High Court 

Donohue v Bus Eireann/Irish Bus

1999/5046 P  

30 July 1999 

MACKEN J: 

This is an application for interlocutory relief arising from a dispute between the Plaintiff and the Defendant which occurs against an unusual background. This note is a short note of my decision on the motion issued by the Plaintiff on 25 May, 1999. In that motion the reliefs sought at C and D appear to me to be only reliefs which the Plaintiffs could expect to secure at this time, and my judgment is directed accordingly. The declaratory reliefs sought would not be appropriate at this time. 

THE BACKGROUND FACTS 

The Plaintiff is a bus driver. The Defendant is a company established by statute and provides various transport services, including a school transport service administered and operated by the Defendant on behalf of the Department of Education. The Plaintiffs father was for many years the operator of a transport service in or around Athlumney Navan County Meath. This service was subsequently operated by his son, the Plaintiffs brother, and part of that service was provided to the Defendant in effect, to enable the Defendant meet its arrangement with the Department of Education. I was not provided with any details of the exact arrangement between the Defendant and the Department, but the Defendant's Mr Gannon averred in his Affidavit to the fact that the Defendant in effect sub contracts part of the service to independent contractors, on an annual basis. Another uncontested fact averred to by the Plaintiff is that for upwards of 25 years, and until 1998 at least, all tenders for the operation of the school bus service the subject matter of these proceedings, had been automatically awarded, firstly to the Plaintiffs father and subsequently to her brother. 

The Plaintiff was, at all material times, a bus driver employed by her brother on the school bus service mentioned. 

At some time (the precise date did not become known until after Affidavits were sworn on behalf of the Defendant) it was said that the Plaintiff, while operating a bus taking children to a special school in County Meath, had struck two children. Such complaint was apparently made, initially, to the school, and the school made a complaint in turn to the Defendant. 

The Defendant then instituted some type of enquiry, as a result of which the Defendant obliged the Plaintiffs brother to cease utilising the services of the Plaintiff as a bus driver, or to have her taken off what was called a "Register" of approved drivers. The relevant approximate dates are 

(a) a date from which the Plaintiff was no longer permitted to drive a bus for her brother, which was August 1998, and 

(b) a date from which the Defendant indicated it had completed an investigation and prohibited the Plaintiff from being considered "as a nominated school bus driver under the School Transport Scheme" which was January 1999. 

The Plaintiff said in her evidence on Affidavit that this register was one which the Defendant maintained, and by which they claimed a veto on all bus drivers employed on school runs. The Defendant did not, on its Affidavits, say what the register consisted of, nor its status as between the Plaintiff and the Defendant or the Plaintiffs brother and the Defendant, but in the course of submissions on an adjourned day, it was stated by Counsel for the Defendant that the register was, in fact, one maintained by the operator of the school bus service, namely the Plaintiffs brother. 

It would be as well to set out here the text of the letter from the Defendant to the Plaintiffs brother, dated 22 January, 1999, which reads as follows: 

"I refer to previous communications regarding complaints received in relation to alleged incidents purported to have occurred on one of the school transport services which you operate on behalf of Bus Eireann. 

This matter was the subject of investigation which has now been completed. I regret to inform you that the driver involved Ms Rosario Donohue, may no longer be considered as a nominated school bus driver under the School Transport Scheme. 

It would be necessary to make alternative arrangements accordingly." 

I read that letter as indicating four things, namely 

(a) that a complaint had been received about the Plaintiff, 

(b) that an investigation had been carried out and was completed 

(c) that the Defendant was notifying the operator of the service that the Plaintiff was barred from driving a school bus and; 

(d) requiring the operator to make other arrangements for the provision of a driver. 

It seems to me implicit from the letter that the Defendant considered it was entitled to dictate whether any particular school bus driver continued to operate as such. A formal notification of the decision that the Plaintiff was no longer considered to be a nominated school bus driver was sent to the Plaintiffs Solicitors on February 1999. 

The Defendant, through Mr Gannon, averred to the sequence of events (not all of which were known to the Plaintiff prior to the commencement of proceedings). In essence he said as follows:- 

(a) In October 1997 a claim was made by St Mary's Special School that the Plaintiff had been seen striking children on two separate occasions; 

(b) The Bus Inspector was so informed by the school principal, and told the principal that this was a serious issue, that she should obtain statements in writing from the individuals in question and send a written complaint to the Defendant 

(c) The Inspector was informed subsequently that the parents of the child did not wish to proceed with any complaint 

(d) The Inspector was informed by the principal in April 1998 that the school was making a formal complaint against the Plaintiff (based I understand on the same allegation and a new allegation), and a letter was received by the Defendant on the 28 April 1998. 

