Recreational & Trespassers
Cases
Cooke v Midland Great Western Railway
Child Trespasser Pre-1995 Act
Court of Appeal.
Kenny, J.—This action was brought for recovery of damages for injuries sustained by the plaintiff owing to the alleged negligence of the defendant company. It was tried before the Lord Chief Justice, who left the following questions to the jury, all of which they answered affirmatively in the plaintiff’s favour, and they assessed the damages at £550:—(1) Was the fence in a defective condition? (2) If so, was it through the negligence of the defendants? (3) Was the boy allowed through the hedge and up to the turntable by the negligence of the defendants? (4) Was it by reason of the negligence of the defendants and as the effective cause of it that the misfortune occurred? The circumstances were shortly these:—A bridge crosses the defendant company’s line at a point some quarter of a mile from the town of Navan, and in the vicinity of and adjoining the line at this point there is a piece of ground the property of the company, which is utilised by them for the purpose of a siding and turntable. At some distance from the bridge there is an entrance gate leading to this piece of ground, and thereby shutting it off from the high road. As the latter ascends to the top of the bridge there is a clay bank and hedge on one side which are supposed to afford protection from accident to those using the road, and at the same time to fence off the road from the land. At the other side of the bank and hedge the ground, as one approaches the top of the bridge, slopes down to the *157 piece of land I have referred to where the siding and turntable are situated. In the hedge, at a point where the gradient of the road has increased, is a hole of comparatively large dimensions, which I would gather had been originally made possibly by children or animals, and at the time of the happening of this injury to the plaintiff it was, according to the evidence, large enough to allow of a child, if not indeed an adult, getting through and clambering down the slope and on to the company’s premises; indeed, there was evidence that something in the nature of a step existed in the clay land, which facilitated an entrance through the hole in the hedge. The plaintiff who is a little child, aged, at the time of this occurrence, between four and five years, was produced at the trial as a witness, but on account of his not being able to apprehend the obligation of an oath was not sworn. He replied to questions put to him, and his answers seem to have been accepted by all parties as evidence, and his account of the accident was this: — That on this evening (Sunday, June 18, 1905), he came from Navan with two other boys named Monahan; that he got through the hole in the hedge and went down the slope to the turntable; that he saw no other boys there but the two Monahans; that he was placed on the turntable by them in order to get a jaunt; that the table revolved, and that in the course of one of its revolutions his leg was caught between the turntable and the wall within which it revolved, and was crushed to such an extent that it had to be amputated. One of the Monahan boys, aged between nine and ten years, corroborated the plaintiff’s story to some extent, but he added that the turntable was turned by “three stronger boys” whom he did not know, and whose identity was not established. Evidence was also given that the turntable had been in position about two years; that before its erection the ground had been utilised for the storage of wood, and that children from the town used to come to the place and play amongst the timber; and that since the turntable was placed there children and adults used to resort to this spot, and the suggestion was that they were allowed to do so by the defendant company with impunity. A witness named Fowler who was examined on behalf of the plaintiff, and who was a ganger in the defendants’ employment, however, admitted that on the occasions when he saw children playing there he hunted them away, because they were trespassers, He said he had seen children riding on the turntable two or three times before this accident, and that it was a dangerous thing. Furthermore, it appeared that the gate leading from the road was locked, and that there was a notice board inside it in a conspicuous position with a notice on it conveying warning to trespassers with reference to the turntable. The witness, who made a map of the locus in quo, having stated that there was only a slight catch on it to prevent its moving, advanced the opinion that it was most unusual to find a turntable with nothing but a catch or clasp such as this to keep it in position. He added that the way the clasp would be fastened would be by sliding a bolt, and that the child in this case could have pushed it back, and that such a construction was most unusual. Fowler, the ganger, on this point deposed that a child might move the bolt, but that it would take a very strong man to move the turntable. He further swore that on the morning of the occurrence the table was properly bolted. The defendants gave no evidence. At the conclusion of the plaintiff’s case, counsel for the defendants submitted there was no evidence of negligence proper to be submitted to the jury, and asked for a direction, and the Chief Justice in his report states that the only question for our consideration is whether there was evidence of actionable negligence to go to the jury. It will be observed that the trial proceeded altogether on the basis of negligence, and that no question of nuisance was suggested or submitted to the jury. The Chief Justice in his report also states as follows:—“I had originally written down the word ‘such’ before the word ‘negligence’ in the fourth question, but it struck me that perhaps this might possibly confine the question of negligence to the condition of the fence and to the alluring to the turningtable. I therefore informed counsel that I would strike out the word ‘such’ in the fourth question so as to leave the whole question open to the jury, including what took place on the turntable and condition, character, and alleged use of the turningtable which had been so fully discussed during the trial.” The fourth question being thus addressed to negligence in the abstract it is quite impossible to say what was the concrete act—the concrete breach of duty—that in the opinion of the jury constituted the actionable negligence which was the proximate cause of the accident. Was it in the non-repair of the fence, or the unprotected or unfenced condition of the turntable, or the insufficiency of the clasp or catch of the latter, or of the bolt that held the clasp in its place? These were all suggested in the evidence as constituting acts of negligence, and I would assume from the extract I have read from the report that the Chief Justice in his charge drew the attention of the jury to each of these matters. The question of the fence stands in a category by itself, and I shall presently deal with it, but as to those other acts I confess I am unable to see how an obligation on the defendants, the breach of which would constitute an act of negligence, can be established to use upon their own premises and for their own purposes a particular class of turntable or clasp or bolt, or to erect a fencing about the turntable. The question of nuisance was not suggested at the trial. If it had been, it might have become necessary to submit some additional questions to the jury. This machinery was on the defendants’ premises, and at most the plaintiff was in a position of a bare licensee. I think that as such he must be regarded as accepting all the risks attendant on his having come upon the ground, and that there was no duty on the defendants to take due and reasonable care of him or to see that he should not go to a dangerous place: Batchelor v. Fortescue, 11 Q. B. D. 474. As to the fence, it was contended that, under s. 68 of the Railway Clauses Act, 1845, there was a statutory duty on the defendant company to fence off their premises from the road, and that their not having done so was the cause of the accident by reason of the child, being unintelligent and unappreciative of danger, having been tempted or allured into a position of peril by such an easy mode of access as the hole in the hedge afforded. The defendants’ counsel, for the purpose of argument, were willing to admit that the answers of the jury to the first two questions were correct, and that, consequently, there was negligence on the defendants’ part in permitting the fence to be in the condition in which it was. [His Lordship referred to Sullivan v. Creed, [1904] 2 Ir. R. 353.] Was there a duty cast on the defendants to anticipate what occurred to the plaintiff in the present case, and was the misfortune a reasonably probable one? I confess I cannot see the connection between the initial act of negligence in leaving the hole in the hedge unfilled or unrepaired and the crushing of the boy’s leg on the turntable. He could have obtained access to the defendants’ premises in at least one other way—namely, by climbing over the gate—and unless the liability of the defendants is to be attributed to some acts of negligence other than the non-repair of the fence the manner in which the child approached the turntable seems to me to be unimportant. The non-repair of the fence was, in my opinion, no more operative than if the child had climbed the gate or gained entrance from a field at the other side of the turntable. The accident did not arise immediately out of the negligence by non-repair, which is alleged to have given occasion and opportunity for the child’s interference, or that of his companions with *158 the turntable. Suppose the plaintiff had gone into the grounds through the aperture hours before his accident and had been joined by companions, some of whom also effected an entry through it, and others of whom came over the gate or across the field, could it be said that the defendants were liable for an injury to the children who came through the hedge and not liable if the injury happened to any of the others? The child was on the ground, no matter how he got there; the accident might have taken place no matter how he got there, and in no sense can I see how the chain of cause and effect can be established between the mode of access and the injury. The former was not, in my opinion, a causa causans or a causa sine qua non. If there was an allurement or temptation it was not a hole in the hedge that tempted or allured, but the piece of ground at the bottom of the slope which may have been regarded by the children as a sort of playground. Why ought a prudent person to have anticipated what did occur? Why should the accident be regarded as a not improbable consequence of the non-repair of the fence, even admitting the natural instinct of a child to amuse himself by playing with dangerous things or to go into dangerous places? If the defendants are liable here they would, it seems to me, be equally liable if the child had hurt himself on the company’s premises in any other way. Suppose he had tripped on one of the rails of the sliding and hurt himself, or I will take the admirable illustration put by my Lord Chief Baron in the course of the argument, and suppose there was a tree on this ground with a rotten branch, and a boy had climbed on to it, and the branch broke with him and he was injured. In these cases the defendants would be liable, if they are liable under the present circumstances. [His Lordship referred to M’Dowall v. G. W. Railway, [1903] 2 K. B. 331, and Adderley v. G. N. Railway, [1905] 2 Ir. R. 378.] In the case before us I am of opinion that the chain of events that ended in the crushing of the child’s leg began, not when he entered the company’s premises, but when he was placed on the turntable by his companions. I am, therefore, of opinion that there was no evidence of negligence on which the jury could have reasonably acted, and that the verdict and judgment should be set aside and the verdict and judgment entered for the defendants. I may say, in conclusion, that I am clearly of opinion that s. 68 of the Railway Clauses Act, 1845, does not affect the defendants’ liability in this case.
The majority of the Court having held that the verdict and judgment for the plaintiff should stand, the defendant company appealed.
Sir S. Walker, L.C. (having stated the facts, and having referred to s. 50. of the Railway Clauses Act, 1845).—I may say at once I see no evidence of allurement. There was no more allurement than if the place had been an orchard and the child had climbed a tree to take an apple and got hurt. In my opinion the questions of invitation and allurement may be left out of the case. I am also of opinion that there is a want of connection between the manner of the child’s reaching the turntable—viz., through the break in the fence, which is relied upon as constituting negligence on the part of the company—and the accident to the child. The act which caused the injury was the meddling by these children with the turntable. One of them had climbed over the gate; would it be possible to contend that, had he got on the turntable and put it in motion and received an injury, he would have had a cause of action? No matter what was the condition of the hedge, both intended to get to this place; both entered voluntarily; both were trespassers. How can the mode of entry alone give a cause of action? It cannot be held to be negligence merely to have a turntable such as the one in question. It was perfectly suitable for its purpose, but was never intended as a plaything for children, and never could have caused injury if properly used. It was practically safe if these children had not wrongfully put it in motion. I think the child was from the first a trespasser; I do not think he ever occupied the position of a licensee, even had he never been turned off this piece of ground. Negligence to make the defendants liable must be some omission of duty or some breach of duty, and I cannot see where the duty arose towards these boys. It was not an omission of duty on the part of the company that the turntable had been used in this manner by the boys. Lynch v. Nurdin was a case of nuisance. I do not think there is any analogy between a case where injury occurs during trespass by a child on private property as here, and cases in which there is nuisance in the public street. No authority goes so far as to hold that a cause of action arises in such a case as the present, and it would be dangerously extending the law of negligence to uphold the contention of the plaintiff in the present case. The appeal must be allowed and the action dismissed.
FitzGibbon and Holmes, L.JJ., delivered judgments to the same effect.
Purtill v. Athlone U.D.C.
[1968] I.R. 205
Child Trespasser (Pre-1995 Act)
O’DalaighC.J.; Walsh J. 205
Supreme Court.
O’DALAIGHC.J. :
19 July
I have read the judgment that Mr. Justice Walsh will deliver and I agree with it.
WALSH J. :
On the relevant dates the defendants owned and operated an abattoir in the town of Athlone. The method of slaughter of the animals, carried out by the defendants’ employees, was by the use of a humane killer which is a pistol-like instrument in which the power is supplied by the explosion of a detonator. A separate detonator is employed for each use of the instrument and the defendants kept a stock of these detonators on the premises for the purpose of carrying on the work of the abattoir. The premises were situated about a half a mile from the residence of the plaintiff and he passed the abattoir every day going to, and coming from, school. The doors of the abattoir were open from 9 a.m. until about 6 p.m. and apparently it was customary for boys to go into the premises without objection from the caretaker of the premises or the employees working at the slaughter of the animals. At the time of the accident in respect of which he has sued, the plaintiff was fourteen years old and he had visited the abattoir premises on about ten occasions in the previous five years, always with other boys. The visits were during the periods when the doors were open and apparently the gate leading into the premises was never shut during those hours. In the course of his visits he had seen the method used for killing the animals and had observed that the detonators were kept on a shelf in the office and also in the actual place of killing, where they were left on a stool.
On Thursday, the 14th November, 1963, he went to the premises with another boy, named John O’Brien, at about 3 or 4 p.m. when they saw some men killing sheep. The boys spent about half an hour there and afterwards lent a hand in cleaning up the premises. The plaintiff said in the course of his evidence that this was the first time he had ever assisted in any work in the premises. While the boys were there, the plaintiff observed fifteen detonators on the stool in the slaughter-house and he took seven or eight of these without the knowledge of the employees and without their consent. This, according to the evidence, was the first time he had ever taken detonators but he had seen other boys in possession of some on earlier occasions, though he did not actually see them take any from the premises. It is, however, an inference, which is open on the evidence, that the boys had obtained these detonators in the premises. The plaintiff and his friend then went home and exploded the detonators in the back garden of the plaintiff’s house by wrapping them in paper and setting fire to the paper. On the same afternoon, at about 5 p.m., he went back to the abattoir and went into the slaughter-house and took another five detonators from the stool. None of the employees of the defendants were in the slaughter-house at that time. The plaintiff then left and went to another boy’s house and exploded the detonators in a similar fashion to the earlier ones.
