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1. The Plaintiff’s claim arises out of an accident which is alleged to have occurred on the 3rd December, 1995 in circumstances where the Plaintiff in the early hours of the morning apparently climbed into the luggage compartment of a bus owned by the second Defendant and driven by the first Defendant. This occurred apparently at 2.55 a.m. in the morning. It is alleged that the door of the luggage compartment at the rear of the bus had no lock and/or was unlocked and capable of being opened by anyone on the outside of the bus including the Plaintiff. Apparently the bus had stopped on the main street in Swords and as it was pulling away from a stationary position the Plaintiff boarded the bus by opening the luggage compartment door and climbing aboard. It is claimed that this practice was commonly adopted by a number of youths including the Plaintiff coming home on the Defendant's late night buses and was well known to each of the Defendants, their servants and agents. It appears that while the bus was travelling on the roadway near a public house on the Swords road known as “The Big Tree” the Plaintiff fell from the luggage compartment of the bus and suffered serious injury.

2. This matter comes before the Court on an application made on behalf of the Defendants pursuant to Order 19 Rule 28 of the Rules of the Superior Courts for an Order striking out the Plaintiff’s pleadings on the grounds that they show no reasonable cause of action. As an alternative to the provisions of Order 19 Rule 28 of the Rules reliance is placed upon the inherent jurisidiction of this Court, on the basis that the Court should stay the proceedings as being frivolous or vexatious. In this regard particular reliance is placed upon the Judgment of Costello J (as he then was) in the case of Barry -v- Buckley [1981] IR 306 where at page 308 of the report Costello J stated inter alia as follows:-

3. Earlier in the judgment Costello J stated in reference to Order 19 Rule 28 and the corresponding English Rule that the Court can only make an order under this rule when a pleading discloses no reasonable cause of action on its face. While the provisions of Order 19 Rule 28 arise in circumstances where the Court does not have regard to any evidence, in the context of an application to the Court to exercise its inherent jurisdiction the Court may have regard to evidence put before it. In this application evidence is put before the Court on behalf of the Defendant by Margaret Callan, Solicitor who refers to a Garda abstract arising from the accident in which the Plaintiff was seriously injured. In a statement of James Long, who is a next door neighbour of the Plaintiff, he states that they were accustomed to going out together every Saturday. On Saturday 2nd December, 1995 he and the Plaintiff went down to the Off Licence in Swords. He refers to a brother and another individual being with him and that he and the Plaintiff in these proceedings bought four bottles of Miller, which is an alcoholic substance. In the statement he says that they drank them in a taxi on the way down to Skerries. They got to a premises known as Shannigans in Skerries at about 9.30 p.m.

4. They continued to drink. He states that the Plaintiff had about another five or six pints of Carlsberg. The statement continues that the witness James Long and the Plaintiff were very drunk. Mr. Long further states:-

5. Later in the statement the witness says:-

6. A further statement in the Garda abstract is that of Brid O’Neill of Portrane Co. Dublin. She appears to have been one of the ladies with whom the previous witness James Long and Keith Weldon spoke on the night in question. In her statement she says that she and her associates arrived in Swords at about 2.35 am. They all sat on the bench and had a chat. At about 2.45 a.m. the main bus from Shannigans arrived. She indicates that James Long the Plaintiff and another ‘chap’ got off the bus. She states:-

7. It appears that the reference to Gikes is a reference to the Plaintiff.

8. A further statement in the abstract is that of Lisa Jackson. She indicates that at about 3 a.m. she saw a Fingal coach green and white in colour. She was in the company of Brid O’Neill as the bus passed her heading in the direction of the Harp Bar. She heard someone shout “You are going to Portrane on that coach.” As it passed by she saw a youth sitting in the rear boot which was open. He was sitting with legs dangling out of the bus. He was waving at everybody. She did not recognise him as it was too dark. She then states:-

9. Another witness Sinéad Brady of Swords confirms what is stated by Brid O’Neill and was in her company on the night in question. She said that as the bus pulled off the boot was open. This was after Keith Weldon and James Long ran across the road to the bus. She saw James Long running after the bus and shouting something. She was apparently told that Keith Weldon, the Plaintiff, was in the boot. She states that the bus went off in the direction of North Street, Swords. The boot was still open. In the concluding part of her statement she said “I have seen people get into the boot of the buses before a couple of times .”

10. Another witness Catherine Hanratty has given a statement in which she states that she and her colleagues arrived at Swords at about 2.30 a.m. She states that they sat on the bench outside the park on Main Street, Swords and had a “natter”. At about 2.50 a.m. as they were sitting there the minibus from Shannigans arrived. Keith Weldon and James Long got off it. She adds that they were standing talking to some ‘fella’ for about five minutes. The second coach arrived from Boss nightclub and pulled up across the road outside Michael Savage’s Supermarket. Then either James Long or the Plaintiff, she is not sure which one, said “See if he will give us a lift up to Glassmore ”. She saw the Plaintiff and James Long walk over to the bus. She then states in her statement:-

11. The first Defendant has made a statement in which he refers to having driven a bus to Swords village on the night in question and let off the last of his passengers there.

