Michael Counihan v Dublin Bus and Arthur Ebbs (Bus Átha Cliath)

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Clarke
• Judgment Date: 02 March 2005
• Neutral Citation: [2005] IEHC 51
• Docket Number: [2001 Nos. 557 and 558 P]
• Date: 02 March 2005

[2005] IEHC 51

THE HIGH COURT

[No. 557P/2001]

[No. 558P/2001]

COUNIHAN v BUS ATHA CLIATH (DUBLIN BUS) & EBBS

BETWEEN

MICHAEL COUNIHAN

PLAINTIFF

AND

BUS ATHA CLIATH û DUBLIN BUS AND ARTHUR EBBS

DEFENDANTS

AND

BETWEEN

KATHLEEN COUNIHAN

PLAINTIFF

AND

BUS ATHA CLIATH û DUBLIN BUS AND ARTHUR EBBS

DEFENDANTS

O'BRIEN v PARKER 1997 2 ILRM 170

ROBERTS v RAMSBOTTOM 1980 1 WLR 823

MANSFIELD v WEETABIX LTD 1998 1 WLR 1263

SNELLING v WHITEHEAD THE TIMES 31.7.1975

NEGLIGENCE

duty of care

Personal injuries - Foreseeability of risk - Causation - Driver unaware of medical condition which caused him to loose consciousness - Accident caused by said medical condition - Liability of defendants -Principles applicable - Mansfield v Weetabix Ltd [1998] 1 W.L.R. 1263 followed - Claim dismissed

1 JUDGMENT of Mr. Justice Clarke delivered the 2nd March, 2005.

2 The respective plaintiffs are husband and wife. On 14th May, 2000 they were walking along the footpath on the Sillorgan dual carriageway travelling towards Donnybrook on the Belfield side. Without warning a bus owned by the first defendant ("Dublin Bus") and being driven by the second defendant ("Mr. Ebbs") travelled across a number of lanes of the city bound carriageway, mounted the footpath and struck a blow against both plaintiffs. As a result they suffered significant injuries. The incident occurred in the early afternoon on a Sunday when driving conditions were good and the traffic on the roadway was relatively light. In all those circumstances it would be likely to require somewhat unusual, if not extraordinary, circumstances in order that an action in negligence by the plaintiffs against the defendants could be the subject of an arguable defence. However, on any view, there are extraordinary circumstances.

3 The bus concerned was a tour bus which had commenced its route earlier in the day in Dublin city centre. It had travelled to Killiney, where it stopped, and onwards to Avoca Hand Weavers where the customers had lunch. It was in the course of travelling back to Dublin city centre when the accident occurred.

4 David Mudd who was a passenger on the bus gave evidence, which was not disputed by either of the defendants, which described the tour up to the time of the incident. With the exception of commenting that he found Mr. Ebbs to be lively he noted nothing unusual about the way in which the tour was conducted. His comment on the liveliness of Mr. Ebbs related to the fact, with which Mr. Ebbs agreed, that he engaged in a fair amount of talk and banter together with some singing in the course of conducting his tour.

5 However when the bus had passed through the traffic lights at the junction of Foster Avenue and was heading under the flyover which leads to the Belfield campus Mr. Mudd noticed a change. It is common case that Mr. Ebbs drew the attention of his passengers to the presence of the Belfield campus on what would have been his and their left. He also drew their attention to the presence of the Montrose Hotel on the right. Thereafter he did not pass any comment and it would appear likely turned off his microphone. As the bus was beginning to come up the incline on the city side of the flyover it is again common case between Mr. Mudd and Mr. Ebbs that the bus was in the right hand lane which is designated as a lane for making a rightward turn at the upcoming junction on the corner next to the RTE premises at Montrose. However at some stage on the upward incline the bus began to drift over towards the left hand side of the carriageway. Initially Mr. Mudd did not consider that anything unusual was happening. Mr. Mudd and his wife were visitors from England and were unfamiliar with the roads in the vicinity. He gave evidence that his assumption was that the bus intended to take a left turn somewhere further up the carriageway.

6 Mr. Ebbs evidence is that soon after he had drawn his passengers attention to the Montrose and stopped speaking he felt warm. He states that he recollects loosening his tie and thereafter has no recollection of any events until coming to in circumstances where the bus, having already injured the two plaintiffs, had crashed into the railings at the entrance to the Belfield Court Apartments which are on the left side of the carriageway travelling into the city.

7 The only other evidence relating to what physically happened on the occasion in question came from a Mr. John Sweetman, who was driving a car travelling in the same direction as the bus, and from a Mr. Derek Gibbons who was driving a Number 10 bus back towards Dublin city centre having exited from the Belfield campus.

8 Mr. Sweetman's evidence confirms, in general terms, the evidence given by Mr. Mudd and Mr. Ebbs. However he did add two matters which have the potential to be material and which I should set out. However prior to doing same it is important to note the context in which Mr. Sweetman initially made a statement of his recollections of the events. He did not stop at the scene but drove to Donnybrook Garda Station to report the accident. Some months later on 14th August, 2000 he made a statement to the Gardaí. In that statement Mr. Sweetman said as follows:-

"I became aware of a Dublin Bus double decker bus ahead of me with the registration number that I now know to be 96 D 283. It was either in the outer lane or it pulled it into it as I got near to it so I assumed it was going to turn to the right at Nutley Lane. I proceeded to pass it on the left hand side. As I drew abreast, it began to pull back into my lane. The driver appeared to see me and straightened out. At this stage we were about at the top of the incline at the end of the underpass. I passed by. As I continued, in my rear view mirror I saw him pull back across behind me. He continued across into the converging bus lane, mounted the pavement and entered the railings and hedge outside the apartment complex and came to a halt upright."

9 In evidence Mr. Sweetman indicated that he had initially felt that he had made eye contact with the driver but that he now felt that that was unlikely having regard to the difficulty of seeing a bus driver from his position in his car. However he remained of the view that the bus appeared to straighten as an initial response to his presence and only continued to cross the carriageways when he had passed by. I found Mr. Sweetman a most careful witness. However, his recall of the detail of the accident (for example what lane the bus was in before the event) was, for understandable reasons, somewhat hazy.

10 Mr. Gibbons evidence was that he was travelling down the slip way bus lane from Belfield when he saw the bus being driven by Mr. Ebbs coming across the various laneways. Subject to the fact that it appeared to Mr. Gibbons that Mr. Ebbs bus was not giving him much room he did not feel that the driving was particularly unusual until the bus continued to cross over onto the footpath and into the railings.

11 The above apparently strange set of circumstances is placed in much clearer light when one considers the medical evidence. Dr. Gearty, a Consultant Cardiologist at St. James" Hospital, was called to give evidence by the defendants and gave evidence of having reviewed the notes from St. Vincent's Hospital (the hospital to which Mr. Ebbs was taken immediately after the accident). Dr. Gearty's evidence, which...