Mattis v Pollock (t/a Flamingo's Nightclub), Court of Appeal - Civil Division, July 01, 2003, [2003] 1 WLR 2158,[2003] IRLR 603,[2004] PIQR P3,[2003] ICR 1335,[2004] 4 All ER 85,[2003] EWCA Civ 887

Issuing Organization:Civil Division
Actores:Mattis v Pollock (t/a Flamingo's Nightclub)
Resolution Date:July 01, 2003
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Case No: B3/2002/2324

Neutral Citation Number: [2003] EWCA Civ 887

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HIGH COURT,

QUEEN'S BENCH DIVISION

His Hon Judge Richard Seymour QC

Royal Courts of Justice

Strand,

London, WC2A 2LL

Tuesday 1 July 2003

Before :

LORD JUSTICE JUDGE

LORD JUSTICE DYSON

and

MR JUSTICE PUMFREY

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Between :

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(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

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Paul Rose QC and Timothy Meakin (instructed by Leigh, Day and Co) for the Appellant

Benjamin Browne QC and Roger Harris (instructed by Davies Lavery) for the Respondent

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Judgment

As Approved by the Court

Crown Copyright ©

Lord Justice Judge:

1. This is the judgment of the court.

2. This is an appeal by David Mattis from the decision of His Hon Judge Richard Seymour QC, dated 24 October 2002, dismissing his claim against Gerard Pollock for damages for personal injury and consequent loss sustained on 1 August 1998.

3. The essential facts are stark. At about 1.40am on 1 August 1998, Mr Mattis, a self-employed carpenter, aged 40 years, was stabbed by a doorman employed at a nightclub called Flamingos, Stephen Cranston. His spinal cord was severed at T11 level, rendering him paraplegic and devastating his life. On 26 March 1999, Cranston was convicted at Woolwich Crown Court of causing Mr Mattis grievous bodily harm with intent, contrary to s18 of the Offences Against the Person Act 1861. After a successful appeal against the sentence imposed at the Crown Court, he was ordered to serve eight years' imprisonment.

4. The claim for damages was brought, not against Cranston personally, but rather against Mr Pollock. Until January 2000, Mr Pollock owned and operated Flamingos, on Wellington Street, Woolwich, London SE18. The essential foundation for his alleged liability for the consequences of Cranston's attack on Mr Mattis was that this incident occurred when Cranston was acting as a doorman at Flamingos. Accordingly, Mr Pollock was vicariously liable for the injuries inflicted by Cranston. Liability was also said to arise for breach of the duty of care owed by him personally to Mr Mattis. After resolving a series of complicated factual issues, the judge rejected both contentions: hence this appeal.

5. Based on the judge's findings of fact, and when appropriate quoting his own words, the background, and the probable course of the incident itself, can be summarised shortly.

6. Cranston started employment as a doorman, or ``door supervisor'', at Flamingos on about 17 July 1998. He was so employed on the night of 31 July - 1 August. Contrary to regulations then in force, he was not registered for this purpose by the licensing authority, the London Borough of Greenwich. On 26 August 1999, Mr Pollock was convicted at Woolwich Magistrates' Court of employing Mr Cranston on or about 31 July 1998 as an unlicensed door supervisor.

7. Just after 2am on the night of 18 July, a violent incident occurred at the club, when a man called Paul Fitzgerald was a customer. Because he failed to drink up with sufficient alacrity, Cranston seized hold of another customer, Steven Priestman, a friend of Mr Fitzgerald, and hurled him across the room. Mr Pollock gave Cranston instructions by which he meant, and Cranston understood him to mean, ``that an occasion should be created to impress upon Mr Fitzgerald that Mr Cranston was prepared to use physical force to ensure compliance with any instructions that he might give to Mr Fitzgerald or any of his companions''. The incident involving Mr Priestman ``was provoked by Mr Cranston in compliance'' with that instruction. Fortunately, this incident did not escalate into something much more serious, and Mr Priestman himself did not suffer ``any real injury''. However, the potential for injury, or for a scene of violent disorder, was real enough, and Mr Pollock connived at Cranston's display of violence.

8. Another, and potentially more significant incident, involving Mr Mattis and a friend of his named Dean Cook, occurred at about midnight on 24 July. On Mr Pollock's instructions that he should be barred, Mr Cook was ejected from the club by Cranston. No specific violence was used towards Mr Cook or Mr Mattis. In truth, none was needed. The intimidating atmosphere was captured in Mr Mattis' witness statement, amplifying what he had said to the police in the immediate aftermath of the incident, and his evidence at trial. In his witness statement, he said:

``As I saw matters he (Cranston) was acting on Pollock's orders to remove Dean from the club, and he made it clear that he would be violent in order to carry out these instructions, if necessary. All this time Pollock was present, and he knew precisely how Cranston was acting, and he did nothing to stop it or in any way discourage him. If anything, he was tacitly encouraging Cranston to act in this way, and it obviously gave a strong impression to persons in the club as to what action they could expect if Pollock chose to remove them.''

In his evidence at trial, as quoted by the judge in his judgment, Mr Mattis said:

``Dean (Cook) was in no way aggressive or threatening. The black bouncer (Cranston), on the other hand, was very aggressive and intimidating. I got the impression that he wanted to start a fight.''

9. Mr Pollock was present throughout the majority of the incident involving Mr Cook, and observed how Cranston had treated him. His attitude to Cranston on this occasion, as described by Mr Mattis, was consistent with his general attitude to Cranston's behaviour with customers at the nightclub. This had attracted the attention of two of his fellow-employees, to the extent that they were prepared to take them up with Mr Pollock. One warned Mr Pollock that Cranston could be ``dangerous'', and pointed out that he was not licensed to act as a doorman. Another expressly described Cranston to Mr Pollock as ``a bully''. Mr Pollock's response indicated that he regarded Cranston's reputation as an attribute. ``He wished to employ someone as a doorman who could be relied upon to intimidate customers''.

10. The incident on 24 July was the ``precursor'' of the attack on Mr Mattis, which took place just...

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