High Court reporters
A cyclist who was knocked off his bike in a cycle lane by a bus has been awarded more than €124,000 by the High Court.
Gearoid O'Daly (38), a bank lending officer of Heuston South Quarter, Dublin, sued Bus Éireann and driver Declan Sheridan over the incident at Custom House Quay, Dublin, on June 8th, 2016.
Bus Éireann denied liability and claimed contributory negligence in that it argued Mr O'Daly failed to look at where he was going.
Mr Justice Michael Hanna said he believed Mr O'Daly's account of the accident and that the bus driver had had a "momentary lapse" which caused the accident.
The driver, Mr Sheridan, who has since retired, told the court the first he knew about it was when Mr O'Daly approached him in the bus after he caught up with the bus at its last stop.
He said he was shocked when Mr O'Daly approached him and told him about it.
He did not report it to the company until two weeks later when the gardai contacted him about it.
The court was told that on-board 360 degree digital CCTV footage on the bus that day had regrettably been overwritten.
Mr Justice Hanna said he believed Mr O'Daly's evidence that he banged on the bus a couple of times when the bus came into the cycle lane.
The judge was not surprised that none of the estimated 12 passengers on the bus that day did not notice anything.
"On this occasion, Homer nodded, and no doubt Mr Sheridan is a very good bus driver but if a cyclist is able to touch a bus passing them by, that is too close."
Mr O'Daly was in a "demarcated cycle lane and is entitled to the safety that offers," he said.
The court heard evidence from a number of medical experts on both sides who disagreed over Mr O'Daly's claim that he continued to suffer ongoing chronic pain as a result of the accident which had curtailed what had previously been an active life.
The judge said the medical experts "could not be more sharply divided" but he said the evidence of Mr O'Daly's pain specialist, Dr Hari Gopal, "must prevail" over that tendered by the defendants' experts.
Dr Gopal, as his treating doctor and from a multi-disciplinary viewpoint, accepted he had to take Mr O'Daly as he found him and could offer no psychological insight into his condition, he said.
While there was merit on both sides of the medical argument, the judge said he must "inject my very clear impression" that he accepted Mr O'Daly's evidence.
He had observed the "meticulous almost unprecedented level" at which Mr O'Daly gathered together his claim for special damages.
He had assiduously attended 147 physiotherapy sessions which was beyond anything that is usual.
"It strikes me he as someone who let this accident come down on him like a tonne of bricks and I would not be surprised to have a psychological report to say he has become manic for what was indeed a very frightening accident but with symptoms way out of proportion for what happened."
Mr O’Daly, he said, believes he is suffering widespread body pain and the judge did not believe he was making it up.
On the balance of probabilities, they were caused by the accident, and he must therefore succeed.
He awarded him €100,000 in general damages, plus €24,795 in special damages.
The judge cut his claim, under special damages, to two thirds for the costs of physio, acupuncture, chiropractor, massage, pilates and yoga sessions.
The court heard that among his special damage claims were the costs of Speedo swimming togs for his swimming classes as part of rehabilitation measures, €285 for shoe insoles a doctor advised him to get, spa treatment and massages in Ireland and in Manila in the Philippines while he was there on holiday.
He also claimed for having had to upgrade his healthcare cover to meet some of his rehabilitation expenses.
He also claimed for buying books including "The Shift: Taking Your Life from Ambition to Meaning" and "There is a Spiritual Solution to Every Problem".
The judge put a stay on his order in the event of an appeal provided 50 per cent of the award was paid.