Recreational & Trespassers
Occupiers Liability Act
Reckless disregard, the criteria for the duty owed to recreational users and trespassers is significantly lower duty than that owed to visitors. This was the objective of the legislation.
In considering whether the person acted with reckless disregard, the court must take cognizance that the old common law test no longer applies. The prior law under which a general duty of care was extended to all parties, including, in some cases, trespassers, was intended to be reformed by the Occupiers Liability.
No Reckless Disregard
In the case of recreational users or trespassers, the question arises as to what is a reckless disregard for their safety. The legislation sets out a number of factors, including
- whether the occupier knew or had reasonable grounds for believing a danger existed
- whether the occupier knew or had reasonable grounds for believing the person was on the property or in the vicinity of the property
- whether the occupier could reasonably have provided protection against the danger, taking into account the difficulty, expense or impracticability, having regard to the character of the premises and the degree of the danger, of so doing
- the character of the premises including, in relation to premises of such a character as to be likely to be used for recreational activity, the desirability of maintaining the tradition of open access to premises of such a character for such an activity
- the conduct of the person, and the care which he or she may reasonably be expected to take for his or her own safety, while on the premises, having regard to the extent of his or her knowledge thereof;
- the nature of the warning given
- the expected level of supervision
Recreational User
A recreational activity is that which is conducted in the open air, including sporting activity, scientific research, nature study, exploring caves, visiting sites and buildings of historical architectural traditional artistic archaeological or scientific importance, including hunting, fishing, shooting, hiking and picnicking. The only indoor activities covered are visiting sites and buildings of historical, architectural, traditional, artistic, archaeological or scientific interest.
A recreational user is an entrant who, with or without the occupier’s permission, express or implied, is present on a property without charge (other than a reasonable charge for motor vehicle parking) for the purpose of engaging in a recreational activity. This does not include
- a member of the occupier’s family, who is ordinarily resident;
- an entrant present at the express invitation of the occupier or such member;
- entrant present with the permission of the occupier or a member of his family for social reasons connected with the occupier and such member.
A recreational user includes an entrant admitted without charge to a national monument.
Recreational Definition
The fact that a person is making recreational use of premises, does not mean that he is necessarily a recreational user for the purpose of the Occupiers Liability legislation. If the user pays an entrance fee other than for reasonable parking, then he is a visitor and not a recreational user under the legislation.
Where a team trained off-season without express permission, they are categorized as recreational users. It appears that an implied consent or invitation may raise a person’s status from recreational user to a visitor to whom higher duties are owed. A greeting or salutation may imply tacit consent so that the user becomes a visitor rather than a recreational user.
There is a range of possibilities in relation to tacit consent, which may range from toleration to implied consent. The former is probably insufficient to constitute a user a visitor, while the latter is likely to suffice.
Recreational Structure
Where a structure on the property is provided for use primarily by recreational users, the occupier owes a duty to take reasonable care. He must take reasonable care to maintain it in a safe condition.
This may, for example, include playgrounds, benches, slides etc. It does not matter who provided a structure. Where a stile, gate, footbridge, stairs or similar structure has been provided but not primarily for recreational use, the occupier’s duty to recreational users is not extended by virtue of this provision.
Trespassers
Persons who are not recreational users or visitors are trespassers for the purpose of the Act. A person may use reasonable force to remove a trespasser from property. See the chapter on trespass to land.
Some persons categorised as recreational users under the Occupiers Liability Act may still be trespassers for the purpose of the common law of trespass. Any person who enters land without consent is a trespasser. Recreational users commonly have implied consent.
Children may be deemed recreational users. Formerly before the legislation, many children would have been owed greater and wider duties. They would often be deemed not to be trespassers due to the circumstances.
Children in the course of playing may be deemed recreational users. This will depend on the court’s interpretation.
Offender
Where a person is on property for the purpose of committing an offence, no duty is owed. If the person actually commits an offence, the duty not to act with reckless disregard for the safety is removed unless the interests of justice require otherwise. The intention must be to commit an offence on that property.
There is still a duty not to injure the persons concerned intentionally. There is a right to use proportionate force to defend oneself, another or property.
Council Property Case
Cray v Fingal County Council [2013] IEHC 19 dealt with the duty to recreational users. The claimant fell going down a ramp to a beach.
