Doormen/ Slander

mcgarnicle

Here is a little scenerio I have been thinking about lately after reading the judgement in McCormack v Olsthoorn:

It is Friday night in a busy Dublin suburb and Bart Simpson is on his way to the local public house, Moe’s Tavern. Bart is not a frequent drinker but on this occasion has decided to go to the pub to meet with his sister Lisa and his friend Millhouse, whom he has not spoken to in quite some time. Bart has not consumed any alcohol prior to setting out for the pub.

The pub is often busy at weekends but tonight it is rather quiet. The two doormen, Max and Paddy, have been working at the pub for several months and are quite familiar with the regulars… Bart is not one of these regulars.

As Bart goes to enter the pub he is stopped by one of the doormen and told that he may not enter as he has had too much to drink already. Bart is shocked at this as he has not had anything to drink at all that day. He looks around and notices a queue forming behind him and feels very uncomfortable. In a firm but polite manner Bart insists that he has had nothing to drink that day and would be willing to go to the Gardai to have a breath test to prove it. By now the queue behind him is becoming restless as the other people want to get past. Bart leaves and returns home.

Shortly thereafter Bart’s sister calls him to ask where he is. He explains what has just happened only deepening his humiliation. The whole incident has left Bart extremely upset and he has been reluctant to go near the pub since and also now feels embarrassed and belittled in front of his sister and friend.


Of course here if Max and Paddy honestly felt that Bart was drunk qualified privilege would apply but with the attitude of doormen in Dublin today are pubs leaving themselves open to a defamation claim as a result of malicious slander… I could be way off on it but it seems interesting to me, I’d love to hear some of your opinions on this.

Spike440

Slander requires proof of pecuniary damage in order to be actionable so I don't think it would be much of a problem.

Profiler

I'm not sure if there are grounds for defamation on the basis that he was intoxicated.

I do know of a pub/club in the city center that was sued and settled out of court on the basis that the doormen refused someone entry on the basis that they had previously been bared two weeks previously for fighting when the person who was refused could prove they were not even in the country on the night the fight occurred.

I'm sure there are bouncers/doormen who will reply with greater knowledge on this but what Bart could have done is ask the doormen for their license number and tell them that you will be registering a complaint against them stating that their allegations were unfounded and were made in such a way as to deliberately cause embarrassment.

hada

I think you might find a better source of action in tort. There are reported cases of security guards in security stores being found liable for mistakenly apprehending a innocent punter because they believed they shoplifted - the crux of these cases being the fact that the victim suffered great humiliation (or even just embarassment) as the event occured before the public.

I can see no reason why, in theory at least, such an application would not be viable.

However, on policy grounds, one could argue that such a position in law would greatly inhibit bouncers from doing their job. (on this point, one could argue that a bouncer has to refuse a hell of a lot more people than a security guard has to apprehend shoplifters, hence there is a much greater chance a bouncer will wrongly assume a person is overly intoxicated, leaving him much more suspectiable to being found liable).

dermot_sheehan

Slander requires proof of special damage (bart would have to show that he suffered a loss from the statement), with one of the exceptions being an accusation of an offence punishable by death or imprisonment.

In McCormack v Olsthoorn the accusation was one of theft (punishable by 10 years in prison, s. 4 Criminal Justice (Fraud and Theft Offences) Act 2001) so special damage did not have to be shown. In the above example the only offence that is being accused is of public intoxication (s. 4 Criminal Justice (Public Order) Act 1994) which is punishable by a fine only.

nuac

I heard some advice years ago not to even think about suing for defamation unless the slander or libel seriously affects your livlihood or property.

Tom Young

hada wrote: »

I think you might find a better source of action in tort.

Not meant in a harsh way. Tort is the umbrella principle under which Slander, libel and defamation sit.

hada

Tom Young wrote: »

Not meant in a harsh way. Tort is the umbrella principle under which Slander, libel and defamation sit.

Typo - tort of false imprisonment. (the victim does not have to actually be imprisoned in a room/cell, per se). While my mind is still on the matter, there was an extension of one of these torts (as I mentioned above) to the security guard scenerio, can't for the life of me remember which tort though, it's been years since I looked at it.

Thanks Tom - you'd know I spent the day getting into licenses/estoppel!

McCrack

hada wrote: »

Typo - tort of false imprisonment. (the victim does not have to actually be imprisoned in a room/cell, per se). While my mind is still on the matter, there was an extension of one of these torts (as I mentioned above) to the security guard scenerio, can't for the life of me remember which tort though, it's been years since I looked at it.

Thanks Tom - you'd know I spent the day getting into licenses/estoppel!

False Imprisonment isnt actionable in these circumstances as the restraint needs to be total. Bart once refused can simply walk away. Humiliation and/or embarrassment isnt recoverable either as such heads must stem from negligence.

As for slander I cant see how accusing another of being drunk would amount to dafamation of a person. In addition special damage must be shown if the slander doesnt come under exception of being actionable per se (& in this situation it isnt).

The only realistic way that Bart could sue would be if he could show a discrimination under the Equal Status Act 2000 and Equality Act 2004.

Victor

McCrack wrote: »

As for slander I cant see how accusing another of being drunk would amount to dafamation of a person.

Well if Bart was a devout Muslim, who didn't drink and the accusation was, erm, loud?

Or if Bart was in a safety-sensative employment or had a medical condition that could be mistaken for drunkeness?

McCrack

Victor wrote: »

Well if Bart was a devout Muslim, who didn't drink and the accusation was, erm, loud?

Or if Bart was in a safety-sensative employment or had a medical condition that could be mistaken for drunkeness?

My post was too wide, I'll re-phrase it as.. As for slander I can't see how accusing another of being drunk would amount to dafamation of a person in the context of the facts given.

I wasn't dealing with 'what ifs'.

I any event Bart as a prospective plaintiff will have a huge hurdle trying to prove he wasn't drunk at the relevant time as it may well be his word against the doormans. In addition if it is a slander special damage would also need to be shown as it doesn't fall within one of the exceptions and again I can't see how Bart could reasonably show this.

pirelli

McCrack wrote: »

My post was too wide, I'll re-phrase it as.. As for slander I can't see how accusing another of being drunk would amount to dafamation of a person in the context of the facts given.

I wasn't dealing with 'what ifs'.

I any event Bart as a prospective plaintiff will have a huge hurdle trying to prove he wasn't drunk at the relevant time as it may well be his word against the doormans. In addition if it is a slander special damage would also need to be shown as it doesn't fall within one of the exceptions and again I can't see how Bart could reasonably show this.

Get a breathlyser, you can get them cheap enough.

Del2005

pirelli wrote: »

Get a breathlyser, you can get them cheap enough.

No good unless calibrated and certified, and all the cheap ones you can buy say they aren't accurate.