Supreme Court rules against Dunnes

A “GOOD Samaritan” who was savagely attacked when he went to help a security guard trying to stop a suspected shoplifter fleeing a Dunnes Stores premises in Co Tipperary is entitled to €81,201 damages against the company, a majority Supreme Court has ruled.

By a two-to-one majority, the Supreme Court yesterday dismissed the store’s appeal against a High Court decision awarding Brendan O’Neill jnr, Monadreen, Thurles, the damages over severe facial and other injuries.

Mr Justice Peter Kelly had awarded damages on grounds including Dunnes’s security arrangements at the time were “substandard” with one security guard responsible for the entire premises.

The case arose on July 4th, 2002, at a shopping centre in Thurles, Co Tipperary, where Mr O’Neill was doing evening shopping. He was approaching the rear door of the centre when a security guard saw two apparently drunk youths in the store’s off-licence allegedly putting bottles into their pockets.

The security guard caught one youth outside the store and asked a cleaner to go and get help. She met Mr O’Neill who responded. Mr O’Neill claimed he saw the security guard struggle with a youth and he helped the guard try to restrain that youth while the second kicked and pulled at both men.

A Garda arrived having been alerted by the security guard via mobile phone. Other youths and more gardaí later arrived and one of the two suspected shoplifters produced a motorbike chain and struck Mr O’Neill in the face with it, inflicting severe injuries.

In his majority judgment, with which Mr Justice Liam McKechnie agreed, Mr Justice Donal O’Donnell said the High Court conclusion that the security guard had asked Mr O’Neill for help was “entirely appropriate”.

The High Court was also entitled to conclude that the absence of anyone to assist the guard that evening was unreasonable. The security guard had to seek assistance from a member of the public. The need for rescue of the security guard was caused by the negligence of Dunnes.

The security guard admitted the risk of violence and perhaps injury was an inescapable part of his job, the judge said. It was “entirely foreseeable”, if a security guard was put in a situation requiring assistance and was obliged to seek assistance from a member of the public, that that person may well be injured in offering assistance.

It was irrelevant that the precise nature of the attack on Mr O’Neill may not have been foreseen, the judge added. It was enough that this type of damage was foreseeable.

Mr Justice O’Donnell also said it would be “regrettable” if the message delivered by the law to a member of the public faced with a cry for help was that if they intervened, it was at their own risk and it would be wiser to pass by.

The example of the Good Samaritan in the parable “might not answer all the questions of the law of negligence but neither the law nor morality has ever sought to encourage imitation of the Levite”, he observed.

Dissenting, Mr Justice Nial Fennelly said there was no foundation in the evidence for the High Court’s conclusion that more than one security guard was necessary.

It was not negligent of Dunnes to try and catch an obvious shoplifter rather than sit back, watch and call gardaí.

While also not convinced liability for the creation of a situation of danger could be placed at Dunnes’s door rather than the suspected shoplifters, the judge said the issue of liability of “rescuers” should be decided by a larger court.