Title:	O'Neill -v- Dunnes Stores
Neutral Citation:	[2010] IESC 53
Supreme Court Record Number:	77/07
High Court Record Number:	2006 3750 P
Date of Delivery:	11/16/2010
Court:	Supreme Court
Composition of Court:	Fennelly J., O'Donnell J., McKechnie J.
Judgment by:	O'Donnell J.
Status:	Approved
Result:	Dismiss
Judgments by Link to Judgment Concurring Dissenting O'Donnell J. Link McKechnie J. Fennelly J. Fennelly J. Link

Between:

On the 4th July 2002 the Plaintiff was doing some evening shopping in a shopping centre in Thurles in which the Defendant was the principal tenant. Around the time the Plaintiff was approaching the rear door of the centre, Mr Keith Byrne a security guard employed by the Defendant, saw two youths in the off licence of the Defendant’s store taking bottles from shelves and putting them into their inside pockets. They were tall, well built, and it appears, intoxicated. He approached them and asked for identity as they appeared to be under 18. One of them, Ciaran McCormack, produced a false ID. The other Alexander Colville, said he would get his from a car and then ran away. Mr Byrne gave chase and caught Alexander Colville just outside the centre. Alexander Colville struggled and tried to reach for one of the bottles in his coat to strike Mr Byrne and Mr Byrne asked a Sadie Stapleton, a cleaner in the shopping centre to go and get help from, he said, some of the managers in Dunnes Stores. Ms Stapleton encountered the Plaintiff and a number of others coming into the shopping centre and said words to the effect “help, there is after being a robbery”. Ms Stapleton’s recollection was not markedly different. She thought she said something like “help Keith outside, he’s in trouble”. Only the Plaintiff responded. The Plaintiff saw Mr Byrne struggling with Alexander Colville and saw Alexander Colville trying to get a bottle to strike Mr Byrne. The Plaintiff says that Mr Byrne asked him for help. Although Mr Byrne denied this, the trial judge accepted the Plaintiff’s evidence in this regard, and on this appeal the Appellant properly accepts that this is the factual basis upon which the Court must now proceed.

The Plaintiff went to Mr Byrne’s assistance and Mr Byrne frankly acknowledges that when the Plaintiff came to help, Mr Byrne “did not turn it down”. It is apparent that this was a difficult situation for Mr Byrne who was the only security guard then on duty. The Plaintiff helped Mr Byrne to restrain Alexander Colville who was at that stage trying to hit Mr Byrne with a bottle. At this point Ciaran McCormack was on the scene pulling and kicking at both Mr Byrne and Mr O’Neill telling them to leave his friend alone. However Mr Byrne had been able to phone the gardaí on his mobile phone. The police station was close by and a member of the gardaí, Garda Henry Delaney, arrived. The Plaintiff continued to restrain Alexander Colville.

Ciaran McCormack went back into the shopping centre. Mr Byrne pointed him out to Garda Delaney and told him that Ciaran McCormack had been involved in the incident. Garda Delaney went back into the centre, got Ciaran McCormack and brought him back and began to take details. Ciaran McCormack became extremely aggressive and started pushing and kicking at Mr Byrne, the Plaintiff and Garda Delaney. Garda Delaney then told Ciaran McCormack to go away and he left. Mr Colville was still being held by the Plaintiff and Mr Byrne. More youths came on the scene and there was a lot of pushing and shoving. Garda Delaney had radioed for help and more gardaí arrived on the scene. Just about that time Ciaran McCormack came back from behind the shopping bay with a motor cycle chain and swung it, striking the Plaintiff across the face, fracturing his nose, injuring his face and driving the Plaintiff back against a pebble dashed wall injuring his back. Ciaran McCormack continued to stand swinging the chain but eventually the gardaí subdued him. During the altercation, the Plaintiff and Mr Byrne were told by some of the youths that they knew where they lived, and that they would be killed. It was a very violent incident and the most serious during the two years or so in which Mr Byrne had been employed in Thurles.

In these proceedings, the Plaintiff sues the Defendant contending that the Defendant’s negligence caused, or was a cause, of his injuries. The case started in the Circuit Court but because the condition of the Plaintiff worsened, it was transferred to the High Court. Nevertheless, the case was conducted in a fairly straightforward way. There was a small number of witnesses, no expert evidence, and the case concluded in one day.

