High Court: Bus Éireann refused application to dismiss claim for 2004 accident

About this case:

• Judgment:
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Finding that delay on behalf of the plaintiff was both inordinate and inexcusable, Mr Justice Seamus Noonan said that the delay caused only modest prejudice to the defendants, whereas the plaintiff would suffer substantial prejudice if she lost her cause of action in circumstances where she was personally blameless for the delay due to the nature of her injuries.

Background

In October 2004, Shu Zhang was struck by a Bus Éireann bus which was being driven by Mr Brendan Whyte. As a result of the accident, Ms Zhang suffered a catastrophic acquired brain injury which rendered her seriously disabled and incapable of giving instructions to her solicitors.

Ms Zhang, suing through her Aunt and next friend, Zhao Wei, was permitted to institute proceedings by the Personal Injuries Assessment Board in 2006, and the defendants were given notice of the claim.

High Court

Since 2006 the proceedings were subject to a series of lengthy delays, and the defendant’s brought the present motion to the High Court to dismiss Ms Zhang’s claim for want of prosecution.

Indeed, between July 2012 and March 2015 there was nothing exchanged between the parties until a notice of intention to proceed was served on behalf of Ms Zhang, at which point the defendants complained about the lengthy delays being inordinate an inexcusable.

Hereafter, correspondence was exchanged between the parties however the matter did not proceed to trial – according to Ms Zhang’s solicitor this was due to the fact that he was “awaiting an expert report from a consulting engineer in the United Kingdom in relation to the tachograph in the bus involved in the accident”.

Inability to locate witness

The claims manager from the CIE Group Investigation Department dealing with the litigation attempted to locate one of the witnesses who gave his address in Galway, but was unable to do so. Justice Noonan said that evidence before the Court indicated that this was the first attempt to make contact with this particular witness in the twelve and a half years since the accident, and opined that there was no evidence to suggest that the position would have been any different if the “same enquiries were conducted six months or a year after the accident”.

Indeed, there was “certainly no evidence to indicate that the lapse of time in this case caused or contributed to the defendants’ apparent inability to trace” the witness. Justice Noonan added that the man’s occupation as a “chef and a musician” would make him likely to be a person who would wish to have a readily accessible social media profile – in the circumstances, Justice Noonan was critical of the lack of evidence which would show these avenues had been explored by the defendants.

Justice Noonan said that the defendant’s evidence in relation to the availability of the witness fell “far short of establishing as a matter of probability that he will not in fat be available to the defendants for the trial, or if he is not, that that has anything to do with any putative delays on the part of the plaintiff”.

Inordinate and inexcusable delay

Justice Noonan said that the onus was on the defendants to establish that the delay on the part of the plaintiff had been both inordinate and inexcusable, and that if this was established that the balance of justice required that the case be dismissed.

Counsel for Ms Zhang conceded that the delays were inordinate, but disputed that the delay was inexcusable, citing the difficulty in taking instructions from Ms Zhang and her family who do not speak English, and the difficulty in obtaining expert evidence in support of the claim.

Justice Noonan said that none of the matters raised on behalf of Ms Zhang could excuse a delay of almost 13 years, and held that the delay was both inordinate and inexcusable.

Balance of Justice

Justice Noonan accepted that the lapse of time must be assumed to be prejudicial to the defendants, but said that this had to be weighed against the “undoubted prejudice to the plaintiff if she loses her cause of action which in terms of damages is potentially very substantial indeed”.

Considering the conduct of the defendants, Justice Noonan noted that, up until March 2017, they were willing to proceed to trial irrespective of the fact that they had made no attempt to contact the witness in Galway. Justice Noonan also noted that this was not the only eye witness, and the evidence to be relied upon by the defendants was largely contained in contemporaneous statements.

In circumstances where Ms Zhang had no memory of the event, Justice Noonan said there was no real dispute about what happened, and it appeared that the evidence surrounding the circumstances of the accident were “largely uncontroversial”. As such, Justice Noonan said that the non-availability of one witness was only a “modest prejudice to the defendants”.

In considering the balance of justice, Justice Noonan also had regard to the fact that, due to the nature of Ms Zhang’s injuries, she was “personally blameless in relation to any issues of delay”, and also that if the claim was successful it would be very significant.

Considering all of the above, Justice Noonan said that the justice of the case required that Ms Zhang should be permitted to proceed.

Dismissing the defendants’ application, Justice Noonan said that in order to ensure no further delay that the matter should proceed to an expeditious trial of the preliminary liability issue.