Hawley v Luminar Leisure Plc
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wilkie |
| Judgment Date | 10 January 2005 |
| Neutral Citation | [2005] EWHC 5 (QB) |
| Docket Number | Case No: HQ02X03984 |
| Court | Queen's Bench Division |
| Date | 10 January 2005 |
[2005] EWHC 5 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Wilkie
Case No: HQ02X03984
Brian Langstaff QC and Daniel Lawson (instructed by Thompsons Solicitors) for the Claimant
Derek Sweeting QC (instructed by Davies Lavery) for the 1 st Defendant
Jeremy Stuart-Smith QC and Alex Glassbrook instructed by Reynolds Porter Chamberlain for the 3 rd Defendant
Hearing dates: 13 Dec—16 Dec 2004
Approved Judgment
This is the judgment on liability only on a claim brought by David Philip Hawley against three defendants, Luminar Leisure Plc (Luminar), ASE Security Services Ltd (ASE) and David Preston Mann (as nominated underwriter for Farraday Underwriting Ltd) (the third Defendant). The underlying facts giving rise to Mr Hawley's claim are relatively simple and largely uncontentious. They have given rise, however, to some fairly complex legal arguments as to precisely where liability, if any, should fall.
Luminar is a company which currently operates some three hundred entertainment venues under different brands. One of its brands is the "Chicago Rock Café" and one of those clubs was, in August 2000, situated in Warrior Square, Southend on Sea, Essex. ASE was, until its voluntary winding up on 27 May 2002, a company providing security services, including door supervisors, to different clients. One of its major clients was Luminar with whom it contracted to provide security services in the form of door stewards at the Chicago Rock Café in Southend.
On 18 August 2000 the claimant was a customer at that venue with a number of friends, including one of his work colleagues, Mr Playfair. Both Mr Playfair and Mr Hawley were at the material time firemen. The club closed at 1am and at about 1.30am, immediately outside its front door, it is apparent from CCTV footage which I have seen that there was a melee involving a number of customers of the club who had just left. The claimant and Mr Playfair were immediately outside the club premises at this time. It is apparent that the three door stewards who were on duty that night went out of the club to try to calm the situation down. At one point the claimant is to be observed being approached and being engaged in some kind of conversation with one of the door stewards. Mr Hawley raises his hands and walks back in a gesture of not wishing to have any trouble with the door steward who appears to relax his attention towards the claimant. At that point another door steward, Mr Warren, came on the scene and punched the claimant very hard with his left fist onto the claimant's right jaw. The claimant fell as if poleaxed and, according to Mr Playfair, there were two audible sounds. The first was a sound like a fist hitting a punchbag and the second was a crack. Mr Hawley fell to the floor as a result of the blow and I find, on the balance of probabilities, knocked his head against the pavement. As a result of a combination of the blow and the striking of his head against the pavement he sustained fractures of the skull, nose and jaw. He suffered severe injury to the brain including dural haematomas. He underwent a craniotomy and right temporal lobectomy. He continues to suffer from widespread cognitive impairments including impairments of intellect and memory. In addition he suffers from behavioural problems, facial pain, headaches and impaired bladder control. There is before the court a report from Mr Robert Aspoas a consultant neuro-surgeon who concludes that a skull fracture such as that suffered by the claimant is caused either by an immobile head being struck by a hard object, or a mobile head striking a stationery object. He expressed the opinion that it would be less likely that the claimant's skull fracture was caused by a punch but if he was assaulted by a hard object such as a wooden batten or metal pole this certainly could cause such a fracture. On the basis of that evidence, together with the evidence of Mr Playfair, I conclude that the claimant's fractured nose and jaw were directly caused by the punch thrown by Mr Warren and his skull fracture was caused by his head striking the pavement as a result of his fall immediately following that punch.
It is common ground that Mr Warren was, in employment law terms, an employee of ASE. Mr Warren was prosecuted in respect of the assault on the claimant. He stood trial at Basildon Crown Court and, on 30 April 2001, was convicted by a jury of inflicting grievous bodily harm on the claimant. The severity of the offence of which he was found guilty is to be measured by the fact that the judge sentenced Mr Warren to 2 years imprisonment. For reasons which were not before me, but which were before the sentencing judge, he concluded that there were exceptional circumstances which enabled him to suspend that sentence of imprisonment for two years. Mr Warren was also ordered to pay compensation to the claimant of £5000.
