McGarr v Dublin Bus/Bus Atha Cliath
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE MICHAEL PEART |
| Judgment Date | 05 December 2016 |
| Neutral Citation | [2016] IECA 366 |
| Date | 05 December 2016 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2016] IECA 366 |
[2016] IECA 366
Peart J.
PEART J.
HOGAN J.
MURPHY J.
Neutral Citation Number: [2016] IECA 366
APPEAL NO.: 260/2015
THE COURT OF APPEAL
Negligence – Duty of care – Injury – Appellant seeking damages – Whether duty of care should extend to a bus driver having to satisfy himself or herself that passengers are actually seated before the bus moves away from a stop
Facts: The plaintiff/appellant, Ms McGarr, on the 3rd October 2008, fell backwards down the stairs of a No. 19 bus shortly after paying her fare and before she had reached the top of the internal stairs. She suffered a nasty injury. She alleged that the bus driver drove his bus negligently as it moved off from the stop where she had got on. She said in her evidence that as she approached the top of the stairs there was a sudden jerk of the bus which caused her to fall backwards and all the way down to the bottom of the stairs. Another passenger who was seated downstairs on the same bus gave evidence that just before the plaintiff landed at the bottom of the stairs, the bus jerked or jolted quite violently as it moved away from the stop. Having heard all the evidence adduced by the parties, and having viewed the CCTV footage of the incident taken by cameras situated within the bus, the trial judge (White J) found that the plaintiff had not made out a case in negligence against the defendant, and dismissed her claim. The plaintiff appealed to the Court of Appeal against that finding.
Held by Peart J that while he had every sympathy for the plaintiff for the injury which she sustained and for the obvious distress that she suffered at the time, it was nevertheless the case, as the trial judge found, that she was the author of her own misfortune by mounting the stairs in the manner which had been found to be the case.
Peart J held that he would dismiss the plaintiff's appeal.
Appeal dismissed.
At approximately 8.30pm on the 3rd October 2008 the plaintiff fells backwards down the stairs of a No. 19 bus shortly after paying her fare and before she had reached the top of the internal stairs. She suffered a nasty injury. She was visiting Dublin from the UK where she lives, and was staying with relatives in Glasnevin. She had arranged to meet a friend for a meal in Temple Bar area of the city, and thought it would be nice to sit upstairs on the bus so that she could have a better view of the city lights.
In these proceedings she alleged that the bus driver drove his bus negligently as it moved off from the stop where she had got on. She said in her evidence that as she approached the top of the stairs 'there was a sudden, very sudden, jerk of the bus', which caused her to fall backwards and all the way down to the bottom of the stairs. Another passenger who was seated downstairs on the same bus gave evidence that just before the plaintiff landed at the bottom of the stairs, the bus jerked or jolted 'quite violently' as it moved away from the stop, such that he even commented upon it to his wife who was seated beside him. While he accepted that buses jerk and jolt all the time, and that this was to be expected, this particular jerk or jolt was 'more pronounced than normal'.
Having heard all the evidence adduced by the parties, and having viewed the CCTV footage of the incident taken by cameras situated within the bus (which this Court has also viewed), the trial judge (White J.) found that the plaintiff had not made out a case in negligence against the defendant, and dismissed her claim. She appeals to this Court against that finding.
Her appeal raises an important question as to the extent of the defendant's duty of care to passengers whom it carries on a double decker bus. There is no doubt that there is a general duty to take reasonable care for the safety of its passengers. But is it fair and reasonable that this duty should extend to the driver having to satisfy himself or herself that any passengers who have got on and paid their fare are actually seated, and in particular perhaps those who may have entered the stairwell to gain the upper deck, before the bus moves away from a stop? The trial judge concluded that it did not extend that far.
