Flanagan v Bus Atha Cliath (Dublin Bus)

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 05 February 2009
• Neutral Citation: [2009] IEHC 98
• Docket Number: Record Number: No. 27 CA/2008
• Court: High Court
• Date: 05 February 2009

[2009] IEHC 98

THE HIGH COURT

Record Number: No. 27 CA/2008

Flanagan v Bus Atha Cliath (Dublin Bus)

Between:

Denis Flanagan

Plaintiff

And

Bus Atha Cliath/Dublin Bus

Defendant

CIVIL LIABILITY & COURTS ACT 2004 S26

NEGLIGENCE

Causation

Onus of proof - Negligent driving - Evidence - Whether probability that driver of bus drove in negligent manner causing impact with plaintiff's car - Whether case of negligence made out - Civil Liability and Courts Act 2004 (No 31), s 26 - Plaintiff's claim dismissed (2008/27CA Peart J - 5/2/2009) [2009] IEHC 98

Flanagan v Bus Atha Cliath

Facts: The plaintiff suffered injuries when a bus came into contact with the door of his vehicle which was parked on a pavement in 1991. The question of liability was at issue prior to that of damages and whether the action of the plaintiff would be dismissed pursuant to s. 26 Civil Liability and Courts Act 2004 on the basis of false and misleading evidence that had been given. The evidence of many witnesses was considered. The bus driver had died since the incident.

Held by Peart J. that for the plaintiff to succeed he would have to establish as a matter of probability that the bus came onto the pavement or that the bus was faulty. There was no such evidence in the case. The plaintiff was entirely up on the pavement. There was no negligence made out against the defendant and the claim of the plaintiff would be dismissed. It was unnecessary to address the issue of damages or the allegation as to false and misleading evidence.

Reporter: E.F.

Judgment of

Mr Justice Michael Peart

1 The plaintiff suffered personal injuries on the 9^th May 1991 when a bus owned by the defendant and driven by one of its employees (now deceased) came into contact with the driver's door of the plaintiff's vehicle which was parked on a pavement in the immediate area of a bus stop on Terenure Road North in the City of Dublin, and pushing it forwards.

2 That incident occurred a very long time ago. On the 24^th February 1994, proceedings were commenced in the Dublin Circuit Court, and for reasons which are not really relevant now, have only now been heard in the High Court, having been transferred from the Circuit Court. Suffice to say that there is no suggestion that the reason for the tardy manner in which this case has come on for hearing cannot be laid at the door of the defendant. A motion to dismiss the proceedings for want of prosecution was dismissed by the High Court in recent times, on appeal from an order of the Circuit Court dismissing the case for want of prosecution made on the 8^th February 2008.

3 I intend to address the liability issue before coming to the issue of damages, which may not arise. Another issue which may arise, depending on my conclusion on liability, is whether the plaintiff's action must be dismissed under the provisions of s. 26 of the Civil Liability and Courts Act,2004 on the basis that the plaintiff has given evidence which is false and misleading and which he knows to be false and misleading.

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4 The plaintiff has stated in his evidence that on this date he parked his car on the pavement outside a shop that he wished to visit in order to obtain some materials in connection with his occupation as a television aerial erector. He has stated that he parked his car entirely on the pavement - in other words that no part of the car was on the road. The position where he so parked was immediately before a bus stop. Photographs of the locus have confirmed this. It appears that at the point at which he mounted this pavement is not as high as the part ahead of that position. While that facilitated a person mounting the pavement in this way, the plaintiff accepts that it was not permissible to park on the pavement. He recollects that this occurred in the afternoon and that it was not wet at the time. He states that having parked his car in this way he turned off the engine, took off his seatbelt, put the car into gear, checked his mirror and having seen traffic approaching from some distance decided to get out of his car in order to go into the shop (T.1, Q.33). The driver side of the car was that closest to the road rather than the shop. In other words he parked on the left side of the road in the direction in which he had travelled to that point.

5 He believed at the time that it was safe to get out of his car. He says that as he began to get out of his car he realised that a bus was approaching from behind his car at a speed which he believes was "fast", and having concluded then that it was not safe to get out at that point he decided to "close in the door in case the bus decided to pull in or let people off" (T.1, Q. 33). This was a double-decker bus, which is, as the evidence has been, a Bombardier type bus.

6 He went on to state that as he closed the door the bus pulled in at the bus stop ahead of his car to let out passengers, and two ladies alighted from the bus between six and ten feet in front of his car (T.1, Q. 34).

7 He then stated that after these ladies had alighted the bus pulled out and that "the back part of it came in towards my car door and it caught a grip of it" (T.1, Q.36) He went on:

"I think it was some sort of a vent where you put oil or petrol in the car (sic) which protruded a little from the main body of the bus that came into contact with my door where the door meets the frame, and in doing so, it pulled me down towards the two ladies getting off the bus ……… Just as I thought I was going to make contact with the two ladies the bus suddenly stopped and I got thrown forward and the door swung open a bit then, open more, and I ended up being out on the road. The bus stopped and he came back and he wanted to call an ambulance and I said I am okay. He said "I am terrible sorry, I thought I would have cleared you, I thought I would have cleared your car ………" (T.1, Q. 36)."

8 As I have already referred to, the bus driver has since died so the Court has not had the benefit of his evidence.

9 Fortunately these ladies were not injured, though one of them has given evidence which indicates that she actually mounted the bonnet of the car in the incident. The door and front driver wing of the plaintiff's car were damaged. The plaintiff was very shocked by this incident because of the possibility that the ladies might have been injured. He also sustained an injury to his shoulder. He went on to deal with his own injuries, but I will leave that aspect of the evidence for the moment.

10 When cross-examined, the plaintiff conformed that when he parked his car on the pavement he had pulled entirely up onto the pavement (T.1, Q. 130). He accepted also that he was illegally parked on the pavement. He stated also that after he had stopped on the pavement he had looked in his mirror, and stated that he had seen the bus approaching from behind him (T.1, Q. 149), and that he opened his door and "partly alighted"(T.1, Q. 150). He was asked how close to the edge of the footpath his car was - in other words the driver side of his car - and he indicated about six inches. In other words he was fully on the pavement and six inches in from the edge of the pavement. He stated also in cross-examination that he made to get out of his car, looking back to see if it was safe to do so, but that he saw that "it might be a little bit on the dangerous side to get out, so I decided to stay put and close the door over (T.1, Qs. 154-156).

11 He was asked why he had not closed his door completely when he had seen the bus approaching, to which he replied that he attempted to close it over and pulled it in tight, so that there was no part of the door hanging overhanging the pathway (T.1, Qs. 159-160). It would appear that when he says he pulled the door "in tight" he means that the door was not fully closed but was closed on the first of the two clicks, so that the door was not quite flush with the rest of the body of the car. It would have been proud of the body of the car by about an inch (T.1, Qs. 162-168).

12 The plaintiff was also asked about how close the bus was to the curb when it pulled in to allow the ladies to alight. He stated that it was "pretty close", and that when the bus was stopped it was...