A High Court judge has refused to award damages to a woman who sued after a Dublin Bus in which she was a passenger was hit by a rented car driven by a tourist while pulled in on Dame Street.
The ruling by Mr Justice Paul Butler is regarded as significant for insurers running "minimal-impact" defences to such claims.
The Eurocar rental car company, through its insurer AIG, admitted negligence over the incident on June 18th 2013 but argued Jennifer Ashe was not hurt and was not entitled to any damages.
She insisted she suffered back and other injuries which persist.
Her case was against Executive Trust Ltd, trading as Eurocar, with registered offices at Santry, Dublin, and Dublin Bus but the latter was indemnified by AIG.
In his ruling after a two day hearing, Mr Justice Butler said he had no doubt Ms Ashe (33), a mother of three, of Lansdowne Gate Apartments, Dublin 12, is suffering an injury and suffering to "quite an extraordinary degree" but the question in the case was what caused that.
On the balance of probabilities and the evidence, he did not accept her injury was due to the incident because of engineering and other evidence indicating the bus, weighing a minimum 20 tonnes, did not move forward as a result of the impact with the car, weighing a maximum 1.7 tonnes.
On the engineering evidence, the bus suffered a “glancing blow” and “absolutely no movement” could occur at impact speed and on that basis, he was dismissing the claim.
Cost of repairing bus
On the application of Fergus O’Hagan SC, instructed by Catherine Molloy, Pembroke Solicitors, for the defence, he also awarded costs against Ms Ashe.
During the hearing, the judge was told the cost of repairing the right rear corner of the bus was €509 and the cost of repairing the Hyundai was around the same or more because the suspension and steering were damaged.
He also heard the car driver and his four year old son came onto the bus immediately after the impact, described himself as a “dumb American”, apologised and asked was everyone ok. The bus driver said they were and both men exchanged insurance details.
The car driver estimated he was driving at 10km an hour at the time.
There was no CCTV footage of the incident.
In his ruling, the judge said Ms Ashe had called no engineering evidence, the defence had and photos showed the damage to the bus was to its rear outside corner while that to the car was to the side panel at the near side front wheel. The car lights were undamaged so it appeared there was a “glancing blow” as the defence engineer believed.
The real question was whether that blow caused the bus to move forward, Ms Ashe and her partner said it did but their account was completely different concerning the impact and the number of people on the bus, he said.
They both insisted the only people downstairs on the bus were themselves, their baby daughter and Ms Ashe’s sister while the bus driver said the bus was stopped letting people off and on and there were up to 40 people in it.
Nobody else noticed any movement or collision and the driver insisted he was stopped with the handbrake engaged, he said.
Persistent back pain
He had to decide the matter on the balance of probabilities on the evidence and was compelled to find there wasn’t the movement described, he held.
He believed Ms Ashe - sitting in the back seat with her sister, and her partner, in the middle section with their daughter in a pram - were made aware of the collision by the bus driver and from the car driver coming onto the bus and apologising.
The court had heard the only claimant arising out of the incident was Ms Ashe.
She, and a GP who took over her care in late 2013, gave evidence of her experiencing persistent back pain which was treated with physiotherapy, anti-inflammatories and pain killers.
Ms Ashe said she had no back or neck pain before the bus incident.
The court heard her GP had not referred her for a MRI scan but in 2016, a consultant orthopaedic surgeon to whom she was referred by her solicitor, arranged for a MRI scan which showed areas of long-standing degeneration in her thoracic spine and a minor disc bulge in her lower back.