Mattis v Pollock (t/a Flamingo'S Nightclub), Court of Appeal - Queen's Bench Division, October 24, 2002,  EWHC 2177 (QB)
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Case No: HQ 01X03080Neutral Citation No.  EWHC 2177 (QB) IN THE HIGH COURT OF JUSTICEQUEENS BENCH DIVISION Date: 24 October 2002 B e f o r e : HIS HONOUR JUDGE RICHARD SEYMOUR Q.C. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - - - - - - - JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN H.H. Judge Richard Seymour Q. C. : Introduction1. 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.  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 breach of that duty of care.The employment of Mr. Cranston8. The evidence that Mr. Pollock employed Mr. Cranston at all as a doorman included the admitted fact that on 26 August 1999 Mr. Pollock was convicted at Woolwich Magistrates Court of employing Mr. Cranston as an unregistered or, to use the terminology of this action, unlicensed, door supervisor on or about 31 July 1998. The requirement that only registered door supervisors be employed on premises such as the Club was imposed by London Local Authorities Act 1995 s.31. The relevant licensing authority was the Council of the London Borough of Greenwich. While there is some evidence that Mr. Cranston had applied to that authority for registration as a door supervisor, to which evidence I refer later in this judgment, he certainly had not in fact been registered. By virtue of the provisions of Civil Evidence Act 1968 s.11(2)(a) the fact of his conviction meant that Mr. Pollock was to be taken to have committed the offence charged unless the contrary was proved. In the Defence in this action it was pleaded that the conviction of Mr. Pollock to which I have referred was erroneous. The evidence in support of the allegation that the conviction was erroneous was that contained in a witness statement of Mr. Pollock dated 30 August 2002, which itself referred to and incorporated a statement which Mr. Pollock had made to the police dated 1 August 1998. Mr. Pollock was not called to give evidence in person. Two letters from doctors attending him were put before me in each of which the view was expressed that, given his state of health, the giving of oral evidence could have deleterious consequences for him. In those circumstances Mr. Benjamin Browne Q.C., who appeared with Mr. Roger Harris on behalf of Mr. Pollock, applied to me for permission to adduce the statements of Mr. Pollock to which I have referred in evidence under the provisions of Civil Evidence Act 1995 s.1. I acceded to that application. However, in the circumstances there was no opportunity for Mr. Rose to cross-examine Mr. Pollock on behalf of Mr. Mattis. That inevitably must affect the weight to be attached to the evidence of Mr. Pollock.9. What Mr. Pollock said in his statement to the police dated 1 August 1998 about the employment of Mr. Cranston was this:-``I own Flamingos and have done for the past 12 years. I employ 5 doormen, they are all registered with Greenwich Council. For the past 3 or 4 weeks a big black guy called Steve has been coming to the club, I think someone knew him from Tee's. He has asked me for a job but because he isn't registered by the Council I told him he couldn't be employed. I have never paid him any wages. He's been coming Friday and Saturday nights just handing [sic] around. He hasn't been searching anyone or anything like that. ''10. The account which Mr. Pollock gave in his witness statement dated 30 August 2002 about the employment of Mr. Cranston was:-``7. With regard to Stephen Cranston, I recall being approached by him and asked if I would give him a job. He was physically imposing being some 6 foot 7 inches tall and over 20 stone. I believe that he was known to some of the other bouncers. I made it clear that in order to employ him he would need to get his licence from Greenwich Borough Council. Once he had obtained his licence, I would consider whether he could be employed as a door supervisor and work the door. In particular I would need to ensure that he was known by other doormen.8. I therefore deny that Stephen Cranston was employed by me as a door supervisor on the night in question [that is, 31 July - 1 August 1998] or indeed at any time prior to the incident.''11. The evidence relied upon as disproving the correctness of Mr. Pollock's conviction was thus simply his own assertion, which in the circumstances was not tested by cross-examination.12. Against the proposition that Mr. Cranston had never been employed as a doorman by Mr. Pollock there were, apart from the fact of Mr. Pollock's conviction, a number of pieces of evidence.13. One of those whom Mr. Pollock did accept that he had employed as a doorman was Mr. Vincent Oligbo. Mr. Oligbo was registered as a door supervisor by the Council of the London Borough of Greenwich. Mr. Oligbo was called to give evidence on behalf of Mr. Mattis. Mr. Oligbo had made a statement to the police following the attack made by Mr. Cranston on Mr. Mattis. That statement was dated 21 August 1998. The subject matter of the statement was really only the events of 31 July 1998 and 1 August 1998. In the course of the statement Mr. Oligbo said:-``At about ten o'clock I remember seeing Steve in the club talking to a girl. I don't know his surname but I have known him for about two years, we used to work out at the Waterfront gym. He is very powerful, heavily built. I think he used to box and do modelling work. He is a very nice, placid guy. That night he was wearing a white short sleeved t-shirt. I can't remember if he was working that night or not. I know he...
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