Boyne v Bus Atha Cliath

• Jurisdiction: Ireland
• Judge: Mr. Justice Finnegan
• Judgment Date: 11 April 2002
• Neutral Citation: [2002] IEHC 135
• Court: High Court
• Docket Number: [2000 No. 12133 P]
• Date: 11 April 2002

BOYNE v. BUS ATHA CLIATH (DUBLIN BUS) & McCGRATH

BETWEEN

LUKE BOYNE

PLAINTIFF

AND

BUS ATHA CLIATH JAMES McGRATH

DEFENDANTS

[2002] IEHC 135

No. 12133p/2000

THE HIGH COURT

Synopsis:

TORT

Personal injuries

Contributory negligence - Liability - Intoxication - Damages - Practice and procedure - Future Loss of Earnings - Whether plaintiff had contributed to the accident due to his intoxication (2000/12133p - Finnegan J - 11/4/2002)

Boyne v Bus Átha Cliath - [2003] 4 IR 47

Facts: The plaintiff had been injured in an accident involving a bus being driven by the second-named defendant. Evidence was given that the plaintiff had consumed an amount of alcohol before the accident occurred. The defendants contended that the plaintiff had contributed to the accident by reason of his intoxication.

Held by Finnegan J in awarding the plaintiff damages and reducing the plaintiff's award by 25%. The accident had occurred whilst the bus was overtaking the plaintiff. The second-named defendant was well aware of the plaintiff's condition and ought to have kept the plaintiff under observation to ensure that the bus would pass safely. If a plaintiff was under the influence of drink to an extent that affected his ability to take care of himself and whether he knew or ought to know of the risk he was running then this was a factor relevant to the existence and extent of a defendant's duty of care. In assessing a plaintiff's conduct for the purposes of contributory negligence his intoxicated state was to be disregarded. This applied notwithstanding his intoxicated state he knew or ought to have known of the risk which he was running or was incapable of so knowing. The plaintiff had failed to take reasonable care for his own safety and accordingly the plaintiff would be held 25% responsible for the accident.

Citations:

MCKEVITT V IRELAND 1987 ILRM 541

CLANCY V CMRS OF PUBLIC WORKS 1992 2 IR 467

CHARLESWORTH ON NEGLIGENCE 8ED PARA 3–48

M'CORMICK V CALEDONIAN RAILWAY 41 SCLR 282

KILMINISTER V RULE 1983 32 SASR 39

DANN V HAMILTON 1939 1 AER 59

1953 69 LQR 317

NETTLESHIP V WESTON 1971 3 AER 581

INSURANCE COMMISSIONER V JOYCE 1948 77 CLR 47

MCKEVITT V IRELAND 1987 ILRM 546

DONOGHUE V STEVENSON 1932 AC 562

MCELENEY V MCCARRON 1993 2 IR 132

JUDGE V REAPE 1968 IR 226

WELLS V WELLS 1998 3 AER 481

REDDY V BATES 1983 IR 141

1 Judgment of Mr. Justice Finnegan delivered the 11th day of April 2002.

2 The Plaintiff resides at 9 Ebenezer Terrace, South Circular Road, Dublin and is single man aged 38 years. He is diesel mechanic by occupation and at the date of the accident giving rise to this claim was in the employment of a haulage company specialising in the delivery of ready mixed concrete. On the 20th January 1999 at 11 p.m. approximately he sustained serious injuries as a result of his being run over by the first named Defendant's bus driven by the second named Defendant.

3 On the day in question the first named Defendant's 51B bus left Dublin city centre at 10.30 p.m. to travel to Bawnogue. The Plaintiff boarded the bus at Thomas Street. On that day he had finished with his employer at approximately 8 p.m. Thereafter in an adjoining premises he had carried out work on a car in a private capacity and delivered the repaired car to Baker's public house in Thomas Street at approximately 9 p.m. He had something to drink there and later that evening had some more to drink in O'Neill's public house in Thomas Street. In total he admits to having had six pints. He boarded the Defendant's bus but thereafter has no recollection of the events of the evening.

4 Derek McKeown was a passenger on the bus at the back of the lower deck. He saw the Plaintiff board. It was immediately apparent to him that the Plaintiff had drink taken. The Plaintiff sat in the side seat on the left hand side of the bus. During his journey he was swaying in the seat. The Plaintiff and Mr. McKeown alighted at the same bus stop. Mr. McKeown pressed the bell and moved towards the front of the bus but before he got there the Plaintiff stood in the aisle without making any progress towards the door at the front of the bus. Mr. McKeown passed him and stood at the door. When the door opened Mr. McKeown sprang from the bus to the kerb a distance which he estimated at some 4 –5 ft. Shortlly thereafter he heard a moan and on looking around saw the Plaintiff in contact with the centre doors of the bus and being spun by the motion of the bus, then falling to the ground and being run over by the rear wheel of the bus which continued on its journey.

