Saturday 29 October 2016

Woman 'dropped on her head by drunk man' in popular nightclub loses case

Tim Healy

Published 11/12/2015 | 16:40

Tasha Fitzsimons Photo: Courtpix
Tasha Fitzsimons Photo: Courtpix

A WOMAN has lost a High Court action against a nightclub claiming it was negligent in admitting a drunk man who allegedly picked her up and dropped her on her head.

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Tasha Fitzsimons (27) claimed she was subjected to a couple of minutes of unwanted pestering by another patron, Andrew Kellet, who knew a sister of Ms Fitzsimons.

He then grabbed her and and threw her into the air when he slipped and fell causing her to go over his shoulders and hit the floor hard, she claimed.

She sued Templeville Developments Ltd, who own and operate the nightclub, "Barcode" in Clontarf, Dublin, claiming damages for a serious cut to her forehead and an elbow fracture as a result of the incident on December 22, 2008.

Ms Fitzsimons, Glentworth Park, Ard na Greine, Malahide Road, Dublin,  claimed the club was negligent in failing to adequately supervise the venue.  She also claimed there was a failure to ensure other patrons were not allowed in with excess alcohol and not given more drink while there.

The club denied her claims and alleged the incident as described by her did not happen.  It claimed she got up on Mr Kellett's back at one stage, although she denied this.

Dismissing the action, Mr Justice Michael White said while she had suffered a significant injury on a night out, it was Mr Kellet who was responsible.

Mr Kellet was not a defendant.  However, he gave evidence that he had been laughing and joking with Ms Fitzsimons before she climbed on his back and he fell forward after losing his balance, the judge said.

CCTV footage of the incident was not definitive, he said.

An independent witness, who said she did not see Ms Fitzsimons jump on Mr Kellet, gave the best evidence, the judge said.  The witness also said she saw him touching her and scooping her up on his shoulders before next seeing Ms Fitzsimons on the floor, the judge said.

He also found reliable the evidence of two of the club's security personnel who said Ms Fitzsimons had told them, immediately after the incident, she had "been messing around with Andrew Kellet".

The security personnel had also interviewed Mr Kellet afterwards and said he was not drunk.

A finding of negligence against the club in the circumstances of this case would be too high a standard of care to impose, he said.

The club was adequately supervised and there was not enough evidence to establish Mr Kellet should have been refused admission, he added.

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