THE SUPREME COURT
300/99 & 308/99
Keane C.J.
Murphy J.
Hardiman J.

BETWEEN
TIMOTHY KELLY
PLAINTIFF
AND

BUS ÁTHA CLIATH - DUBLIN BUS
DEFENDANT

[Judgments by Murphy J. and Hardiman J.; Keane C.J. agreed with Hardiman J.]

JUDGMENT of Hardiman J. delivered the 16th day of March 2000

The plaintiff suffered very grave injury when the wheel of a bus ran over his foot on the 29th November 1996. The physical, economic and personal consequences of the accident have been enormous. The plaintiff required the amputation of his right foot. He has chronic severe pain. His mobility is highly restricted. He is quite unfit for his pre-accident work and his fitness for any work is perhaps debatable. His pre-accident employment record was an excellent one and he is quite understandably devastated by his present plight.

The claim is clearly one calling for very substantial damages if liability is established. Liability, however, is in dispute and there is also a plea of contributory negligence.

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AGREED FACTS

Certain facts were agreed between the parties at the trial. It was agreed that the accident happened at the junction of Beresford Place and Abbey Street. At that point, there is a left hand turn into Abbey Street, whose use is restricted to buses. This turning leads into a contra flow bus lane along Abbey Street.

The turning, which is at quite an acute angle, is controlled by traffic lights and there is an accompanying crossing for pedestrians. The pavement on Beresford Place is dished as it approaches the crossing and for some little distance before the kerb slopes downwards to allow wheelchair access. The ordinary paving stones are replaced by brick work in the area of the crossing and this brick work has raised rounded protuberances apparently to allow blind people to feel the different texture and know thereby that they are coming close to the end of the footpath. According to the transcript of the trial, the width of the crossing from Beresford Place varies from 7.93 metres to 5.25 metres at the point where the traffic lights are. One crosses this tapering roadway from Beresford Place to a traffic island.

THE CONFLICT

The plaintiff said that the bus ran over his right foot as he stood on the pavement at the crossing. He did not see the bus approach because he was looking at a fire engine some distance up Abbey Street. The defendant’s evidence was that the bus ran over the plaintiffs foot as he walked into the side of the bus well out on the roadway. At this point, on the defence evidence, the bus was rounding the turn and was well over towards the traffic island, and away from the Beresford Place pavement. This was the conflict the judge had to resolve.

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THE FINDING

The learned trial judge found wholly for the plaintiff. He did so on the basis that if the accident had happened as the defendant claimed:

“....  there would have been a major, as far as Jam concerned, space between the side of the bus and the pavement and there is no reason why one and if not both drivers should not have seen the Plaint if walking off the pavement in what appears to be an empty space.” (Book 3 pp. 46-47)

The reference to “one and if not both drivers” relates to the fact that there was another bus immediately following the one which injured the Plaintiff.

ROLE OF THIS COURT

The role of this Court on the hearing of an appeal from a judge sitting alone has been comprehensively described in the judgment of Mr Justice McCarthy in Hay v O‘Grady (1992) 1 IR 210, at pages 217/218. Following this approach we must enquire whether the findings of fact in the High Court are supported by credible evidence. If so, “this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them.”

The central finding of fact in this case was that expressed in the sentence immediately following the one just quoted in the learned trial judge’s judgment.

“Now, under those circumstances, I feel on the balance of probabilities, with a certain amount of doubt, I am satisfied that the bus mounted the pavement and collided with the Plaintiff’s leg in the manner in which the Plaintiff described.” (Book 3 p.47)

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This, in turn was an inference from other facts. Of these the most important was that, if the accident happened in the roadway, at least one of the drivers would or should have seen the plaintiff. Accordingly, that proposition was a central part of the High Court’s inferential process.

