Shelly-Morris v Bus Atha Cliath

 
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Supreme Court

Supreme Court

[S.C. No. 357 of 2001]
Shelly-Morris v. Bus Átha Cliath
Siswan Shelly-Morris
Plaintiff
and
Bus Átha átha Cliath
Defendant

Cases mentioned in this report:-

Arrow Nominees v. BlackledgeUNK [2000] 2 B.C.L.C. 167; [2000] C.P. Rep. 59.

Donegal County Council v. O'Donnell (Unreported, High Court, O'Hanlon J., 25th June, 1982).

F. v. Ireland (Unreported, Supreme Court, 27th July, 1995).

Flannery v. DeanDLRM [1995] 2 I.L.R.M. 393.

Goldsmith v. Sperrings Ltd.WLRUNK [1977] 1 W.L.R. 478; [1977] 2 All E.R. 566.

Grimes v. Punchestown Developments Co. Ltd.IR [2002] 4 I.R. 517.

Hay v. O'GradyIRDLRM [1992] 1 I.R. 210; [1992] I.L.R.M. 689.

Hewthorn and Company v. HeathcottDLTR (1905) 39 I.L.T.R. 248.

In bonis Morelli; Vella v. MorelliIR [1968] I.R. 11.

Irish Press plc. v. Ingersoll Irish Publications Ltd. (Unreported, Supreme Court, 28th July, 1995).

Little v. Dublin United Tram Co. & AnotherIRDLTR [1929] I.R. 642; (1929) 65 I.L.T.R. 41.

Molloy v. Shell U.K. Ltd.UNKUNK [2002] P.I.Q.R. 56; [2001] E.W.C.A. Civ. 1272.

Noone v. Minister for FinanceIR [1964] I.R. 63.

Ratcliffe v. EvansELR [1892] 2 Q.B. 524.

Vesey v. Bus Éireann éireannIR [2001] 4 I.R. 192.

Tort - Negligence - Personal injuries - Liability - Damages - Assessment - General and special damages - Plaintiff's evidence unreliable - Deliberate exaggeration - Whether abuse of process - Whether damages to be reduced.

Costs - Appeal partially successful - Implication of exaggeration of claim - Whether plaintiff who exaggerates claim entitled to costs - Rules of the Superior Courts 1986 (S.I. No. 15) O. 99, r. 1.

Cur. adv. vult.

Denham J

11th December, 2002

Appeal

This is an appeal by the defendant from a judgment and perfected order of the High Court (O'Higgins J.) of the 26th October, 2001 and the 10th December, 2001, respectively. The proceedings were commenced by the plaintiff.

High Court judgment

The facts were found by the trial judge. As to the facts and the issues of negligence and contributory negligence he held:-

"On Saturday, the 22nd September, 1995, the plaintiff, who at the time of the incident was 45 years old, was a passenger in a bus, the property of the defendant. The bus was privately hired to bring people to a wedding in Monkstown, and after that, to a reception in Killiney.

The bus initially brought the plaintiff and other passengers from Malahide to the church in Monkstown and the plaintiff's evidence is that during that time the journey was just normal. However, on the journey from the church in Monkstown to the reception in Killiney, the plaintiff maintains that the driving was different, that it appeared faster and more jerky.

The plaintiff stayed in the lower deck somewhere beyond halfway up the bus towards the back, her two year old daughter was sitting beside her and another witness was beside the child. The child got bored. The bus having stopped at a red light, the plaintiff took the opportunity to bring the child upstairs. She picked her up, held her on her right hip and started to go up the stairs holding the left hand rail. She was approximately one step from the top when the bus jerked forward and then carried on accelerating.

The plaintiff was thrown backwards. Her left hand had been on the railing but she let go because of the jerking of the bus. She fell backwards but managed to hold the railings again and ram her right leg and right heel into the third step up and used it as a foot ramp. She swung out and landed on her back on the floor with her daughter on top of her. She felt her knee creak.

Her dress was torn and up around her waist. She felt stupid and embarrassed and her knee was very painful and swollen. She could not stand up and the heel of her shoe came off in the incident. That is the plaintiff's account of the accident.

