The driver brought personal injuries proceedings against Bus Éireann claiming that the bus company failed to provide him with a safe place of work, despite the fact that Bus Éireann had provided a protective screen to the plaintiff.
Delivering judgment in the case, Ms Justice Marguerite Bolger held that there was a reasonably foreseeable risk of assault which Bus Éireann had identified and the company owed a duty of care to its employees.
Further, while the plaintiff contributed to his injury for not properly using the protective screen, Bus Éireann bore responsibility for failing to ensure that its employees were using the screen properly.
Background
In April 2018, the plaintiff was driving a public bus. At a certain point in the route, the plaintiff stopped at a bus stop to let a passenger on. The passenger assaulted the plaintiff with a syringe and grabbed a bag of money from the driver’s cab. The assailant then fled from the scene and was not identified. The incident was captured on the buses’ CCTV system.
The plaintiff had been provided with a screen to prevent passengers from accessing the driver’s cab and to protect the driver from assaults. However, at the time of the accident, the plaintiff had the screen in the upright position which meant that it was not providing protection.
The undisputed evidence was that the plaintiff always drove with the screen up because it was very difficult to hear passengers when the screen was down. The plaintiff had been shown in training how to use the screen and was told that it was there for his safety.
However, the defendant did not challenge the plaintiff’s evidence that he was never advised (during his training or employment) to put the screen up at certain times of the day or in certain locations. Further, the plaintiff outlined that he was never supervised or reprimanded about the screen being constantly up.
Bus Éireann stated that it was company policy for the screen to be closed. Between 2014 to April 2018, there were eight incidents involving threats of assault or actual assault on Bus Éireann drivers, with fourteen other incidents involving violent or disorderly behaviour.
The plaintiff claimed that the defendant failed to provide a safe place and system of work, failure to carry out an adequate risk assessment and was in breach of the Safety, Health and Welfare at Work Act 2005. Specifically, the plaintiff relied on section 8(2) of the 2005 Act which included a duty on an employer to manage work activities to prevent conduct which put employee safety at risk and a duty to provide a safe place of work.
The duties were limited to what was “reasonably practicable,” which was defined as an employer exercising “all due care by putting in place necessary protective and preventative measures…”
High Court
On the issue of liability, Ms Justice Bolger held that there was a reasonably foreseeable risk of assault on Bus Éireann employees. While the plaintiff had been supplied with a screen that would have prevented the assault if it had been kept down, at no time was the plaintiff ever advised to keep it down. The defendant knew or ought to have known that the screen was always up during the plaintiff’s shifts, the court held.
The court accepted that the duty of care to employees was not unlimited and the standard of care was to do whatever was reasonably practicable (Martin v. Dunnes Stores [2015] IECA 85). However, the court said it was “not sufficient for an employer to put a system in place to address an identified risk and then sit back and leave it to the employee to determine when and how that system should be actioned and do nothing to challenge its employees constantly ignoring it”.
The court held that the mere provision of the protective screen was not enough to avoid liability in the case. The court noted that section 8(2)(g) of the 2005 Act required an employer to provide “information, instruction, training and supervision necessary to ensure, so far as is reasonably practicable, the safety, health, and welfare at work of his or her employees”.
In this case, Bus Éireann required its employees to take full responsibility for assessing the risk of assault with regard to the steps envisaged by the 2005 Act, the court said. The court also noted the plaintiff’s reliance on Corkery v Bus Eireann (unreported, Supreme Court, 6 May 2003), where a bus driver have been assaulted in a similar manner to the present case. The Supreme Court determined that the fitting of a screen and the elimination of cash in a driver’s possession were standard precautions in the industry.
Despite the ruling in Corkery, Bus Éireann had taken no steps to ensure that the driver did not have access to cash. In fact, the defendant was always aware that the plaintiff had cash and was on notice of an attempted theft from a few weeks prior to the accident.
The court held that the defendant had failed in its duty to the plaintiff. However, the court also noted that the plaintiff had a duty to take reasonable care for his own safety and that, if he had kept the screen down, the accident would not have occurred. The court assessed the plaintiff’s contribution to the accident as modest in light of the failures in training and supervision by the defendant.
The court held the plaintiff’s contribution to be 15 per cent. In assessing the plaintiff’s injuries, the court noted that he was treated with medication for hepatitis and HIV. He experienced anxiety and panic attacks. He was placed on antidepressant medication but was advised to come off it to drive.
In 2020, a consultant psychiatrist found features of PTSD with an anxiety component. His relationship with his wife was negatively affected by his worry about developing HIV or hepatitis. The plaintiff was unable to work for a year following the accident.
The court assessed general damages at €70,000 for past pain and suffering and €5,000 for pain and suffering into the future. In so ruling, the court noted that psychological damage was not covered by the Book of Quantum.
Conclusion
The €75,000 award was discounted by 15 per cent to account for the plaintiff’s contributory negligence. The total award was therefore €63,750.
O’Brien v. Bus Éireann [2023] IEHC 31
