Court of Appeal rules that a Nightclub owner is liable for bouncer's attack on fire fighter

A firefighter who was left brain damaged by a bouncer at the Chicago Rock Café in Southend has successfully had his High Court Ruling upheld by the Court of Appeal. In August 2000 David Hawley, a respected firefighter, was out clubbing with a group of work colleagues. There was a confrontation with a group of students outside the club and doorman Jeffrey Warren punched David Hawley with such force that he fell onto a kerb - striking his head and sustaining serious injuries that consisted of fractures to the skull, nose and jaw. His injuries were so severe that a front section of his brain had to be removed and he has been left permanently disabled by the assault.

The assailant Jeffrey Warren, received a two year suspended prison sentence for the attack. Not very much for a life and career in ruins is it? And whilst the assailant has been able to continue his life presumably with little interruption David Hawley has had a long and difficult fight - not only with the disability that the assault caused , the loss of his livelihood and the rounds of medical treatment - on top of all that he has had a long and protracted legal fight against those who tried to wriggle out of their responsibilities.

The most interesting and far reaching aspect of this particular case is the fact that following the court case and the appeal the nightclub owners Luminar Leisure have been found vicariously liable. This is an important landmark ruling as it sets a new precedent and means that no longer can the leisure industry hide behind others and continue to try and deflect blame away from their duty of care.

Mr Warren, at the time of the assault, was employed by ASE Security Services who were themselves contracted to provide door services to Luminar Leisure, apparently ASE subsequently went into liquidation. However - proceedings were issued against both ASE and Luminar Leisure. Both insurers had refused to indemnify the claim on the grounds that the liability arose from an intentional assault and therefore did not fall within the ambit of the policy cover.

Luminar, denied liability on the grounds that the doorman was employed by ASE Security Services and was neither an employee nor temporary 'deemed' employee of Luminar.   The High Court ruled last year that "the control that Luminar Leisure had over ASE's employees was such as to make them temporary deemed employees of Luminar".  Therefore Luminar was held to be "vicariously liable" for the actions of the doorman - a decision which Luminar appealed. The Court of Appeal ruled on 24 January 2006 that "we are quite satisfied that it was open to the Judge on the facts to find that Luminar had become Mr Warren's deemed employer. Responsibility for Mr Warren's acts lay, therefore, with Luminar.  Accordingly, we   reject the appeal against the judge's finding of vicarious liability on the part of Luminar. "

The Court of Appeal has also dismissed the insurer's appeal,   ruling that the Judge reached the correct conclusion that the insurers were liable to indemnify ASE.  David Hawley will now be able to claim compensation for his horrific injuries.

So - This means that an organisation which employs contract workers may be held responsible for their actions while working on the premises depending on the level of control that they retain. 

Solicitors acting for Mr Hawley said after the case was heard:

" Dismissing the appeal of the insurers and Luminar Leisure is a landmark victory and a great relief to all concerned, in particular for David Hawley.  It's now five years since the attack took place and in that time he has not received a penny of compensation.  This ruling sends a clear message to similar companies, warning them that they cannot hide behind others in their duty of care to customers."

  It is appalling that Mr Hawley has had a five year fight to get any form of compensation from those responsible - however he has now been awarded £25,000 as an interim payment. Let's hope that Mr Hawley gets proper and adequate compensation in the longer term from those responsible - and let's hope that the industry as a whole takes note of the wider implications of this ruling and starts to put its house in order. The duty of care toward customers is a serious duty and one that needs to be taken seriously - the courts have undoubtedly shown the way forward.

This is a decision that will undoubtedly have serious implications for the UK's leisure, security and insurance industry - they would do well to take proper note - along with a good hard look at their responsibility toward paying customers.

Sources: Thompsons Solicitors www.thompsons.law.co.uk

Maybo: www.maybo.com