This account was disputed hotly by the driver of the bus, Mr. Collins. He says that on the day in question his driving from Malahide to Monkstown was uneventful. He also maintains that the driving from Monkstown to Killiney was similar and no different than his previous driving.

He was unfamiliar with the route from Monkstown to Killiney and a person going to the wedding offered to show him the way and told the bus driver to follow his car. There was no mention of him putting the boot down and no mention of hurry or delay and the driver said that he had no difficulty in keeping up with the car because of the heavy traffic. His driving was normal and there was nothing unusual.

When the bus had nearly reached the hotel, he heard a commotion and looked in the mirror and saw the plaintiff on the floor at the bottom of the stairs. He flashed his lights, sounded the horn to stop the car which was guiding him and that car pulled in as did the bus. The driver does not think that there were any traffic lights just at or near the scene of the accident, the bus was moving normally and had not been stationary for some time before the incident.

He asked the plaintiff if she was all right and she said she was. He asked her if she wanted an ambulance and she declined. He said that she told him, although she denies this, that she went upstairs and on the way down the heel of her shoe broke and she fell.

The driver denies that there was any jerking movement of the bus. He denied that he was going faster than normal. He denied that he was pulling away abruptly upon being stopped. There were no complaints about his driving. He said that a red light would stay on long enough to allow a person to go up the stairs.

The version given by the plaintiff varies substantially with that given by the bus driver and were it a matter of balancing the evidence of one against the other, the job of the court would be very, very difficult indeed."

However, the trial judge accepted the evidence of a Ms. Conlon as to the way the bus was being driven and the circumstances of the event in issue. He held:-

"… I am unable to disregard the evidence of Trudy Conlon, who in my view was an extremely impressive witness. Careful, accurate and, in my view, to be believed, I accept her account of the accident. She substantially corroborates the account of the plaintiff, both as to the bus having been stopped and moving off abruptly causing her indeed to jerk forward as well as the plaintiff who was upstairs on the bus. I believe her and she carries the plaintiff's case on the factual issue.

Moreover, the account of the accident given by the plaintiff herself when she was admitted to St. Mary's Hospital in Paddington was consistent with the account that she has given to the court. Were she to be involved in some sympathetic reconstruction to suit her own purposes, I doubt that she would have done that at that stage.

As for the evidence of the bus driver, that she told him that she fell because the heel came off her shoe, I have no doubt that that is the bus driver's recollection of what happened and I have no doubt that he is not in any way trying to mislead the court. However, it seems to me very likely that there was some mention of a heel of a shoe and I would not attach any significance to the fact that he took that message out of the conversation, which on my view was not factually a correct account of how the accident happened.

So it seems to me that, in the circumstances, the bus jerked off abruptly and that that was the primary cause of the accident in question."

Having determined the negligence in issue the trial judge then addressed the issue of contributory negligence. He held:-

"The question of contributory negligence arises then. While I feel that the plaintiff herself must take a share of the responsibility for the accident, it is true that there is no embargo on people going up to the top of the bus and they are entitled to go up. The evidence, indeed, of the driver is that people would on ordinary journeys be going up the bus while the bus was moving and there are handrails provided, but to do so with a small child on one's hip when it is not necessary to do so does not seem to me to be what a prudent person would do.

To do so with a small child on the hip in circumstances where one had already noticed the jerky nature of the bus when moving off seems to me to amount to a considerable degree of contributory negligence. I penalise the plaintiff in contributory negligence to 25%."

Having found that the defendant was negligent and that there was contributory negligence on the part of the plaintiff, the trial judge apportioned the degrees of fault as 75% to the defendant and 25% to the plaintiff. The court assessed damages as follows:-

Special Damages:

Loss of pension and gratuity:

Loss of earnings for the future:

£37,500.00

£25,000.00

General Damages:

Pain and suffering to date:

Pain and suffering in the future:

Total award:

£70,000.00

£40,000.00

£172,500.00

Thus, in accordance with the apportionment determined, the High Court ordered that the plaintiff should recover £129,375.00 being 75% of the total award of £172,500.00 and the costs of the action.

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