“It is constructed of Newton 40 concrete which is apparently the strongest concrete available, so that it would resist erosion by sea, sand and wind. [It] is constructed on top of two piles driven approximately 2m into the sand and the steel reinforcing in the ramp is connected to the piles…
[B]ecause of the action of the tides and wind, the sand levels in and around this ramp are in a constant state of flux and adjacent to the ramp, the level of the sand rises and falls, dictated by these forces of nature. The variance in the levels of the sand at the ramp would seem to be extensive and perhaps up to a foot, and certainly at least six to eight inches. The evidence of [an employee of the County Council] would suggest that at times it could be even greater. His evidence was that the ramp was designed to allow the tide go under the ramp; hence, the reason it was supported on two piles, and he said on the morning of the trial, the bottom of the ramp was visible where the tide had gone under it.”
“I think it likely that what happened here was that the plaintiff, in her own mind, perhaps because she was distracted at the time, may have underestimated the depth of the step, and as a consequence stumbled when her foot finally landed on the sand. It is the case that a beach is not like a paved surface. It is uneven and of varying consistency, all of which in combination with perhaps a misjudgement of the height of the step, could very easily cause a fall such as occurred to the plaintiff. Needless to say, no fault could attach to the defendants because of the natural uneven and inconsistent nature of the surface of the beach.”
“The ‘danger’ here that had to be guarded against was the existence of this concrete ledge at a depth of one foot below the front edge of the ramp. This ‘danger’ would only exist in certain circumstances, namely, when the sand level was at or about the level of the protrusion so that it was thinly coated by the sand so as to be invisible but at the same time close enough to the surface of the sand to interfere with a footfall that came in contact with it. If the sand was at a higher level, for example, six or eight inches below the level of the step, then, manifestly, this protrusion would have been sufficiently buried by the sand so as not to interfere with any footfall there, and if the level of the sand was washed away to a much lower level so that the ledge was visible, then, manifestly, it would have been much less of a danger or no danger at all, firstly, because it was visible, and secondly, because the height of the ramp above the sand level would be such that it would not be possible to descend off the ramp taking a normal step. It would require either a jump for those athletic enough to do that, or alternatively, a careful sideways descent, probably using the handrail as a support.
Insofar as it was a ‘danger’ as described, this came about at the time of the construction of the ramp and resulted from the extrusion of a small amount of concrete underneath the shuttering…
Having regard to the reasonable objectives sought to be attained by the design and construction of the ramp that was adopted by the defendants, the failure to do that which [the plaintiff’s expert] said they should have done, particularly bearing in mind the very limited nature of the potential ‘danger’ created as discussed above, in my view, could not be said to be a breach of any duty of care, as occupier, known to the law. Far less can it be said that there was a ‘reckless disregard’ for the person of the plaintiff, as contemplated in s. 4 of the Act of 1995.”
“As it is necessary for the plaintiff to establish ‘reckless disregard’ and as I am quite satisfied that the evidence in this case goes nowhere near reaching that threshold for this reason and those already stated above, it necessarily follows that the plaintiff cannot succeed in this action…”
Playground
In Kennedy v Tipperary County Council [2021] IEHC 643, two claims were rejected made by adult mothers on the basis that the swings were set to low causing them to trust their ankles getting off the swing. There was a notice that the playground was for children under 12 years
,
“common sense would tell any adult, including Ms. Kennedy, that she should not be using a swing which is designed for use by children. Common sense is an important, but often over-looked, factor in determining liability for accident claims … this case, ‘reasonable adults of normal intelligence’ know, or should know, not to use swings designed for children.”
In Ryan v Office of Public Works [2015] IEHC 486 a claim by the plaintiff was rejected who was injured when he came in contact with the bars of a ladder on a slide in a playground while attempting to assist his two-year-old son who was in apparent danger
“On the facts of this case the unfortunate life threatening injury which the plaintiff sustained was not caused by any negligence or breach of duty or breach of statutory duty on the part of the defendant. This was a most unfortunate accident for which the plaintiff was responsible. His injury resulted solely from his own want of care. He allowed his three year old son to attempt to access the slide by means of the twisted ladder, on his own, without supervision or assistance. This … is one of the more challenging routes on the play unit and one which could be expected to cause difficulties for a three year old. While standing on the far side of the unit at the bottom of the slide, the plaintiff noticed his son’s feet dangling from the platform of the unit. Understandably, he rushed to his assistance. In doing so he kept his eyes fixed on his son’s feet. He ran through the unit rather than around it and focused as he was on his son he did not see the toddler bars which are clearly visible at the bottom of the unit. The Court has considerable sympathy for the predicament in which the plaintiff has found himself but that sympathy cannot be transposed into liability on the part of the defendant for that predicament.”