DEFENDANT’S APPEAL

At the hearing of this appeal the point was strongly taken that there had been clear evidence that the driver of the following bus, Mr Gibbons, saw the plaintiff just before the impact. This witness said:

“The first time I saw Mr Kelly was just before impact. I hadn't been aware of pedestrians on the footpath or anything like that. The line I actually held, I actually thought the gentleman was walking in front of the bus because the line of sight I had was down the inside of the vehicle. It was not until more or less the impact that I realised it was the side of the bus that the collision was with and not the front.” (Book 3 p.131)

In answer to further questions as to the position of the bus at the time of the impact and the plaintiffs position in relation to the footpath he said:

“On the road he was far to the right hand side. I suppose to the island  The exact distance I could not say but he would be a fair few feet out. “ (Book 3 pp.31, 32)

This evidence is clearly inconsistent with the inference drawn from the proposition that neither driver had seen the plaintiff “in what appears to be an empty space”.

Mr Patrick Keane S.C., for the plaintiff, urged that this Court should imply from the learned trial judge’s findings that he rejected the evidence of Mr Gibbons. But this is

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nowhere stated, and I do not think that this Court can, consistently with the approach described in Hay v O’Grady, imply it. Mr Justice McCarthy, having described this Court’s role in an appeal such as the present one, concludes as follows at page 218:

“These views emphasise the importance of a clear statement, as was made in this case, by the trial judge of his findings of primary fact. the inferences to be drawn, and the conclusion that follows.”

Moreover, if one regards the following driver’s evidence as discounted, it seems that this took place on the basis of a misunderstanding of it as meaning that he had not seen the plaintiff before the impact.

Mr Gibbons is the only witness claiming to have seen the accident occur. The plaintiff himself felt rather than saw it: he said 
“I was standing at the edge of the footpath. The next thing I just felt a terrible pain. I was falling back and on the way back I seen a bus, lights going on the bus and I hit the ground and all I could see was the sky.”(Book 1 p. 20).

Mr Gibbons was categorical in what he said and was cross-examined along the line that the back of the leading bus would have obscured his view of its left hand side. To this he answered that he was not in line directly behind the leading bus but was following roughly the same turning arc.

It was open to the learned trial judge to accept or reject this evidence. Either course would constitute a finding of primary fact, and its rejection was crucial to the inference that the impact occurred on the pavement. Only this finding would lead directly to a result wholly in favour of the plaintiff. If the plaintiff was found to be on the road then the issue of contributory negligence at least would have arisen for adjudication.

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I do not think that there was a clear statement of the High Court’s findings in relation to Mr Gibbons evidence, its credibility or his opportunity to see what he said he saw. I have considered whether the learned trial judge’s findings at pages 46, 47 in Book 3 of the transcript can be read as meaning only that neither driver saw the plaintiff “walking off the pavement”, and no more. But Mr Gibbons’ evidence placed the plaintiff “a fair few feet” into the junction and placed the bus “far to the right hand side” at the time of impact. A finding limited to the non-sighting of him at the moment of walking off the pavement would not address this evidence one way or the other, especially since Mr Gibbons’ line of sight was constantly changing as he travelled through an arc, and the leading driver’s position was ahead of the crossing at impact.

ADDITIONAL POINTS

There are two other facts which were relied on in support of the High Court findings: the evidence of Ms Rafferty for the plaintiff and the fact that the grave injury to the plaintiffs right foot was the only injury; he was otherwise untouched. The latter seems to me at best ambiguous and perhaps more consistent with the plaintiffs having been walking rather than standing, when struck.

Ms Rafferty was a rear seat passenger in a car coming down Abbey Street from the O’Connell Street direction. She did not see the impact but she says she saw the bus coming to a halt and the plaintiff lying on the pavement with his feet near the back wheel of the bus. She was, however, not certain where the front of the bus was and was cross-examined (in what was in some ways analogous to the cross-examination of Mr Gibbons by the plaintiff) along the line that she could not have seen what she claimed because her view would have been blocked by the front of the bus.

