O’Neill -v- Dunnes Stores
Neutral citation 2010 (IESC) 53.
Supreme Court
Judgment was delivered on November 16th by Mr Justice Donal O’Donnell, with Mr Justice Liam McKechnie concurring. Mr Justice Nial Fennelly dissented.
Judgment
An appeal against a High Court ruling that Dunnes Stores was liable for injuries sustained by a man who went to the aid of a security man who was apprehending a thief was dismissed by the Supreme Court, which stated that it would be regrettable if the message delivered by the law of tort was that a member of the public, faced with a cry for help, was that it would be wiser to pass by on the other side.
Background
On the evening of July 4th, 2002, the plaintiff, Brendan O’Neill, was shopping in a shopping centre in Thurles, where Dunnes Stores was the main tenant. A security guard, Keith Byrne, on duty there saw two youths remove bottles from shelves and put them in their inside pockets.
When challenged, one of them, Alexander Colville, ran away and was pursued by the security guard, who caught him. The security guard asked a cleaner to go and get help and she met the plaintiff and told him to help the security guard, there had been a robbery.
Mr O’Neill said Mr Byrne also asked him for help and this was accepted by the court, although denied by Mr Byrne.
Mr O’Neill attempted to help Mr Byrne, whom Colville was attempting to strike with a bottle. Mr Byrne had managed to contact gardaí on his mobile phone and a garda arrived and took the details of the second youth, Cormac McCormack, who then left.
McCormack returned with a motorcycle chain and swung it, striking Mr O’Neill across the face, fracturing his nose and causing other injuries. Other youths had arrived and they told both Mr Byrne and Mr O’Neill they knew where they lived. More gardaí arrived on the scene and there were arrests.
Mr O’Neill sued Dunnes Stores for damages for negligence. The evidence given in the High Court trial was that Mr Byrne was the only security guard on duty that evening and he did not have a radio with him because there was no one else to take its second unit.
In finding that the defendant had been negligent, the High Court found that having only one guard on duty was inadequate and it was less than efficient that Mr Byrne had to rely on his mobile phone rather than a radio to seek help. It also found the company vicariously liable for the actions of Mr Byrne in attempting to apprehend Colville and then needing assistance in doing so.
Dunes Stores appealed this to the Supreme Court on the grounds that the High Court should not have proceeded with the case, as there was no prima facie case at the end of Mr O’Neill’s case and almost all the evidence on which the judge relied was derived from the defendant. The appellant also said there was no expert evidence to support the plaintiff’s case and that the injuries were caused to Mr O’Neill, not by the defendants, but by McCormack.
Decision
Mr Justice O’Donnell said he would consider the entirety of the evidence. He cited an English Court of Appeal case where the court had concluded it would be a denial of justice if the court made its assessment on only that part of the evidence as it stood at the close of the plaintiff’s case.
Turning to the issue of expert evidence, he said that where something was not a matter which required special study or expertise, the court was in a position to draw its own conclusions.
Dealing specifically with the events of the night in question, he said it seemed clear that there ought to have been a more effective and immediate method of communication with managers than having to resort to asking a passing cleaner to call them.
It did not appear that there was any system in place where the two-way radio could be held by another person for the evening. He considered that the trial judge was entitled to come to the conclusion that this state of affairs was “unreasonable”.
The question of the injuries being caused, not by Dunnes Stores but by McCormack, brought together two areas of the law of negligence: the rescuer cases and those where it was contended the alleged tortfeasor (wrongdoer) was responsible for the injuries caused by a third party.
He said there was no reason in principle why, if a party could be liable for an injury caused by the wrongful act of a third party, the first party’s liability should not extend to any rescuer who was injured in a rescue attempt.
There was a strong connection between the wrongdoing identified on the part of Dunnes Stores. Mr Byrne sought help. Had no one come to his aid and had he been injured, Dunnes Stores would have been liable to him.
“Mr Byrne had to seek assistance from a member of the public, against all procedure, precisely because he had no effective method of seeking help from his co-employees.”
The possibility of physical injury being caused to a member of the public called upon in this way by an attempt to restrain a wrongdoer was readily foreseeable.
“There is no logical or conceptual difficulty in permitting recovery by a rescuer in circumstances where the defendant is or would be liable for the foreseeable wrongful acts of a third party,” Mr Justice O’Donnell said. This analysis disposed of the argument that the peril giving rise to the need for rescue was not caused by the defendant, but by the wrongful act of a third party.
“If Dunnes Stores had not been negligent as outlined above, Mr Byrne and Ms Stapleton [the cleaner] would not have had to ask Mr O’Neill or any other member of the public for help; if Mr O’Neill had not responded to the requests for help, he would not have been injured.”
Dismissing the appeal, he said: “It would indeed by regrettable if the message delivered by the law of tort to a member of the public faced with a cry for help is that if they intervene they do so at their own risk and that in all the circumstances it would be wiser to pass by on the other side.”
The full judgment is on www.courts.ie
Stephen Lanigan O’Keeffe SC, Aidan Doyle SC and Marie McCormack BL, instructed by English Leahy, Tipperary, for the plaintiff; Jeremy Maher SC and Cormac MacNamara BL, instructed by Harrison O’Dowd, Limerick, for the defendant.