(e) The Defendant agreed that it would investigate the allegation, but apparently not until the end of the school year in 1998. It is unclear as to why it was decided that the investigation would not take place until the end of the school year. 

(f) On 14 July, 1998 the Defendant contacted the school bus operator, requesting a meeting to discuss the complaint, and apparently the terms of the complaint, but not the identity of the children, were disclosed to the bus operator. It is said by the Defendant that it came to the view that the operator was not prepared to take any initiative himself in relation to the matter. 

(g) Two days later the Plaintiff allegedly telephoned the Defendant and enquired about the matter, and denied that she had struck any pupil (a matter which she has vigorously continued to deny since). 

(h) On 4 August, 1998 the Plaintiff wrote to the Defendant denying the allegation in writing. It is suggested by the Defendant that the letter made it clear that the Plaintiff knew of the complaint. 

(i) On 13 August, 1998 a meeting took place with the operator and the Defendant and the Inspector at which the Complaint was considered. The Plaintiff was neither present nor involved in the same; 

(j) On 20 August the operator requested that the Defendant agree to meet with the Plaintiff in a short meeting where, again, some discussion took place, and in particular the Defendant indicated it was obliged to investigate all complaints received in writing. 

(k) On 14 October 1998 a further meeting took place between the Defendant and the school. Again the Plaintiff had no involvement in this meeting. This appears to have been the first occasion on which written statements of the persons making the accusations against the Plaintiff were received and/or considered. 

(l) The Defendant says that on receipt of those statements and having considered them it concluded that the Plaintiff should not act "as in nominated school bus driver" under the School Transport Scheme. 

(m) There is also correspondence from the Plaintiffs Solicitors either to the Defendant or to the school the general tenor of which is to reject any contention of wrongdoing and requesting them to ignore the allegations made. 

(n) On 22 January, 1999 the operator was informed of the Defendants conclusion of its investigation. 

(o) On 3 February, 1999 the Plaintiffs Solicitor was informed of the decision of the Defendant. 

(p) The Defendant wrote to the principal of the school indicating that the Plaintiff was no longer "a nominated school bus driver". 

As a result of the foregoing, the Plaintiff was, from the beginning of 1999 no longer a nominated school bus driver and cannot at this time act as such. The Plaintiff argues that this has, in effect, deprived her of the opportunity to earn her usual livelihood, and has caused irreparable damage which should be prevented by injunctive relief at this time. 

There is one further matter which I should refer to before considering the legal position. In the course of the Affidavit evidence, there are Affidavits/Statements, including from the mother of one of the children who was alleged to have been struck by the Plaintiff, and in which it is made clear that she does not consider that this occurred. It would be correct to say that she goes further and states that, having regard to the manner in which her child views the Plaintiff, it is inconceivable to her that the Plaintiff could have been involved in the complaints made. Of course I cannot at this time come to any view on this material, but it may have an impact on the rights of the Plaintiff, and the outcome of this Motion. 

Essentially, having regard to the factual matters set out in brief above, the Plaintiff says she was: 

(a) deprived of any proper details of the allegations made, in that she had no notice of the source of these; 

(b) she was given no opportunity to confront the persons who made the allegations 

(c) she was given no proper opportunity to meet the claim 

(d) she was given no reasons for her removal as a "nominated school bus driver" and she was defamed by the statements made. 

The Plaintiff also says that until after she was, in effect, fired, she had no knowledge of the existence of the statements in writing, nor of their content, in particular because the Defendants were not prepared to say who had made the allegations. As a result of these matters, the Plaintiff says the Defendant has acted wrongfully. 

The Defendant makes a number of primary arguments, which can be summarised as follows:- 

(a) The Defendant says that it has no legal relationship with the Plaintiff 

(b) It says that there is no privity of contract, and that the Plaintiffs contractual relationship is with the operator, and similarly, the legal relationship which exists concerning the Plaintiff is between the Defendant and the operator only. 

(c) The Defendant says that it is nevertheless entitled to object to any given driver in an appropriate case, and that it would be wrong for this Court to seek to create a relationship where none exists. 

(d) The Defendant, however, says it no longer reposes any confidence in the Plaintiff in circumstances where the requirements of special children have to be met. 