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This cross-examination was quite a protracted one, involving considerable detail relating to the bus’s position and the witness’s line of sight. The cross-examination was stopped in the end by the learned trial judge on the basis that “this may very well be engineering evidence at this stage I think” (Book 2 p. 53). Five pages earlier there had been an objection by the plaintiffs counsel on the same basis. Moreover, when the Plaintiffs Counsel attempted to re-examine the witness in relation to the position of the bus the learned trial judge stopped him by saying “I think that is a matter for engineering evidence as well  it is angles and distances”. (Book 2 p. 55). Ms Raffety was understandably unsure of precise distances but she did appear confident that the front of the bus was “a fair bit over” a double white line running from the tip of the Abbey Street end of the traffic island, without entering the southbound traffic lane.

CONCESSIONS

Mr Paul Romeril, consulting engineer, was called on behalf of the plaintiff. He was cross-examined in detail and in the course of this made significant concessions to the defendant’s counsel. The cross-examination included the use of a “template” of the bus.

Mr Romeril appears to have conceded that in practical terms there is no way the bus can get around the corner if its front wheels were close into the footpath and that if the front wheels were in that position the driver is 
“going to have all sorts of problems... . with his back swinging across the island or something” (Book 2 pp 69,70).

He also conceded that 
“if you were standing stationery the bus is literally rubbing against your chest for the wheels to go over your foot” and that “you would expect a pedestrian to become aware of that, yes, given that this bus would not be travelling at speed” (pp 73,74).

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Mr Romeril was also asked to perform an exercise with the template representing the bus. He conceded that if the rear wheels had travelled over the pavement at the point where the plaintiff said he was standing, the bus would on any view have projected out of the bus lane into the line of traffic coming down Abbey Street against it, and if it were to keep going would have to drive further out into that lane. He agreed that 
“if he had completed the manoeuvre without hitting the pole he would probably be almost halfway into, well not quite way halfway into, the traffic”. (Book 2 p. 88) 

He further agreed that “any position less than that absolute extreme of the possible positions makes the encroachment even more severe  into the car lanes going towards Bus Áras”. These concessions clearly added a new dimension to the defence case.

CONCLUSIONS

It seems to me that the clear effect of this evidence was to cast doubt on Ms Rafferty’s recollection as to the position of the bus. Ms Rafferty did not think, without being 100% sure, that the bus had protruded into the traffic lane, but it appeared from Mr Romeril’s evidence that it would require to have done so for the back wheels to run over the plaintiffs foot at the point he indicated.

There are, of course, a number of interpretations of Ms Rafferty’s evidence open to the tribunal of fact. From the note, however, it does not appear that any particular interpretation was adopted, nor any resolution attempted of the apparent inconsistency of the main thrust of her evidence with Mr Romeril’s concessions. Reading Ms Rafferty’s evidence as a whole, it seems difficult to find support in it for the learned trial judge’s statement, at Book 3 page 48 that Ms Rafferty was “very, very adamant as to the position on the road the bus was and took up when she saw it”. This was a significant finding because it allowed the

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trial judge to observe that her adamant evidence “did not coincide with the description given by the driver and his colleague”.

I make every allowance for the matters emphasised by Mr Justice Murphy: that it is always difficult to reconstruct ex-tempore judgments and the emphasis which may have been put on different words, and for the possibility of clerical error. However, I find it very difficult to derive from the note of the judgment a clear finding as to certain primary facts, in particular as to the accounts given by Mr Gibbons and Ms Rafferty. I think in all the circumstances that the best course is to set aside the Order of the High Court and remit the case for rehearing, on all issues.

Some of the difficulties which arose in this case might, I think, have been avoided if the learned trial Judge had been addressed by Counsel for each side at the end of the evidence. No doubt there are many personal injuries cases where the issues are so simple and straightforward that no such address is needed. But this case was scarcely one of these. A relatively detailed opening speech was made. By the end of the case a number of additional complexities had arisen. It was clear that each side, and the Judge himself, attributed considerable significance to the engineering evidence. Yet the Judge was not assisted as to the parties respective views of this evidence and its effect on the eye witness testimony.

It seems desirable that Counsel should consider the making of a brief closing speech, at any rate where a measure of conflict and complexity has arisen in the evidence.