On the following day, which was the day of the accident, he deliberately played truant from school and went down to the abattoir at about 10 a.m. While he was there, three employees of the defendants were also there. When they were not observing him, he went into the office and took about twelve detonators from the shelf in the office. This shelf was within easy reach as it was no higher than the boy’s chest or shoulders. Later he went back to the office and took some more of the detonators, making in all about forty which he had taken without the consent or knowledge of the defendants or their employees. The plaintiff brought these detonators home to his own house and proceeded to explode them in the back garden of his house. Later on the same day, at about 1.30 p.m., he returned to the abattoir and went into the office, which was open, and saw some more detonators scattered on the shelf in the office. He took about nine of these. On this occasion he was accompanied by another boy. The boys then went off to another place, which was not the plaintiff’s home, and proceeded to explode the detonators. The plaintiff did not explode them all and when he went home to his own house he still had about seven. Four or five of these he exploded in a shed at the end of his own garden. After igniting the paper, holding one of the detonators, he threw it on the ground but it failed to explode. Thinking that the rain had affected it, he picked it up and it then exploded causing the severe injuries which resulted in the subsequent removal of his right eye. There is no doubt whatever that on this day his sole purpose in visiting the abattoir was neither to watch the men at work nor to assist in the cleaning up, but simply to steal the detonators. The employees were aware of his presence but they were not aware, apparently, of his purpose in being there. There was no evidence that the defendants or their employees were actually aware that the plaintiff, or any other boys who frequented their premises, had taken detonators from the defendant’s premises at any time.
The plaintiff sued the defendants for negligence. The negligence alleged was that the defendants knew or ought to have known that young boys, including the plaintiff, had access to their premises and in fact resorted there from time to time during the hours of work and without objection from the defendants or their servants, and that the defendants took no steps to keep the humane killer and the detonators in a place where they would not be accessible to the boys, including the plaintiff, frequenting the premises. Furthermore, it was alleged that in the circumstances the defendants were negligent in leaving the detonators readily available on the premises, either on the stool in the slaughter-house or on the shelf in the office, and that the detonators should have been kept in a safe place under lock and key, and that the defendants should have foreseen that the boys, including the plaintiff, would be tempted to interfere with these detonators and that they would constitute an allurement for boys. It was further alleged that the defendants took no steps to warn the boys of the danger which could result from the handling or misuse of these detonators, or generally of the danger of interfering or tampering with them.
The defendants contended that they were not guilty of any of the alleged acts of negligence and further contended that the plaintiff was at all material times a trespasser on their premises and that, in effect, they owed him no duty. They also pleaded that the plaintiff himself had been guilty of negligence and that the injuries and loss suffered by him were too remote.
The defendants did not go into evidence but, at the close of the case for the plaintiff, the defendants submitted to the learned trial judge that they had no case to meet and that the plaintiff’s claim should be withdrawn from the jury. It was submitted on behalf of the defendants that the plaintiff was a trespasser and that there was no evidence that the defendants had consciously or wilfully caused him any injury, and that the full extent of their duty to a trespasser did not amount to any more than that.
The learned trial judge ruled that on the day in question the plaintiff, while he was on the defendants’ premises, was a trespasser and that the only duty owed by the defendants to the plaintiff as a trespasser was not to set a trap. He ruled, however, that there was a case to go to the jury on the question of the defendants’ negligence on the basis that, in the circumstances, it was for the jury to decide whether or not the defendants had failed to observe the degree of care in the control of the detonators that one would expect from a reasonably prudent person and whether such want of care resulted in the plaintiff’s injury. The circumstances that the judge was dealing with were the circumstances of an abattoir to which these boys had resort, without objection from the defendants or their employees, at times when these detonators were being used and were accessible to such boys.
The jury found that the defendants were guilty of negligence and they also found that the plaintiff was guilty of contributory negligence and they assessed damages at the sum of £4,242. They apportioned the degrees of fault between the parties on the basis of 85% of the fault being the defendants’ and 15% being the plaintiff’s. Against these findings and the verdict the defendants have appealed. They seek an order directing judgment to be entered for thedefendants on this appeal or, alternatively, an order for a new trial. The grounds upon which the appeal is based are that the trial judge misdirected himself and was wrong in law in not acceding to the application of counsel for the defendants at the close of the plaintiff’s case to have the action completely withdrawn from the jury, and that the apportionment of the degrees of fault between the parties was perverse and not in accordance with the evidence. It was also submitted in the notice of appeal that the damages awarded by the jury were excessive and unreasonable and were not in accordance with the evidence offered at the trial.
The defendants base their appeal primarily upon the submission that the plaintiff was a trespasser on the day in question and that he cannot, therefore, be heard now to say that any greater duty was owed to him than that of not laying a trap for him. The learned trial judge ruled that the plaintiff in this case was a trespasser. The defendants, in their submission to the learned trial judge, had submitted that the plaintiff was a trespasser because his real object in coming into the premises of the defendants was to steal the detonators even though his actual entry was not sought to be prevented, or indeed objected to, by the defendants through their employees at the time. On the evidence the defendants, through their servants, could be said to have acquiesced in his presence on the premises. The acquiescence was, of course, based on the assumption that the plaintiff was coming upon the premises for the purpose of watching the defendants’ employees at work or of participating, in some minor degree, in that work. If in fact the plaintiff had gone to the premises for the purpose of assisting at the work or even merely as a spectator without the intention of stealing, it could not be maintained that he was a trespasser in the circumstances of the present case. Whether he be an invitee rather than a licensee, or vice versa, is not, in my view, decisive in this case. If he were there in either category and, having entered without any intention of stealing, he then formed the intent to steal, does he become a trespasser as from the moment he forms the intent on the grounds that once he exceeds the terms of his invitation or his licence he becomes a trespasserab initio? If the answer to that question is in the affirmative then a fortiori he is a trespasser if he forms the intention before he enters at all.
For the purposes of the present decision I do not think it is necessary to answer this question because it would only be relevant if the plaintiff had sustained injuries as a consequence of some defect or danger in the static condition of those premises, or if the defendants’ liability is attributable only to their duty as occupiers. The plaintiff’s claim against the defendants is not wholly, or even primarily, based upon the neglect of the defendants as occupiers of the premises so much as upon the neglect by the defendants of a duty which, it is claimed, they owed to the plaintiff and which did not depend upon the defendants being the occupiers of any premises but rather upon the defendants being the custodians of chattels which, if not properly controlled by them, might foreseeably cause injury to the plaintiff.
The liability, if established, is therefore one which arose by virtue of the proximity of the parties and it would be the same wherever the parties might find themselves, provided their proximity to each other was the same. In other words the liability is not based upon any special relationship such as occupier and invitee, or licensee or even trespasser, but simply upon proximity.
The first question, therefore, is whether the parties were sufficiently proximate so that the defendants might owe a duty to the plaintiff. In my view the answer to this question is in the affirmative. The plaintiff was one of a class (namely, a class of local boys), who frequented the premises in question for the purpose of watching the men at work and the plaintiff himself had on a number of occasions been on the premises for that purpose. The defendants’ employees were therefore accustomed to having these young boys around them while performing their work. The degree of physical proximity was quite close on such occasions. It was sufficiently close to make the employees conscious of the possibility of injury to any of these boys, as well as to themselves, by any untoward incident during the operation. The detonators were admittedly of a nature calling for care and ones which were known, or ought to have been known, to be capable of causing injury if wrongly used. If the employees, or one of them, were to give some of these detonators to any of these boys as playthings, or to use as they wished, with or without a warning of the nature of the detonators, and injury befell the recipient due to that nature, there would be little doubt but that the employee who gave it would be personally liable in negligence. The very nature of the detonators and their function were, in my view, sufficient to enable a jury to hold that the detonators would constitute a source of attraction or an allurement for boys. That would be a matter which a jury would be entitled to hold as something which ought to be foreseen by the defendants’ employees. If, without any question of stealing arising, the boys were allowed to handle the detonators while on the premises, or to play with them, and injury resulted, it would be difficult to hold that such an event was not foreseeable by the defendants or their employees.
In the present case it is submitted that the defendants could not be held to have been able to foresee that some of these materials would be stolen and removed from their premises by these boys. When the objects in question are sufficiently small to be removed without attracting attention and are very easily concealed and are of such a nature that they constitute an allurement to boys frequenting the place where the objects are to be found, it is a matter for the jury to say whether, in all the circumstances, the owners of these objects ought reasonably to have foreseen that the attraction of these objects for the boys might be sufficient to tempt them to steal some of them. In my view the evidence in the present case was sufficient to justify the learned trial judge leaving the matter to the jury upon this basis, and was sufficient to warrant the jury taking the view that the defendants owed a duty to the plaintiff and that they failed in that duty.
In what way would the liability have been different if the accident had occurred on the defendants’ premises? The plaintiff was on the premises, at the time when he took the detonators, with the tacit permission of the defendants’ employees. Unknown to the defendants’ employees the plaintiff was in law a trespasser, because the ostensible purpose for his being on the premises was not his real purpose which was unlawful. Nonetheless the defendants’ employees were in charge and control of the detonators, which could be held to be an allurement to a boy of the plaintiff’s age because of the knowledge he had gained of them during his lawful visits to the premises. When the proximity of the parties is voluntary on both sides and when, because of that proximity, the lack of control over the detonators may be a danger, is the duty to keep these detonators safe from interference by the boy any the less because one of the parties has achieved that proximity by concealing the real purpose of his presence? I do not think so. When the danger is reasonably foreseeable, the duty to take care to avoid injury to those who are proximate, when their proximity is known, is not abrogated because the other party is a trespasser. The duty to those in proximity is not based on any implied term of an invitation or a licence, or upon any warranty for safety which might be thought to be inherent in any such invitation or licence. Rather is it based upon the duty that one man has to those in proximity to him to take reasonable care that they are not injured by his acts. What amounts to sufficient care must vary necessarily with the circumstances, the nature of the danger, and the age and knowledge of the person likely to be injured.
The next matter to be considered is the question of the apportionment of the fault. The plaintiff undoubtedly knew, and was old enough to appreciate, that these objects had an explosive effect and were therefore likely to be dangerous. He knew from experience that they could be detonated by wrapping them in lighted paper. If, therefore, on this occasion he had kept one in his hand while the paper was igniting and the explosion had occurred then, it might rightly be regarded as a very dangerous activity consciously engaged in, and a high proportion of the fault might well be attributed to him. In the present case, however, what happened was that the detonator failed to explode and the plaintiff then retrieved it from the ground and it then exploded. The plaintiff’s knowledge of the dangers of these objects and his experience of them may not have been sufficient, and there is nothing to indicate that it was, to warn him of the danger of a delayed explosion. In those circumstances, therefore, his negligence in retrieving the object which had apparently failed to explode might well be held by the jury to have been far less culpable than the doing of an act of whose danger he had full knowledge and appreciation. While the jury’s apportionment may appear to be generous in some degree to the plaintiff, it is not one which, in the circumstances and on the evidence, must necessarily be held to be unreasonable and perverse.
The last matter to be considered is the question of the amount of damages. The damages awarded in this case, £4,242, are claimed by the defendants to be excessive and unreasonable and not in accordance with the evidence offered at the trial. The most serious consequence of the accident to the plaintiff was the loss of one eye. There are a number of cases in which it has been held by this Court that a sum of £3,000 is not an unreasonable award for the loss of an eye, as such, of a person under middle age, apart from any question of economic loss which may result from it Applying that standard to the present case, it would leave a sum of approximately £1,200 to cover all the other matters which fall under the heading of pecuniary loss and economic loss in the future. The evidence on the question of the boy’s future as an earning unit is not very satisfactory. At the time of the trial he was working as an apprentice jockey but he complained that having only one eye was something of a disadvantage in that occupation. After the accident he worked for about nine months in a bakery where it does not appear that his disability was anything of a handicap. His future employment would seem to lie in the category of semi-skilled or unskilled employment, probably of a manual nature. Experience in the Courts shows that, although the loss of an eye may not be such a great handicap to a man in such an occupation as it would to one doing precision work, it can nevertheless be an inhibiting factor in obtaining employment mainly because every prospective employer knows that his workman has but to lose one eye to achieve total blindness. In my view, a sum of £1,200 as compensation for a boy of sixteen (the plaintiff’s age at the date of the trial) is not to be regarded as unreasonably large for the purpose of covering, for the rest of his life, all the contingencies of the labour market which may arise because of his one-eyed condition. I would not disturb the damages. For the reasons I have already stated, in my view the appeal should be dismissed.
BUDD J. :
I agree.
Anthony Smith Plaintiff v. Coras Iompair Eireann Defendant
Trespass on Railway
[1991] IR 320
[S.C. No. 397 of 1988]
Supreme Court 29th November 1990
Finlay C.J.
29th November 1990
I agree with the judgment about to be delivered by Griffin J.
Griffin J.
In this action the plaintiff claims damages against the defendant for injuries sustained by him by reason of the alleged negligence of the defendant, its servants or agents on its railway near Con Colbert Road, Inchicore on the 14th May, 1981. The action was tried in the High Court by Egan J. and the claim of the plaintiff was dismissed by him. From that decision the plaintiff has appealed to this Court.
The facts
On the 14th May, 1981, the plaintiff was very severely injured, losing both legs, when he was struck by a train on the defendant’s railway near Con Colbert Road, Inchicore. At the time he was aged 20. The accident occurred between 9.30 p.m. and 10.00 p.m., when it was dusk.
Between Con Colbert Road and the railway there is a field; the boundary between the field and the railway is a stone wall which is overgrown with ivy and bushes. The average height of the wall is approximately 4 feet but in places it increases to about 6 feet. In one place there is a dip in the wall where it is approximately 2 feet 4 inches high, where the wall apparently became broken down at some stage. On the railway side of the wall there is an embankment, the top of which is approximately 15 feet to 16 feet above the level of the railway. The embankment is covered with brambles and briars and there is a steep decline from the top to the railway level. At that point the grass and briars have been beaten down and there is what might be called a rough path down the embankment. When one is descending the embankment, to the left is the direction of Heuston Station and to the right is the direction of Ballyfermot. At that point there is a view of several hundred yards in each direction.
