Timothy Kelly (plaintiff/respondent) v Bus Atha Cliath (defendant/appellant).

Personal Injuries - Appeal from High Court - Case involving conflict of evidence - Whether trial judge had made clear findings of fact.

The Supreme Court (the Chief Justice Mr Justice Keane, Mr Justice Murphy and Mr Justice Hardiman); judgments delivered 16 March 2000.

WHERE it was not possible to identify clear findings of fact from the note of the ex tempore judgment of the High Court, the best course was to remit the case to the High Court for rehearing on all issues.

Mr Justice Hardiman (the Chief Justice Mr Justice Keane concurring, Mr Justice Murphy dissenting) so held in finding that the trial judge had not made clear findings of fact on certain matters of conflict and in remitting the case to the High Court for rehearing.

Patrick Keane SC and Richard McDonnell BL for the plaintiff/ respondent; Sean Ryan SC and Finbarr Fox BL for the defendant/appellant.

Mr Justice Murphy said that the proceedings arose out of an incident where the wheel of a bus driven by an employee of the defendant had run over the plaintiff's foot, causing him severe injury. The High Court (Mr Justice Johnson) had found that the defendant was negligent, that there was no contributory negligence, and that damages should be assessed in a total sum of £446,085.60. The defendant had appealed from that order.

Mr Justice Murphy said that accident had taken place after 7.30 p.m. on 25 November 1996, at the junction of Beresford Place and Abbey Street in Dublin. At that junction there was 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 outermost of the three lanes on Abbey Street running from O'Connell Street towards the Custom House was hatched yellow. There was a 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 the plaintiff's case that he was on the pavement on the junction when the accident occurred. His attention was distracted by a fire brigade which was engaged in some emergency further up Abbey Street. It was also common case that the plaintiff had had a few drinks after work and was walking towards his home. One Ms Rafferty, who was a passenger in a motor car travelling down Middle Abbey Street in the direction of the Custom House at the time of the accident, had given evidence that the plaintiff was completely on the footpath after the accident and the bus was not on the footpath. That evidence had been challenged on the ground that the witness's view of the location, after the accident occurred, would have been obstructed by the bus itself.

Mr Romeril, a forensic engineer who had given evidence on behalf of the plaintiff, accepted that it must have been the rear passenger wheel of the bus that went over the plaintiff's foot. Mr Justice Murphy said that it followed that the plaintiff should have had the opportunity of seeing the bus, which was a substantial vehicle.

Mr Justice Murphy said that there was a direct conflict of evidence between the plaintiff and his witnesses, and the witnesses for the defendant as to the precise location of the accident. The driver of the bus, and another employee of the defendant who was driving the bus immediately behind, both gave evidence that after the accident they stopped and got out, and that the plaintiff was entirely on the road, away from the pavement. While the driver of the bus had not seen the plaintiff, the driver of the following bus gave evidence of seeing the accident take place, and that the plaintiff fell straight down onto the ground. This evidence had been challenged on the basis that the witness could not have seen the accident from the driver's seat of his bus.

The trial judge had resolved this conflict in favour of the plaintiff, saying that if the bus was brought to a halt where the defendant's driver said it came to a halt, at that time there would have been a major space between the side of the bus and the pavement and there was no reason why one or both drivers should not have seen that plaintiff walking off the pavement in what appeared to be an empty space.

Mr Justice Murphy said that the excerpt from the judgment was capable of the interpretation that the trial judge was under a misapprehension that neither bus driver had seen the plaintiff before the accident occurred. However, having regard to the manner in which the case was heard, and the emphasis given by the driver of the second bus as to what he had seen before the accident, it was extremely unlikely that the judge could have been under such a misapprehension. Furthermore, it was clear that the judgment was intended to be delivered within an hour of that evidence being given. Accordingly, Mr Justice Murphy said that it was inconceivable that the learned trial judge had overlooked any part of the evidence, and he had merely resolved the conflict in relation to the location of the accident in favour of the plaintiff.

The defendant had also submitted that in seeking to resolve this dramatic conflict of fact, the learned trial judge should have had regard to the evidence of Mr Romeril. Mr Justice Murphy said that it was not necessary to refer to and analyse all of the evidence. It was clear that the learned trial judge had been particularly impressed by the evidence of Ms Rafferty and he was entitled to accept that evidence over the evidence of the defendant's witnesses and over that of the plaintiff's expert to the extent to which it cast doubt on the account given by the plaintiff's other witnesses.