To this account of the facts it is necessary to add some further elements of the evidence, most of which emerged from the testimony of Mr Byrne. Mr Byrne had received training in unarmed combat, restraint and self defence in the Army. At the time of the trial he was working as a body guard in Haiti. He accepted on a number of occasions that there was an inevitable risk of injury when he confronted any suspected shop lifter. That, he accepted frankly, was part of the job. He himself sustained some minor injuries in the fracas. The Defendant company had a protocol for behaviour of security guards. He did not have a copy in court and the Defendant did not put the protocol of evidence. Mr Byrne recalled however, that it provided that if he felt he could deal with the situation he could go ahead and deal with it but if he felt he was outnumbered then he was to wait for help. On the night in question he was the only security guard on duty. Normally during the day, there were two or three security guards, but on this occasion he did not know whether the other security guard was off duty or had finished work for the evening. The security manager had finished work at approximately 6p.m. which would have been the norm on a late night shopping. He had been supplied with a two-way radio but he did not have it with him that evening. He said that there was no point since there was no one to take the other unit. There was also no arrangement that a manager working that evening should take the other unit. In denying that he had sought assistance from the Plaintiff he explained that “It would be completely against procedure to get a member of the public involved”.

On this relatively sparse evidential basis the Court had to determine the Plaintiff’s claim for damages. At the close of the Plaintiff’s case the Defendant had sought a non suit, indicating however that it intended to go into evidence in the event that the application was refused. Accordingly the issue at that stage was whether the evidence disclosed a prima facie case. The trial judge duly refused the application and indicated he would give his reasons in his judgment. In the event, after hearing all the evidence, the trial judge found that the Defendant had been negligent. The judge’s reasoning is set out in a relatively short passage in his judgment. First he held that having only one guard on duty was inadequate. Second, leaving Mr Byrne to communicate by way of mobile phone was much less efficient than having an effective two-way radio system. Third, Mr Byrne, while acting conscientiously in confronting what the trial judge called, vividly, “two drunken louts” had attempted a citizen’s arrest, rather than adopting the more prudent course of relying on his own observations and the CCTV evidence to ground a complaint to the gardaí. The trial judge concluded “Mr Byrne negligently breached that protocol and the defendant is vicariously liable for that act. The situation requiring assistance of a rescuer was reasonably foreseeable and was brought about by a combination of Mr Byrne’s non adherence to the protocol and the Defendants failure to provide appropriate backup for Mr Byrne”.

It seems therefore that the trial judge identified two distinct bases for liability: first, primary liability of a wrongdoer to a rescuer who responds to the peril created by the wrongdoer; and second, the vicarious liability of an employer for the negligent acts of his or her employee. The trial judge proceeded to award the Plaintiff damages. Against the decision on liability the Defendant appeals to this Court. There is no appeal on the quantum of the damages.

On this appeal the Defendant takes four points which are interrelated to some extent. First, it is said that the trial judge was wrong to refuse the Defendant’s application for a non suit at the end of the Plaintiff’s case. It was pointed out that almost all the evidence on which the trial judge relied in his finding of liability was derived from the Defendant’s evidence. Looked at critically, it is suggested, there was no prima facie case at the close of the Plaintiff’s case. It was argued that the trial judge had failed to give separate reasons for the refusal of the non suit application, his reasons being subsumed in the general reasons upon which he found the Defendant negligent.

It is clear that there was very little evidence to sustain a finding at the close of the plaintiff’s case: the bulk of the evidence helpful to the Plaintiff was elicited in the cross-examination of the Defendant’s witnesses. However, before proceeding to analyse in any detail the precise weight of the evidence adduced by the Plaintiff, a more basic issue arises: on the assumption that there was no sufficient evidence to find a prima facie case at the close of the Plaintiff’s case, but where the Defendant goes into evidence and supplies the deficiency in the Plaintiff’s case, can an appeal court ignore the evidence which ex hypothesi show that the Defendant’s had been negligent and nevertheless overturn what appears to be a correct decision in favour of the Plaintiff, on the grounds that the Plaintiff had failed to establish a prima facie case in his own evidence and that the trial judge had wrongly refused the Defendant’s application for a non suit? It appears that the practice in criminal cases on this issue is a little unclear (See Ryan and Magee, The Irish Criminal Process, p.341), but on the hearing of the appeal, the Court drew the attention of the parties to a decision of the Court of Appeal in England in Payne v Harrison [1961] 2 QB 403, where in a similar situation, and having held that the judge had not in fact erred in law because there was just sufficient evidence at the end of the case for the plaintiff to justify his ruling, the Court of Appeal went on to observe that since the defendant had not stood on his submission and had gone into evidence, the duty of the appellate court was to assess the position realistically and consider the whole of the evidence including that of the defendant. It would, the court considered, 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 when the judge made the ruling appealed against. While this decision is merely of persuasive authority, it accurately expresses the conclusion to which I was inclined to come of my own volition. In the circumstances, I do not consider it necessary to analyse whether there was just sufficient evidence to establish a prima facie case at the close of the Plaintiff’s case. Instead, I will consider the entirety of the evidence and whether the trial judge was correct to find that the Defendant was liable to the Plaintiff.