On the side of the railway opposite to the embankment there is a sheer wall 14 feet high, above that a plateau some few yards wide, again covered in brambles and briars, and a further wall 4 feet high surmounted by galvanised iron, 3 feet 6 inches approximately in height, the latter being the boundary fence of Woodfield Cottages which lie between the railway line and Sarsfield Road, Inchicore. There are two bridges over the railway joining Con Colbert Road with Sarsfield Road; from the place where the dip in the wall is to the bridge in the direction of Heuston Station is approximately 250 yards; while the bridge on the Ballyfermot side was stated to be much further away.
On the railway there were three sets of tracks. The rails on each set were a uniform 5 feet 8 inches apart. Facing Heuston Station, the distance between the left-hand track and the embankment is approximately 6 feet. The distance between each of the other two sets of tracks is approximately 6 feet 6 inches. The areas between the tracks were referred to in evidence by the engineer as “passageways”,but they are in fact areas to provide clearance for trains. The width of a train is not stated, but it is considerably wider than 5 feet 8 inches, and portion of trains on each of the lines will therefore overhang the intermediate area. Mr. O’Neill, the engineer who gave evidence on behalf of the plaintiff, described the”passageways” to the side of and between the lines as being “made of ballast broken stones – stones which are very coarse, with sharp corners”. In places the stones vary in size, and the sleepers and the ballast around them can be at a similar or different level. In direct examination he said that, if the surface is flat, it is adequate for walking but is not a good surface for running, but in cross-examination he conceded that it was not a good surface for walking. The surface is shown in photographs nos. 5 and 7 of the black and white photographs and no. 8 of the coloured photographs produced on behalf of the plaintiff. The lines are mounted on sleepers 2 feet 8 and a half inches apart. The photographs show the sleepers to be wider than the tracks, and to project into the “passageways” for some distance.
On the evening of the accident the plaintiff and a companion, Anthony Killeen, went to the field adjoining Con Colbert Road between 9.30 p.m. and 10.00 p.m. to see a mare belonging to the plaintiff in that field. The mare was in foal and they saw two youths approximately 15 to 16 years old, one of whom was riding the mare and the other running alongside. They ran down the field towards the youths, who ran away, going through the gap hereinbefore referred to and down the embankment and along the railway lines. The plaintiff and Anthony Killeen gave chase, and they also ran down the embankment and ran along the “passageway”between the embankment and the left line facing Heuston Station, Anthony Killeen being in front. Whilst running, the plaintiff tripped and fell – Anthony Killeen placed this fall as “when they got down near the bridge”. The plaintiff picked himself up and continued the pursuit. The two youths whom they were chasing had a long lead on them, and one went up the embankment close to the bridge and out onto the road. He was followed by Anthony Killeen. The other ran under the bridge and the plaintiff followed him. Under the bridge the plaintiff ran out onto the tracks and his recollection is that he was in the “passageway” between the left tracks and the middle tracks. When he was under the bridge he saw a train, which was lighted, coming from the opposite direction. The train was coming on his right, but he did not know if it was coming on the middle line or on the line to the right-hand side. He continued to run, and had got from 20 to 30 yards beyond the bridge when he tripped and fell. At that time the front of the train had gone past him, and although he does not recollect colliding with the train, there is no doubt that a collision took place.
In evidence he described his objective in trying to catch the youth he was following as being “to beat him up”. He described his running at the time he tripped and fell as running “flat out” and said, at Q. 341: “I was running as fast as I could go”. He did not see anything in front of him, as he was looking at the fellow he was chasing and his entire concentration was on him.
Within approximately 5 minutes of the occurrence of the accident, Anthony Killeen came back to the railway line, and found the plaintiff close to the embankment on the left-hand side as one faces Heuston Station. More or less opposite where the plaintiff was lying he found lengths of railway track in the space between the tracks, i.e., in what has been referred to as the “passageway”. They were lying lengthwise, but were not quite parallel with the railway lines. As will later appear the learned trial judge found that, on the probabilities, the plaintiff tripped and fell over a length of railway line.
At the trial there was evidence that some local inhabitants from time to time used the part of the embankment down which the plaintiff ran as a short-cut to reach a public house and some shops in Sarsfield Road, so as to avoid having to go around by either bridge. This involved walking down the embankment, crossing the tracks at that place, turning right and proceeding a short distance, described as “a stone’s throw”, in the direction of Ballyfermot. At one point some blocks were missing from the wall and access to Sarsfield Road was gained by scaling the wall, using the holes left by the missing blocks as a hand hold and foot hold, getting up onto the plateau, scaling the 7 feet 6 inches high wall and galvanised sheeting, and dropping from the top of the galvanized sheeting to the ground at the other side. The learned trail judge was apparently sceptical in relation to this evidence, but the plaintiff relied upon it as evidence that it showed tolerance on the part of the defendant, the occupier, of those who used that way as a short-cut. The plaintiff had been down on the railway on one previous occasion, but he had never used the short-cut to which reference had been made in the evidence.
The submissions in the High Court
At the trial one of the main submissions made on behalf of the plaintiff was that the defendant should have repaired the wall at the point across which the two youths and the plaintiff and Anthony Killeen gained access to the railway line. In my opinion, the fact that the wall was lower than 4 feet at that point is of no relevance in this case. It might have been of relevance if young children had gained access to the railway line and had been injured. The major submission, however, both in the High Court and in this Court, on behalf of the plaintiff was that, by reason of the use of the short-cut by some members of the local community, the defendant should have been aware that the plaintiff was likely to be proximate to it, that the alleged danger to the plaintiff running at speed along the railway line should have been reasonably foreseeable, and that there was in consequence a duty owed by it to the plaintiff. At the end of the evidence given on behalf of the plaintiff, counsel for the defendant applied for a nonsuit, submitting that, on the evidence, there was no duty owed by it to the plaintiff, and that the plaintiff could accordingly not succeed against it. While submitting that the plaintiff was in the category of a trespasser, counsel did not rest any argument on the distinction between the duties owed to invitees, licensees and trespassers, but relied solely on the test of foreseeability and proximity.
The learned trial judge acceded to that requisition. Having recited the facts, and made a finding of fact that on the probabilities the plaintiff tripped on a loose piece of rail, he said, at p. 140 of the transcript:
“I have to decide the case on the duties, if any, owed to the plaintiff in this case. The duty can vary depending upon the person involved, and all the circumstances involved. Now, I think the main test I should apply is that stated by McCarthy J., in Foley v. Musgrave Cash and Carry Ltd. (Unreported, Supreme Court, 20th December, 1985), where he was concerned, principally, with the foreseeable risk of injury. Now, in this case we have a twenty year old man, running along railway tracks in pursuit of two youths, who were aged about fifteen or sixteen, on the evidence, and they are running at speed. And the plaintiff himself was also running at speed. I find it difficult to hold that the defendant could or should owe a duty to someone, at dusk, running along its tracks in pursuit of somebody else. I don’t think that that is a foreseeable danger, as far as it is concerned.
There is evidence that people did come onto the track for the purpose of crossing over to the other side. This evidence is somewhat surprising in ways; on the evidence it does not seem too simple a pass. A trespasser, first of all, would have to get over a portion of wall; this, itself, wouldn’t be difficult, but then they would have to go down a very steep embankment, walk across the track and then climb quite a high wall, with some assistance from blocks being missing from the wall – this would provide a foot hold or a hand hold – and they would have to pass the top of that wall before they would emerge onto Sarsfield Road. Then they had to negotiate another wall, which was about 3 feet 5 inches in height, and there is galvanized sheeting on top of it, approximately 3 feet in height. Now, all that for the purpose of providing a short-cut to Sarsfield Road. But the fact that these people used it in that way as a short-cut is not the same as somebody running at speed along the tracks and certainly not a person of twenty years of age.
I feel, therefore, in all the circumstances of the case and reluctantly because of the appalling injuries suffered by this unfortunate man, that nevertheless I have to hold that he has not established a case and I must dismiss his claim.”
From that decision of Egan J. the plaintiff has appealed to this Court, the ground argued being a combination of grounds 2 an 4, i.e.:
“2. that the learned trial judge misdirected him[self] in law in holding that it was not reasonably foreseeable on the part of the defendant that the plaintiff would have been running along between the said railway tracks at night; and . . .
4. that the learned trial judge was wrong and misdirected himself in law in failing to hold that it was reasonably foreseeable that persons including the plaintiff would be in the vicinity of the said railway tracks and liable to sustain injury from the objects left adjacent thereto by the defendant.”
The submissions made by counsel for the plaintiff and the defendant respectively on the hearing of this appeal were similar to those made in the High Court. As Mr. Whelehan, counsel for the defendant, again relied on the test of foreseeability and proximity it is not necessary for this Court to consider whether, and if so to what extent, the conventional law in relation to the classifications of invitees, licensees and trespassers and the duties owed to each of them, is still applicable. The question should accordingly he reserved for an occasion on which it is fully argued and may be necessary for decision.
The law
In this case, the question to be addressed is what, if any, duty was owed in the circumstances of this case to the plaintiff? Since the decisions of this Court in Purtill v. Athlone U.D.C. [1968] I.R. 205 and McNamara v. Electricity Supply Board [1975] I.R. 1, regardless of the fact that the plaintiff may have been an intruder, he will be entitled to succeed against the occupier provided that he passes the test of proximity and foreseeability.
In Purtill v. Athlone U.D.C. [1968] I.R. 205, Walsh J. said, at page 212:
“When the danger is reasonably foreseeable, the duty to take care to avoid injury to those who are proximate, when their proximity is known, is not abrogated because the other party is a trespasser. The duty to those in proximity is not based on any implied term of an invitation or a licence, or upon any warranty for safety which might be thought to be inherent in any such invitation or licence. Rather is it based upon the duty that one man has to those in proximity to him to take reasonable care that they are not injured by his acts. What amounts to sufficient care must vary necessarily with the circumstances, the nature of the danger, and the age and knowledge of the person likely to be injured.”
I do not think that Walsh J. there intended or purported to enumerate all the circumstances that were to be considered. Those mentioned by him were the appropriate ones in that case. To those he enumerated should be added the time and place (which would include the nature of the surface of which use is being made) and the persons who may be expected to be exposed to danger – see Lavery J. in Donovan v. Landy’s Ltd. [1963] I.R. 441 at p. 445; and the presence and conduct of the person coming onto the premises see Henchy J. in McNamara v. Electricity Supply Board [1975] I.R. 1 at p. 24. In O’Keeffe v. Irish Motor Inns [1978] I.R. 85, O’Higgins C.J. said, at p. 94:
“Irrespective of the capacity in which a person is on another’s land, regard must be had to the actual circumstances and to what in those circumstances is known by or can reasonably be expected from the occupier as to such person’s presence or actions. If the presence of persons on one’s property without permission is habitual and well known, it may well be negligence if one acts in disregard of that fact. It is a question of foreseeability and regard must be had to all the circumstances including, of course, the time and the actual place where the person is at the time of the accident or injury. Indeed the test of reasonable foreseeability is, in my view, sufficiently flexible to cover all such cases where a person is injured on another’s land.
Accordingly, in my view in the circumstances of this case regard must be had to what the defendants would expect or could have reasonably foreseen in relation to the presence and conduct of the plaintiff at the time and place of the accident.”
In this Court, as in the High Court, the plaintiff relied on what was said by this Court in Foley v. Musgrave Cash and Carry Ltd. (Unreported, Supreme Court, 20th December, 1985), in which a customer in the defendant’s premises was injured when she fell over a trolley. In that case her proximity was known, and it was pointed out that, as a customer in a supermarket, she could not reasonably be expected to look down at her feet while walking along an aisle looking at the shelves displaying the goods on sale in the premises.
In the present case the circumstances were entirely different. There was no evidence that the defendant was aware that persons used the railway as a short-cut. However, on the assumption that it tolerated the crossing of the line near Woodfield Cottages for the purpose of use as a short-cut, was it reasonably foreseeable to the defendant that any adult would go onto the railway line, not for the purpose of taking a short-cut to Inchicore, but for the purpose which the plaintiff stated in evidence, and that he would act and conduct himself in the manner in which the plaintiff did on the evening of the accident? To determine the answer to this question, all the circumstances prevailing must be taken into account. These would include the time at which and the state of the light when the events took place, the nature of the surface on which he was running, the speed at which he ran, the fact that having fallen once he got up and started again, and that, although he saw a train approaching in close proximity to him, he continued to run as fast as he could when all he need have done was to pull up or step to his left, in which case he would have been in no danger. In considering the question of foreseeability it needs to be stressed, as was stated by Henchy J. in McNamara v. Electricity Supply Board [1975] I.R. 1 at p. 24, that the existence of, or failure to observe, a duty of care should not be determined with the hindsight derived from the accident but in the light of the circumstances, actual and potential, that ought to have been present to the mind of a reasonably conscientious occupier of property before the event took place.
In my opinion it would be perverse to hold that the defendant could or should reasonably have foreseen that any adult would have conducted himself as the plaintiff did in this case on the evening of the accident. In the circumstances of this case, the defendant owed no duty to the plaintiff, and Egan J. was correct in dismissing this action. I would accordingly dismiss this appeal.
Hederman J.
I agree.
McCarthy J.
I also agree.
O’Flaherty J.
I also agree.
Clancy v OPW
National Monument pre-1995 Act
[1992] I.R. 449
Damien Clancy (late an infant and now of full age), Plaintiff v. The Commissioners of Public Works in Ireland and The Attorney General Defendants
[S.C. Nos. 389 and 390 of 1987]
High Court 8th July 1987
Supreme Court 12th March 1991
Barr J.
8th July 1987
The facts of this case are simple. Donegal Castle in the town of Donegal is an ancient, partly ruined building. It is a national monument which is now and has been for upwards of 80 years in the possession and control of the Commissioners of Public Works in Ireland (The Board of Works). The Board employs a caretaker and for many years the practice has been that he unlocks a gate each morning to enable the public to gain entry to the curtilage of the castle. He has no supervisory duties other than to clear the premises and lock the gate each evening. There is an open arch which leads to the interior of the castle where there is a staircase giving access to the first floor. At that level there are two large windows or openings, one of which has a balcony which constitutes an obvious viewing point for the public. It had been in part built by the Board, presumably for that purpose, in the course of restoration work prior to August, 1980. Close to the latter viewing point there is an aperture in the floor about two feet wide and extending almost the entire width of the balcony.
