Supreme Court dismisses appeal against High Court finding of 70% bus driver liability for distracted driving causing minor's injury.

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

The Court, having heard the appeal in this matter from the decision of the High Court, dismissed the appeal and affirmed the order of

the High Court. These are the reasons for that decision.

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

The issue of liability was tried as a preliminary issue by agreement between the parties. The matter came before the High Court

between the 19th and 22nd March, 2013 and judgment was delivered on the 24th April, 2013. The High Court found for the plaintiff

and apportioned liability as to 70% on the part of the defendants and 30% on the part of the plaintiff. The learned trial Judge in the

course of his judgment set out some details as to the background to the accident involving the plaintiff and the defendants’ bus:

“2.2 At a time of approximately 16.50, the plaintiff and his friends having purchased sweets headed for Herbert Road,

crossing a green in front of Killarney Heights estate. They proceeded a short distance in a southerly direction up Herbert

Road when they reached a lamppost and the plaintiff suddenly ran across the road and the defendant’s bus which was

coming behind him which collided into him.

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.”

A number of eye witnesses gave evidence as to what occurred. Mr. Davin McCarthy gave evidence on behalf of the plaintiff. He was

a passenger on the bus who intended to disembark at a bus stop just after the junction on Herbert Road with Killarney Heights. The

accident occurred after the junction and before the bus reached the bus stop. He was the second of two passengers planning to

leave the bus at that point. He came downstairs from the upper level on the bus and approached the front. He saw a group of young

boys on the left of the pavement. He described them in this way: “Like young boys, kind of boisterous, you know”.

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:

“4.8. The accident occurred at [16].53:36. At 16.53:21, in camera 1 you see Mr. O’S looking ahead of him and what will

transpire to be the hand of Mr. J. McN appearing over Mr. O’S’s left shoulder clearly about to move into position so he can

alight from the bus. Mr. J. McN’s face appears in camera 1 at 16.53:23. We see in camera 1, Mr. O’S from time to time

looking slightly to his left or right doing what he says was mainly checking in the mirrors. At some stage after 16.53:27,

and clearly by 16.53:32, Mr. O’S and Mr. J. McN are engaged in some conversation or banter. It is clear by examining both

the footage from camera 1 and camera 2 that Mr. J. McN advanced beyond the white line to engage in this conversation

with Mr. O’S and at one stage (16.53:37), Mr. O’S to emphasise a point or whatever is seen gesturing with his left hand

which is not on the steering wheel.

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.”

Cross J. then added (at paragraphs 4.14 to 4.15) as follows:

“4.14 The holding of a conversation with a passenger though of itself prohibited does not automatically render the driver

to be negligent. What is required is that the driver be alert to the possibility of danger. Mr. J McN and Mr. O’S state and I

will accept for the purpose of this judgment that conversation had ceased between them by 16.53:38, however, even if

conversation had ceased, both their faces maintained smiles (which suggest that a joke had been exchanged) almost up

to the accident. In the case of Mr. O’S the smiling is continued up to 16.53:41 and in the case of Mr. J McN up to

16.53:43, it seems clear that the previous if terminated conversation was of such a nature as to have distracted Mr. O’S

from what was in front of him.

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.”

Cross J. then made a number of observations in relation to what could be seen from camera 8:

“4.21 Camera 8, at 16.53:38, the point where Mr. J McN and Mr. O’S state their conversation had stopped and which I

accept to be the case gives the picture of the road ahead and that you can see on the right hand side coming towards

the driver, the lights of two cars and around the entrance to Killarney Heights. On the pavement, two figures are walking

away from the camera who would later turn into Killarney Heights. The court accepts that at that point, the bus would

have had to have been travelling partially in the cycle lane as its width was greater than that of the carriageway because

there were cars coming against it. I also accept that the two persons who would enter Killarney Heights would have in all

probability obscured the view of the driver of the boys at that point.

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.”

Cross J. was of the view that had Mr. O’S seen the boys on the pavement acting boisterously and changing position he would have

slowed down. He went further and added that Mr. O’S “could have and should have” applied his brakes from about fifty yards back.