“In order to bring himself within s.4(1) the plaintiff must first establish that there was a danger existing on the premises. ‘Danger’ in relation to any premises means a danger due the state of the premises (s.1 Occupiers Liability Act 1995). To succeed the plaintiff must satisfy the Court that the play unit over which he tripped was inherently dangerous. The Court is not persuaded that it is. The unit is a multi play unit designed and constructed to a high standard. The bars over which the plaintiff tripped when rushing to assist his child who he perceived to be in difficulty, are designed for toddler play. They are asymmetrical and readily visible. They are confined within the play structure and do not protrude into areas of movement. In the Court’s view the unit complies with the relevant British and European standards.
The fact that there are risks attached to the use of playground units does not make them inherently dangerous within the meaning of the Occupiers Liability Act 1995. A child may be hit by a swing or fall from a see saw. Does that mean that the provision of such items in a playground renders the state of the premises ‘dangerous’ within the meaning of the Occupiers Liability Act 1995? The Court thinks not. To hold otherwise would mean that every playground in the country represents ‘a danger existing on the premises’ within the meaning of the Act.
The protection provided for recreational users by s. 4 of the Act is to protect them from injury or damage arising from defects in the premises which constitute a danger to users. Thus if a rotten floor gave way as a recreational user walked across it, or if he fell into an open silage pit, or if he was struck by masonry falling from a badly maintained building, he might well have a claim against the occupier on the grounds that his injury resulted from ‘a danger existing on the premises’. The Court, on the evidence in this case, is satisfied that the multi play unit over which the plaintiff tripped does not constitute such a ‘danger’.
For these reasons the plaintiff’s claim falls at the first hurdle in that he has not established the basic requirement of liability, namely, that he was injured as a result of ‘a danger existing on the premises’.”
“In the particular circumstances of this case the Court has no doubt that the plaintiff was in fact a recreational user engaged in a recreational activity, as defined in s.1 of the Act. The defendant has provided in the grounds of Kilkenny Castle a playground which is open to the public free of charge and whose entire purpose is to provide recreational activity for children.”
“Notwithstanding subsection (1), where a structure on premises is or has been provided for use primarily by recreational users, the occupier shall owe a duty towards such users in respect of such a structure to take reasonable care to maintain the structure in a safe condition.”
“more internally consistent with the overall provisions of s.4. If an inherently dangerous playground is provided for recreational users then the occupier risks being found liable for an injury sustained by a recreational user as a result of ‘a danger existing on the premises’ pursuant to s.4(1). To succeed in his claim, the recreational user must prove the existence of the danger and reckless disregard on the part of the occupier. Once installed however, a properly constructed playground must be maintained in a safe condition by the occupier. Injury resulting from a failure to do so can render the occupier liable under ordinary negligence principles, which apply pursuant to s.4(4). Thus if a play unit collapses, injuring a user, because of erosion or missing bolts or other maintenance failure the injured recreational user can sue for breach of the duty of care and does not have to establish recklessness on the part of the occupier.”]
Hunt Case
In Begadon v Laois Hunt Club [2019] IEHC 343,
“In relation to the second named defendant, the general rule in terms of fox hunting is that the members of the field waive all claims against landowners for injuries to themselves or their mounts. The argument is made that the plaintiff in paying the cap fee, therefore, opts to follow the rules of hunting etiquette. Given her experience, it is accepted that her expertise in preparing others for tests in hunting etiquette, the plaintiff was therefore aware of the rules and accepted them.”
“… in the instant case, given the nature of the hunt, in that it follows a fox’s scent and that the fox could go anywhere on the land or property it is not, therefore, foreseeable that a safe route or safety audit could take place in advance of a person taking such a route. Therefore, on the balance of probabilities, the second named defendant could not be deemed not to have taken reasonable care regarding his property. His only involvement was that he was contacted by the Master of the Hunt in advance and gave permission for the hunt to cross his land. He can have no liability in the matter.”