The claimant commenced proceedings on 28 November 2002 against Luminar and ASE. By his particulars of claim he claimed damages against each of them alleging that they were each liable for the acts of Mr Warren on the basis of their respective negligence. ASE did not file a defence and, accordingly, on 12 June 2003 default judgment was entered against ASE that they must pay the claimant an amount which the court would decide.
On 17 January 2003 Luminar put in its original defence. It denied liability on the basis that at all material times Mr Warren was employed by ASE. They also took issue with the question whether Mr Warren was acting in the course of his employment. They specifically denied that Mr Warren was a person for whom they were vicariously liable.
On 7 July 2003 there was a case conference. The Master, amongst other things, gave permission to Luminar to issue a Part 20 claim against ASE and directed a preliminary issue between Luminar and ASE on whether, as a matter of construction of the contract between Luminar and ASE dated 16 November 1999, and insofar as the claimant was able to prove certain matters alleged in his particulars of claim, ASE was liable to indemnify Luminar in respect of the claimant's claim. Pursuant to that permission, Luminar issued against ASE a Part 20 notice of Contribution/alternatively Indemnity based on: an alleged contractual indemnity, alternatively ASE's alleged breach of contract and/or negligence in respect of Mr Warren, their employee. That notice was issued on 10 October 2003.
On 23 January 2004 the Master made, amongst other things, the following Orders:
A declaration that if the claimant could prove (a) that he was struck in the face by Geoffrey Warren as alleged in paragraph 3 of the particulars of claim and (b) that Geoffrey Warren was acting in the course of his employment when he struck the claimant, then the second defendant (ASE) is liable to indemnify the first defendant (Luminar) pursuant to the contract dated 16 November 1999 for any claims awarded to the claimant and costs. He also ordered that the third defendants be joined to the proceedings and gave directions for them to serve a defence.
It is not now in contention either that the claimant was struck in the face by Mr Warren as he alleged or that he acted in the course of his employment when he struck the claimant. Accordingly I find that both the contingent elements in the Master's order are satisfied so as to complete the liability of ASE to Luminar pursuant to that order. There remains an outstanding issue as to which party Mr Warren was the employee of for the purposes of his tortious act of assault against the claimant.
The third defendant filed a defence. It did not plead to any of the issues between the claimant and the first and second defendants. It did, however, reserve the right to deny that it was liable to indemnify the second defendant in respect of any such liability it might have.
On 10 February 2004 the claimant issued an amended particulars of claim. In that pleading the claimant contended, insofar as it may be necessary, that Luminar was at the material time a temporary deemed employer of Mr Warren for the purposes of vicarious liability in tort. It spelt out in further detail the allegation of assault and negligence against Mr Warren, added particulars to the allegation of negligence against Luminar and sought, in the light of the voluntary winding up of ASE, to claim to stand in their shoes pursuant to Section 1(1) of the Third Parties (Rights against Insurers) Act 1930 so as to take advantage of the insurance policy between ASE and Farraday Underwriting Ltd of which the third defendant is the nominated underwriter. By that amended pleading it sought a declaration in the terms set out in paragraph 13 of that pleading: that the third defendant will be liable, pursuant to the 1930 Act, to pay any damages and costs the claimant is awarded against the second defendant.
In response to that amended particulars of claim Luminar re-amended its defence. It denied that Mr Warren was either an employee or a temporary deemed employee of Luminar at the material time and accordingly denied that it bore any vicarious or other liability in respect of the acts of Mr Warren.
The third defendant amended its defence. It admitted that ASE was in liquidation, it admitted the existence of the insurance policy now relied on by the claimant but it denied that the liability of ASE for damages to the claimant arose from "accidental bodily injury" within the meaning of the policy. In particular it said that ASE's liability arises from an intentional assault and as such would not fall within the ambit of the cover...
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