(e) The Defendant claims there was no onus on it to take any steps in the matter, that it had acted in good faith and had to object to the Plaintiff, and that it was a matter for the Plaintiffs employer to conduct a formal disciplinary hearing in that capacity. 

(f) The Defendant claims that it is entitled, so far as any claim for defamation is concerned, to plead qualified privilege by virtue of the circumstances in which the matters arose. 

(g) Finally, the Defendant claims that the Plaintiff has delayed in bringing her claim, having regard to the fact that the issue arose in August 1998 and that, in the circumstances, she should not be entitled now to have interlocutory relief. 

It is abundantly clear that there are several matters on which there will be dispute and debate at the full hearing of this action, and it is equally clear that I cannot resolve any of these on way or the other at this time. 

I deal first with the question of delay. In that regard I take the view that there has been no undue delay on the part of the Plaintiff in commencing these proceedings in that she first discovered the fact that she had been taken off the so-called register only at the beginning of February 1999 and commenced her action on 14 May after correspondence from her Solicitors requesting that the Defendant's Solicitors accept service of proceedings. 

Prior to that time, the Plaintiff had always been prepared to accept that an investigation might take place, and after she was, in effect, suspended in August 1998, she was not obliged to commence proceedings. Indeed it might be said that it is in the Plaintiffs favour that she did not commence proceedings in regard to her suspension in August 1998 but was willing to allow any appropriate lawful investigation to take place. That investigation took place between August or thereabouts and early 1999, but without any real input from the Plaintiff. In the circumstances I do not believe there is any ground for suggesting that there was undue delay on the Plaintiffs part such as to deprive her of a remedy at this time, which is a different remedy to what might be sought on a suspension. 

I now turn to the real issue in the case. Whereas the Defendant says that it had no privity of contract with the Plaintiff, which I believe may be correct, it does seek to reserve to itself a right to control, in some manner, whether the Plaintiff will or will not be permitted to act as a bus driver as part of the School Bus Scheme. A review of the contract between the Plaintiff and the operator, which was exhibited by the Defendant in its evidence, discloses that there is no express clause by which the Defendant is either entitled to so act, or to carry out an investigation in respect of any employee of an operator. 

On the contrary, the contract specifically refers to two circumstances concerning drivers in which the Defendant insists it should have an input. The first arises from the term by which the operator is not permitted to employ a bus driver unless the driver is a competent and experienced. A driver who is not within that category is expressly prohibited from driving a school bus. It seems to me that this prohibition is directed to competence and experience as a driver but no more. That is the interpretation contended for by the Defendant. 

The second situation is one involving medical standards. A person may not be a school bus driver if he has refused to submit to a medical examination or alternatively, it having done so, has been certified as being medically unfit. Again, this does not cover the present situation. 

However, what is important in respect of these two terms is that they indicate clearly that the Defendant gave due consideration to the circumstances in which it sought to be entitled to veto the employment or continued employment of a bus driver, by an operator. That being so, it seems to me difficult to conclude that there were other implied circumstances in which the Defendant had a contractual right to veto the employment of a bus driver by an operator although it might have been desirable for it to have done so. There is a cause imposing liability on the operator for the due safe performance of the carriage undertaken pursuant to the contract, but again, this does not give an implicit right to the Defendant to commence and carry out the investigation in respect of the Plaintiff and none was contended for. In fact the clause is such as to make it clear that it is seeking to distance the Defendant from any liability which might otherwise attach to the operator in matters arising out of carriage by the operator. 

The only reference to an investigation, on which the Defendant does not, in fact, seek to rely, is that found concerning the entitlement of the Defendant to inspect the performance of the service and examine or test any school bus, and board the same. This appears to be confined to an investigation of the transport service simpliciter rather than the personal behaviour of personnel employed by the operator. 

All the foregoing being so, what was the Defendant entitled to do, lawfully? I am of the view that the Defendant, vis-a-vis the operator was entitled, when it received a written complaint -- or indeed any other complaint -- to notify the operator of it's concerns and to seek to persuade the operator to carry out an investigation, it might even have a right to threaten to terminate the contract although no clear right is expressed so to do. I do not have to decide this. As to the so-called register, it was originally indicated to me, and I think initially accepted by the Defendant, that there was a so-called register which was maintained by the Defendant, but in the course of submissions on behalf of the Defendant, after checking, it was later said that this register is, in fact, maintained by the operator of the service. I am not certain it makes a great deal of difference whether it is the Defendant's register or one maintained by the operator because it is common case that the Defendant claims to itself a right, as is clear from the correspondence, that it may have a person removed from such register. The only legal issue which might flow is the nexus created between the Plaintiff and the Defendant by reason of the creation and/or existence of the register. Since I have not seen the register and there is a debate as to who creates and maintains the register, and its legal status, I cannot come to a final view on this at this time. Suffice to say for the moment that the Defendant claims an entitlement to have rights in respect of it against the Plaintiff. 