On the 16th August, 1980, the plaintiff, then a 13 year old schoolboy, and seven other youngsters, being his brothers and cousins, visited the castle and gained access to the first floor. There were also a number of adult visitors on the premises at the time. The aperture to which I have referred was then open and was totally unguarded. There was also a lip or step along the inside edge of it. There was no direct evidence at the trial as to how the plaintiff came to be injured. His elder brother, Colm, who was elsewhere on the first floor of the castle at the time, heard a shout and found that the plaintiff had fallen a distance of about sixteen feet through the aperture and was lying beneath it unconscious and seriously injured. There was no notice in or about the castle warning the public of any particular danger or exhorting them to take care for their own safety.
I have already held that the Board of Works was negligent and in breach of duty to the plaintiff in failing to fence or cover the aperture in the first floor of the castle. The only issue on liability which remains for determination is whether the plaintiff was guilty of contributory negligence, and, if so, how fault should be apportioned between him and the defendants in all the circumstances of the case.
The plaintiff, having entered the castle, had a duty to take reasonable care for his own safety. However, in determining what was reasonable in the circumstances the court should have regard to the age of the plaintiff; the nature of the premises (being a partially ruined ancient castle which, per se, is likely to be a particular delight for an average boy of that age) and the fact that the plaintiff was accompanied by several boys within the age group 10 to 17 years. An interesting scenario for exploration and fantasy was presented to the plaintiff. Added to this it should be recognised that boys of his age in those circumstances have a natural propensity to run rather than to proceed sedately and with the degree of caution one would expect of an adult.
The plaintiff’s older brother, Colm, was first up the stairs. He and others following him made for a particular viewing window. The plaintiff appears to have been following the first group of youngsters and I am satisfied that he elected to make for the second larger viewing balcony close to the aperture and on the far side of it as the boy approached. I have already mentioned that there is no evidence as to how he came to fall down the hole. It may well be that he ran towards the balcony and that he either attempted unsuccessfully to jump the aperture, as Mr. Geraghty surmises, or that while running he tripped on the lip or step which was near the hole. In either event it follows that if he did so he adopted a course of conduct which, even having regard to his age, he ought to have known was dangerous in the circumstances and exposed him to the risk of falling through the hole. I am satisfied from the evidence that the aperture, though unguarded or unfenced in any way, was of substantial dimensions and was situated in an area of the floor which was clearly exposed by daylight. It follows that the plaintiff, if taking reasonable care for his own safety, ought to have seen it and should have realised that it presented a danger to him which might lead to serious injury. Therefore, he ought not to have run towards it or attempted to jump the gap – if that is what he did. In the absence of specific evidence as to how the plaintiff came to fall down the hole, it seems to me that the court should adopt a reasonable construction of the events, consistent with the established evidence, which is most favourable to the defendants. There is no evidence that the child fell because he was pushed by one of his companions. The question of horseplay was raised by counsel for the defendants with the plaintiff’s brother, Aidan, and he denied that any such thing had taken place. I accept his evidence in that regard and I consider that it is most unlikely that the plaintiff was pushed. The other two alternatives to which I have referred are each eminently more likely. Of these, the suggestion that the boy may have attempted to jump the aperture is the explanation most favourable to the defendants and I adopt it as the basis for the assessment of the plaintiff’s conduct. In that premise it follows that the boy failed in his duty to take reasonable care for his own safety. However, if the aperture had been properly protected, as it should have been by the Board of Works, the risk of a child meeting with such an accident could not have arisen. The fact that an exuberant young boy might attempt to jump over the aperture on his way to the viewing platform was clearly foreseeable. I am satisfied that on apportionment of degrees of fault greater blame rests on the defendants than on the plaintiff and, accordingly, I apportion blame as to two thirds and one third respectively.
Damages
The plaintiff suffered the following injuries:
(a) A serious head injury resulting from an intra cerebral haematoma and associated severe concussion.
(b) A fracture of the left shoulder blade.
(c) A displaced fracture in the sub-trochanteric area of the right femur.
(d) Various small wounds, contusions and abrasions.
The plaintiff was originally treated at Letterkenny Hospital. From there he was transferred to Dungannon Hospital and then on to the Royal Victoria Hospital in Belfast where he was detained for two months. The fractured femur required a lengthy period of traction.
Ultimately, the plaintiff made a reasonably good recovery from that fracture but the injured leg remains slightly sub-standard and Mr. Adaire accepts that it probably continues to be the cause of intermittent discomfort in the thigh. The plaintiff has a slight limp and I accept his evidence that he has some pain and discomfort in the injured leg after strenuous activity. This minor disability is likely to continue indefinitely. As to the shoulder injury, no complaint is now made in that regard and it appears to have cleared up completely.
By far the most serious aspect of the matter are the sequelae which follow from the head injury sustained by the plaintiff. He suffered an epileptic manifestation in the first year following the accident. However, there has been no recurrence since then and I accept Mr. Lanigan’s evidence that, having regard to the lapse of time, the risk of further epileptic attacks is now two to three per cent.
I accept the evidence of the plaintiff’s father, a principal primary teacher, and of the other teachers who knew the boy prior to the accident. This evidence establishes that at that time he was a bright, active child of at least average intelligence and ability. Unlike any of his brothers, he had been selected for grammar school and was progressing well there. This evidence is also borne out by the assessment made by Doctor McKenna, clinical psychologist. A major change in the intellectual capacity of the plaintiff has become manifest since then. I accept the evidence of the plaintiffs father, Doctor Greg and Doctor McKenna that he has now sunk to the intellectual level of “dull normal”. This means that from being in the top twenty per cent of his peer group intellectually, he has now descended to the lowest ten per cent of that group. Because of intellectual impairment he was unable to remain in grammar school and was transferred to a secondary technical school where his performance was also poor.
Apart from intellectual impairment, the head injury allied to the sequelae of the leg injury, causes the plaintiff to be clumsy, sometimes unsteady and liable to fall. While working for a contracting firm after the accident he fell down stairs and fractured his ankle. It seems that this injury was caused by impairment in his balance resulting from the head injury. His hand movements are also affected to some degree. These manifestations are indicative of permanent brain damage and it appears that no further significant improvement is expected.
The end result for the plaintiff is that his way of life and his future prospects have changed radically. He is no longer a bright, intelligent, active person but instead is dull and clumsy. He has lost the capacity or the urge to socialise in a normal way and in terms of working capacity he can expect, at best, to obtain light, menial employment.
I am satisfied that, having regard to the general family history of employment, the plaintiff would, at the very least, have qualified in some trade if he had not been injured in the accident. The evidence of Mr. McCann, the trade union official, has not been challenged. He states that the wage for light unskilled labouring work in Northern Ireland presently is £103.00 gross per week including a £7.00 bonus or £88.00 net of income tax and other deductions for an unmarried man with no special allowances. Qualified bricklayers and other craftsmen in the building trade have a minimum wage of £117.00 per week including bonus or £102.00 per week net of tax and deductions. Mr. McCann deposed to the fact that there is a high degree of unemployment in the Dungannon area (about 25%) but that the situation is improving to some degree in the building trade.
In the light of the evidence to which I have referred it emerges that the plaintiff has suffered a net loss of earning capacity of not less than £14.00 per week sterling or IR£16.00 per week to the nearest punt. Mr. Seagrave Daly’s net actuarial multiplier on that basis is £1,260.00 per IR£1.00 per week loss. Accordingly, the actuarial value of IR£16.00 per week loss is £20,160.00. However, having regard to the decision of the Supreme Court in Reddy v. Bates [1983] I.R. 141 this sum must be adjusted to take account of employment prospects in the future and the risk of absence from work through ill-health. Accordingly, in my view the capital sum should be reduced by 25% to £15,120.00. However, I am satisfied that the plaintiff will probably find great difficulty in the present economic climate in obtaining the type of semi-sheltered employment which is within his restricted physical and intellectual capacity. A further sum of £5,000 is reasonable compensation to cover that factor.
There remains, finally, compensation for pain, suffering and disablement to date and for continuing disablement in the future. Both of these include compensation for the permanent sequelae of his injuries; the substantial alteration in the plaintiffs personality and way of life; his loss of sporting capacity and also loss of job satisfaction. There is no doubt that his life as a qualified tradesman would have given him greater pleasure and sense of fulfilment than will be the case as a labourer performing menial tasks only. I assess compensation under these headings at £30,000.00 and £70,000.00 respectively.
The total amount of damages, therefore, is as follows:
(a) Net capital value of loss of earning capacity £15,120.00
(b) Probable delay in obtaining work 5,000.00
(c) General damages to date 30,000.00
General damages in the future
70,000.00
Total:
£120,120.00
Less 1/3rd on apportionment of degrees of fault
40,040.00
Net amount of compensation
£80,080.00
The plaintiff is entitled to judgment for that amount.
The order of the High Court was perfected on the 30th November, 1987. By notice of appeal dated the 21st December, 1987, the defendants appealed against the finding of negligence, the proportion of fault apportioned to the first defendant and the level of damages awarded. By notice of cross-appeal, also dated the 21st December, 1987, the plaintiff appealed against the finding of contributory negligence and the inadequacy of the damages awarded. By notice of motion dated the 18th April, 1989, the plaintiff sought to have the defendants’ appeal dismissed for want of prosecution. The motion was struck out on consent. The appeal and cross-appeal came on for hearing before the Supreme Court (Finlay C.J., Hederman and Mccarthy JJ.) on the 26th and 27th February, 1991, at which stage the plaintiff’s cross-appeal on the level of damages was expressly abandoned.
Patrick Geraghty S.C. (with him Eamon De Valera S.C. ) for the defendants referred to the Ancient Monuments (Protection) Act, 1882, the Ancient Monuments (Protection) (Ireland) Act, 1892, the National Monuments Act, 1930, the National Monuments (Amendment) Act, 1952, and the Civil Liability Act, 1961.
The first defendants were not the legal owners of the monument and it was not for them to decide who should have access to the site.
The first defendants have a statutory obligation to preserve and maintain the monument from ruin. The Commissioners are not entitled to interfere with the integrity of the monument. The first defendants are entitled to expect that visitors to the monument will behave reasonably and normally. The first defendants’ duty goes no further than an obligation to take reasonable steps for the safety of those who are themselves acting reasonably. The plaintiff has failed to prove how the accident happened. Where it is thus impossible to apportion fault, it must be done on a fifty/fifty basis – see s. 34 of the Civil Liability Act, 1961. The accident could not have happened without extreme carelessness on the part of the plaintiff. As for damages, £70,000 for pain and suffering in the future is excessive for a relatively minor degree of mental impairment.
Eoin McGonigal S.C. (with him Dominick Hussey ) for the plaintiff: The approach of the Court to a situation such as the present where the precise cause of the accident cannot be established with certainty is set out in the decision of this Court in Clancy v. Dublin Corporation . There should be no finding of contributory negligence. See Fleming v. Kerry County Council and McNamara v. E.S.B. There was evidence in the High Court that the hole was difficult to see.
Supremee COurt
Finlay C.J.
12th March 1991
This is an appeal brought by the defendants against an order of the High Court dated the 8th July, 1987, made by Mr. Justice Barr, in which
(a) he found the defendants guilty of negligence and breach of duty to the plaintiff;
(b) he found the plaintiff guilty of contributory negligence;
(c) he apportioned fault as to two-thirds against the defendants and one-third against the plaintiff; and
(d) he assessed total damages in the sum of £120,120.
The defendants appealed against the finding that they were guilty of negligence or breach of duty towards the plaintiff at all; against the proportion of fault, in two-thirds, which was placed upon them in the alternative; and against the assessment of damages on the basis that they were excessive. The plaintiff served a notice of cross appeal against the finding of contributory negligence made against him and in the alternative against the proportion of fault apportioned to him, and also appealed against the assessment of damages in so far as the learned trial judge failed to award any loss of earnings to date of the trial, and against the alleged inadequacy of the sum assessed for loss of earnings in the future.
The facts
By indenture of the 3rd March, 1898, the Earl of Aran pursuant to the powers contained in the Ancient Monuments (Protection) Acts, 1882 and 1892, constituted the Commissioners of Public Works in Ireland guardians of the ancient monument consisting of the Castle of Donegal and the walls surrounding the same which is situated in the town of Donegal, in the county of Donegal. In that indenture it is recited that the Commissioners were of the opinion that the preservation of that ancient monument was a matter of public interest by reason of the historical interest attaching to it.
By August of 1980 the Commissioners had apparently placed a railing fence around the site of the castle, and employed a caretaker who locked the only gate in that railing each evening, and opened it in the morning. Upon the gate being opened, members of the public could gain access to the site of the castle. When they did, they entered into the ground floor of the castle through an open archway and then climbed a set of stairs to a first floor portion of the castle. There they entered upon a stone floor, and to their right there was an ope as for a window, which had a balcony beside it. Apparently, between the head of the stairs and that ope there was an aperture in the floor which was approximately two feet wide and something over seven feet in length.
On the 18th August, 1980, the plaintiff who was then a boy of thirteen and a half years of age went with three other young members of his family, ranging from ten years of age to something over seventeen years of age, to visit the castle. They were not accompanied by any adult. Upon entering the castle, it would appear that the group of four young persons went up the stairs to the first floor, and that the plaintiff was the last to arrive at that level. The evidence was that shortly after arriving on that floor of the castle the plaintiff’s brothers heard a shout and on looking saw the plaintiff having fallen down to the ground floor and lying, very gravely injured, underneath the aperture in the upper floor of the castle.
The plaintiff suffered severe injuries, including concussion, and had no recollection of the events preceding his fall, and in fact had no recollection of entering the town of Donegal on that day.
