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Cite as: [2003] IEHC 621

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THE HIGH COURT

No. 431 P of 2000,

BETWEEN

DAMIEN FORDE

PLAINTIFF

AND

DUBLIN BUS

DEFENDANTS

DECISION OF THE MASTER OF THE HIGH COURT 13^th MARCH 2003.

The bus was stopped on Coldcut Road. Somebody opened the rear exit doors by operating the external handle. A canister containing diesel was thrown through the open doorway and diesel drenched the plaintiff's face and eyes. It was the 20`^x' January 1998. The plaintiff was then aged 18. The plaintiff's left eye was particularly badly affected. After two years of severe irritation and pain, the prognosis as of October 2001 is still unclear. He now wears spectacles continuously instead of, before the incident, occasionally.

The plaintiff says Dublin Bus was at fault ("careless"), and that its carelessness caused him to be injured.

It is alleged that the bus driver "failed to shut the doors in sufficient time", so Dublin Bus must meet the case both on a vicarious liability basis, and on the basis of its own want of care in and about system/design failure (in the context of fore knowledge of the risks of such an occurrence).

When it comes to pinpointing or "particularising" the want of care, the plaintiff is less specific. Frankly, he is unable to specify any one act or omission which is clear from the facts known to him, except, perhaps, the allegation that the defendant failed to have a system to secure the exit doors from the inside or, rather, to ensure they could not be opened from the outside. Other particulars effectively beg the question. "Failed to employ fully trained staff...." Fully trained to do what, exactly, in this situation? "Failed to provide supervision" - of whom: the driver, or the "person of violent propensity" on the footpath? Clearly not the latter: a stranger is not contractually subject to supervision.

Even if it is open to the Court to conclude that Dublin Bus or its driver were at fault, the plaintiff has also to surmount the causal obstacle of novus actus interveniens. Is the assault not a classic instance of the action of another person breaking or negativing the causal comlection between the carelessness of the defendant and the injury sustained by the plaintiff? McMahon and Binchy submit (at p. 50) that "the true criterion is that the voluntary act of a human being will negative causal connection when and only when such act is intentional or reckless". The authors refer to novus actus interveniens as a "vexed question... that has troubled the courts for some time" (p. 53) going on (p. 54) to offer this proposition: if the third party's action is foreseeable (though not probable or likely) then the courts will look especially closely at the nature of the intervener's act. if criminal, reckless or intentional it is likely to be considered as a novus actus. Not so if merely careless, negligent or even grossly negligent" (I paraphrase slightly).

Turning to the plaintiff's request for discovery or, more accurately, the reasons advanced for such discovery, we find a list of the facts the plaintiff hopes to be able to prove. By rights, only material facts ought to be subject of the request, but occasionally the odd "surplus" or redundant fact may slip by. A classic example of such a surplus fact is the aforesaid allegation of careless supervision. It is redundant because if the driver was careless, it matters not (in the liability context) whether he was adequately supervised by his employers. On the other hand, if the driver was not careless, inadequate supervision would be carelessness which was not "causal" and is therefore irrelevant: the Court will not bother to investigate such an "issue".

The categories of documents sought are

1. All documentation in relation to any training or instruction given to the Defendants staff operating the 78a and 76 route for a period of three years prior to the 20"' January 1998 to include all training manuals, training records, written instructions provided at training courses or at other times, booklets supplied at changeover course to one man operated busses and any other similar documentation.

2. All documentation relating to the numbers, training and experience of employees working on the said route for a period of 12 months prior to 20`^x' of January 1998, to include all training records, staff rotas, instructions and other similar documentation detailing staff numbers and their age and experience profile.

3. All documentation relating to previous assaults and/or episodes of violence or intimidation and/or unruly behaviour in relation to the 78a or 76 bus route for a period of five years prior to the 20^th of January 1998 to include all accident report books, correspondence (whether internal or other), notes or memoranda of meetings, emails or other electronic data, any statistical reports or data compiled for on behalf of the Defendant or any other similar documentation.