5 The accident was investigated by Garda Connolly. He found blood on the roadway some eleven feet distant from the bus stop in the direction in which the bus was travelling and some one foot from the kerb. I am satisfied that this represents the locus of the accident which accordingly was somewhat closer to the kerb from the indicated by the evidence of Mr. McKeown.

6 Mr. Barry Tenneyson gave evidence on behalf of the Plaintiff. From his evidence I am satisfied that the distance from the front of the bus to the centre of the centre doors is fourteen feet. Taking this measurement together with the distance from the bus stop to the point at which blood was found I find that the bus had travelled some 25 feet before it came into contact with the Plaintiff. A necessary corollary of this is that on alighting from the bus the Plaintiff proceeded past the front of the bus and in the direction of travel of the bus and that the accident occurred in the course of the bus overtaking the Plaintiff.

7 The second named Defendant the driver of the bus recalled the Plaintiff boarding the same at Thomas Street. The Plaintiff appeared to be very drunk. He had difficulty getting on and had sat on the step and indeed the witness had some concerns as to whether he should carry the Plaintiff and kept an eye on the Plaintiff throughout the journey. I can summarise his evidence as to the Plaintiff's demeanour by recording that he was pleasantly drunk. The Plaintiff got up as the bus approached the stop at which he was to alight. Before getting off he put 50p in the bus driver's presumably by way of a gratuity. He was slow getting off and once he had alighted the driver had no further recollection of him. He was completely unaware of the accident.

Liability

8 The foregoing is the totality of information available to me as to how the accident occurred. In particular I do not know if the Plaintiff reached the footpath and there lost balance and stumbled against the bus or if he was walking along the roadway. Of the two possibilities I take it as the most likely having regard to the evidence of Mr. McKeown that the bus stopped some distance from the pavement and that the Plaintiff never attained the footpath. Having regard to the point of impact he proceeded past the front of the bus and in the direction of travel of the bus and that the accident occurred in the course of the bus overtaking him while he was on the roadway. The second named Defendant was well aware of the Plaintiff's condition and ought to have taken particular care by keeping him under observation of ensure that the bus would pass him in safety: see McKevitt v Ireland 1987 I.L.R.M. 541. This is did not do as his evidence was clear that he lost sight of the Plaintiff once he had alighted from the bus.

Contributory Negligence

9 The Defendants plead contributory negligence and give the following particulars:-

10 (a) Failing to have any or adequate regard for his own safety.

11 (b) Failing to look where he was going.

12 (c) Exposing himself to a risk of danger or injury of which he knew or ought to have known.

13 (d) Needlessly endangered himself.

14 (e) Failing to pay attention or sufficient attention to what he was about.

15 (f) Failing to have any regard for his own safety in exposing himself to a risk of injury by reason of the excessive consumption of alcohol.

16 (g) If the Plaintiff did fall, by himself causing the Plaintiff to fall.

17 (h) The Plaintiff was the author of his own misfortune.

18 The onus of establishing contributory negligence is one Defendants. Where there is no direct evidence reliance must be placed on inference as a matter of probability as to what occurred: Clancy v Commissioners of Public Works in Ireland 1992 2 I.R. 449 at 467 Upon this basis I find that the Plaintiff due to his intoxicated state while on the roadway and before attaining the footpath stumbled and fell against the bus and then under the wheels of the bus. Counsel were unable to assist me with authorities as to how the court should approach the issue of contributory negligence having regard to the Plaintiff's state of intoxication.

19 The matter is dealt with in Charlesworth on Negligence Eighth Edition at paragraph 3 – 48 as follows -

"The excuse of drunkenness has to be regarded when considering contributory negligence. It is no excuse for failing to take reasonable care to prove that the person in question was unable to take proper care, owing to the influence of drink or drugs, which he had taken voluntarily. A drunken man cannot demand from his neighbour of higher standard of care than a sober man or plead drunkenness as an excuse for not taking the same care of himself when drunk as he would have taken sober. (M'Cormick v Caledonian Railway (1903) 5F362)".

20 In Kilminister v Rule (1983) 32 S.A.S. R 39 where a person under the influence of drink stepped into the roadway in front of a car at night and was killed he was held to have contributed to the accident to the extent of 35%. I cannot see that this differs in any way from the outcome which would be expected if the Plaintiff had been sober.

21 In a number of cases this issue arose in circumstances where the Plaintiff was so intoxicated that he did not realise that the driver of the car in which he had taken a lift...