In the Supreme Court case of Tesch (a minor) v Dublin Bus  IESC 20 (Dunne J, 12 March 2014) the Supreme Court dismissed an appeal by Dublin Bus against decision of the High Court (Cross J) on the apportionment of liability in a case where the plaintiff schoolboy suffered severe injuries as a result of a road traffic accident, finding that the trial judge had before him ample evidence to support his conclusions on the degree of liability between the parties and correctly applied the legal principles involved in reaching such a determination.
The plaintiff schoolboy Carlos Tesch, suing by his father Hans Peter Tesch, suffered severe brain injury as a result of collision with bus driven by second-named defendant/appellant. Very sadly, he is now entirely dependent on his family for support in every aspect of his day to day life. Liability, as a preliminary issue had been determined by High Court to be 70% on the part of the defendants, Dublin Bus. There was eye-witness, expert, and CCTV evidence presented to suggest that the driver was distracted by a conversation he was having with a passenger moments before incident. There was an issue as to whether the driver was sufficiently distracted by this conversation, so as not to see the plaintiff in time
The Court`s Decision
The Court noted that the evidence accepted by Mr Justice Cross in the High Court was that the bus driver was a very careful and safe driver. Unfortunately, on this occasion, he was distracted by a conversation with a passenger in the seconds leading up to this tragic accident. At the moment of the emergency, he reacted with commendable alertness but, sadly, he was not alert to the potential hazard unfolding as he approached the boys on the pavement and thus, was not able to anticipate or take any appropriate steps to minimise the consequences of the potential hazard.
The trial Judge had carefully set out the law governing the liability of drivers when there are children present at or near the roadway. He referred to the decision of this Court in McDonald v. Córas Iompair Éireann  105 ILTR 13 in which Budd J. stated:
“The jury should be told that the presence or expected presence of children on or near the travelling surface of the highway casts a heavy responsibility on the driver of a vehicle approaching such children. He must alert himself to their presence and be mindful that they may act in the heedless fashion that children do. He must place himself in such a position to be in readiness to take all such precautions as he reasonably can to avoid causing injury to anyone of them who acts in a heedless fashion. This will involve, inter alia, such matters as keeping a careful watch on the children possibly giving warning of his presence, keeping a reasonable distance from them, and having his vehicle under such control and travelling at such speed and otherwise acting in such a fashion as will enable him to take all such steps as are reasonably possible to avoid their heedless movements and actions. The details of what is said must of course vary with the circumstances of the case. The time, place, presence of other traffic and other relevant matters must influence what is said. It is also necessary to avoid conveying the impression to the jury that it is the duty of the driver in the presence of young children to ensure their safety in all circumstances. What is required is that he should take all such steps as can reasonably be expected of him as a prudent man, bearing in mind the heavy responsibility resting on him in the presence of young children . . .”
It is not enough that a driver generally exercises care when driving in the presence of children. Even if the children are acting boisterously, as on this occasion, there is a huge duty on drivers to exercise extreme caution. This will often extend to beeping his horn, in order to alert children to the driver`s presence. There can be no doubt that Mr Justice Cross was influenced by the very severe injuries suffered by the young boy, but this would not necessarily have changed his view, or that of the Supreme Court, that the driver of the bus was responsible to the extent of 70% for the circumstances giving rise to this very tragic accident.