Other Public Spaces
In The M.V. Arklow Valour; Arklow Shipping Unlimited Company, Arklow Shipping Nederland B.V. and Avoca Shipping B.V. v Drogheda Port Company DAC [2021] IEHC 601, a vessel had run aground on sandbar at the mouth of the River Boyne. The claim was that the harbour authority had been negligent in managing the port area. The vessel had loaded a heavy cement load at a terminal on the river and claimed that the port company was negligent in failing to measure the clearance under the vessel in the sandbar area.
Amongst other things they relied on the Occupiers’ Liability Act 1995.
The High Court was satisfied that they should be deemed a visitor and that the harbour authority was occupier and controller. The claims fail based on the inability to prove that the loss was caused by the authority’s breach of duty.
Reckless Disregard
Fitzgerald v South Dublin County Council [2015] IEHC 343 dealt with the issue of reckless disregard in s.4(1) of the Occupiers’ Liability Act 1995 where the nine-year-old plaintiff was injured playing football on the common areas of a housing estate. The plaintiff slipped when retrieving a ball and was injured by a broken bottle in the grass.
Barton J. stated:
“By adopting the phraseology ‘reckless disregard’ used in the old case law, the Oireachtas rejected the recommendation contained in the final report of the Law Reform Commission in relation to occupiers’ liability towards recreational users or trespassers that the liability should be in respect of ‘gross negligence’. In choosing the terminology ‘reckless disregard’, the Oireachtas determined that the point at which the occupier was to have a liability should be quantitatively greater than that which may be said to constitute ‘gross negligence’. As to whether the liability in respect of reckless disregard is to be equated, albeit accessed objectively, to the liability arising from an intention to injure on the part of the occupier, it is my view that any other construction of the section would admit a lower threshold for the imposition of liability and which, giving the words their ordinary and natural meaning, was not the intention of the Oireachtas. Although ‘reckless disregard’ is not defined by the Act, such terminology had long since been adopted in pre-existing case law and must be considered as being so understood by the Oireachtas in choosing that terminology when enacting s.4 of the Act.
“The expense and burden which would be placed on a local authority, such as the defendant, in protecting members of the public – including children – from dangers on open green spaces created by anti-social or miscreant behaviour through discarding broken bottles or the like or otherwise, would be nothing short of immense not to mention impracticable and, in my view, intolerable. Anti-social behaviour by its very nature is unlikely to be affected by the erection of notices or the placement of refuse bins. That the defendant could be required to inspect what in this case would be over 4, 000 acres of open green space more than once or at best twice in a week – never mind maintaining and cleaning such an area at any shorter interval – would neither be realistic nor reasonable. A balance has to be struck between what is reasonable and practicable in terms of maintenance and safety of open green spaces and the desirability of making such spaces available for the enjoyment of the public.”
Trespasser Case
In Ward v Commissioners of Public Works [2017] IEHC 336,
“Kingsmill Moore J. … in O’Leary v John A. Wood Ltd [[1964 IR 269, at 277] says: ‘… an object should not be considered an allurement unless the temptation which it presents is such that no normal child could be expected to restrain himself from intermeddling, even if he knows that to intermeddle is wrong.’ Now that is what an allurement is. The fascinating piece of machinery that a child just can’t resist putting his or her hand into is a good example of what is an allurement. And, indeed, some of the Irish authorities relate to moving vehicles and such things. But to say that what amounts to a lawn in front of a public building constitutes an allurement would seem to me to be a ‘bridge too far’ in the circumstances of this case. This is an enclosed lawn that is clear as such to all and I think it simply does not come within the category of something that I could legitimately hold was, to use the old term, ‘fascinating and fatal’. Nor, in any event, does it come within the scope of what is described so clearly by Kingsmill Moore J. speaking for the Supreme Court, as reported in 1964 . … I don’t think, in the circumstances of this case, that [the kerbing stone] amounted to a hazard. But even if it did, what are the defendants to do? These are offices that are bounded by a wall. Of course somebody who so wishes could get over this wall. Children can get over walls. Children can climb trees. But we have to live in the real world. The wall is there to keep people out. The gates are locked. Notices, for what they are worth to children in any event, are there. You are not supposed to go in. The same way as you are not supposed to go into somebody’s garden. But in this case, it is a garden or a lawn which is sealed, which is locked off. To hold that the defendant would be under any greater duty, for example to build a much higher wall, or should have barbed wire on it or have full-time security in circumstances such as these, it seems to me would be to put a preposterous level of obligation on a public authority.”
