BLM succeeds in catastrophic brain injury case

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Law firm BLM has successfully defended a catastrophic brain injury case that centred on whether a supplier of security services was vicariously liable for an assault committed by a doorman at a nightclub it serviced.

The case was decided on 5 April in favour of BLM client West Yorkshire Security, which provided security services under a verbal agreement to nightclub owner Leisure Ninety Nine on the evening that the claimant was injured at one of its premises.

The claimant, Rory Davis, sustained a serious brain injury after attending the nightclub in Mansfield in December 2012.

Davis repeatedly attempted to enter the nightclub and an altercation with the doormen ensued, resulting in one, George Fessey, lifting Davis up and throwing him head first to the ground.

Due to the brain injury he suffered as a result, Davis had no recollection of the event. But it was captured by CCTV and witnessed by an off-duty police officer. Fessey was sentenced to two years in prison after admitting an offence of inflicting grievous bodily harm.

An allegation that West Yorkshire Security was liable in negligence was not pursued, leaving the sole issue for trial to determine whether the firm was vicariously liable for the actions of Fessey.

BLM argued that first limb of the vicarious liability test—whether the relationship between Fessey and West Yorkshire Security was capable of giving rise to vicarious liability—did not apply.

At the time of the assault, Fessey was employed by another defendant in the case, Ian Cox (who traded as Cox Security Services). West Yorkshire Security sub-contracted the provision of security services at Leisure Ninety Nine to Cox.

The judge ruled that West Yorkshire Security was not vicariously liable because there was no relationship between it and Fessey, its business was not integrated with Cox’s, and it exercised no control over the doorman.

“Although ‘control’ is not always determinative,” BLM explained, “in the ‘Cox’ case, Lord Reed stated that the absence of any control would be liable to negative the imposition of vicarious liability. The judge was prepared to accept that this was such a case of no control.”

An application for leave to appeal was refused, although it is thought that Davis will seek permission from the Court of Appeal.

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Mark Dugdale is the editor of Claims Media. Mark welcomes articles, letters or feedback from readers and can be reached via mark.dugdale@barkerbrooks.co.uk