An innocent firefighter who was attacked by a nightclub bouncer in Southend and left brain damaged is at last set to receive compensation more than five years after the incident.  With the support of the Fire Brigades Union (FBU) and its lawyers Thompsons Solicitors, the latest appeals by the insurers and the nightclub owner have been dismissed.   A decision which will have serious implications for the UK’s leisure, security and insurance industry.

The Court of Appeal has upheld a High Court ruling last year that Luminar Leisure is vicariously liable for the actions of a bouncer working at their Chicago Rock Café in Southend, even though he wasn’t directly employed by them.  Both defendants have today agreed to an interim payment of £25,000 between them.

This means that an organisation which employs contract workers may be held responsible for their actions while working on the premises depending on the level of control that they retain. 

Punched in the face by doorman

The case dates back to August 2000, when David Hawley, then just 30, was out with a group of colleagues from Southend Fire Station.   Following a confrontation with a group of students outside the Chicago Rock Café, he was punched in the face by doorman Jeffrey Warren so hard that he fell to the floor striking his head on the kerb.  As a result of a combination of the punch and hitting the pavement Mr Hawley sustained fractures of the skull, nose and jaw.

David Hawley suffered an injury to the brain which was so bad that a front section had to be removed.   He has since had a metal plate inserted into his head and is due to have further surgery to his face following rhinoplasty.  He now suffers from cognitive impairments including intellect and memory.  In addition he suffers from post traumatic epilepsy, facial pain, headaches and impaired bladder control. 

Jeffrey Warren, who received a two year suspended prison sentence for the attack, was employed by ASE Security Services who were contracted to provide doormen to Luminar Leisure.  ASE subsequently went into liquidation.  Proceedings were issued against both parties.   Whilst Judgment was obtained against ASE Security Services, their insurers refused to indemnify the claim on the grounds that the liability arose from an intentional assault and therefore did fall within the ambit of the policy cover. This led to a long and protracted high court battle to hold Luminar Leisure, the night club operator, responsible for the doorman’s actions and to seek a declaration that the insurers were liable to indemnify ASE.

Victim can now claim compensation

Luminar, denied liability on the grounds that the doorman was employed by ASE Security Services and was neither an employee nor temporary ‘deemed’ employee of Luminar.   The High Court ruled last year that “the control that Luminar Leisure had over ASE’s employees was such as to make them temporary deemed employees of Luminar”.  Therefore Luminar was held to be “vicariously liable” for the actions of the doorman – a decision which Luminar appealed. The Court of Appeal ruled on 24 January that “we are quite satisfied that it was open to the Judge on the facts to find that Luminar had become Mr Warren’s deemed employer. Responsibility for Mr Warren’s acts lay, therefore, with Luminar.  Accordingly, we   reject the appeal against the judge’s finding of vicarious liability on the part of Luminar. “

The Court of Appeal has also dismissed the insurer’s appeal,   ruling that the Judge reached the correct conclusion that the insurers were liable to indemnify ASE.  David Hawley will now be able to claim compensation for his horrific injuries.

Honor Lamont from Thompsons Solicitors, comments:  “Dismissing the appeal of the insurers and Luminar Leisure is a landmark victory and a great relief to all concerned, in particular for David Hawley.  It’s now five years since the attack took place and in that time he has not received a penny of compensation.  This ruling sends a clear message to similar companies, warning them that they cannot hide behind others in their duty of care to customers.”

Executive Council Member of the Fire Brigades Union Keith Handscomb comments: “We’re very relieved that our member can finally claim the compensation he deserves, five years after the incident.  It is an outrage that he has had to fight for so many years just to prove who is responsible for what happened to him. Compensation will never make up for what happened to David, but it will help him to cope, having lost his livelihood due to this terrible attack. It is to be hoped that Luminar now accepts that it will have to pay him substantial compensation, and does so without further argument and recourse to law.”