The High Court has refused to dismiss a woman’s personal injury claim arising from a 2004 collision with a bus in Dublin, despite finding that the delay in progressing the case was both inordinate and inexcusable.
The defendants, Bus Éireann and bus driver Brendan Whyte, applied to have the claim dismissed for want of prosecution. The plaintiff, Shu Zhang, is suing through her aunt and next friend, Zhao Wei. The judgment describes Ms Zhang as a Chinese national who was a student in Dublin when she was struck by the bus on Aston Quay while crossing the road. She suffered a catastrophic acquired brain injury and cannot give instructions to her solicitors.
The accident happened on 12 October 2004. The personal injuries summons was issued in May 2007 but not served until February 2009. After further procedural steps, the case lay inactive for several years. The plaintiff served a notice of intention to proceed in March 2015. Her solicitor said more recent delay was largely connected to efforts to obtain expert evidence about the bus’s tachograph; a UK consulting engineer’s report was delivered in September 2017.
The defendants argued that the passage of time prejudiced their ability to defend the case, particularly because they could not locate a pedestrian witness identified in the judgment as Martyn Kirwan. The name was uncertain: a Garda report and an inspector’s records also referred to “Martin Kinway”. A claims manager’s attempt to trace the witness in May 2017 did not locate him. The court said the evidence showed only one attempt, more than 12 years after the accident, and did not establish that the witness would be unavailable at trial or that any unavailability resulted from the plaintiff’s delay.
Mr Justice Noonan accepted that the delay was inordinate and inexcusable. He then considered the balance of justice, including the prejudice to both sides. He noted that the defendants had indicated a willingness to proceed to trial as recently as March 2017, that other witnesses had contemporaneous statements, and that the case did not appear to involve a serious factual conflict over how the accident happened. The plaintiff’s serious injury and the potentially substantial value of the claim also weighed against dismissal.
The court dismissed the defendants’ application. It did not decide liability or the underlying injury claim. Instead, it directed that the case proceed expeditiously to a trial of the preliminary liability issue and adjourned it for mention in the Dublin case management list on 18 April 2018.