12. He states that two youths approached him as the passengers got off and asked him if he was going to Cronins. He says that he told them he was not going there as he was going to Blake’s Cross. He refers to the two youths being young, 17 to 18 years of age, small in height with casual dress. He states that he pulled off and drove down North Street and out onto the Motorway and out to a depot in Blakes Cross. He reversed in the yard and parked the coach, locked it and drove home. He says that he did not go around to the back of the coach. He did not notice anything unusual on the way out from Swords and did not notice the back luggage door was open.

13. The Garda abstract contains a short statement of evidence of Garda McCormack who is a Public Service Vehicle Inspector. He examined the bus in question and in his statement indicates that on examination of the luggage compartment door he found it open. On further examination he found that the door was capable of opening and closing from the outside. There was no means of locking it closed. The identification lamp under the door lock was broken. He states that this appeared to be of a recent nature. He found the vehicle in good mechanical condition.

14. In reply to the affidavit filed on behalf of the Defendants an affidavit has been filed on behalf of the Plaintiff by Liam T. Lysaght Solicitor. At paragraph 11 of his affidavit he indicates that an investigation was carried out on behalf of the Plaintiff in which the second Defendant the proprietor of Fingal coaches was interviewed. He states that in the course of the interview the second named Defendant admitted that he was aware as were his drivers, that youths got into the luggage compartment of his coaches to “hitch” a lift home. Mr. Lysaght says that further evidence indicates that this practice was known to many of the Defendant’s customers who availed of their bus service and indeed to the security staff of the nightclub from which the Defendants collected their passengers. Mr. Lysaght says that from the investigation carried out by the firm on behalf of the Plaintiff it appears that this practice was common and was known to the Defendants. Mr. Lysaght further states that in these circumstances the evidence of the witnesses who have made statements in the course of the investigation on behalf of the Plaintiff will show that, contrary to what is stated by the first named Defendant, the door of the luggage compartment of the bus was capable of and had prior to this accident been frequently opened by youngsters, who on a number of occasions had hitched a ride in the luggage compartment of the bus. He believes that the state of the door of the bus was such for a number of months prior to and subsequent to the date of the accident.

15. On behalf of the Plaintiff the essential case made by Mr. Lysaght in his affidavit is that this is a matter that should be left to the Trial Court.

16. Reliance is placed by the Plaintiff upon the provisions of the Occupiers’ Liability Act 1995. In the Act ‘premises’ is defined to include vessels, vehicles, trains, aircraft and other means of transport.

17. The term ‘occupier’ is defined to mean a person exercising such control over the state of the premises that it is reasonable to impose upon that person a duty towards an entrant in respect of a particular danger thereon and, where there is more than one occupier of the same premises, the extent of the duty of each occupier towards an entrant depends on the degree of control each of them has over the state of the premises and a particular danger thereon and whether, as respects each of them, the entrant concerned is a visitor, recreational user or trespasser.

18. The Act defines recreational user, trespasser and visitor. A trespasser is defined to mean an entrant other than a recreational user or visitor. Recreational user is defined to mean:-

19. The term visitor is defined to mean:-

20. It appears from the pleadings that the Plaintiff was at all material times a trespasser on the bus in question.

21. With regard to sub paragraphs (b) and (c) of sub section (2), the Plaintiff’s case is, in the context of the allegations in the statement of claim and the evidence that the practice of climbing onto the buses and in particular the rear compartments thereof was known to the Defendants, these paragraphs apply. It is submitted that in this regard the Court has material which would entitle the hold for the Plaintiff, if asked to decide the issue whether the Defendant had acted with reckless disregard towards the Plaintiff, even if he falls to be considered to be a trespasser. With regard to the facts of this case it must be noted that while the Plaintiff is described as “a person of unsound mind not so found” this condition relates to the injuries sustained by him in the accident the subject matter of these proceedings and it is agreed that at the date of the accident complained of he was a person of full age and was not then a person of unsound mind:-

