The High Court dismissed negligence claims brought by Michael and Kathleen Counihan after a Dublin Bus tour coach struck them on a footpath in 2000, finding that its driver suffered a sudden blackout caused by an undiagnosed heart condition.
Mr Justice Clarke said the couple were walking along the footpath on the Stillorgan dual carriageway towards Donnybrook on 14 May 2000 when the bus crossed several lanes, mounted the footpath and hit them. The bus later crashed into railings at the entrance to Belfield Court Apartments. Both plaintiffs suffered significant injuries.
The driver, Arthur Ebbs, told the court he felt warm, loosened his tie and had no memory of events until he came round after the crash. A passenger and two motorists gave evidence about the bus moving across the road. One driver, John Sweetman, said the bus appeared to straighten as his car passed, then crossed behind him onto the footpath. The judge described Sweetman as a careful witness but said his recollection of some details was hazy.
A cardiologist called by the defendants said hospital notes showed Mr Ebbs had sick sinus syndrome, which affects heart rhythm. The evidence was that the condition could first appear as a profound blackout, was degenerative and could not reasonably have been detected before symptoms developed. The judge found that Mr Ebbs had suffered a complete blackout without warning and that there was no reasonable test that would have identified the condition beforehand.
The judge ruled there was no basis to find that Mr Ebbs or Dublin Bus should have known of the danger of him driving. He considered two legal approaches to sudden incapacity while driving. Under the English Mansfield test, a driver who neither knew nor could reasonably have known of an impairing condition was not negligent. The judge said that approach better fit civil negligence principles than the stricter Roberts test, previously approved in an Irish High Court case.
Even applying the Roberts test, the judge found for the defendants. He accepted that Mr Ebbs had been completely blacked out during the driving that caused the crash; any momentary lucid interval suggested by the bus’s apparent response to Mr Sweetman did not cause the accident. The court therefore dismissed the claims against both defendants.
The judge acknowledged that the plaintiffs were injured through no fault of their own and said the law left them without compensation in these actions. He observed that any change to provide compensation without proof of fault was a matter for the Oireachtas.