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THE SUPREME COURT
300/99 & 308/99
KEANE CJ
MURPHY J
HARDIMAN J

BETWEEN:
TIMOTHY KELLY
PLAINTIFF
AND

BUS ÁTHA CLIATH/DUBLIN BUS
DEFENDANT

Judgment of Mr Justice Francis D Murphy delivered the 16th day of March, 2000

The above named Plaintiff (Mr Kelly) suffered very severe injuries when the wheel of a bus driven by Conor McFeeney (Mr McFeeney), an employee of the above named Defendant (Dublin Bus), ran over his foot on the 29th of November, 1996. That Mr Kelly has suffered and will suffer very substantial damages as a result of the accident is beyond debate. The essential issue in the case was whether the Defendant was guilty of negligence and, if so, whether the Plaintiff was guilty of contributory negligence.

The case was heard by Johnson J in December last. By his judgment and the order made thereon on the 9th day of December, 1999, the Court found that the Defendant was negligent:

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that there was no contributory negligence, and that damages should be assessed in a total sum of £446,085.60. It is from that judgment and order that Dublin Bus appeals to this Court.

The accident took place after 7:30 on the evening of the 25th of November, 1996, at the junction of Beresford Place and Abbey Street in the City of Dublin. At that junction there is a left-hand turn from Beresford Place into Abbey Street for buses only. To facilitate buses in taking this acute angled turn part of the outer most of the three lanes on Abbey Street running from O’Connell Street towards the Custom House is hatched yellow. From the point of view of a pedestrian seeking to cross from the junction to the Irish Life buildings side of Abbey Street there is controlled pedestrian crossing measuring 17 feet 3 inches from the junction to an island and a further pedestrian crossing from the island to the pavement on the far side.

It was Mr Kelly’s case that he was on the pavement at the junction when the accident occurred. It may be proper to add that his attention was distracted by a fire brigade which was engaged in some emergency further up Abbey Street. It was also common case that Mr Kelly had had a few drinks after he had finished work and was, at the time of the accident, walking towards his home. It was Mr Kelly’s evidence that he was “standing at the edge of the footpath” at the corner of Beresford Place and Abbey Street when he was struck by the Defendants bus. A crucial witness for Mr Kelly was Ms Audrey Rafferty. She was a passenger in a motor car travelling down Middle Abbey Street in the direction of the Custom House. It was her evidence that she saw Mr Kelly after the accident and that:-

“He (Mr Kelly) was completely on the footpath and the bus was not on the footpath.”

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The evidence given by Ms Rafferty was challenged primarily on the ground that her view of the location, after the accident occurred, would have been obstructed by the bus itself.

Mr Paul Romeril, a forensic engineer, gave evidence on behalf of Mr Kelly as to the manner in which a bus might navigate the Beresford Place-Abbey Street junction. In cross-examination by Counsel on behalf of Dublin Bus, Mr Romeril did accept that, as a practical reality, it must have been the rear passenger wheel of the bus that went over Mr Kelly’s foot. It followed that Mr Kelly should have had the opportunity of seeing the substantial vehicle, which measured 14 feet 6 inches in height and 23 feet 9 inches from the front of the bus to the middle of the rear wheel, before the accident occurred.

There was a direct conflict of evidence between Mr Kelly and Dublin Bus as to the precise location of the accident. It was the evidence of Mr Kelly that he was on the pavement when the accident occurred and it was the evidence of Ms Rafferty that she saw Mr Kelly, admittedly after the accident, on the footpath. The driver of the bus involved in the accident, Mr McFeeney, stopped his bus after the accident and spoke to Mr Kelly. Another employee of Dublin Bus, Mr Derek Gibbons, who was driving the bus immediately following that driven by Mr McFeeney, gave evidence that he saw the accident and that he too stopped his bus. Mr McFeeney gave evidence that after the accident Mr Kelly was “entirely on the road”. It was the evidence of Mr Gibbons that the bus which had been involved in the accident was “a fair few feet out” from the junction. It was the evidence of Mr McFeeney that he had not seen Mr Kelly prior to the accident. He was cross-examined as to whether or not he should have seen him but there is no doubt as to the evidence he gave, namely, that he

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had not seen the Plaintiff prior to the accident. However Mr Gibbons gave evidence of seeing the accident take place. In reply to Question 161 on day 3 he said:-

“I saw the impact. I saw Mr Kelly go straight down onto the ground....”