Proceedings in the High Court
The plaintiff’s claim against the Commissioners was laid on the basis that they were the occupiers of the castle and owed him a duty as an invitee; that they were in control of the castle and owed a duty of reasonable care to him as a person to whom they granted access to the castle, and that on either basis they were wanting in care in failing either to warn him against the existence of this aperture in the floor or to fence it off in some way.
The Commissioners in their defence contended that having regard to the provisions of the National Monuments Act, 1930, they were not occupiers of the castle and that they owed no duty to any member of the public in relation to it other than a duty to preserve the fabric of the castle as an ancient monument. They asserted that, having regard to the statutory provisions which appointed them as guardians and the powers and duties vested in them, they had no obligation to take any care for the safety of members of the public who had access to the castle.
Mr. Justice Barr, who tried the action in the High Court, directed that the evidence on that issue should be heard as a preliminary issue in the course of the trial, and submissions on the legal situation made at the commencement. That having been done, the learned trial judge ruled that he was satisfied that on the facts of the particular case the Commissioners are and were in control of the castle and that they had invited the plaintiff thereon, and that therefore the relationship of invitor and invitee arises between the parties and that the duty of the defendants therefore was to take reasonable care in respect of unusual dangers on the premises over which they had control.
The appeal of the defendants against that finding was dealt with first in the submissions before this Court, as a preliminary issue, and I will accordingly deal with that question first. I am satisfied that there is an obligation on the facts of this case upon the Commissioners to take reasonable care for the safety of members of the public to whom they permit access to the national monument. The provisions of the Ancient Monuments (Protection) Act, 1882, and the Ancient Monuments (Protection) (Ireland) Act, 1892, have both been repealed by virtue of the provisions of the National Monuments Act, 1930. By virtue of the provisions of s. 2 of the Act of 1930 every monument to which the Ancient Monuments (Protection) Act, 1882, applied immediately before the passing of that Act is deemed to be a national monument.
By virtue of s. 6 of the Act of 1930, where immediately before the passing of that Act the Commissioners were the guardians of a national monument by virtue of a deed executed under one of the repealed Acts, certain provisions apply, inter alia, granting to the Commissioners “all such powers, privileges and duties as are by this Act conferred or imposed on them in respect of national monuments of which they are guardians”.
By virtue of s. 12 of the Act of 1930, where the Commissioners are the guardians of a national monument, they shall maintain such monument and have right of free access to it for the purpose of so doing. Maintenance is defined in s. 2 of the Act to include “the cleaning, repairing, railing off, fencing and covering in of such monument and the doing of all such other acts and things as may be necessary or expedient for the preservation or protection thereof, and cognate words shall be construed accordingly”.
The provisions of s. 16, sub-ss. 1 and 2 of the Act of 1930 are of particular relevance to the issues arising in this part of this case, and those sub-sections are as follows:
“16.- (1) Where the Commissioners or a local authority are the owners or the guardians of a national monument, the Commissioners or such local authority (as the case may be) shall, subject to the provisions of this section, admit the public to enter on and view such monument upon payment of such (if any) charge for admission and subject to such conditions and limitations as the Commissioners or such local authority shall prescribe.
(2) Where the Commissioners or a local authority are the guardians of a national monument by virtue of a deed made under an Act repealed by this Act, the public shall not be admitted to such monument under this section without or otherwise than in accordance with the consent of the owner of such monument given by such deed or otherwise.”
Submissions were made concerning the interpretation of these two sub-sections of s. 16, and I am quite satisfied that the interpretation is as follows. The Commissioners in respect of any national monument of which they are the guardians, irrespective of whether they have been so constituted under the Act of 1930 or under a repealed Act, have an obligation to admit the public to enter on and view such monument, upon payment of such, if any, charge as they may see fit, and subject to such conditions and limitations as they shall prescribe. Where they are guardians by virtue of a deed made under one of the repealed Acts, they are prohibited from admitting the public to such monument without, or otherwise than in accordance with the consent of the owner of such monument, given either in the deed or otherwise.
No evidence was given at the hearing in the High Court of any consent given by the owner of this monument to the admission of the public to it. Accordingly, no evidence was given of any particular form of restriction contained in any such consent emanating from the owner of the monument. By reason of the fact that as the evidence indicates, the Commissioners have for many years admitted the public access to this monument, and have made arrangements for and employed persons to control such access by shutting and locking the gate during the night time, the presumption must be made that they have done so lawfully and in accordance with consent of the owner. There are, however, no grounds for assuming that there is any particular condition attached to that consent.
I am, therefore, satisfied that the obligation imposed by s. 16, sub-s. 1 on the Commissioners to admit the public, subject to such conditions and limitations as they shall prescribe, was in this case unfettered, and that the Commissioners were accordingly entitled to admit the public to portion only of the national monument: to confine them, if they saw fit, to viewing it only from a position outside its actual buildings or, for example, relevant to the facts of this particular case, to permit access to the ground floor only.
These discretions and possible conditions or limitations which the Commissioners could impose on the admission of the public to this national monument must, I am satisfied, be carried out by them reasonably and with care, so as to avoid damage or injury to persons who it could reasonably be foreseen would be affected by the discharge of that duty.
I would find it a wholly unacceptable interpretation of this statutory provision if, as is contended on behalf of the defendants, the Commissioners were held to be confined in the limitations or conditions which they attached to the admission of the public to enter on and view such monument, to the preservation of the fabric of the monument alone, so as to deprive them of any right to insert a condition or limitation which would protect members of the public.
It was conceded by counsel on behalf of the Commissioners that such an interpretation would lead to the extraordinarily anomalous position that if a portion of a national monument which consisted of building works above ground level were to fall, by reason of decay, upon a member of the public, that the Commissioners would be liable to that individual for the injury and loss which he suffered because they had failed to preserve the fabric of the building. If a member of the public, on the other hand, fell through a hole in a national monument, which it could not be established should have been repaired so as to preserve the fabric of the monument, they would have no claim.
I am satisfied that in carrying out this statutory duty the Commissioners were obliged to take such reasonable steps as were necessary to avoid foreseeable risk to persons likely to be affected by the discharge of that duty, that is to say, to persons who might gain access to the national monument by virtue of the admission of the public to enter upon and view it.
Liability of the defendants
The next issue which arose on this appeal was, even assuming the existence in law of such an obligation to take reasonable care, as to whether the plaintiff had established a breach of that obligation, causing him loss and damage.
The first submission made on this issue was to the effect that in the absence of direct evidence as to how this accident happened, it was not open to the learned trial judge to conclude that the plaintiff fell through the aperture in the floor of the first floor of the castle, and that in the absence of such an inference, the defendants could not be liable. I am satisfied this submission must be rejected. The fact that the plaintiff was found in an unconscious condition, directly below this aperture in the floor, coupled with the fact that he did not pass by or had not reached the other members of the party who were with him, who were over at the window, raised the clearest possible inference that he fell through the aperture.
The second submission which was made was that even if he did fall through the aperture, the existence of the aperture did not constitute any breach of a duty by the defendants, who were entitled to rely on the fact that persons entering upon a national monument consisting of a ruined portion of a castle only, could expect it to be in a dangerous condition.
I accept that in general the obligation of the Commissioners of Public Works in admitting members of the public to enter upon and view national monuments must not be equated, in regard to standards of care, with the obligation which may be imposed on persons such as hotel owners or shop owners in relation to the care which would be taken of members of the public having access to buildings in use for purposes connected with commerce or trade. Any person entering upon and viewing a monument consisting of a partly ruined building expects to find opes which are unprotected and staircases which do not contain a bannister, or side rail. It is a matter for determination in each individual case as to whether protection should be provided or whether, in the alternative, where it is not reasonably possible to do so, the public should be prevented from having access to some particular part of the building concerned.
In this case the evidence was that the aperture was large, seven feet by three feet; was in a dark coloured stone floor over a dark coloured stone floor; was sixteen feet above ground level and was apparently straddling the path from the top of the stairs to the most obvious viewing point, the bay window. Such a situation created, in my view, a very real and present risk of injury to persons gaining access to the castle. I am therefore satisfied that that fact imposed on the Commissioners an obligation either to close it by a grille (as they subsequently did) or to prevent access to the first floor. The defendants failed in this obligation, and accordingly the learned trial judge was correct in holding them guilty of negligence and breach of duty.
Contributory negligence
With regard to the issue of contributory negligence, I have come to the following conclusions. The learned trial judge, in the course of his judgment, stated as follows:
“I am satisfied from the evidence that the aperture, though unguarded or unfenced in any way, was of substantial dimensions and was situated in an area of the floor which was clearly exposed by daylight. It followed that the plaintiff, if taking reasonable care for his own safety, ought to have seen it, and should have realised that it presented a danger to him which might lead to serious injury. Therefore, he ought not to have run towards it or attempted to jump the gap, if that is what he did. In the absence of specific evidence as to how the plaintiff came to fall down the hole, it seems to me that the court should adopt a reasonable construction of the events, consistent with the established evidence, which is most favourable to the defendants. There is no evidence that the child fell because he was pushed by one of his companions. The question of horseplay was raised by counsel for the defendants with the plaintiff’s brother Aidan, and he denied that any such thing had taken place. I accept his evidence in that regard and I consider that it is most unlikely that the plaintiff was pushed. The other two alternatives to which I have referred are each eminently more likely. Of these, the suggestion that the boy may have attempted to jump the aperture is the explanation most favourable to the defendants and I adopt it as the basis for the assessment of the plaintiff’s conduct. In that premise it follows that the boy failed in his duty to take reasonable care for his own safety.”
I am satisfied that in approaching the issue of contributory negligence in this manner, the learned trial judge fell into an error of law.
There was no evidence of any witness as to how the plaintiff came to fall through this hole, though there was evidence from which, as I have already indicated, I am satisfied the learned trial judge was correct in inferring that he did fall through it. There was certainly no evidence that he was seen to be attempting to jump over it, nor was there any evidence that he ran across it.
The onus of establishing contributory negligence was on the defendants and, in the circumstances, where no direct evidence of what the plaintiff did or omitted to do was given, that onus could only be discharged if the facts raised an inference, as a matter of probability, that a particular act or omission on the part of the plaintiff had to have occurred in order to explain the accident.
Having regard to that onus, expressed in that way, there can be no justification as a matter of law for taking, of several possible alternatives, the alternative most favourable to the defendants for the purpose of assessing contributory negligence. Furthermore, having regard to the fact that this aperture was positioned between the head of the stairs where persons coming onto the first floor of the castle arrived, and the point from which one might seek to view outside the castle, namely, the bay window; having regard to the uncontested evidence that in addition to these four boys there were a number of other tourists on the first floor of the castle at the time of the accident; and having regard to the evidence of two of the plaintiff’s brothers, which the court appears to have accepted, that they did not see the aperture on their way across to the bay window, I am satisfied there are no grounds on which it could be inferred, in the manner which I have indicated, that the plaintiff was guilty of contributory negligence. The possibility that a thirteen and a half year old boy entering upon this floor of the castle by the stairs, and walking towards a window which appeared to yield a view, would do so without being in breach of reasonable care for his own safety, without looking down to the floor, seems to me entirely acceptable and, in those circumstances, I would allow the plaintiff’s appeal against the finding of contributory negligence; disallow the defendants’ appeal concerning that issue; and vary the order of the High Court so as to exclude the finding of fault against the plaintiff.
Damages
Whilst the defendants did not withdraw their appeal against damages counsel, very properly, indicated to the Court that he could do no more than merely state the general proposition that they appeared to be too high. Counsel on behalf of the plaintiff expressly abandoned the cross appeal with regard to the issue of damages and, having regard to the multiplicity and seriousness of the injuries suffered by the plaintiff, I have no doubt that the defendants’ appeal against damages must be dismissed.
Hederman J.
I agree.
Mccarthy J.
The plaintiff’s case, as pleaded, is that he was visiting the castle”which said premises are the property of or under the control of the defendants, their servants or agents (when) owing to the negligence of the defendants, their servants or agents, the infant plaintiff sustained severe personal injuries, loss and damage as a result of falling through an opening in the first floor of the said castle.”
Particulars of negligence were given, in effect, alleging a failure to warn the plaintiff or to erect a protective guard. At the commencement of the hearing the preliminary submission was made on behalf of the Commissioners that they were not the occupiers of the castle, that they were the wrong defendants. The transcript does not disclose that any submission was made that the plaintiff was an invitee in the sense that that term has somewhat artificially been accorded in cases of occupiers liability. This derives either from a common interest or, at least, in the occupier a material interest in the presence of the relevant visitor. In his judgment on this issue, the learned trial judge said:
“I am satisfied that in this particular case the Commissioners are and were in control and invited the plaintiff thereon, and that therefore the relationship of invitor and invitee arises between the parties in this case, and the duty therefore is that the defendants must take reasonable care in respect of unusual dangers on the premises over which they have control.”
I share the Chief Justice’s view, as expressed in his judgment just delivered, that the Commissioners have such control as to make them liable to those lawfully entering upon the castle; such liability arises from their control and the proximity of the plaintiff as a person whom they might reasonably foresee would be injured if a danger such as described were within the area where the plaintiff might reasonably be expected to go. It does not arise from the somewhat artificial relationship of invitor and invitee, a form of legal fiction which I think best abandoned, and which did not form part of the plaintiff’s case as pleaded. The duty of the occupier or, as in this case, quasi-occupier, is to take reasonable care for the safety of those lawfully visiting the castle. The nature and extent of such care will vary from place to place and from case to case. It is not necessary to establish liability that the danger should be unusual unless one is to say that all openings which are unprotected are, thus, unusual.
The conclusion of the learned trial judge that the premises were dangerous to the plaintiff and caused his injuries is amply supported in evidence.
Contributory negligence
I agree with the Chief Justice that the presumption in favour of the defendants as outlined in the High Court is not correct in law. In my view, the very fact that the plaintiff fell through the hole in the floor was evidence of contributory negligence. The negligence of the defendants was the failure to guard the opening; it was an opening in the floor of a castle ruin, near to a viewing point. Nobody else fell, certainly at the time when the plaintiff and his brothers and cousins were in the castle; I think it is a legitimate inference that the plaintiff, in failing to see an aperture of these dimensions, was negligent in looking after himself. I would assess the same at the minimum level of 20%, and vary the order of the High Court to that extent.
