Thursday 16 August 2018

Man who suffered serious brain injury after shop refused re-entry awarded €750k

Cian McCarthy from Midleton, Co. Cork pictured leaving the Four Courts after he was awarded €750,000 damages.Pic: Collins Courts
Cian McCarthy from Midleton, Co. Cork pictured leaving the Four Courts after he was awarded €750,000 damages.Pic: Collins Courts
The High Court, Dublin

Tim Healy

A man who tried to get back in to a Cork shop as he fled would be attackers and was later assaulted in a massive fist blow to the head has been awarded over €750,000 by a High Court judge.

Cian McCarthy, Mr Justice Kevin Cross said was an innocent party and had suffered a most significant and serious brain injury in the assault outside Centra supermarket on Grand Parade, Cork city during the Cork Jazz Festival seven years ago.

Psychiatric nurse Cian McCarthy, who the judge said was an innocent party had earlier been escorted from the Centra store after a disagreement at the deli counter when somebody jumped the queue.

Mr Justice Cross  found the defendants' duty of care did not stop at the door of the premises and while they were entitled to eject Mr McCarthy- though he was entirely innocent- in order to avoid confrontation, the first security guard should have noticed the three people involved in the queue jumping row following him and advised the second security guard of the situation.

"A property owner or its security staff duly entitled may lawfully evict a customer from their premises but that eviction cannot involve the person in effect being thrown to the wolves with the property owner having no concerns of legal liability for anything that occurred once the eviction had taken place," Mr Justice Cross said.

He further ruled that in failing to re-admit Mr McCarthy and in pushing him back towards the danger, the defendants knew or ought to have known as a matter of virtual certainty Mr McCarthy would suffer some assault and some harm.

Mr McCarthy(32) Dwyer Road, Midleton, Co Cork had sued Herlihy Supermarket Group Ltd with offices at Patrick Street, Fermoy , Co Cork the owners of the Centra supermarket on Grand Parade and Tekken Security with offices at Upper Clanbrassil Street, Harold's Cross Bridge, Dublin which provided security at the Centra store for removing him from the store on October 31st, 2011 and for preventing in him from re-entering.

The judge said Mr McCarthy had attended the Centra supermarket at Grand Parade on Halloween night 2011 at around 2am  with his fiancee. The judge said CCTV cameras showed a very large number  of people milling around in front of the supermarket and there was " clearly a fancy dress engagement going on nearby as people are to be seen in drag and other fancy dress outfits."

There were a large number of patrons in Centra  along with staff and two security guards. Mr McCarthy joined the queue at the deli counter as he wanted to buy rolls.A man with a cardboard box on his head attempted to jump the queue and Mr McCarthy and his fiance objected.

The man with the box on his head, the judge said in footage is seen  manhandling his way up to the front which the judge said caused some protest from Mr McCarthy. Mr McCarthy is seen calling out that people should mind their manners and he was then assaulted around his mouth.

The judge said the security guard wanted to separate Mr McCarthy who was in a row  at this stage with three people and he escorted  Mr McCarthy from the shop.

Mr Justice Cross said the first security guard handed the care of Mr McCarthy over to the second security guard but he omitted to tell him  Mr McCarthy was the innocent party.

The three people involved in the row followed Mr McCarthy from the shop, chased him and attempted to hit hm on the head. The judge said Mr McCarthy offered no resistance and backed away trying to cover his head.

Mr McCarthy managed to break loose from his pursuers and made for the front door of the shop seeking safety. The judge said the second security guard who did not know Mr McCarthy was the innocent party and did not witness him being beaten and pursued outside  barred Mr McCarthy's  re-entry to the shop.Mr Justice Cross  concluded  the security  guard pushed Mr McCarthy back towards the crowd.

The judge held the best explanation for what occurred was that Mr McCarthy was pushed back in a falling motion and grappled by the man with the box on his head as he was falling.

It was a combination of the security guard's push and the grapple with the other man which caused the impact knocking down a a young woman who was standing outside the shop.

"Unfortunately the young woman's boyfriend intervened with a massive fist to Mr McCarthy's head causing him to fall to the ground, crack his head and suffer a serious head and brain injury," Mr Justice Cross said.

That man was later sentenced at Cork Circuit Criminal Court to five years jail with the last two years suspended for  the assault on Mr McCarthy.

Mr Justice Cross granted a stay in the event of an appeal.

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