The Plaintiff was employed by the operator. That is a contractual relationship which ordinarily is not capable of being lawfully interfered with save by the operator. For the Defendant to interfere with it in a manner which is not justified at law, is a wrongdoing. During the course of the opening of the case on the motion, Mr Fitzgerald sought liberty to amend his pleadings to include with greater clarity a claim for inducing a breach of contract against the Defendant, and I acceded to this, bearing in mind in particular the matters pleaded in the Statement of Claim. 

I now have to consider the matter, having regard to well established principles applicable to interlocutory relief, namely, those established in the United Kingdom in American Cyanamid v Ethic and Another [1979] RPC 215 as adopted in this jurisdiction in Campus Oil v The Minister for Industry and Energy [1983] IR 82, and as applied in many many cases since, namely whether the Plaintiff has established a fair issue to be tried, and if so whether damages would be an adequate remedy for the Plaintiff and, if applicable, for the Defendant, and in the event this last question is evenly weighted between the parties, where the balance of convenience lies. 

It seems to me that the Defendant, once it took upon itself a so called right to investigate the complaints made, was obliged to set about this in a manner which ensured that the Plaintiffs constitutional rights to a fair hearing were also protected. She claims that she did not have those rights protected, and I am satisfied that she has made out a fair issue to be tried on this aspect of her claim. 

It seems to me also that the Defendant, having determined that she was not to be a school bus driver, may have by that act, interfered with or brought about or otherwise induced a breach of the contract existing between the Plaintiff and her employer. On that claim I am also satisfied that the Plaintiff has made out a fair issue to be tried. 

There is also a claim of defamation. This is met by the Defendant on the basis that it would be entitled to qualified privilege. I am not certain that this is absolutely so. That may well depend, not only on the circumstances of the matter, but also on whether or not the Defendant was a stranger to the Plaintiff, as it claims to be, or entitled to carry out the investigation under some duty which is also claims, as an alternative. In any event, qualified privilege would not deprive the Plaintiff of the right to sue, but might constitute a good defence. I am satisfied that the Plaintiff has, at least, made out a fair issue to be tried under this heading also. 

That being so, I now -- in line with the authorities -- consider the question of damages. In this regard, I first look to see whether damages would be an adequate remedy for the Plaintiff. I am quite satisfied that it would not be an adequate remedy, because of the nature of the claims made and because it would be next to impossible to measure the damages involved in monetary terms. This is not a claim merely to loss of earnings, but for damages arising out of the fact that the Plaintiff, having been removed from her post without the benefit of a proper hearing, has by implication been held to have committed wrongs of a very serious nature and this position will continue until the hearing of the action or perhaps beyond depending on the type of order which might be made in due course. It is true to say that, on the purely monetary side, vis-a-vis loss of earnings, they can be compensated in damages, but that is only part of her claim. The balance of the damage is irreparable. 

But if I am wrong in this matter, I should look to see whether the Defendant would be irreparably damaged by an order being granted to the Plaintiff. The Defendant has adduced no evidence whatsoever that it would, in fact, tend to suffer any irreparable damage, and I have to assume that it does not seek to suggest it would suffer such damage. 

In these circumstances, I do not have to consider the balance of convenience. If, however I had to do so, I would have held that it favours the Plaintiff. It is difficult to ignore the very strong Affidavit filed by the mother of one of the children alleged to have been struck by the Plaintiff and while I do not consider it in the context of determining any matter arising, it seems to me to support my conclusion that there would be little or no inconvenience to the Defendant in permitting the Plaintiff to continue being on the register or panel of school bus drivers pending the hearing of this action. But in addition the Defendants own evidence supports this, as is clear from the material at page 5 paragraph (e) above. If the Department thought it would be inconvenienced by the Plaintiffs continued involvement as a bus driver, I think it is truly surprising that it was prepared to wait until the end of the 1998 school year before investigating the complaints made, although received in April 1998. It seems to me, however, that the hearing should proceed as quickly as possible, so that the matter can be resolved at the earliest possible date. 

Having regard to these findings, I propose to make orders in the terms of paragraphs c and d of the notice of motion.