Dublin Bus loses appeal on liability in head injury case

The Supreme Court has ruled that Dublin Bus is 70 per cent liable for catastrophic head injuries suffered by a young Spanish student after he was struck by a bus when he ran out on to the road in Bray, Co Wicklow.

Carlos Tesch, then aged 12, was with a number of Spanish friends on Herbert Road, Bray, on February 4th, 2009, when he ran into the road to get away from local youths who allegedly previously confronted the students verbally, while brandishing hurleys.

The students were a short distance up Herbert Road and had reached a lamppost when Tesch suddenly ran across the road and the Dublin Bus, which was coming behind him, hit him. He suffered severe head injuries rendering him unable to walk, talk or speak and requiring lifelong care.

Having viewed CCTV footage from bus cameras and heard evidence, from the driver and witnesses including passengers on the bus, Mr Justice Kevin Cross ruled that Dublin Bus was 70 per cent liable while Carlos was 30 per cent liable for “dashing” across the road.

Dublin Bus appealed to a three-judge Supreme Court, which yesterday gave its unanimous reserved judgment upholding the High Court's findings. Dublin Bus had particularly challenged the High Court finding that the bus driver, due to being distracted for a number of seconds by a conversation with a passenger, did not see the boys for a number of seconds after they had come into view.

Giving the Supreme Court judgment, Ms Justice Elizabeth Dunne said the evidence was the bus was travelling at 40km/h in a 50km/h zone and the driver was "a very careful and safe driver". Unfortunately, he was distracted by a conversation with a passenger in the seconds leading up to this tragic accident, she said.

Once Carlos stepped off the footpath, the bus driver reacted immediately and with “commendable alertness” and did what he could to stop the bus, she said. Sadly, however, 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 appropriate steps to minimise the consequences of the potential hazard.

The High Court had correctly applied the law governing liability of drivers when there are children present at or near the roadway, she said. A driver must be alert to the presence of children and be mindful they may act in a “heedless” fashion.

In this case, the critical question was not whether the driver was alert when the child ran out, but if he was alert on the approach to the junction at Killarney Heights and Herbert Road where he first observed the boys and, if so, alert to the possibility of an incident due to evidence the boys were acting “boisterously”.

There was credible CCTV evidence that while the conversation between driver and passenger ended some six seconds before the accident, the driver remained distracted by the conversation, the judge said.