Mattis v Pollock (t/a Flamingo'S Nightclub), Court of Appeal - Queen's Bench Division, October 24, 2002, [2002] EWHC 2177 (QB)

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Mattis v Pollock (t/a Flamingo'S Nightclub), Court of Appeal - Queen's Bench Division, October 24, 2002, [2002] EWHC 2177 (QB)

Case No: HQ 01X03080

Neutral Citation No. [2002] EWHC 2177 (QB)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

Date: 24 October 2002

B e f o r e :

HIS HONOUR JUDGE RICHARD SEYMOUR Q.C.

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Paul T. Rose Q.C. and Timothy Meakin (instructed by Leigh, Day & Co. for the Claimant)

Benjamin Browne Q.C. and Roger Harris (instructed by Davies Lavery for the Defendant)

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JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN

H.H. Judge Richard Seymour Q. C. :

Introduction

1. On 1 August 1998 at about 1.40 a.m. the Claimant, Mr. David Mattis, was stabbed by Mr. Stephen Cranston. The knife used by Mr. Cranston severed the spinal cord of Mr. Mattis at the T11 level. Mr. Mattis is now a paraplegic. He was born on 4 July 1958, and so he is now 44 years of age. He had been self-employed as a carpenter. He is no longer able to work. In this action Mr. Mattis claims damages against Mr. Gerrard Pollock in respect of the injuries inflicted by Mr. Cranston. Mr. Pollock has denied liability to compensate Mr. Mattis for his injuries. Separate trials of questions of liability and quantum were directed by Master Foster by an order dated 21 February 2002. This trial has been concerned with questions of liability.

2. Mr. Pollock is apparently now some 69 years of age. Until January 2000 Mr. Pollock owned and operated a nightclub (``the Club'') in Wellington Street, Woolwich, London SE18 which was called ``Flamingo's''. It seems that in January 2000 Mr. Pollock entered into a voluntary arrangement with his creditors which, amongst other things, involved him selling his interest in the Club to his son. It seems that Mr. Pollock is no longer in employment and that he has few, if any, assets. However, he did, whilst operating the Club, maintain both employer's liability and public liability insurance. That insurance was provided under policies written by Independent Insurance Co. Ltd. That company went into provisional liquidation on 17 June 2001, but there seems to be some prospect that there will be an amount of cover in respect of the claim of Mr. Mattis if it is successful.

3. Whilst he operated the Club Mr. Pollock engaged the services of a number of doormen. The principal tasks of the doormen seem to have been to control entry into the Club in accordance with directions given by Mr. Pollock and to maintain order inside the Club amongst those who had been admitted.

4. The case of Mr. Mattis against Mr. Pollock depends critically upon the assertion that Mr. Pollock employed Mr. Cranston as a doorman at the time Mr. Cranston attacked Mr. Mattis. That assertion is denied on behalf of Mr. Pollock. Consequently a vital issue of fact for me to determine is whether Mr. Cranston was employed as a doorman as at 1 August 1998. Another issue which I shall have to determine is whether, on the footing that he was ever employed by Mr. Pollock as a doorman, which was denied on behalf of Mr. Pollock, Mr. Cranston was working as a doorman at the Club on the night of 31 July - 1 August 1998.

5. On the basis that Mr. Pollock did employ Mr. Cranston as a doorman as at 1 August 1998 and Mr. Cranston was working on the night in question, it was contended on behalf of Mr. Mattis by Mr. Paul T. Rose Q.C., who appeared at the trial before me together with Mr. Timothy Meakin, first, that Mr. Pollock was vicariously liable for the injuries inflicted by Mr. Cranston, and, second, that Mr. Pollock was liable for those injuries because they were the result of a breach on the part of Mr. Pollock of a duty of care which he owed to Mr. Mattis. The precise nature of the duty of care contended for I shall have to consider later in this judgment.

6. The facts as to the circumstances in which Mr. Mattis sustained his injuries at the hands of Mr. Cranston were not, in the event, seriously in dispute. There was some dispute as to the behaviour of Mr. Cranston in the Club on occasions earlier than the date of the attack on Mr Mattis, and I shall have to make findings in respect of the contested matters relied upon on behalf of Mr. Mattis in support of the allegation that Mr. Cranston was, to the knowledge of Mr. Pollock, unsuitable to perform safely the duties of a doorman. However, even on the version of events contended for on behalf of Mr. Mattis by Mr. Rose it is necessary to consider with care the application in this case of the principles laid down by the House of Lords in Lister v. Hesley Hall Ltd. [2002] 1 AC 215 as those by reference to which the question whether an employer is vicariously liable for the actions of his employee falls to be determined.

7. A further important question, dependent upon the issues whether Mr. Pollock owed to Mr. Mattis any relevant duty of care, and if so what, is whether the injuries sustained by Mr. Mattis at the hands of Mr. Cranston were caused by a brea...

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