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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Tesch (a minor) -v- Dublin Bus & anor [2014] IESC 20 (12 March 2014)
URL: http://www.bailii.org/ie/cases/IESC/2014/S20.html
Cite as: [2014] IESC 20
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Judgment Title: Tesch (a minor) -v- Dublin Bus & anor Neutral Citation: [2014] IESC 20 Supreme Court Record Number: 238/13 High Court Record Number: 2010 11561 P Date of Delivery: 12/03/2014 Court: Supreme Court Composition of Court: Murray J., MacMenamin J., Dunne J. Judgment by: Dunne J. Status of Judgment: Approved
Outcome: Dismiss | ||||||||||||||||
THE SUPREME COURT [Appeal No. 238/2013] Murray J. MacMenamin J. Dunne J. BETWEEN CARLOS TESCH (A MINOR) SUING BY HIS FATHER AND NEXT FRIEND HANS PETER TESCH PLAINTIFF AND BUS ÁTHA CLIATH/DUBLIN BUS AND EDDIE O’SULLIVAN DEFENDANTS Judgment of Ms. Justice Dunne delivered on the 12th day of March, 2014
Background Carlos Tesch, then a twelve year old schoolboy, came to Ireland to attend school for the purpose of learning the English language. On the 4th February, 2009, Carlos was knocked down by a bus owned by the first named defendant and driven by the second named defendant. Unfortunately Carlos suffered a severe brain injury as a result of the collision. He is now entirely dependent on his family for support in every aspect of his day to day life.
The Judgment of the learned trial Judge
2.3 Evidence was adduced which the court accepts from a number of the plaintiff’s fellow student (sic) to the effect that on one or two occasions prior to 4th February, 2009, when the plaintiff and his friends were making a similar journey, they had been involved in an altercation with local youths, a few years older than the plaintiff’s group, who had congregated on the green area beside Herbert Road confronting the students verbally, brandishing hurleys and on one occasion there was apparently an exchange of snowballs. 2.4 The plaintiff’s friends stated, and I accept, that they became agitated at the prospect of a confrontation with the youths and they started altering their positions in the group and that the plaintiff said words to the effect that he had done nothing wrong and he did not want to get involved and he suddenly ran out at an angle to get to the other side to the road.” He went on to explain that they were “adolescent sort of – nothing malicious – not walking in a military style up the road”. In cross-examination he added that they did not cause him concern – they were engaged in “just young teenaged boy stuff, not particularly malevolent or anything about their actions. It wasn’t fighting in any way”. They were “bobbing” a bit. He noted that the driver was slowing down as he approached the bus stop and that there was nothing untoward in his driving. Mr. McCarthy added that he first saw the boys approximately 50 metres before the junction with Killarney Heights. Mr. John McNamee gave evidence on behalf of the defendants. He was the first passenger standing ahead of Mr. McCarthy and was also about to alight the bus. He noticed some girls out of the window. He also had a conversation with the bus driver, a fact which will be discussed later. A motorist travelling on the opposite side of the road, Mr. Johnson, also gave evidence on behalf of the defendants and described the bus as travelling at normal speed. He noticed some people on his right hand side and then saw the accident. The boys who were with Carlos gave evidence on his behalf. Mr. O’Sullivan, the bus driver, in his evidence described where he first observed the boys, at the junction of Killarney Heights and Herbert Road. He marked the point on a photograph but the learned trial Judge was of the view, having regard to all the evidence, that Mr. O’Sullivan probably saw the boys a small distance earlier than the mark on the photograph would have indicated – namely, when the bus was just approaching the junction. The boys did not give him any cause for concern and he did not consider the need for taking any action such as slowing down further, moving out or sounding the horn of the bus. A number of expert witnesses also gave evidence. It is common case between the experts called by both sides that from the moment the plaintiff ran out in front of the bus, “the bus driver could not have done anything more than he did”. Most road traffic accidents occur in circumstances where the evidence available to a court is confined to eye witness testimony, usually of those directly involved in the accident and there may or may not be independent eye witness evidence available. There will usually be expert evidence on a variety of issues with a view to attempting to establish the precise mechanism involved in the particular accident. An unusual feature of this case was the availability of CCTV footage of the incident from a number of cameras located at different points on the bus. The CCTV footage was of particular assistance to the learned trial Judge and was the subject of much analysis both in respect of a number of stills and the moving pictures from the CCTV cameras. This Court has also had the benefit of seeing the stills and CCTV footage. The learned trial judge noted:
4.9 Mr. J. McN states that the conversation between himself and the driver finished at 16.53:38 and in this he is supported by Mr. O’S who contends that his manoeuvring of his head subsequent to this point is not indicative of continuation of the conversation but rather that he was checking in his mirrors as he approached the bus stop on . . . Herbert Road. 4.10 It is noted that 16.53:38 is some six seconds prior to the accident. In camera 2, Mr. D. McC, the second passenger, who wished to alight from the bus stop is clearly in place by16.53:32. He gave evidence that he noted the children on the pavement approximately 50 yards back from the scene which is approximately four or five seconds away from the accident, i.e. 16.53:38 or 16.53:39. 4.11 Mr. J. McN, did not take note of the children until just before the accident and there was no reason why he should do so. 4.12 Mr. O’S, the driver indicated that he first saw the children when the bus was already commencing to pass the entrance to Killarney Heights.”
