A woman who claimed a Dublin nightclub negligently admitted a drunk man who allegedly physically picked her up and dropped her on her head has lost her High Court action for damages.
Tasha Fitzsimons (27) claimed she was subjected to a couple of minutes of unwanted pestering at the Barcode nightclub by another patron, Andrew Kellet, who knew a sister of Ms Fitzsimons.
She claimed Mr Kellet then grabbed her and and threw her into the air before he slipped and fell, causing her to go over his shoulders and hit the floor hard.
She sued Templeville Developments Ltd, owner and operator of Barcode, Clontarf, claiming damages for a serious cut to her forehead and an elbow fracture as a result of the incident on December 22nd, 2008.
Ms Fitzsimons, Glentworth Park, Ard na Gréine, Malahide Road, claimed the club negligently failed to adequately supervise the venue. There was a failure to ensure other patrons were not allowed in with excess alcohol and not given more drink while there, she alleged.
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. Ms Fitzsimons denied that.
In his judgment dismissing the action Mr Justice Michael White said while Ms Fitzsimons suffered a significant injury on a night out, it was Mr Kellet who was responsible.
Balance
Mr Kellet was not a defendant, the judge noted. Mr Kellet had however given evidence he had been laughing and joking with Ms Fitzsimons before she climbed on his back and he fell forward after losing his balance, said the judge.
CCTV footage of the incident was not definitive, he also said.
An independent witness, who said she did not see Ms Fitzsimons jump on Mr Kellet, gave the best evidence, said the judge.
That witness had also said she saw Mr Kellet touching Ms Fitzsimons and scooping her up on his shoulders before next seeing Ms Fitzsimons on the floor, said the judge.
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, said the judge.
A finding of negligence against the club in the circumstances of this case would be too high a standard of care to impose, he ruled. The club was adequately supervised and there was not enough evidence to establish Mr Kellet should have been refused admission, he added.