The second and somewhat related argument was that it was said that there was no expert evidence to support the Plaintiff’s case. It was however accepted that there is no absolute requirement that expert evidence be given in support of any plaintiff’s claim and there are many matters which are within the ordinary judgment of the courts. In AG (Ruddy) v Kenny (1960) 94 ILTR 185, 186, Davitt, P. observed that:

“There are certain matters in which the law considers that the Court is not as capable as are expert witnesses in drawing inferences; matters which require special study and experience in order that a just opinion may be formed, as for instance, matters of art, science, medicine, engineering and so forth. In regard to such matters, witnesses of whose expertness the Court is satisfied are allowed to give evidence of their opinion.”

However, that is not to say that the absence of expert evidence did not hamper the plaintiff’s case. In Bradley v CIE [1976] IR 215, the Supreme Court outlined a test of negligence in the context of employment, but which is of wider application. Henchy, J. cited the formulation of Lord Dunedin in Morton v William Dixon Ltd [1909] SC 807:

“… It is absolutely necessary that the proof of the fault or omission should be one of two kinds, either – to shew that the thing which he did not do was the thing which was commonly done by others in like circumstances, or – to shew that it was a thing which was so obviously wanted that it would be folly in anyone to neglect to provide it.”

In my view, Bradley v CIE provides some focus on the true issue in controversy here. It is not the case that it is always necessary to have so-called expert evidence, sometimes fanciful and nearly always expensive, on matters that are little more than common sense. It cannot be suggested that there is an academic discipline of management of shopping centres in substantial rural towns. The particular issues involved are not so recondite that it could be said that a court can only apply the test identified in Bradley to the facts of this case with the benefit of expert evidence. However, the difficulty here is not that such expert evidence was essential but rather that such evidence is a convenient way of giving evidence of general practice. Here it could be said with some force that there was no evidence from any witness as to whether or not it was normal to have two or more security men on duty for late night shopping in a store with the size and throughput of Dunnes Stores in Thurles. While there was reference in cross-examination to a protocol produced by Dunnes, only a portion of which Mr Byrne could remember, the document itself was not put in evidence. In the event there are significant difficulties with treating this as evidence of general practice from which negligence can be deduced. First, it is, strictly speaking, only the evidence of Dunnes’ own practice and not the general practice of reasonable store owners. Second, the evidence itself was somewhat equivocal. Even if it was accepted that Mr Byrne was outnumbered – and he maintained he only went after one culprit, Alexander Colville – his memory of the protocol was that he was not to act if he felt it was outside his capacities. The test therefore was a somewhat subjective one and was not obviously breached. All of this illustrates what was missing in the Plaintiff’s case. Given the rather dramatic and dangerous situation which arose, the fact that no other Dunnes Stores employee was able to come to Mr Byrne’s assistance and the fact that it seems highly probable that late night opening on Thursday is at least as busy and possibly more troublesome than day time shopping, it seems likely that a person with even basic experience would be able to point to a series of flaws in the manner in which the system operated on that evening and could have compared it unfavourably with best practice. However, no evidence of that nature was given, and I do not think that a court would be justified in determining of its own knowledge that it was, for example, folly or even unreasonable, for Dunnes only to have had one security guard on late night shopping in July 2002 or for a security guard to confront one or at best two juvenile, if somewhat troublesome, shoplifters, or when one ran off, to have pursued him.

Indeed in this regard, I would be very slow to impose through the law of negligence some inflexible rule that there must always be a minimum of two security guards in any store, at least on the limited evidence proffered in this case. I would be even more reluctant to stigmatise as negligent, the acts of the security guard who confronted, chased and detained a shoplifter – especially one who appeared unruly, intoxicated and given to violence. It is one thing for prudence to suggest caution rather than courage in certain circumstances; it is quite another that the law should demand caution and penalise courage.