4.15 No other explanation can present itself for Mr. O’S not seeing the boys until he was approximately one second away from the plaintiff running out onto the road and Mr. D McC noticing them a number of seconds earlier. The boys were there to be seen at least five or six seconds back from the accident and were in fact not noticed by Mr. O’S until approximately one second from when Carlos ran out.”
4.22 At 16.53:39, it is clear that as well as the two adults who moved left into Killarney Heights, you can seen the outline of what would be the group of boys in front of them. The cars coming against the plaintiff are still there. 4.23 Unfortunately the camera’s view at 16.53:40 is blurred at the point where the two individuals are turning to their left but what will become the boys including the plaintiff are visible on the pavement beyond the junction. It is approximately at this point that they would have become visible to Mr. D McC. 4.24 By 16.53:41, the boys are clearly visible and one of the two cars approaching has passed and there is a second car just beyond the junction and a third car, lights can be seen in the distance. It is probable that this is the car being driven by Mr. J. 4.25 By 16.53:42, (certainly by the second frame at that time) the second car has now passed the bus and the boys though their position is obscured by the blur of the camera are clearly there to be seen. The bus has still some way to go before it enters onto the junction. 4.26 There is a image (sic) taken by camera 8 at 16.53:42 and again Mr. J’s car is in the distance and boys are now clearly visible. Mr. O’S indicated that there was some point between the last frame of 16.53:42 and the frame of 16.53:43 that he first noticed the boys. 4.27 It is noteworthy that as far as can be deduced from the position of the boys on Herbert Road, they do not seem to have made much progress southwards down the road from where they are first clearly visible on the film. Mr. Land on behalf of the defendant stated that the apparent lack of progress of the boys may be attributable to the camera angle but I hold that the evidence of the camera supports the evidence of the Spanish boys that on seeing the older boys on the green, the Spanish boys were altering their positions in the group and also supports the evidence of Mr. D McC that the boys were ‘bobbing’ about. 4.28 At 16.53:44, you can see the plaintiff stepping onto the roadway and in the second frame of 16.53:44, the impact has occurred.” The defendants in their notice of appeal challenged the findings of the trial Judge to the effect that there was negligence on the part of the defendants. In particular, they challenged the finding that the bus driver was distracted by the conversation with the passenger so as to fail to see the plaintiff and his companions in sufficient time. It was contended that the evidence before the Court did not support this finding. There was also a challenge to the finding that the bus driver was not driving the bus in an alert fashion.
Submissions
Counsel on behalf of the plaintiff relied on the well known principles set out in Hay v. O’Grady [1992] 1 IR. 210, recently referred to in Doyle v. Banville, 2012 IESC 25 by Clarke J. As he stated:
Conclusions
I am satisfied that Cross J. in applying the legal principles to the facts of this case did so correctly. The critical question identified by him was not whether the bus driver was alert at the moment when the plaintiff ran out onto the road way – it is whether the bus driver was alert on the approach to the junction with Killarney Heights and if so, would he have been alert to the possibility of an incident by reason of the presence of the boys acting boisterously, as Cross J. found, and therefore would he have been in a position to have reacted to the possibilities that presented at that stage? I am of the view that the learned trial judge was correct in the manner in which he identified the issue before him and approached its consideration. This is not a case which could be decided solely on the basis of the finding that the driver was alert at the moment when the plaintiff ran out on to the roadway. What happened leading up to that moment is also important. It is necessary, of course, that a driver is alert when a crisis presents itself but that may not be enough to escape liability if the facts are such that had the driver been alert before the crisis occurred, he/she could have anticipated the crisis and either avoided it altogether or, at least, minimised its effect. As Budd J. observed in the course of the passage set out above:
McCarthy J. in Hay v. O’Grady referred to above said:
I cannot see any basis upon which the findings of Cross J. could be said not to be supported by the evidence. On the contrary, there is more than sufficient credible evidence to support the findings of Cross J. reached, as they were, after detailed, careful and considered analysis of the evidence, as is clear from the judgment. In all the circumstances I am satisfied that there is no basis upon which this appeal could be allowed. Accordingly, I will refuse this appeal.
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