of liability to rescuers for a larger Supreme Court formation to decide in a case where it arose more directly.
The judgment records Fennelly J’s view and proposed disposition. The supplied extract does not state the Supreme Court’s final order or explain how the other judges dealt with the appeal.