Shop was obliged to take reasonable steps to prevent foreseeable harm – court

A convenience store near late night clubs and bars was obliged to take reasonable steps to prevent foreseeable harm to a customer who had been attacked by another man in the shop, the Court of Appeal has said.

Mr Justice Brian Murray made his comments when he dismissed an appeal in a case in which a man was awarded €750,000 over an attack by another man after he had been prevented getting back into a shop for refuge.

The shop and its security company appealed liability for the award made in 2018 by the High Court to Cian McCarthy (32), a psychiatric nurse, who was an innocent victim of an assault outside Centra supermarket on Grand Parade in Cork’s city centre on October 31st, 2011.

Mr McCarthy, Dwyer Road, Midleton, Co, Cork, was initially attacked inside the store after he protested about someone jumping the queue.

A security man, who had not been made aware by another security man that Mr McCarthy was an innocent party, decided to diffuse the dispute by putting Mr McCarthy, but not his attackers, outside. His assailants followed Mr McCarthy and attacked him again but he broke free and tried to get back into the store for refuge but was refused.

At that point, Mr McCarthy had collided with a woman whose boyfriend, who had nothing to do with the earlier row, responded with “a swift and devastating blow” causing him to fall to the ground and sustain a serious brain injury, the Court of Appeal said.

The man who assaulted him was later given a five-year jail sentence, with the last two years suspended.

The store operators, Herlihy Supermarket Group, Patrick Street, Fermoy, Co Cork, and security company it employed, Tekken Security, Upper Clanbrassil Street, Dublin, had appealed the High Court decision on the basis that they were not liable for the alleged negligence claimed by Mr McCarthy.

Giving the Court of Appeal decision, Mr Justice Murray said the owner of a convenience store has a duty of care to its customers to take reasonable steps to protect them against a foreseeable risk of harm from, among other sources, the hands of other customers.

The nature of that duty will vary from case to case, being ultimately dependent upon the nature and location of the premises.

Where, as in this case, the shop enjoys a city centre location in the vicinity of late night bars and night clubs and is open 24 hours, a duty of care must accommodate the prospect the premises will at times be crowded with people who are likely to be intoxicated and pose a foreseeable risk to others, the judge said.

That duty of care extends to taking reasonable steps to control access to the property and to ensure that there are personnel on the premises in a position to intervene where altercations take place in the shop, to either diffuse such altercations or to eject some or all of those involved, he said.

The store is not usually obliged to police the public footpath, but when ejecting customers in these circumstances, the shop owner is not obliged to determine who is the innocent party or who is the guilty and not generally required to re-admit any of the ejected persons, he said.

However, where, as had happened here, the shop knows a person ejected in order to diffuse a row is the innocent party, and where it knew the attackers have followed him out, the shop owner was under a duty to readmit him so as to protect him from danger to which he was now exposed, he said.

The defendants, he held, were not entitled to rely on the Civil Liability Act 1961 so as to render Mr McCarthy responsible for the actions of the man who knocked him to the ground.

The decision of the High Court’s Mr Justice Kevin Cross should be affirmed, he said.