4. All documentation relating to complaints made, whether by employees of the Defendant or members of the public, in relation to assaults, episodes of violence or intimidation and/or unruly behaviour in relation to the 78a or 76 bus route in Dublin for a period of five years prior to the 20"' of January 1998 to include all accident report books, correspondence (whether internal or other), notes or memoranda of meetings, e-mails or other electronic data, any statistical reports or data compiled for or on behalf of the Defendant or any other similar documentation.

5. All documentation relating to the installation of glass safety screens and any other safety devices provided on the Defendant's buses for a period of three years prior to the 20'^r' of January 1998 and for the period thereafter, to include all manufacturer's leaflets or brochures, relating thereto, all maintenance and installation records in relation thereto, notes or memoranda of all meetings at which same was discussed, all correspondence whether internal or otherwise, all e-mails or other electronic data and any other similar documentation.

6. All documentation relating to any other security precautions taken by the Defendant to prevent similar incidents and confrontations from occurring on the 78a or 76 route for a period of three years prior to the incident the subject matter of these proceedings and.for the period thereafter to include all correspondence (whether internal or other), notes or memoranda of meetings, e-mails or other electronic data or other similar documentation.

7. The Defendants safety statement and all risk assessment and safety audits carried out by or on its behalf, pursuant to regulations in force.

The reasons set out in the plaintiff's solicitor's letter of 28"' July, 2002 identify only three or four facts in respect of the proof of which the plaintiff seeks the assistance of discovery. These are

(a) staff members, training and experience were inadequate to deal with problems on that bus route (categories 1 and 2).

(b) that the Defendant knew the route was dangerous because of such incidents in the past (categories 3 and 4).

(c) steps "if any", taken by Dublin Bus were inadequate (categories 5, 6, 7).

(d) other steps (known to the Defendant) would have prevented the accident (also - inconsistently ("steps taken were inadequate ... incident could have been avoided if such steps were taken") - sought to be proved with categories 5, 6, 7).

Dublin Bus have indicated limited agreement to furnish documentation, but resist much of the application. (b) is accepted.

Facts (a) and (c) appear to be self evident in the sense that the occurrence of the incident itself demonstrated that the "system" was inadequate. If that's all the plaintiff wants to prove he has all the proof he needs in the fact that the incident occurred. The assault occurred, ergo the steps ("if any") to "alleviate the situation" were not effective. What Dublin Bus argue is that no (reasonable) improvement to the system would prevent such an incident. What the plaintiff must try to prove is that some specific additional measure would have thwarted the criminal intentions of persons on the footpath outside the bus.

(d) is more interesting. The plaintiff is trying to discover in the defendant's files the details of a reasonable step which the defendant could have taken. The plaintiff thinks the defendant has such details but whether the defendant indeed has such details or not is not material (in the sense that the plaintiff does not need to prove that the details are in the defendant's file). The plaintiff, apparently unable to pinpoint the steps in question, is hoping that within the defendant's files will be found a description of such step or steps.

It is not specifically alleged that the defendant failed to implement any effective modifications of the system which were known to it beforehand. It would be pointless for the plaintiff to make such an allegation: that the defendant knew of an effective step adds nothing to the plaintiff's case - it is another example of a surplus fact. If any step was open to the defendant it cannot plead ignorance of such as an excuse and an answer to the plaintiff's claim.

The plaintiff just wants to access the details: it is a matter of convenience. That is the sense in which the plaintiff seeks to know what the defendant knew. Is that not "fishing"? It's handier for the plaintiff to identify the step from perusal of the defendant's files then to commission his own expert report identifying a scheme of reasonable care. There may be the basis of a cost saving rationale in this, but since the defendant maintains (although admittedly not on oath) that there was nothing more it could have done, and the plaintiff is likely to instruct an expert witness anyhow, the discovery sought is not necessary.