An important piece of evidence that became clear when the CCTV footage was shown was that when the plaintiff was climbing the stairs she was holding her ticket in her left hand (and had a shoulder bag on her left shoulder) and was therefore not holding the left-hand rail. In addition it showed that as the plaintiff made to take the left turn to mount the final three steps at the top of the stairs, she removed her other hand from the right hand rail also so that she could grip a cross-rail at the top. A cruel misfortune of timing meant therefore that at the precise moment when the bus moved away from the stop and into the traffic, she was holding neither hand rail and was therefore completely unsupported at the top of the stairs. The judge found as a fact that at that precise moment when the plaintiff lost her balance and fell backwards she was holding neither hand rail.
As I have said, both the plaintiff and the other passenger, Mr. McEntee, stated that the bus jerked or jolted more severely than normal. Mr. McEntee went as far as describing it as 'a violent jerk'. Each party called an engineer to opine on the nature of the movement of the bus away from the stop by reference to what is seen on the CCTV footage. Any conflict between the evidence for the plaintiff and that called on behalf of the defendant was resolved by the trial judge in favour of the defendant by reference to what the trial judge viewed for himself on the CCTV footage. In his ex tempore judgment on the 28th April 2015 he concluded as a fact that the movement of the bus was not a violent movement. In that regard he stated:-
'There is a conflict of evidence about the movement of the bus. The plaintiff fell as the bus started to move off. The plaintiff and an independent witness on the bus, Mr Eamonn McEntee, gave evidence of a sudden jerk movement. Mr. McEntee stated the bus jerked violently. The defendant relies on the CCTV evidence and the evidence of the bus driver Kenneth Martin. The plaintiff relies on the expert evidence of Peter Johnstone, engineer and the defendant relies on the expertise of a forensic accident investigator, David Land. Peter Johnstone gave evidence that because the bus stop was near a T-Junction the bus would have to pull out to the right and then drive straight ahead, giving an explanation for the sudden jerk. Mr. Land stated that because of the engine configuration of the bus there was an interval of 0.16 of a second to 0.33 of a second from the time the bus started to move to the passenger falling. He could determine this from the design of the engine of the bus and from the CCTV footage from the start of the movement of the bus to the fall of the passenger. The Court's preferred evidence is the CCTV footage from the top of the double-decker bus when the plaintiff was emerging at the top of the stairs. And at the exact time the plaintiff was losing her balance, a passenger at the front of the upper tier was drinking from a can and in the process of putting the can to his lips. If the movement of the bus was violent this Court would have expected the can to move or liquid to spill. This did not occur. The Court finds as a matter of fact where there was sudden movement when the bus moved off, it was not violent movement.'
The trial judge went on to state that 'there are a number of ways she could have secured her safety as the configurations of the rails on the stairs were safe'. The plaintiff has levelled some criticism of this statement and submits that there was no expert evidence given as to whether these rails were properly configured and safe. However, firstly, I would say that in her personal injury summons the plaintiff makes no complaint that the rails were in any way defective, unsafe, or falling short of any recognised specification. But, secondly, her own engineer was asked about them in cross-examination. He stated that he had not investigated the rails for the purpose of his report, but that he assumed and accepted that they were made to the appropriate standard, and he believed that it was a reasonable assumption to make. In my view, the trial judge was entitled to express himself as he did in relation to the rails in the light of this evidence.
The limited basis upon which this Court may interfere with findings of fact made in the court below are well-known from the judgment of McCarthy J. relied upon in Hay v. O'Grady [1992] 1 I.R. 201. It suffices to quote just one paragraph at p. 217 of the judgment as follows:-
'If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and apparently weighty the testimony against them. The truth is not the monopoly of any majority.'
To that remark may now be added what Clarke J. has stated in Doyle v. Banville [2012] IESC 25 as follows:-
'It is no function of an appellate court such as this to re-weigh the balancing exercise which any trial judge is required to do when sitting without a jury for the purposes of determining the facts.'
On this appeal, the plaintiff submits that insofar as the trial judge supported his conclusion as to the non-violent nature of the movement of the bus by reference to his viewing of the upstairs passenger holding a can to his lips and not seeing that can move or the liquid spill, the trial judge failed to take account of the fact that the same passenger was sitting in his seat with his arm braced against the back of the seat, and accordingly his...
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