Helen Stephenson v Sligo County Council
Recreational Use
2016 1115 P
High Court
8 August 2019
unreported
[2019] IEHC 617
Mr. Justice Robert Haughton S.C.
August 08, 2019
JUDGMENT
1. The plaintiff is a married woman who resides at Celbridge, Co. Kildare and this claim for personal injuries, loss and damage arises out of an accident on the morning of 2 March, 2014 when the plaintiff was caused to slip and fall on the access road to Aughris Pier, Co. Sligo, as a result of which she sustained a scalp injury and a displaced fracture of the left distal radius.
2. The claim as originally pleaded asserted “negligence, nuisance and breach of duty, including statutory duty” on the part of the defendant its servants or agents in:-
“a. Failing to maintain the access slipway.
b. Failing to clear the slipway of hazardous material.
c. Failing to clear a foreseeable slip hazard.
d. The management of the slipway in all the circumstances.
e. The maintenance and repair of the slipway, on all the circumstances.
f. Acting in reckless disregard for the Plaintiff’s safety,
g. Acting in such a manner as to cause injury to the Plaintiff,
h. Acting in such a manner that caused a public nuisance resulting in [injury] to the Plaintiff,
i. Failing to notify the Plaintiff of the approaching danger,
j. Failing to notify the Plaintiff of the defect in the slipway,
k. Acting in breach of s.4(4) of the Occupier’s Liability Act 1995.
l. The Plaintiff will rely on the doctrine of res ipsa loquitor.”
3. It became apparent at opening and in the course of the plaintiff’s evidence that she slipped and fell not on Aughris Pier as such, but rather on a steep access lane running from the tarred public road down to the pier.
4. During the hearing the court acceded to an application to amend the Personal Injury Summons to include the following particular of negligence:-
“Failing to install any adequate draining in order to prevent a slipping hazard being created.”
5. The purpose of this amendment was to permit the plaintiff to adduce evidence and argue that the accident was caused by misfeasance on the part of the defendant as a roads authority.
6. The court heard evidence at Sligo High Court on 2 and 3 May 2019, and further engineering evidence at the High Court sitting in Dublin on 29 May, 2019. Thereafter the parties lodged written legal submissions, and the court heard legal argument on 30 July, 2019.
Findings of Fact
7. The plaintiff was born on 14 October 1960, and works as an administrator in fashion retail. She and her husband Ron Stephenson were on a short visit to Sligo for the weekend and had arrived the previous day. They were staying in the Beach Bar, a B&B run by Mr. Darren McDermott situated not far from Aughris Pier. After breakfast the plaintiff and her husband went for a walk and headed for Aughris Pier. It took them ten or fifteen minutes to reach the access road to the pier.
8. At this point it is necessary to recount the largely uncontested evidence describing the access lane and pier, which also featured on the many photographs produced by each side’s engineers. Both lane and pier are shown on an historic 25” OSI map (1888 – 1913). It was not disputed that the pier, slipway and access route were constructed in the Victorian era, sometime post 1829, and probably built by the Grand Jury of Sligo and funded pursuant to ss. 67 and 68 of the Grand Jury (Ireland) Act 1856.
9. The lane is the only means by which pedestrians or vehicles can access Aughris Pier from the land. It is approximately 59 metres from the asphalt approach road to the concrete surface of the pier/slipway. It is a steep lane – such that there are warning signs erected on the approach – an image with a car being driven over a pier, with “cautious dangerous pier ahead”. The lane is straight, and for the most part it is about 5 metres wide. Approaching from the top, the first section from the asphalt road consists of 3.2 metres of roughened concrete, followed by a 23.7 metre long section of cobbled stones with a downhill gradient of 15.2%. These cobblestones were probably part of the original access lane surface installed at the time the pier was built. Beyond these there is a 32 metre section consisting of a combination of weathered concrete, gravel and rock outcrops with downhill gradients of 13.9% – 15.4%. The sides of the access lane become increasingly precipitous the further one walks. As you descend, on the left side there is a stone wall, extending about 16.25 metres adjacent to the cobblestone. Where this ends there is a steep grass bank on the left, the lower parts of which have natural vegetation that encroach onto the laneway surface. This gives way to a rock face at some 36 metres down the access road. The rock face commences at a height of some 2 metres, and is topped by grass, but at 38 metres down is fully exposed from the top to ground level, and this exposed rock face, which is near vertical, runs on below the lane and backs onto the concrete apron forming the harbour. The precise condition of the access route below the cobbled area as far as the pier in critical areas was a matter of some controversy, the evidence on which is considered later in this judgment. Where the lane reaches the pier it opens out onto a concrete apron access ramp some 10.7 metres wide, which leads onto a concrete slipway, both of which are cast in panels with a tamped surface finish. The pier wall extends on the left or western side, sheltering the slipway.
The Plaintiff’s Evidence
10. I found the plaintiff to be a truthful witness, but she had poor recollection as to precisely where the accident happened. She was wearing a heeled walking shoe/boot. She described how her husband went ahead of her down the access ramp and – “[…] I followed him down and as I went down, I think it was like midway, I started to lose my footing and I put my hand out to the wall to try and save myself and then I went down and I smashed my head and after that then it was just […] Ron came up to me and he picked me up from the ground because I was still in shock and he helped me back […]”.
11. She further described how she “felt myself starting to slip and I thought I could save myself by putting my hand on the wall.” [Day 1, p. 19.] When asked did she recall what caused her to fall she stated “just that it was slippy”. She confirmed that there was no one on the access ramp other than herself and her husband. She sustained a laceration to the back part of her head which later required seven staples, and she suffered a displaced fracture of her left wrist.
12. In response to the Court asking her to demonstrate how she fell, she did so, saying:-
“[W]ell when I was walking down and I felt it slippy, I put my hand out and then I went down […] my left hand […] I was grabbing for the wall [on my left] […] I don’t know if I touched it, I just went down and slapped my head and my leg went from under me.”
Under cross-examination she clarified that her reference to the “wall” on her left was the “rock embankment”. She said:-
“I put my hand out to the rock. I didn’t catch the rock and I slipped…I just know there was rock when I tried to save myself from falling.” [Day 1 p. 33.]
13. She said she was midway down the access ramp when she fell. However midway down would have been adjacent to the grass bank. In response to the court she said [Day 1 p. 35]:-
“I know I definitely reached out to hit a rock to save myself. So it was along, it must have been, it could have been the beginning of it and judge but I know I went, I did try, I hit off – my hand tried to reach the rock and I didn’t catch it and I went down.
Q. [Mr. Justice Haughton]: So you recall there being a rock on the left-hand side?
A. Definitely, yes, Judge.
Q. And do you recall what kind of surface you fell on?
A. It was wet.
Q. Yes but were you conscious of there being cobbles or a different surface?
A. To be honest, Judge it was a walkway. I am not sure.”
14. Further cross-examined by Mr. Bland S.C. on behalf of the defendant, the plaintiff confirmed that the surface was wet and that it had rained, and she agreed that the accident location that she indicated was “approximately 50 metres down the descent”. I find this to be consistent with an “X” that the plaintiff marked in court on image no. 11 (of photographs taken by Mr. Duggan, the defendant’s engineer) under cross-examination. The plaintiff also agreed that the “X” that she had marked on the photograph was roughly a couple of feet out from the rock embankment.
15. Where the plaintiff marked the “X” was clearly below the cobbled stone surface, and some way down the rock embankment, and about two feet out from the base of the embankment – which, at this point, is steep but not quite vertical.
16. The plaintiff accepted under cross-examination the general proposition that “when you go downhill on a wet surface there is a risk of slipping” [Day 1, p. 37]. She stated that when she fell her husband was actually down on the flat concrete surface that marks the beginning of the concrete apron leading to the slipway – evidence with which he later concurred. Further in response to the court the plaintiff stated:-
“We were just going down to have a look at the pier. So I just took my time going down.
Q. But…did you go slowly and he go on ahead?
A. I just took my time. I wasn’t thinking, I just took my time and I was walking.
Q. Had you any fear of slipping?
A. No [I] just took my time because it was wet.
[…]
Q. Well did it go through your mind that you might slip?
A. No, well I mean I didn’t think I would slip but I just took my time. I was being careful.” [Day 1, p. 39.]
The plaintiff went on to state that she “would have been in close to the wall going down […]”. She continued:-
“Well I was walking along that part but I know that when I went to fall I barely touched the rock. So I was obviously in close enough to be able to reach the rock to try and save myself. I remember that bit. I hit the rock and then I went down. I didn’t grab it because I slipped that quickly.” [Day 1 p. 41.]
Further in response to the court [Day 1 p. 41.] the plaintiff agreed that she had walked over a smooth section and that her foot “just went from under me. My left foot slipped […] it was on – it was concrete, it wasn’t grass.” As to the manner of her walking in response to the court [Day 1 p 42.] she said she had been taking her time, and her strides were normal “just a normal walk”. Asked could she feel any grit under your feet at any stage she responded:-
“No, just it got very sort of slippy. Well I mean that’s when I went down. So it got slippy and I just went down. It was very quickly.”
The plaintiff did not notice any slippiness before she fell – “I just went down from nowhere – and she said she was looking straight ahead at the time. She thought her husband was roughly 15 – 20 yards from her when she fell.
Mr. Darren McDermott’s Evidence
17. The plaintiff called a Mr. Darren McDermott who runs the Beach Bar B&B with his wife. He had been up and down the access lane to the pier many times since he was a child and he would have walked there or gone on a bicycle. His evidence was that in the summertime in July up to 100 children go to the pier for a safety swimming course. He had seen slime below the rock face but he located this on the concrete section below the access lane i.e. on the entrance to the pier and on the slipway. As this was not where the plaintiff fell his evidence, including his evidence that as a boy he had slipped in the general area of the pier, did not assist the court.
Mr. Ron Stephenson’s Evidence
18. Mr. Ron Stephenson gave evidence on Day 2, and I found him to be a truthful and accurate witness. He described what happened when they reached the access ramp leading to the pier:-
“I went down, Helen followed. I was just at the base. Helen is always very slow on going down hills or anything like that. She came down by the cliff face for a bit of support. As I was waiting for her I could see then that she was a bit unsteady on her feet and out of nowhere then that was it, she just slipped, her legs went”. [Day 2, p. 22.]
19. I am satisfied from his evidence that he witnessed the fall, and that at the time he was standing at the base of the access lane where it interfaces with the concrete apron that leads on to the slipway. He was looking back up at his wife and waiting for her. He stated that when she fell “she would have been about fourteen foot approximately from him.” He described how he saw that “she was starting to get a bit unstable on her feet and then it just happened, that was it, she slipped” and that “she went backwards and put her hands out to save herself”, and her head hit the ground. Mr. Stephenson got over to her as quickly as he could and helped her up, and with his arm around her shoulders helped her back to the Beach Bar. He described her as being in a great deal of shock, and that she was bleeding heavily down the back of her neck. He also observed the deformity in her wrist.
20. Under cross-examination Mr. Stephenson agreed that it was a wet morning and that the ground was wet underneath, and that he walked down the middle of the access lane. Under questioning from the court Mr. Stephenson disagreed with the “X” marked by his wife on image no. 11 as being the point at which she slipped. His evidence was that she was “a lot nearer to me”, and he felt she got it wrong because five years had elapsed since the accident. He saw her touch the rock face two or three times on her way down the access lane. As to her manner of walk he said – “[…] she was taking short strides. She is always extra careful [about] anything like that. That’s why I’d always be ahead of her no matter where we go for a walk. When we’d reach where we’re going I’d be ahead of her.” [Day 2 p. 32.] The court then asked:-
“Q. […] Did you look at the ground where she fell?
A. Me, no.
Q. Did you ask her why she fell or what caused her to fall?
A. Well I didn’t ask her but she just slipped and I went over to get her up.”
21. I conclude from this evidence that the plaintiff simultaneously became unsteady on her feet and slipped falling heavily to the ground and that this occurred about two feet out from the rock face, some fourteen feet up from the bottom of the access lane (where it interfaces with the flat apron leading on to the slipway). I also accept that neither the plaintiff nor her husband inspected the surface on which she slipped and fell, and neither could give any helpful evidence as to what caused her to fall.
22. As to confusion over where the plaintiff fell, I have come to the conclusion that this occurred because the plaintiff was inaccurate in pointing out the precise locus to her solicitor Ms. Orlaith Traynor in the first instance. Ms. Traynor in turn pointed out the wrong point to the defendant’s Executive Engineer Ms. Rosie Friel at an inspection on 14 October, 2014, at which the plaintiff was not present, and Ms. Friel unwittingly photographed the wrong spot. The same error misled Mr. Sean Walsh engineer who investigated on behalf of the plaintiff on 4 May, 2015, Mr. Duggan, who investigated on behalf of the defendant on 8 September, 2016, and Mr. Fergus O’Kelly the marine engineer who inspected on the plaintiff’s behalf on 8 November, 2018. To add to this confusion, the photographs included by Mr. O’Kelly and Mr. Walsh (in his first report) focus almost entirely on the slipway and the pier, and perceived slip hazards caused by green seaweed and marine flora mainly below the high water line. Receipt of Mr. O’Kelly’s report prompted the defendant’s solicitors Messrs Hegarty and Armstrong to write to the plaintiff’s solicitors on 19 February, 2019, enclosing photographs of the access route taken by Ms. Friel on 14 October, 2014, and requesting that the plaintiff identify on one of these photographs or a plan precisely where on the route she claimed to have slipped and fallen. Unfortunately, the response seems to have repeated the same error, which was only really corrected when Mr. Stephenson’s evidence was heard. This has implications for my consideration of the engineering evidence.
