The Supreme Court has overturned a High Court award of more than £400,000 damages to a man who had his foot amputated after it was run over by a bus, and has returned the case to the High Court for rehearing.
By a two to one majority the court granted an appeal by Dublin Bus against the award and order made by the High Court in favour of Mr Timothy Kelly (42), who had sued the company over the accident four years ago.
Mr Kelly, a pipe fitter, of Oriel Hall, Oriel Street, Dublin, had claimed a bus had mounted the footpath and crossed his foot in the accident, near the junction of Beresford Place and Abbey Street, on November 29th, 1996. Dublin Bus denied the claim and pleaded contributory negligence on Mr Kelly's part.
After the accident, Mr Kelly was taken to hospital where his right foot was amputated above the ankle. He now wears a prosthesis and has had to give up work. In his judgment last December, Mr Justice Johnson awarded Mr Kelly £446,085 in damages. In the Supreme Court, Dublin Bus appealed against that award and against Mr Justice Johnson's finding of negligence on the part of the company and that there was no contributory negligence by Mr Kelly.
In his judgment allowing the appeal yesterday, Mr Justice Hardiman said the conflict between the two sides was between Mr Kelly's claim that the bus ran over his right foot as he stood on the pavement at the crossing and Dublin Bus's claim that the bus ran over Mr Kelly's foot as he walked into the side of the bus well out on the roadway.
The central finding by the trial judge was that, on the balance of probabilities, the bus had mounted the pavement and collided with Mr Kelly's leg in the manner described by Mr Kelly.
Mr Justice Hardiman said there was no attempt to resolve the apparent inconsistency between the evidence of a key witness, Ms Audrey Rafferty, who had said that, after the accident, Mr Kelly was completely on the footpath and the bus was not on the footpath, with concessions made by an engineer called on behalf of Mr Kelly which, the judge said, added a new dimension to the defence case and appeared to cast doubt on Ms Rafferty's recollection on the position of the bus.