The challenge to the evidence of Mr Gibbons made in cross-examination and in debate before this Court was on the footing that from the driver’s seat of his bus Mr Gibbons would not have had a clear view of an accident occurring on the passenger side of the bus in front of him. That analysis was rejected by Mr Gibbons.

In those circumstances there was a clear conflict of evidence which the learned trial Judge identified and sought to resolve in the following terms:-

“There are two quite clearly contradictory versions of this case. On the balance of probabilities, I think that it is highly unlikely that the accident could have happened in the way that the defendants say that it happened. If the bus was brought to a halt where the defendants’ driver say it came to a halt. At that time, there would be a major, as far as lam concerned, space between the side of the bus and the pavement and there is no reason why one and if not both drivers should not have seen the plaintiff walking off the pavement in what appears to be an empty space. Now, under those circumstances, I feel on the balance of probabilities, with a certain amount of doubt, lam satisfied that the bus mounted the pavement and collided with the plaintiff’s leg in the manner in which the plaintiff described.”

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It was urged by Counsel on behalf of Dublin Bus that in seeking to resolve this dramatic conflict of fact the learned High Court Judge should have had regard to the expert evidence given by Mr Romeril. Furthermore it was submitted that the record of the ex tempore judgment of Johnson J would seem to suggest that the learned Judge was mistaken in a crucial respect as to the evidence given by the bus drivers and in particular the evidence of Mr Gleeson. The passage already cited from the judgment would appear to suggest that the learned Judge was under the impression that neither driver claimed to have seen Mr Kelly before the accident occurred. I accept that the words which I have quoted from the judgment are capable of that interpretation. However, having regard to the manner in which the case was heard; the emphasis given by Mr Gibbons to what he had seen before the accident; his concern as to how the accident might occur and his actual evidence as to how it happened, make it extremely unlikely that the Judge could have been under such a misapprehension. Furthermore, it is clear from the transcript that the ex tempore judgment was intended to be delivered - and I presume was delivered - within an hour after Mr Gibbons had concluded his evidence. I believe it is inconceivable that the learned Judge could have overlooked any part of the evidence given by the two drivers. The conflict which the learned trial Judge identified related to the precise location of the accident. The Plaintiff and his witness said that the accident occurred on the pavement. The two drivers said it occurred on the roadway. The learned trial Judge accepted the Plaintiffs account. He therefore necessarily rejected that given by the two bus drivers.

It is frequently difficult to reconstruct satisfactorily the atmosphere of a High Court trial or the emphasis placed by Counsel or witnesses on different matters in the course of the trial. I suspect that the concern which the learned trial Judge sought to convey in the passage which I

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have quoted from his judgment was the failure of either driver to see the Plaintiff “walking off the pavement “. The Judge had said there was or would have been “a major .... space between the side of the bus and the pavement” and it seems to me that he believed in those circumstances at least one of the drivers should have seen Mr Kelly “walking off the pavement”.

That interpretation is consistent with the actual words used in the judgment and avoids the improbable inference that the learned trial Judge had over looked the evidence given by a crucial and emphatic witness.

As to the evidence of Mr Romeril: this might well have been regarded as helpful in resolving the disputed question of fact but I do not accept that it is the duty of a trial judge to refer to and analyse all of the evidence heard by him. It is clear that the trial Judge was particularly impressed by the evidence given by Ms Rafferty. He was entitled to accept that evidence. In doing so he was necessarily bound to reject that of the Defendant’s witnesses and that of the expert to the extent to which it cast doubt on the account given by the Plaintiffs other witnesses.

I would have dismissed the appeal on the issue of liability. As I am expressing a dissenting judgment it is unnecessary and undesirable that I should express any view on the appeal in so far as it, or the cross-appeal, relates to the issue of damages.

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