The Engineering Evidence
23. Mr. O’Kelly the marine engineer was called after the plaintiff, and before Mr. Stephenson gave evidence. He examined the access road pier and took photographs on 8 November, 2018. Insofar as his report and evidence deal with the tidal zone around the slippery pier his evidence did not assist me. In particular, his reference to the growth of marine flora on surfaces exposed to the marine environment, and the appropriate regular removal of marine growth from inter-tidal surfaces in harbour areas historically by the use of quicklime, and more recently by using safer E.U. approved chemicals, is not relevant, although I do accept that the defendant did in fact use chemicals to clear this pier periodically. This is because I am satisfied that the plaintiff fell above the tidal zone in an area where it would not be reasonable to expect a local authority to apply chemicals to remove marine growth.
24. Mr. O’Kelly also gave evidence in relation to the access lane. He was challenged on his competency to deal with this, given his stated expertise as a consultant marine engineer. I am satisfied that his qualification as a chartered engineer and his extensive experience in civil and mechanical engineering entitled him to give expert evidence on the access road surface. His evidence focused on the fact that the surface water run-off from the earth and banks either side of the access road was not being channelled away from the road surface. He pointed out where the effect of surface water is evident on the rock face and opined that this has led to algal growth which is quite extensive, and “first becomes evident in the roadway as a biofilm, basically algal growing in the roadway in a thin form […] that is as a result of fairly continuous water flowing to allow the material to grow.” He identified this by reference to photographs showing a smooth section of the access road adjacent to the rock face (his photographs nos. 3 and 4, Ref: 8506 and 8501 respectively), which portray a dark section of a road surface with the description “surface water run-off and bio-film on road” and “surface water run-off with algal growth on road way”. He confirmed as per his report:-
“On inspection, the algal growth is visible (dark green) on the west side of the access road and could be seen to extend out from the rock face and down the access road at various points. This bio-film was tested carefully, while wearing safety boots. The surface was found to be extremely slippery similar to walking on ice. After closer inspection it became apparent that there is a translucent bio-film on parts of the west side of the access road and down to the slipway. Again this bio-film was tested carefully, while wearing safety boots. This surface was found to be extremely slippy, similar to walking on ice. Where the translucent bio-film was present, the surface had the appearance of simply being wet.”
25. He said this “translucent bio-film” was not evident to the naked eye. He said it would start as algal growth and that the dark green was chlorophyll and as it grows it develops its colour. He confirmed that there is no evidence of maintenance being carried out by the defendant on the access road down to the slipway. He agreed that there was evidence that chemicals were being used to clean the tidal area but no evidence of any chemical cleaning of the access road.
26. Under cross-examination Mr. O’Kelly confirmed that the plaintiff was present on 8 November, 2018 when he asked her to point out where she fell, and she indicated the general area adjacent to the rock face, which Mr. O’Kelly marked on his photograph no. 1 ref. 8518 as being an area ranging over 20 metres running from the base of the access route up alongside the bottom edge of the rock face. It would seem that she was unable to be more specific. Cross-examined closely as to precisely where Mr. O’Kelly’s photographs no. 3 and 4 were taken, it emerged that no. 3 was taken further up the access road from the 20 metre section identified by the plaintiff, and only photograph no. 4 came within that area – but precisely where within that area could not be said. Mr. O’Kelly acknowledged that photograph no. 4 could have been taken “anywhere within the 20 metres”.
27. On this evidence photographs nos. 2 and 3 taken by Mr. O’Kelly in the plaintiff’s presence on 8F November, 2018 were certainly taken higher up the access lane from the point at which I have held the plaintiff slipped and fell. As to photograph no. 4 the plaintiff is unable to satisfy me as a matter of probability that this portrays that part of the access road on which she slipped and fell. Mr. O’Kelly’s more detailed evidence specific as to the surface in the areas portrayed in these photographs therefore does not assist.
28. Mr. O’Kelly gave evidence that, having found there to be a slippy surface on the slipway, he went back over the areas where he had found translucent bio-film, and he found that the slippery areas extended beyond the areas with visible dark green bio-film. Mr. O’Kelly was cross-examined on the basis that his inspection and report occurred four and half years’ post-accident. Mr. O’Kelly agreed that no algal growth was visible on the surface in Mr. Duggan’s images nos. 14 and 15 taken on 8 September, 2016 in the area beside the rock face where he had been led to believe the plaintiff slipped (using the photo supplied by Ms. Friel with an “X”). He agreed that if there was algal growth at the date of the accident on 2 March, 2014, it was not possible for it to have been present then, to have disappeared in 2016, and to have reappeared in 2018.
29. I believe little weight can be attached to Mr. O’Kelly’s evidence of slippery biofilm, in that it was specific to an area which was considerably higher up the rock embankment than where the plaintiff actually slipped and fell. Secondly, Mr. O’Kelly does not point to specific areas of slippery translucent bio-film across the whole of the 20 metre area inspected by him on 8 November, 2018. Even if he had observed slippery areas at that time, I find that they would not necessarily have been present four and half years earlier, even if it is accepted, as it was his evidence, that such slippery bio-film develops slowly over a period of time. As to the suggestion that the defendant should spray chemicals, such as those used for removing seaweed off piers, on this access roadway, Mr. O’Kelly agreed that he had never heard of it being done by a local road authority on roads giving pier access. Mr. O’Kelly agreed with the court that it might not be a very practical solution, but he identified it as something that could be undertaken when the seaweed removal was taking place at the pier.
30. Mr. O’Kelly also agreed that there were mud/silt deposits at the side of the access lane resulting from surface water run-off down the bank and access ramp. He adopted an observation in Mr. Duggan’s report that:-
“It is possible that the accident locus was contaminated with mud silt deposits from surface water run-off and this would obviously provide a slippery surface irrespective of the slip resistance of the ramp surface.”
31. Towards the end of his evidence he suggested two possible engineering solutions; the first, a sunken standard stainless steel drainage channel (an “ACO” channel) installed along the western side of the access lane; and the second a retaining wall at the top of the bank which would prevent water getting on to the access lane. Mr. O’Kelly did not consider that it would be difficult to build such a drain that would be flush with the road surface and continue across the slipway apron, although he could not comment on cost. Under cross-examination on this issue it was put to him that such a drain would not work on a slope of this steepness, and he agreed that such drains are “mostly designed for flat surfaces”. Mr. O’Kelly did not agree that such a drain with a steel cover would in itself constitute a slip risk, but he agreed that it would “clog up with leaves, twigs etc.” Mr. O’Kelly also agreed that it would not be a straight drain. Mr. O’Kelly had not considered the possibility of an open drain. He also conceded if putting in a drain where there is rock under foot on the access laneway that would have to be drilled out or blasted. He agreed this would add to the cost. Mr. O’Kelly also agreed that this would reduce the width of the access road and, if continued further down the width of the lane would be reduced below “a minimum 5 metres width”. He agreed that such a drain would have to swing left along the rock face where the access lane reaches the concrete apron, and that it would then involve digging up the pier to lead the run-off into a conduit pipe to discharge into the sea. A possible cost of €50,000 was put to Mr. O’Kelly. He hadn’t costed such a solution but it seemed high to him.
32. I was not satisfied on the evidence of Mr. O’Kelly that either of the engineering solutions which he had suggested had been properly designed or thought through, or that they were feasible from a practical or engineering perspective.
33. The plaintiff also called Mr. Sean Walsh, a Consulting Engineer experienced in accident investigation and in providing evidence to the courts. His initial inspection was on 4 May, 2015. Unfortunately, notwithstanding that he appears to have had a photograph (his photograph no. 6) which showed on it the plaintiff’s mark “#” indicating that she fell close to the rock embankment on the access laneway, his report focuses primarily on slip hazards caused by seaweed or other biological contaminants in the vicinity of the pier and slipway. However, much of his evidence given on 3 May, 2019 [Day 2] focused on possible misfeasance, and led ultimately to the amendment of the pleadings. In order to give both parties a better opportunity to investigate and deal with this, the case was adjourned and the hearing resumed on 29 May, 2019. Mr. Walsh revisited the locus of the accident on 3 May, 2019 and prepared an addendum report. Mr. Duggan on behalf of the defendant likewise reinspected the locus in the context of new allegations of misfeasance, but also in the light of Mr. Stephenson’s evidence as to where the plaintiff fell.
34. Over the two days on which he gave evidence Mr. Walsh firstly gave a useful additional descriptive evidence of the access lane and the different surfaces, and the various times at which different works appear to have been carried out. His view, which I accept, was that the cobbled area was the surface originally installed along the entire length of the laneway, and where it remains it is not particularly well maintained but has stood the test of time reasonably well save that the edges have become overgrown with grass/weed. Below the cobbled section he describes the combination of various “concrete surfaces and repairs with some rock outcrop, and a road width varying from 4.6m to 5.4m”. This accords with Mr. Duggan’s evidence. He describes this section, which includes the section of approximately 20 meters alongside the rock embankment, in his report as follows:-
“In general the surfaces are defective and severely ravelled. In addition, grass and weed is permanently present at the edges at all times, with evidence of more significant contamination by other materials arising from water flow from adjacent ground on to the access road at other times.”
What he describes is clearly visible from his photograph C, looking down the access lane towards the rock embankment, and showing a broken concrete surface with loose gravel and some sections worn through to a darker base material or rock. His photograph D, looking from the concrete apron of the pier back up the access lane, shows the same characteristics. I accept this irrefutable evidence as broadly representative of the condition of the lane at the time of the accident.
It is notable from these photographs that the worst of these surface features exist either above or below the point at which I am satisfied the plaintiff slipped and fell. The area in which she fell certainly has grass growth at the base of the embankment, and some loose material, but it has a smoother and less broken up concrete surface a foot or so further out from the rock base.
It is apparent from Mr. Walsh’s photographs and the engineering evidence generally that the concrete slab work in the vicinity of the slipway end around the pier is in much better condition and has a more modern appearance.
Mr. Walsh did not disagree with evidence and opinions of Mr. Duggan on behalf of the defendant, and emerging from his reports, as to the time line of various works. He accepted that the concrete surfacing on the lower part of the access laneway was probably undertaken in the 1960’s or 1970’s as it was rounded and typical of the aggregates used in concrete at that time. He accepted that the slipway and pier apron were cast in concrete panels laid in or about 1985, and this seems to be supported by a sign on the winch house above the slipway which is somewhat rusted and is headed “The Small Harbour Improvement Scheme”. He also accepted Mr. Duggan’s evidence that severe storm damage in late 2013/early 2014 resulted in repair works to the pier area for which state funding of €53,250 was approved as part of the Local Authority Development and Marine Leisure Programme. Importantly he accepted that these works did not extend into the access lane.
35. Mr. Walsh was somewhat critical of the manner in which the resurfacing work had been undertaken on the lower part of the access lane (in the 1960’s or 1970’s), but his evidence did not attempt to relate this to acceptable road repair standards of that time. His view was that concrete had simply been poured with no attempt to finish it at the edges, and that as a consequence grass and other permanent foliage had encroached into that area, in turn causing further “ravelling” of the surface which, on Day 2, he had described as “ravelled and broken in a number of areas”. On Day 3 he gave evidence in line with his second report at p. 3 where he states that:-
“No provision for drainage is provided. The road-way is provided for pedestrian and vehicle use and for both amenity and commercial use. The edges of the carriageway are provided in such a manner that they directly abut the embankments and permanent foliage in the form of grass and weeds now grow out onto the roadway. This presents a slipping hazard in and of itself in wet weather, in light of the steep incline, but also impedes the flow of surface water. This increases the risk of additional hazards arising in the form of organic bloom of the type shown in photograph Q. The current staining of the carriageway along the left hand side, as best seen in photographs F and K, confirmed contamination of this area.”
36. Photograph Q it must be said shows the modern concrete surface nearer the slipway, and not the vicinity of the plaintiff’s fall. Photographs F and K focus on the concrete surface near the embankment of wall above where the plaintiff fell. They do both show a lighter colour overlay on the concrete which he described as a “stain” which could be “scratched off” which demonstrates the presence of organic material which would present a slip hazard in wet weather. Mr. Walsh tied this back to cracks and holes, featured in his photographs, in the rock face that were evidence of egress of water/seepage onto the road surface, which he said would encourage the organic growth. His evidence, in line with his second report, concludes:-
“This results in a combination of permanent foliage growing on the pavement, and ground water running from the embankments. The absence of any drainage whatever and any cleaning of permanent foliage from the carriageway results in additional organic growth in wet conditions. Notwithstanding substantial works in the general area in recent times no meaningful steps had been taken to eradicate this severe hazard arising from particular circumstances in this location.”
37. Mr. Walsh’s evidence also focussed on a small section of concrete infill that appears at the bottom of the laneway on the left hand side, linking the older concrete surface to the base of the rock embankment (where there is grass), and also encroaching onto the slipway. This is seen clearly in Mr. Walsh’s photograph N taken on inspection on 3 May 2019. Mr. Walsh described this [Day 2 p. 57] as “[…] a repair that contains a small drainage channel at the bottom of the rock face, but that appears to have been I expect an initiative by whatever workman was charged with filling in a hole.”
The drainage channel runs parallel to the rock face and is twelve inches wide and one-inch-deep, and is visible for about three feet, although Mr. Walsh felt it may have been a little bit longer – perhaps five feet – when constructed. This feature is some twelve feet or so below where the plaintiff fell. Mr. Walsh considered that it was not a big job – merely an infill for a damaged or worn section of pavement.
38. Mr. Walsh’s view was that this re-instatement indicated an understanding by the defendant’s workman of the particular hazards arising at this locus. This, he suggested, highlighted the importance of the defendant cleaning the sides of the road in light of the particular problems presented by the high embankments, but no such cleaning ever seems to have been undertaken, and the road remained in “exceptionally poor condition”.