However, there is a more narrow basis for the conclusion that in this case Dunnes Stores failed to adhere to an appropriate standard of care. Perhaps the most telling piece of evidence was that volunteered by Mr Byrne in cross-examination that it was completely against procedure to involve a member of the public. Mr Byrne gave that evidence while denying that he had requested Mr O’Neill’s assistance, but the trial judge found that Mr Byrne had indeed asked Mr O’Neill for help and on the evidence, that conclusion was entirely appropriate and cannot now be challenged on this appeal. On one view, it might be said that involving a member of the public in breach of certain procedures makes Mr Byrne negligent, and Dunnes Stores vicariously liable for his default. However, I think that that analysis would be more than a little artificial: I am not sure that it can be said that any security guard (no more than any citizen), can be said to owe a duty of care to members of the public not to involve them by asking them for help to detain a suspect. It is I think preferable to see that evidence as the clearest possible indication that if there was any system in place on the evening, it had gone badly wrong. In the absence of evidence of common practice it may not be possible to say with certainty that there ought to have been another security guard to assist Mr Byrne, but there certainly ought to have been someone available to assist him. The image of the two-way radio which was useless because there was no one to communicate with, is itself telling. It is clear that there were managers on duty, (indeed Mr Byrne said that he asked Ms Stapleton to get them) and that such managers could have assisted Mr Byrne if alerted to the situation. It seems 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 cleaning lady to call them. It does not appear that there was any system in place where the two-way radio could be held by another person for the evening or any arrangement for Mr Byrne to be able to communicate with any other member of staff. Even on the limited evidential record therefore, I consider that the trial judge is entitled to come to the conclusion that this state of affairs was unreasonable and, if necessary, amounted to the type of “folly” which Lord Dunedin identified more than 100 years ago.

The third and fourth points argued by the Appellant can be taken together. Even assuming some default on the part of Dunnes Stores (such as that identified above) it was nevertheless said that Dunnes Stores were not liable because their action or inaction did not cause the peril or give rise to the necessity for rescue. On the contrary, it was said Mr O’Neill’s injures were caused by the wrongful and indeed criminal acts of third parties. The Appellant also stressed the fact that at the time of the assaults on Mr O’Neill, Garda Delaney had arrived and was sufficiently in charge to tell Mr McCormack to go away. It was also emphasised that the actual assault on Mr O’Neill had come out of the blue and clearly was not anticipated by the Garda.

The consideration of these arguments involves surveying a difficult intersection between two areas of the law of negligence which have posed problems of analysis over the years; the rescuer cases and those cases in which it is contended that an alleged tortfeasor is responsible for injury caused by the wrongful acts of a third party.

At the outset it is necessary to consider if this was truly a rescue case at all. The Appellant referred to the decision of this Court in Phillips v Durgan [1991] ILRM 321. In that case, a couple had been retained by the first named plaintiff’s brother to clean a house and then to decorate it. The kitchen was very greasy. The gas cooker which was the only means for heating water, was itself defective, producing only a guttering flame. The first named plaintiff slipped and a towel she was carrying caught light from the cooker. She was badly burned and her husband, the second plaintiff, also sustained burns trying to rescue her from the fire. In the High Court, the trial judge had rejected the contention that the defendant’s negligence was a primary cause of the fire but had found for the plaintiffs, considering that it was a form of rescue case. The Supreme Court held that the case could not be treated as a rescue case but nevertheless upheld the award on the grounds that the defendant had been in breach of a primary duty of care owed to the plaintiff and since the defendant was the occupier of premises, which posed a danger to lawful entrants, including the plaintiffs. It appears to be suggested that this case is similar in that it is suggested that the true cause of Mr O’Neill’s injuries was the wrongful, indeed criminal, act of Ciaran McCormack.

When Phillips v Durgan is analysed, it seems to me to illustrate precisely why this is indeed a case which is properly addressed by reference to the principles established in the rescue cases. As Cardozo, J. memorably observed in Wagner v International Railway (1921) 133 NE 437:

“Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences.”

Quite apart from the dearth of evidence, this case is undoubtedly made more complex as a matter of law by the fact that the direct cause of the Plaintiff’s injury was the wrongful acts, both criminal and tortious, of another party, Ciaran McCormack, for whom Dunnes Stores were not responsible. Looked at from one perspective it might be said – and was said by the Appellant – that the source of the peril giving rise to the need for rescue by Mr O’Neill was Mr McCormack’s violent act and not the carelessness of Dunnes Stores. Alternatively, it was said that the wrongful acts of Ciaran McCormack were the proximate cause of Mr O’Neill’s injuries and constituted a novus actus interveniens breaking any causal link between the negligence of Dunnes Stores and the injuries suffered. I should say at this point that I am using the term negligence in its meaning in common usage even among lawyers, rather than as a term of art. It is technically incorrect to speak of negligence in the absence of establishing a duty of care, and in one sense the question whether Dunnes Stores owed a duty of care to members of the public to protect them from the risk of assault is at the very heart of this case.