Mr Justice Murphy said that he would have dismissed the appeal on the issue of liability, but that since his was a dissenting judgment, it was neither necessary nor desirable that he should express any view on the issue of damages.

MR JUSTICE HARDIMAN said that the plaintiff's evidence was 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 plaintiff's 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. The learned trial judge had found wholly for the plaintiff, on the basis that if the accident had happened as the defendant claimed, "there would have been a major, as far as I am concerned, space between the side of the bus and the pavement and there is no reason why one if not both drivers should not have seen the plaintiff walking off the pavement in what appears to be an empty space."

Mr Justice Hardiman said that the role of the court in hearing an appeal from a judge sitting alone had been comprehensively described in the judgment of Mr Justice McCarthy in Hay v O'Grady [1992] 1 IR 210, at 217-8. The court must inquire whether the findings of fact in the High Court were supported by credible evidence. If so, the court is bound by those findings, however voluminous and apparently, weighty the testimony against them.

The central finding of fact was expressed by the trial judge as follows: "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." Mr Justice Hardiman said that that finding was, in turn, an inference from other facts. Of these, the most important was that, if the accident happened in the roadway, at least one of the two drivers would or should have seen the plaintiff.

At the hearing of this appeal, the point had been strongly taken that there had been clear evidence that the driver of the following bus saw the plaintiff just before the impact. That driver had given evidence that the plaintiff, at the time of the impact, was far to the right hand side of the road, and was "a fair few feet out" onto the road. While counsel for the plaintiff urged that this court should imply from the learned trial judge's findings that he rejected the evidence of the second driver, Mr Justice Hardiman said that this was nowhere stated in the judgment, and this court could not imply it: in Hay v O'Grady Mr Justice McCarthy had stated the importance of a clear statement by the trial judge of his findings of primary fact, the inferences to be drawn, and the conclusion that followed. Mr Justice Hardiman said that even if one regarded the second driver's evidence as discounted by the trial judge, it seemed that this took place on the basis of a misunderstanding of it as meaning that the driver had not seen the plaintiff before the impact.

Mr Justice Hardiman said that the second driver was categorical in his evidence and had been cross-examined on it. It was open to the learned trial judge to accept or reject his 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. Mr Justice Hardiman said that he did not think that there was a clear statement of the High Court's findings in relation to the second driver's evidence, its credibility or his opportunity to see what he said he had seen.

Mr Justice Hardiman said that there were 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 plaintiff was untouched save for the grave injury to the plaintiff's right foot. Mr Justice Hardiman said that the latter was at best ambiguous, and perhaps more consistent with the plaintiff having been walking rather than standing when struck. Ms Rafferty was a rear seat passenger in a car coming down Abbey Street. She did not see the impact but she said that 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. Ms Raffery had been cross-examined at length on her opportunity to see what she said she had seen, until the cross-examination had been stopped by the learned trial judge on that basis that the relevant distances and lines of sight might be matters for engineering evidence.

Mr Justice Hardiman said that Mr Romeril, in his evidence for the plaintiff made significant concessions to the defendant's counsel, conceding 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 . . . given that this bus would not be travelling at speed." He also 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 against it. These concessions clearly added a new dimension to the defence case.

Mr Justice Hardiman said that it seemed clear that the effect of this evidence was to cast doubt on Ms Rafferty's recollection as to the position of the bus. While there were a number of possible interpretations of Ms Rafferty's evidence, it did not appear from the note of the judgment that any particular interpretation had been adopted, nor any resolution attempted of the apparent inconsistency of this main thrust of her evidence with Mr Romeril's concessions. Mr Justice Hardiman said that, reading Ms Rafferty's evidence as a whole, it was difficult to find support for the finding of the trial judge that she 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 of fact, because it allowed the trial judge to observe that her adamant evidence "did not coincide with the description given by the driver and his colleague." Mr Justice Hardiman said that it was very difficult to derive form 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. In all the circumstances, the best course was to set aside the order of the High Court, and to remit that case for rehearing on all issues. Mr Justice Hardiman also said that it seemed desirable that counsel should consider the making of a brief closing speech, at any rate where a measure of conflict and complexity had arisen in the evidence.

THE CHIEF JUSTICE concurred with the judgment of Mr Justice Hardiman.

Solicitors: Peter McDonnell & Associates (Dublin) for the plaintiff/respondent; M.Roche & Co. (Dublin) for the defendant/appellant.