The Tribune

By RASHAD ROLLE

Tribune News Editor

rrolle@tribunemedia.net

A HARBOUR Island nightclub owner has been held liable for an assault by his security officers that left a patron with a serious hip injury requiring replacement surgery, after the defence presented no evidence and took no further part in the trial.

Justice Cheryl Bazard KC ruled that Devon Sawyer, proprietor of Daddy D’s Nightclub, was vicariously liable for the unlawful assault on Hudson McClean on February 19, 2022.

Mr McClean suffered a right transcervical neck of femur fracture and later developed post-traumatic osteoarthritis. An orthopaedic surgeon told the Supreme Court that he now requires a total hip replacement to regain functional movement without pain.

Although Mr McClean succeeded on liability, the court rejected much of a $290,000 special damages claim because receipts, invoices or other documentary evidence did not support expenses and past lost earnings.

The Registrar will assess damages for his injuries, future hip replacement and loss of future earnings. The court also awarded Mr McClean his legal costs.

The case arose after Mr McClean visited Daddy D’s while socialising with two American visitors he had met earlier that evening.

According to his evidence, he was standing at the bar speaking with Sawyer when two security guards approached him from behind. He recalled being struck from behind by one of the guards and later waking on the ground outside the nightclub in severe pain.

He was subsequently taken from Eleuthera to New Providence and treated at Princess Margaret Hospital, where an X-ray revealed the fracture.

Mr Sawyer had denied the allegations in his defence, claiming Mr McClean was the initial aggressor and that Mr Sawyer acted in self-defence after Mr McClean allegedly wielded a weapon in an attempt to strike him.

The defence also maintained that security officers never physically attacked Mr McClean and were merely attempting to separate the men and prevent the confrontation from escalating.

Mr Sawyer claimed Mr McClean's behaviour was fuelled by excessive alcohol consumption and alleged that he later sought a $40,000 settlement over the incident.

But none of those assertions was supported by evidence at the trial.

Mr Sawyer's attorney, Devard Francis, appeared at the November 11 hearing without his client or witnesses and informed the court that he had not prepared skeleton arguments. He subsequently left after the court advised that the trial would continue.

As a result, Mr McClean and his witnesses gave evidence without cross-examination, and no evidence was called for Mr Sawyer.

Justice Bazard stressed that Mr Sawyer's absence did not automatically entitle Mr McClean to judgment and that the court was still required to scrutinise his evidence and determine whether he had proved his case on the balance of probabilities.

She ultimately accepted Mr McClean's account.

The judge found that the men who assaulted him were employed as security officers at Daddy D’s and that their duties included maintaining order, controlling patrons and intervening in disturbances.

Applying the legal test for vicarious liability, she found that the assault was sufficiently connected to the activities Mr Sawyer had assigned to the security officers.

Justice Bazard found on the balance of probabilities that the nightclub's security personnel unlawfully assaulted Mr McClean and that Mr Sawyer was legally responsible for their conduct.

The court also considered Mr Sawyer's earlier criminal conviction arising from the incident.

A certificate of conviction showed that Sawyer was arraigned in Magistrate's Court in April 2022 on a causing harm charge. He initially pleaded not guilty but changed his plea in October 2022 during a summary trial and was convicted.

He was fined $500 or faced six months in prison in default. The fine was paid.

Justice Bazard said the conviction did not itself determine the civil case because the criminal prosecution and civil proceedings involved different causes of action and legal issues. Liability in the civil proceedings therefore had to be decided on the evidence placed before the Supreme Court.

Dr Carlton Chambers, a consultant orthopaedic surgeon at Princess Margaret Hospital, testified that he treated Mr McClean after the incident and recommended a total hip replacement.

Dr Chambers said the surface of the hip socket was worn out and that without surgery Mr McClean would not regain functional movement without pain.

The judge accepted that the assault caused the injury and the subsequent need for replacement surgery. She said Mr McClean had suffered a significant right hip injury and continued to experience reduced mobility.

Mr McClean had sought $290,000 in special damages, including $5,000 for an air ambulance, $45,500 for home care, an estimated $80,000 for hip replacement surgery and $155,000 for lost earnings.

However, Justice Bazard said special damages must be strictly proved.

The air ambulance claim was rejected because no proof of payment was produced. Although the court accepted that Mr McClean had received care from his grand aunt while recovering, the claimed home-care costs were also rejected because there were no receipts, invoices or payment records.

The court similarly rejected his claim for $155,000 in past lost earnings because there was no documentary evidence establishing what he earned before the assault.

Mr McClean testified that he had worked intermittently building cabinets and installing tiles.

Justice Bazard accepted that his earning capacity had been adversely affected and said the Registrar should assess damages for loss of future earnings.

She also awarded damages for the future hip replacement, although Dr Chambers had not provided a price for the operation because its cost could only be determined closer to the time of surgery.

The judge said Mr McClean remains unable to work in cabinet building and tiling, which require substantial mobility, and found that his earning capacity had been reduced.

Judgment was entered for Mr McClean, with damages to be assessed and costs awarded in his favour.