Child Trespassers
Ryan v Golden Vale Co-operative Mart Ltd [2007] I.E.H.C. 159
A 10-year-old child who was trespassing was injured by a gate most likely swung in his direction due to the action of one of his friends. The claim failed.
“The plaintiff must establish that the defendants owed a duty of care to the plaintiff, that there was a breach of that duty towards him, and that as a result of that breach injury was suffered. The ultimate question will be did the duty of care owed to the plaintiff extend to ensuring that the gate was locked. The questions of the extent of the duty of care owed and of the foreseeability of injury to the plaintiff must be considered. In his judgment in the Supreme Court in Breslin v Corcoran, unreported, March 23, 2003, Mr Justice Fennelly states as follows, having first considered the well-known English authorities in the area of foreseeability of damage arising from an intervening event in Dorset Yacht Co Ltd v Home Office [1970] A.C. 104 and Smith v Littlewoods Organisation Ltd [1987] A.C. 241:
‘From all these cases I draw the following conclusion. A person is not normally liable if he has committed an act of carelessness, where the damage has been directly caused by the intervening independent act of another person, for whom he is not otherwise vicariously liable. Such liability may exist, where the damage caused by that other person was the very kind of thing which he was bound to expect and guard against and the resulting damage was likely to happen, if he did not.’
I should follow the same reasoning in the present case in relation to the foreseeability of injury to this plaintiff.
I am satisfied that the plaintiff is within the category of person to whom a duty of care was owed, albeit that he was on the defendant’s premises without permission. He was a trespasser. In those circumstances, the defendants are under a duty to ensure that while on the premises he was not exposed to a danger, which it could be reasonably foreseen might cause him an injury. If for example there was something on the defendant’s premises, which was inherently dangerous, and it was reasonably foreseeable that a child might be allured to it, then if injury results to such a child the defendants could be held liable. In such circumstances it would be incumbent on the defendants to ensure that access to their premises or at least to the dangerous object upon it was not possible.
In the present case this injury to the plaintiff did not result from contact with an object, which was a trap in the usual sense. It is not a case where, for example, a dangerous and unprotected slurry pit was present and into which the plaintiff fell. It is not a case in which the plaintiff climbs up onto some inherently dangerous structure or piece of machinery, and which the defendants ought to have prevented by suitable protection of same.
In this case there was a gate, which provides access into and out of the defendant’s premises. In my view there is nothing intrinsically alluring about such a gate. There is no evidence that it was in any way defective and that such a defect caused injury to the plaintiff. It did not for example fall upon him causing him this injury. It was simply a gate. I cannot regard that gate as an allurement to the plaintiff in the sense that it obliged the defendant to ensure that it was fastened with a lock at all times. As I have said, I am assuming for the purpose of this case that it was unlocked, and I am giving the plaintiff the benefit of the doubt, which I have about that fact.
To find that it was foreseeable that a child would be injured in circumstances where another child or children either opened this unlocked gate or found it open and then proceeded to swing it back in the direction of the plaintiff would be to cast an unfair and unreasonable burden of foreseeability on the defendants and would mean that it was a requirement that at all times all gates into premises throughout the country would have to be locked at all times to ensure that no child could open it, in order to ensure that nobody was injured by this sort of action by another child.
In my view it would be unfair and unreasonable for a duty of care to be extended so wide. It was not reasonably foreseeable by the defendants that this gate, even if left closed but unlocked or even left slightly ajar, was a trap or potential danger to someone such as the plaintiff, or an allurement as alleged. It was an inherently safe gate without defect, and was there to enable access and egress to and from the premises in the normal way.
The injury, which the plaintiff sustained, was serious and has left him with a permanent physical deficit. But the plaintiff must realise that simply because he receives an injury in this way does not mean that the defendants are to be blamed for it. In my view even if the gate was unlocked it did not present any inherent danger to the plaintiff, which the defendant was under a duty to prevent. Things may have been different if, while on the premises having entered through an unlocked gate, he had been injured by something inherently dangerous and a trap for the plaintiff, but that is not the case here.”
References and Sources
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