There is no reason in principle why, if on the established law a party can be liable for injury caused by the wrongful act of a third party, the first party’s liability should not extend to any rescuer who is injured in an attempt to rescue an individual. As Cardozo, J. observed in Wagner the “wrongdoer may not have foreseen the coming of the deliverer. He is accountable as if he had”.

It is necessary however to separate those two strands of authority. The classic case where an initial act of negligence made a party responsible for the loss caused by the wrongful act of the third party is the well known case of Home Office v Dorset Yacht Company [1970] AC 1004, considered recently in this Court, in Breslin v MIBI [2003] 2 IR 203. The principle in the Dorset Yacht case was expressed succinctly, by McWilliam, J. in a Circuit Court case of Dockery v O’Brien (1975) 109 ILTR 127:

“With regard to a novus actus interveniens, Lord Reid, in the Dorset Yacht Company case, said that, if what was relied on as a novus actus interveniens is the very thing which is likely to happen if the want of care which is alleged takes place, the principle involved in the maxim is no defence, and he added that, unfortunately, tortious or criminal action by a third party may be the very kind of thing which is likely to happen as a result of the wrongful or careless act of the defendant … This was the very kind of thing which a reasonable person should have foreseen.”

If the foregoing analysis is correct, then the rest of the case follows quite readily. 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. To illustrate this, it may be useful to adapt the facts of the leading case of Smith v Littlewoods Organisation Ltd [1987] AC 241, which was also considered in Breslin v MIBI. There, fire was started by vandals in the defendants’ vacant cinema premises which spread to adjoining buildings. The owners of those buildings sued the defendants. It was known that trespassers had used the vacant cinema, but on the facts of the case the defendants succeeded because there was no evidence that the defendants had knowledge of the fact that vandalising trespassers were in the habit of lighting fires in the disused cinema. However, had the defendants been so aware, there is no doubt that they would have been liable in such circumstances to their neighbours. If that finding had been made, I do not think there would have been any difficulty in extending liability to any rescuer who was injured while entering any of the buildings attempting to rescue someone, even though the direct cause of the peril – in that case the fire – would have been the vandals rather than the cinema owners.

The conceptual difficulty with the rescuer cases is the sometimes attenuated chain of causation and the indulgent view that courts take of the issue of the duty of care. An often quoted observation is that of the late Professor Fleming in The Law of Torts 5th Edition (1992) p.170:

“A remarkable change has overtaken the legal position of the rescuer; once the Cinderella of the law, he has since become its darling.”

“It used to be that his claim for injury in coming to the aid of someone imperilled by the defendant was defeated in short shrift on the grounds that his “voluntary” intervention either severed the causal link with the defendants negligence or showed that he voluntarily assumed the risk. These theories have all toppled like nine pins; indeed in its anxiety to support the rescuer, modern law has generally evinced little interest in the conventional requirements of “foreseeability” and “duty”.” (emphasis added)

“In any event, foreseeability must here be a very broad notion, in marked contrast especially to the nervous shock cases of the opposite end of the spectrum. The divergent judicial reaction to these two situations strikingly illustrates the fact that, far from foreseeability being a true or sole determinative duty, weighty policy considerations militate, in the one case in favour, in the other against the plaintiff’s claim to legal protection. Behind the ambivalence of the foreseeability formula lies the desire, on the one hand, to encourage altruistic action and, on the other a decided hesitation based on administrative grounds to permit recovery from mental distress.”

This analysis also disposes of the argument that the peril giving rise to the need for rescue was not caused by the Defendant, but rather by the wrongful act of a third party. Because this case involves the complication of third party wrongdoing, it is I think necessary to consider whether the Defendant was a cause, rather than necessarily the proximate cause if any, of the Plaintiff’s injuries, as long as the wrongdoing itself was the very thing which was to be anticipated as a result of the Defendant’s negligence. Furthermore, while it might be said that the situation was caused at least in part by the wrongful shoplifting and attempt to escape of Alexander Colville, there is little doubt that the need for rescue by a member of the public was caused by the negligence of Dunnes Stores. If Dunnes Stores had not been negligent as outlined above, Mr Byrne and Ms Stapleton 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.

In these circumstances, and notwithstanding the somewhat rudimentary nature of the case made and the tenuous evidential basis for the trial judge’s conclusions, I consider that the appeal in this case should be dismissed. This is a result which I think accords with both legal principle and common sense. It would indeed be 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. Lord Atkin observed that the example of the Good Samaritan in the parable may not answer all the questions of the law of negligence, but neither the law nor morality has ever sought to encourage imitation of the Levite.