Sunday 21 January 2018

Bus Eireann loses its claim that is not liable over assault on cyclist

BUS Eireann has lost its claim that it should not be held liable for an assault committed on a cyclist by one of its drivers.

Last January at Dublin Circuit Civil Court, Scott Alexander Burns (38) of The Orchard, Greenwood, Ayrfield, Dublin, was awarded €15,000 damages by Judge Jacqueline Linnane for assault. The award was against Bus Eireann.

Mr Burns, an occupational therapist in Our Lady's Children's Hospital, Crumlin, Dublin, had brought the action arising out of the assault in which Bus Eireann driver William Murray bent his right thumb so far back that it tore the ligaments and muscles.

Bus Eireann, which denied Mr Burns's claims that it was any way responsible, then appealed that decision to the High Court. Its solicitors argued the company should not be held vicariously liable for the actions of the driver.

In his ruling, the President of the High Court Mr Justice Nicholas Kearns dismissed Bus Eireann's appeal.

The Judge said the driver had "just about" been acting during the course of his employment when the assault occurred. While his actions were not sanctioned by his company, Bus Eireann were vicariously liable, he said.

What Mr Murray did to Mr Burns "was not completely unconnected from his employment," the Judge added.

In its appeal, Bus Eireann argued it was not liable for an action by an employee on a public footpath which was not associated with his duties as a driver.

The assault committed on Mr Burns was entirely outside the scope of Mr Murray's employment with Bus Eireann, it was further claimed. There was no basis in law or in fact for holding that the wrongful assault was closely connected to Mr Murray's employment as a driver with Bus Eireann

In opposing the appeal, Ross Maguire SC for Mr Burns, said the Circuit Court finding that Bus Eireann bore some responsibility for the drivers actions should not be disturbed.

In his action, Mr Burns said on August 28, 2009, had ridden up on the footpath at Bachelor's Walk, Dublin, to pass a coach parked on the street outside the Arlington Hotel.

Mr Burns said the driver, William Murray, of Tamarisk Lawn, Kilnamanagh, Tallaght, Co Dublin, was removing luggage from the coach and a number of people were standing around waiting for their bags.

He said Murray had started shouting at him. Following an exchange of words Murray had shoved his chest up against his. Mr Burns had gone around to the front of the coach and had pictured the registration on his phone before taking a photograph of Murray.

Mr Burns said the driver knocked my phone out of his hand and when he went to pick it up, he grabbed his wrist and pinned his right thumb back all the way. Mr Burns, who did not fight back said he heard a snapping from his hand. He was taken to hospital and required treatment for his injuries.

He sued both the driver and the bus company who he claimed was vigorously liable for Mr Murray's actions, for negligence and breach of duty.

When the matter was before the Circuit Court earlier this year Mr Burns only proceeded with his claim against Bus Eireann.

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