Shelly-Morris v Bus Atha Cliath
 IESC 74
THE SUPREME COURT
VESEY V BUS EIREANN
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GOLDSMITH V SPERRINGS 1977 2 AER V566
ARROW NOMINEES V BLACKLEDGE 2000 2 BCLC 167
Loss of earnings - Damages - Contributory negligence - Video evidence - Abuse of process - Whether plaintiff unfit for work - Whether evidence tendered by plaintiff credible (357/2001 - Supreme Court - 11/12/02)
Shelly-Morris v Bus Átha Cliath -
Facts: The plaintiff had been involved in an accident whilst on a bus and as a result had sustained injuries. As part of her proceedings subsequently brought the plaintiff submitted a claim for loss of earnings. At the trial in the High Court it emerged by way of video evidence that the plaintiff’s injuries were not as serious as originally thought and had in fact been exaggerated. O’Higgins J in the High Court awarded £172,500 in damages with a reduction made for contributory negligence. The defendants appealed to the Supreme Court arguing that the finding of only 25 per cent contributory negligence against the plaintiff and the amount of damages awarded were in error.
Held by the Supreme Court (Denham J and Hardiman J delivering judgment; McGuinness J agreeing) in allowing the appeal and reducing the damages. Denham J held it was clear that the plaintiff had suffered a significant injury. However the plaintiff had deliberately exaggerated her symptoms and had lost credibility as a consequence. The damages awarded would be reduced to £90,000 and contributory negligence assessed at 50 per cent resulting in an award of £45,000. Hardiman J held that the plaintiff’s manifest falsehoods and the overall impression of the video evidence had given rise to a considerable difficulty. The original award of the High Court would be set aside and a decree in the sum of £45,000 awarded.
Judgment delivered on the 11th day of December, 2002 by Denham J.
This is an appeal by Bus Atha Cliath-Dublin Bus, the defendant/appellant, hereinafter referred to as 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 Siwsan Shelley Morris, the plaintiff/respondent, hereinafter referred to as the plaintiff.
The facts were found by the learned trial judge. As to the facts and the issues of negligence and contributory negligence he held:
"On Saturday, 22nd September 1995 the plaintiff, who at the time of the incident was 45-year-old, was a passenger in a bus, the property of the defendants. 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 diving(sic) 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 up her,(sic) 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 out 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 the car(sic) 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 on looked(sic) 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 the 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 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 and I accept her account of the accident. She substantially corroborates the account of the plaintiff, both as to the bus having being(sic) 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 that the bus jerked off abruptly and that that was the primary cause of the accident in question."
Having determined the negligence in issue the learned 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 in ordinary journies(sic)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 seems to me to be not 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 to 75% to the defendant and 25% to the plaintiff. The court assessed damages as follows:
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