22. Counsel on behalf of the Defendants has referred this Court to the decision of the Supreme Court in the case of Brennan -v- Savage Smyth [1982] ILRM 223 . In this particular case the Defendant’s driver proceeded through a car park having seen two children in the vicinity. He intended to reverse his large van and turn it around when he reached the end of the car park. It was established in evidence that because there was a blind area 8 foot wide at the rear of the van the normal procedure was to have a helper guide and direct the driver when reversing. The seven and a half year old Plaintiff had jumped onto the rear bumper of the van. In evidence the Plaintiff said that the van jerked at which time he jumped off fearing that the driver had discovered his presence. The van then began to reverse and the Plaintiff walked slowly behind it intending to remount the bumper. The Plaintiff was then crushed between the van and a lamp post. On this evidence the jury found the Defendant to be 95% responsible and the Plaintiff 5% responsible and awarded damages. In the Supreme Court O’Higgins CJ held that it could be inferred from the evidence of the jerking of the van that the driver was aware of the fact the infant was behind the van. Therefore the driver had a duty before reversing to make sure that the Plaintiff was not in a position of danger. In this case the Chief Justice referred to a decision of McDonald -v- C.I.E. 105 ILTR 13 where Budd J dealt with a proper charge to a jury where the duty of a driver in relation to children is concerned, in the following terms:-

23. While the statement by Budd J was made in the context of a duty owed to children it is submitted on behalf of the Defendants in these proceedings that in the context of the Plaintiff being an adult at the time that these considerations do not apply and that the only duty was to take reasonable care in all the circumstances. It is pleaded on behalf of the Defendant that the Plaintiff assumed the particular risk with which he was faced when he climbed onto the bus at the time in question and that in this light the Plaintiff has no cause of action against the Defendant. This Court has been referred to the decision of the Supreme Court in the case of McComiskey -v- McDermott [1974] I.R.75 . The Defendant relies upon the provision of Section 34 subsection 1 of the Civil Liability Act of 1961 insofar as it affords a defence to the Defendant where the Plaintiff has agreed to waive his legal rights in respect of the Defendant’s negligence.

24. On behalf of the Plaintiff Mr. Farren has placed particular reliance upon the pleadings and in particular the assertion that the Plaintiff’s activity in climbing onto the bus was a practice which was commonly adopted by a number of youths including the Plaintiff coming home on the Defendant’s late night buses and was well known to each of the Defendants their respective servants and agents. Mr. Farren has referred to the quoted passage from Budd J in the cases McDonald -v- C.I.E . previously referred to herein. Counsel further refers this Court to the decision of the Supreme Court in the case of Sun Fat Chan -v- Osseous Ltd. [1992] 1I.R.425 where at page 428 of the report McCarthy J stated in reference to the jurisdiction of this Court in exercise of it’s inherent jurisdiction in an appropriate case to dismiss an action on the basis that, on the admitted facts it cannot succeed, that if the Statement of Claim admits of an amendment which might so to speak save it and the action founded on it, then the action should not be dismissed. Counsel refers to the further statement at page 428 of the report where McCarthy J stated:-

25. McCarthy J continued as follows:-

26. With regard to the plea of a voluntary assumption a risk it is submitted by Counsel on behalf of the Plaintiff that this does not apply and if anything there is only an issue as to whether the Plaintiff is guilty of contributory negligence. It is submitted that while a child's position may be somewhat different, the parties drinking alcohol in the instant case are in a position somewhat comparable to children and that this drinking of alcohol itself will go to an issue of contributory negligence. It is submitted that the essential issue is whether the Statement of Claim discloses a reasonable cause of action.

27. The essential facts which have to be addressed by this Court in the context of the application before it are those set out in paragraph 3 of the Statement of Claim where it is stated as follows in reference to the bus:-

28. While a dispute may exist as to whether the action of the Plaintiff on the night in question was one which was commonly adopted by a number of youths including the Plaintiff coming home on the Defendant’s late night buses and was well known to each of the Defendants their respective servants and agents, this Court must address the issue as to whether the Plaintiff has disclosed a reasonable cause of action in light of this assertion. There is no allegation in relation to the driving of the bus on the night in question. The essential complaint against the Defendants relates to the absence of a proper lock to lock the door of the luggage compartment at the time. It is clear that if a lock existed on the door in question that it would not have been possible for the Plaintiff to open the door of the luggage compartment and enter that compartment in the manner described.

29. The Plaintiff was at the time of the accident described an adult and therefore those considerations as apply at law to allurements in respect of children have no application to the facts of this case. The action of the Plaintiff as described in the Statement of Claim was one which was inherently dangerous in itself. The obligation of the Defendants was to act reasonably in the circumstances. It is only in the context of paragraph (m) of the particulars of negligence alleged:

30. With regard to the Occupier’s Liability Act of 1995 it remains whether any case of acting with ‘reckless disregard’ for the Plaintiff can be sustained. However, as indicated above, if as alleged the Defendants knowingly permitted persons to use the luggage compartment and drove the bus in circumstances where it was known that the Plaintiff was in the luggage compartment, an issue of negligence remains.

31. I am not satisfied that any plea pursuant to Section 34(1)(b) of the Civil Liability Act, 1961 has any application to the facts of this case - as I am not satisfied that the Plaintiff expressly or impliedly agreed to waive any legal right and, as indicated above, the mere fact that there was no lock on the luggage compartment does not on the pleadings give rise to a claim against the Defendants.