The Supreme Court has dismissed an appeal by Dublin Bus and driver Eddie O’Sullivan against a High Court finding that they were 70% liable for a collision that left Carlos Tesch, then aged 12, with a severe brain injury. The High Court attributed the remaining 30% of liability to Carlos. The Supreme Court affirmed the High Court’s order; the judgment dealt with liability, which had been tried as a preliminary issue by agreement. It did not determine damages.
The collision happened on 4 February 2009 on Herbert Road, after Carlos and other boys had walked past the green beside Killarney Heights estate. The High Court found that Carlos suddenly ran across the road and was struck by the bus. Evidence accepted at trial was that the boys had previously encountered older local youths near the green and were agitated about a possible confrontation. Carlos had said he did not want to get involved before running across.
The defendants challenged the High Court’s findings of negligence, including its conclusion that the driver had been distracted by a conversation with a passenger and had failed to see the boys in time. They argued that the evidence did not support those findings. The plaintiff relied on the limits on an appellate court’s role in reconsidering a trial judge’s factual findings where credible evidence supports them.
In a judgment delivered on 12 March 2014, Justice Dunne said the central question was not simply whether the driver reacted alertly when Carlos stepped onto the road. The court considered whether he had been alert as the bus approached the junction, and whether earlier attention to the boys could have allowed him to anticipate the risk and take steps to avoid or reduce the harm.
The Supreme Court noted that the experts agreed the driver could do no more once Carlos ran in front of the bus. The High Court had accepted that the driver braked promptly at that point. But Justice Dunne said the CCTV footage supported the trial judge’s finding that, although the conversation had ended several seconds before the collision, the driver remained distracted by it and did not notice the boys until shortly before Carlos ran into the road.
The court found no basis to overturn the High Court’s findings, which it said were supported by credible evidence. It refused the appeal and affirmed the order below.