He also concluded that the bus could and should have been moved out towards the right. He added that had the driver seen the boys

acting boisterously, the driver would have and should have blown his horn. Critically, he concluded that the bus driver, because of the

distraction of the conversation with the passenger, or otherwise, did not see the boys for a number of seconds after they were

available to be seen and in those circumstances, Cross J. concluded that the bus driver did not have the time to make the judgment

he ought to have made as to the potential hazard presented by the boys earlier. He added that the driver did not have the time to be

conscious of the fact that the boys were acting boisterously.

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 for the defendants in the course of their submissions referred to the evidence of the expert witnesses called by the plaintiff

who agreed that the bus was travelling at approximately forty kilometres per hour in a fifty kilometre per hour zone. The expert

witnesses on behalf of the defendants gave evidence as to the reaction time of the bus driver to the emergency which presented

itself to him once the plaintiff stepped off the footpath. There is no doubt that once the plaintiff stepped off the footpath, the bus

driver reacted immediately and did what he could to stop the bus. This was expressly accepted by Cross J. when he noted:

“I have no doubt that by the time the plaintiff stepped onto the roadway, Mr. O’S was alert and demonstrated this fact

by his prompt braking of the bus within one length, a time of one second.”

In the course of argument counsel on behalf of the defendants strongly urged on the Court that given the fact that the driver was

alert at the time of the emergency, he could not be said to have been distracted by the earlier conversation. There was also criticism

of the finding of Cross J. as to the potential hazard presented by the boys and the failure of the bus driver to assess this potential

hazard.

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:

“. . . it is no function of an appellate court such as this to re-weigh the balancing exercise which any trial judge is

required to do when sitting without a jury for the purposes of determining the facts.”

It was submitted that the defendants were asking this Court to do just that.

Conclusions

The trial Judge herein carefully set out the law governing the liability of drivers when there are children present at or near the

roadway. He pointed out that there was no controversy between the parties as to the applicable law. He referred to the decision of

this Court in McDonald v. Córas Iompair Éireann [1971] 105 ILTR 13 in which Budd J. stated:

“The jury should be told that the presence or expected presence of children on or near the travelling surface of the

highway casts a heavy responsibility on the driver of a vehicle approaching such children. He must alert himself to their

presence and be mindful that they may act in the heedless fashion that children do. He must place himself in such a

position to be in readiness to take all such precautions as he reasonably can to avoid causing injury to anyone of them

who acts in a heedless fashion. This will involve, inter alia, such matters as keeping a careful watch on the children

possibly giving warning of his presence, keeping a reasonable distance from them, and having his vehicle under such

control and travelling at such speed and otherwise acting in such a fashion as will enable him to take all such steps as are

reasonably possible to avoid their heedless movements and actions. The details of what is said must of course vary with

the circumstances of the case. The time, place, presence of other traffic and other relevant matters must influence what

is said. It is also necessary to avoid conveying the impression to the jury that it is the duty of the driver in the presence

of young children to ensure their safety in all circumstances. What is required is that he should take all such steps as can

reasonably be expected of him as a prudent man, bearing in mind the heavy responsibility resting on him in the presence

of young children . . .”

The fact that personal injury actions at that time were determined by a Judge sitting with a jury does not alter the legal principles to

be applied by a trial Judge sitting alone. Cross J. applied the principles set out in that decision to the facts of this case.

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:

“This will involve, inter alia, such matters as keeping a careful watch on the children possibly giving warning of his

presence, keeping a reasonable distance from them, and having his vehicle under such control and travelling at such

speed and otherwise acting in such a fashion as will enable him to take all such steps as are reasonably possible to avoid

their heedless movements and actions.”

In the course of the judgment, Cross J. set out his findings clearly. His findings are supported by credible evidence including the

finding that although the conversation between the bus driver and the passenger had concluded at 16.53:38, the bus driver

nevertheless remained distracted by that conversation. The CCTV footage referred to by Cross J. and viewed by this Court is ample

support for this conclusion.

McCarthy J. in Hay v. O’Grady referred to above said:

“If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings,

however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any

majority.” (page 217).

The evidence accepted by Cross J. is that Mr. O’S was a very careful and safe driver. Unfortunately, on this occasion, he was

distracted by a conversation with a passenger in the seconds leading up to this tragic accident. At the moment of the emergency, he

reacted with commendable alertness but, sadly, he was not alert to the potential hazard unfolding as he approached the boys on the

pavement and thus, was not able to anticipate or take any appropriate steps to minimise the consequences of the potential hazard.

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.