O'Brien -v-Bus Eireann (Approved)

Factual and Procedural Background

The Plaintiff was employed by the Defendant as a bus driver and brought a claim for damages arising from an assault by an unidentified assailant during his employment on the evening of 6 April 2018. The assault occurred when the assailant boarded the bus near the terminus in Mayfield, stabbed the Plaintiff with a syringe, and stole a bag of money from the Plaintiff's driver's cab. The assault was facilitated by the safety screen between the passenger and driver’s cab being in the upright position, which was the Plaintiff’s consistent practice during his shifts due to communication difficulties when the screen was down.

The Plaintiff had been trained on the use of the screen and informed it was for his safety but was never instructed or supervised to keep the screen down and locked. The Defendant claimed a policy existed requiring the screen to be closed but provided no evidence it was communicated or enforced. The Defendant was aware of the risk of assault to drivers, having recorded multiple incidents of threats or assaults and thefts prior to the incident, and was aware of relevant Supreme Court authority emphasizing the importance of protective measures.

The Plaintiff alleged negligence and statutory breaches by the Defendant for failing to provide a safe system of work, adequately assess risks, and ensure effective protective measures under the Safety, Health and Welfare at Work Act 2005. The Defendant denied liability, asserting it had taken reasonably practicable steps by providing the screen and advising the Plaintiff of its safety purpose.

Legal Issues Presented

1. Whether the Defendant owed and breached a duty of care and statutory duties to the Plaintiff by failing to ensure a safe place and system of work, including proper risk assessment and supervision regarding the use of the safety screen.
2. Whether the Defendant’s provision of the safety screen and advice to the Plaintiff constituted reasonably practicable measures under the Safety, Health and Welfare at Work Act 2005.
3. Whether the Plaintiff contributed to his injury by failing to keep the screen down and locked, and if so, to what extent.
4. The appropriate quantum of damages for the Plaintiff’s psychological injuries resulting from the assault.

Arguments of the Parties

Plaintiff's Arguments

• The Defendant failed to provide a safe workplace and system of work by not adequately assessing the risk of assault or enforcing the use of the safety screen.
• The Defendant breached statutory duties under the Safety, Health and Welfare at Work Act 2005, particularly sections 8(2)(b), (c), (e), (h), and (j), by failing to implement necessary safety measures, supervision, and emergency procedures.
• The Plaintiff was never advised or supervised to keep the screen down, and the Defendant condoned the consistent practice of keeping it up, thereby failing in its duty.
• The Plaintiff relied on Supreme Court authority in Corkery v Bus Eireann to argue that the Defendant should have taken stronger protective measures, including eliminating cash access and ensuring the screen was kept down.
• The Plaintiff sought damages for psychological injuries including post-traumatic stress disorder, anxiety, and distress related to the assault and risk of infectious disease.

Defendant's Arguments

• The Defendant contended it had taken reasonably practicable steps by providing the safety screen and advising the Plaintiff it was for his protection.
• The Defendant asserted the Plaintiff chose not to use the screen as intended, and that the Defendant was not an insurer of employee safety but only required to do what was reasonably practicable.
• The Defendant argued that supervision focused primarily on revenue matters and no evidence showed failure to communicate or enforce policy regarding the screen.
• The Defendant denied liability for failure to address the risk of assault beyond providing the screen and instruction on its use.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court found the assault on the Plaintiff was a reasonably foreseeable risk given the Defendant’s prior knowledge of assaults and threats against drivers and relevant case law. The Defendant provided a safety screen intended to prevent such assaults, but failed to ensure it was used properly by not instructing, supervising, or enforcing its use in the down and locked position.

The Plaintiff consistently kept the screen up due to communication difficulties and lack of instruction. The Defendant knew or ought to have known of this practice but did nothing to change it or implement proper safety measures such as risk assessments, safety statements, or emergency procedures as required by the Safety, Health and Welfare at Work Act 2005.

The Court emphasized that an employer’s duty includes providing information, instruction, training, and supervision necessary to ensure safety, and that simply providing equipment is insufficient. The Defendant’s approach of leaving risk assessment to the Plaintiff without supervision was inadequate.

The Court acknowledged the Plaintiff’s contributory negligence of 15% for not lowering the screen, but found this contribution modest given the Defendant’s failure to communicate and supervise the policy.

Regarding damages, the Court considered medical evidence of the Plaintiff’s psychological injuries including post-traumatic stress disorder, anxiety, and distress from the risk of infectious diseases. The Court referenced precedents for psychological injury awards and concluded the Plaintiff’s injuries warranted significant damages.

Holding and Implications

The Court found in favour of the Plaintiff and held the Defendant liable for the assault due to breach of common law and statutory duties to provide a safe workplace and system of work. The Plaintiff’s contributory negligence was assessed at 15%, reducing the damages accordingly.

The Court awarded the Plaintiff €75,000 in general damages plus special damages, discounted by 15%. The Court indicated costs would follow the event unless otherwise submitted.

The decision reinforces the principle that employers must do more than provide safety equipment; they must also communicate, implement, and supervise safety policies to effectively manage foreseeable risks. This case does not establish new precedent but applies existing legal standards to the facts, emphasizing employer responsibility under the Safety, Health and Welfare at Work Act 2005.