39. Mr. Walsh then gave evidence of minutes of a meeting of Sligo County Council held on 2 May, 2014, two months after the plaintiff’s accident, where Item 29 recorded a motion to the effect: – “To ask Sligo County Council to improve the width along the road down to Aughris Pier Skreen” to which the response by Mr. T. Kilfeather, Director of Services, is “the roadway down to the pier at Aughris is very narrow adjacent to the pier itself and apart from site cleaning it would be difficult to improve it due to high embankments on each side”. Notwithstanding this, it didn’t appear that any cleaning had occurred such as to render the area safer. He also noted the minutes of a meeting of the Ballymoate – Tuppercurry Municipal District of 20 June, 2016, Item 7 of which recorded a motion “to call on Sligo County Council to prepare a report on the road to Aughris Pier”. It is not clear whether this refers to the approach road, or the access lane down to the pier. At any rate, the report provided by Mr. P. Hughes, Senior Executive Engineer was recorded as follows:-
“The road from the coast road to Aughris Pier is in a reasonable condition. The road will be maintained with potholes to repairs etc on an ongoing basis”.
In fact, in Mr. Walsh’s opinion, the access lane continues to present in exceptionally poor condition.
Mr. Bland objected to Mr. Walsh’s evidence based on these documents as being based on hearsay. Perhaps more significantly it is ex post facto , and for that reason alone I do not take it into account. However I do accept Mr. Walsh’s evidence, with which Mr. Duggan did not disagree, that the defendant has not in fact undertaken any cleaning maintenance work on the laneway.
40. Secondly, Mr. Walsh suggested that in addition to cleaning the sides of the laneway a solution would have been to install a simple channel, such as is evident at the base of the access lane, to take away run off. However, he was careful not to suggest that this was work that should have been carried out by the workman at the time they undertook the particular repair at the bottom of the laneway, and he commented that:-
“[…] the person in charge, it seems to me, used his initiative and installed something on the little piece that he was responsible for and presented a reasonable improvement at virtually no extra cost […] to help carry away the leaking from the rock face, and also to provide a clear definition at the edge of the road.”
41. Under cross-examination Mr. Walsh was asked why he hadn’t attempted to photograph the surface of the specific area where the plaintiff marked as being the locus of the accident. Mr. Walsh’s response was [Day 3 p. 38.]:-
“I went and surveyed the entire area under consideration and found ample evidence of the capacity for organic material in wet conditions and conditions of high water table that is, there is, ample grass on the ground; there is evidence of water coming through the rock that wasn’t coming through in May [2019], and brings nutrients etc that we have. There is evidence of this occurring very nearby at a lower level where the water […] table is now present.”
42. He added:-
“Judge, that is my answer. It is my answer based on the fact that you can’t take a photograph taken in the distance with an X on it […] walk up to what you may consider to be the mathematical geometric centre of that X, take a picture of that point and then say that you have cracked the case, ignoring all the other evidence around you, the staining on the same concrete; evidence of water coming through the rocks and clear and present organic material very near by issuing from the rocks.”
Mr. Walsh did confirm under cross examination that he didn’t find present on the date of either of his inspections the organic biofilm/organic bloom on the laneway as described by Mr. O’Kelly as a result of his inspection on 8 November, 2018. He acknowledged that he could find no particular slip hazard from organic material, but repeated that he had seen “extensive staining” which he believed was also visible from Mr. Duggan’s images nos. 14, 34, and 35 (also taken on 3 May, 2019). The staining showed up as a thin powdery buff coloured layer which you could scrape away using a coin. Mr. Walsh clarified that this in itself did not present a slip hazard but was evidence of a layer covering the concrete surface towards the edge of the laneway. Mr. Duggan’s image no. 34, which purported to be the accident locus as identified by the plaintiff in her evidence, did not, Mr. Walsh accepted, show any evidence of slime or biofilm, but did, he believed, show a dry coating. Mr. Walsh confirmed that the slime that he observed only occurred lower down in the pier area. Mr. Walsh did accept that wet concrete presents very good slip resistance and “wet grass less so and the organic materials we are talking about are particularly slippery”. He agreed that weathered concrete with a textured surface provides good slip resistance when dry and wet, if it is maintained properly. By reference to Mr. Duggan’s image no. 35 Mr. Walsh said that some 15% of the surface visible there “is contaminated by some kind of material that would be wet – will be slippery when wet. The remainder of the photograph, I can’t see any particular hazard in it.” It is pertinent to note that this would leave over 80% or this surface free of any potential hazard.
43. Under cross-examination Mr. Walsh also confirmed that he had not, in his addendum report, proposed any specific drainage measure but had confined himself to stating that:-
“The absence of any drainage whatever and any cleaning of permanent foliage from the carriageway results in additional organic growth in wet conditions.”
Later he added that “cleaning and drainage go hand in hand” and he was not recommending a Rolls Royce remedy:-
“I think a simple, basic finishing of the side of the carriageway in the normal and proper way and then normal and proper maintenance of a drain, put in a simple channel, concrete channel and just keep the thing flowing, that would be perfect.”
He did not appear to agree with Mr. O’Kelly’s suggested “stainless ACO drain down the hill” at Mr. Duggan’s estimated cost of €45,000 and had no comment to make as to Mr. Duggan’s suggested €35,000 as the cost of an open drain. However, when it was put to Mr. Walsh that it would be prohibitively expensive to put similar drainage on boreens and sea access routes across the country, he said that the comparison of this lane with other boreens or sea access lanes is unreasonable because “the circumstances, or the conditions on this particular very short section of road are extraordinary”, as it is the only access to the pier, which is a popular amenity as well as a fishing harbour, and as it runs down an incline with “a source of underground water directly along the road”. Mr. Walsh’s evidence was also that such a drainage channel would not have to be absolutely straight, and would require “a very small amount of rock excavation if needs be”.
44. It was put to Mr. Walsh that what he had observed as buff powdery material on the surface was, as found by Mr. Duggan, simply “silt in between the lumps and bumps of the textured surface of the weathered concrete”. Mr. Walsh said he was referring to “dried material”, and the discolouration is not found throughout this particular road. It is only found on the side, running alongside the rock. He went on to say [Day 3 p. 89] “[…] I can’t say precisely what it [was]. But it wasn’t like material like silt when I examined it, the material I examined”.
45. Mr. Morgan Duggan of Rowan Engineering Consultants Limited, was the only witness to give evidence on behalf of the defendant. I was satisfied that he was an experienced consulting forensic engineer with a degree in civil engineering and had the necessary experience and expertise gained over many years to give expert evidence.
46. His first report dated from his inspection on 9 August, 2017, and his supplemental report followed re-inspection on 3 May, 2019. His evidence on gradient, which was not disputed, was as follows:-
“[…] it is a steep access route down to the sea. At the accident location itself there is a 15.2% gradient and that would be typical of what you would expect to find on access routes down to the sea and slipways. The maximum recommended on a slip road would be 17%. So the gradient varied from 13.9 to 15.4, that was taking various measurements from the top of the access road down to the slipway itself Judge.”
47. On his first visit Mr. Duggan found the various surfaces provided reasonable slip resistance to his rubber soled boots – this applied to the cobbled section as well as the concrete surfaced area below that. Using a “slip alert” he carried out a slip assessment. On that first inspection the conditions were wet as it had rained earlier and he found that the concreted area contained some silt, and when tested on the silt the surface provided a medium risk of slip. In his first report he stated:-
“The slip assessment on a rock out crop and an adjacent area with mud/silt deposits indicates that both surfaces provided a medium (bordering on high) risk of slip when wet.”
He found no evidence of biofilm or anything of that nature on either of his inspections. On the second occasion he confirmed that the conditions were dry. Mr. Duggan had checked the Met Éireann weather report for the day of the accident and that had indicated that there was 3.6mm of rainfall up to 11.00am on that day (the evidence indicated that the plaintiff fell at or shortly after 10.30am). Mr. Duggan clarified that his first inspection had been at 11.30 in the morning and that, while it had rained while he was driving there, it had stopped by the time he arrived on site. In his first report he does state that: –
“It is possible that the [accident locus] was contaminated with mud/silt deposits from surface water run – off and this would obviously provide a slippery surface irrespective of the slip resistance of the ramp surface.”
48. At his second inspection Mr. Duggan took a photograph – his image no. 30 – some 14 feet uphill from where Mr. Ron Stephenson was standing when the accident occurred. I am satisfied that this is a photograph of the surface area of the access lane identified by Mr. Stephenson as where his wife slipped and fell. Image no. 31 is a closer up view. The lower half of each of these images shows the concrete surface, interspersed with some grass leading up to the base of the rock embankment. Closer to the wall the surface of the concrete is coarser, and further out it looks quite smooth.
49. Mr. Duggan’s images nos. 33 and 35 were taken by him on 3 May, 2019 a further 14 metres uphill at the accident location identified by the plaintiff (as marked on the photograph furnished to the defendant’s solicitors in 2015). Mr. Duggan did not find any biofilm or algae present at either of these locations. He did observe “deposits of silt, similar to what you would get on the side of a road; silt which is deposited as the water runs downhill […] when you rub your boot on the actual surface it is silt, so it is gritty, Judge”.
50. Mr. Duggan did not consider an open concrete drainage channel as an appropriate engineering solution having regard to the steep gradient and the likelihood that deposits of silt would build up and create a slip hazard, and the fact that to construct a channel, which would need to be kept tight to the stone wall, would entail trimming back of the bank which would involve property not in the ownership of the local authority. Mr. Duggan believed that a compulsory purchase order would be required, in the absence of agreement from the adjacent landowner. Mr. Duggan also foresaw problems at the bottom end of such a channel where it encounters the concrete apron of the slipway/pier, which would require digging up the pier and the installation of a drainage pipe to lead run-off across the pier to discharge into the sea. A “catchpit” would be required in advance of the piping. He also rejected a stainless steel ACO drainage pipe solution which he said would be inappropriate on an access with over 15% gradient, and which he opined would in itself create a slipping hazard. He estimated that putting in open concrete channels for the full length of the access route on both sides would cost in the order of €35,000, and that the cost of linking it for discharge directly into the sea would be additional to this. He did not consider such works to be practicable, feasible or justifiable in terms of expense.
51. Mr. Duggan emphasised in his evidence that he found no evidence of a slippery substance above the slipway apron anywhere on the concreted area. He found grass growth and silt but nothing of the nature described by Mr. O’Kelly in his evidence. This is true both of Mr. Duggan’s first inspection in 2016 and his second inspection in 2019.
52. In the context of whether or not the plaintiff was showing reasonable care for her own safety, Mr. Duggan stated [Day 3 p. 120.]:-
“[…] I would expect pedestrians to show extra care when walking down a steeply sloping hill in wet weather conditions […] I would expect a pedestrian to look down towards the walking surface, Judge, to make ensure they have a safe footing.”
53. Under cross-examination Mr. Duggan agreed that Aughris Pier is a public amenity, but he considered the primary purpose was for launching boats. However, he accepted that it was used occasionally for swimming and that an Irish Water Safety course runs here during the summer. He accepted that the only access by foot was down the access lane. Mr. Duggan agreed that in his first report he states:-
“It is possible that the access ramp was contaminated with mud/silt deposits as a result of surface water run-off down the bank and ramp and this would obviously provide a slippery surface irrespective of the slip resistance of the ramp surface.”
He didn’t depart from this, and confirmed [Day 3 p. 125]:-
“That was my observation that mud and silt that travelled down and deposited with the surface water would provide less slip resistance than a dry concrete surface.”
I cannot accept as correct the suggestion that Aughris Pier exists primarily for the launch of boats, or that it is in some way the preserve of fishermen. In present times it is clearly used both for amenity purposes such as swimming and promenading, as well as for launching or taking out boats, or indeed tying up boats. Such boating activity could be for recreational purposes or for commercial fishing. Moreover the defendant must have been aware of this mixed use.
54. When Mr. O’Kelly’s evidence and photographs (from his inspection on 8 November, 2018) in relation to slippery “translucent biofilm” were put to Mr. Duggan, he indicated that he had some difficulty with this in that:-
“It would take a number of years for biofilm to build up. There was no biofilm evident during my initial inspection in 2015 or my subsequent inspection in 2019, and this inspection took place in 2018 and I think Mr. Walsh had an inspection in 2016. Such a biofilm wasn’t evident at the accident location during four engineering inspections. […] I can’t comment on his photographs. If this is a translucent layer that is on photograph 3 […] all that I can see evident from photograph 3 is that it is a darker section of the concrete […] which could simply be surface water or run-off, as evidenced during my inspection.”
He accepted that there had, to his knowledge, been no maintenance of the access route and such had been the case for over 100 years. He agreed that it had been “raining steadily” on the morning of the accident.
55. As to the small area of concrete repair with a shallow drainage and channel at the bottom of the access lane, he characterised this as “a localised repair on foot of some occurrence whether it was damaged through a storm or vehicular wheels had rutted”. He repeated his view that if such a channel were to be extended up along the access route it would be necessary to excavate and rock-break along the face of the embankment and along the surface itself, and to do a similar job on the other side of the laneway.
56. In response to the court Mr. Duggan confirmed that the repaired section with the shallow drain clearly pre-dates the extensive concrete apron resurfacing work carried out on the pier/slipway in or about 1985. Like Mr. Walsh he did not consider that the small repair extended beyond 5 feet or 1.5/1.6 metres, or that it extended any further downhill.
The Cause of the Plaintiff’s Slip and Fall
57. I find that the plaintiff did indeed slip and fall on the surface of the access lane at a point some fourteen feet before she reached the concrete apron at the top of the pier/slipway, and where she was just within touching distance of the rock embankment. The unsteadiness that her husband observed was, I believe simultaneous, with the slip.
58. I am not satisfied on the balance of probability that she slipped on a translucent biofilm or other organic substance. In particular, I am not satisfied that Mr. O’Kelly at his inspection on 8 November, 2018 has located any such substance on the road surface in the area that she actually fell, and even if he had done it would be improbable that this existed on 2 March, 2014 given that neither Mr. Walsh nor Mr. Duggan identified anything of a similar nature during their inspections in the intervening period and at their further inspections on 3 May, 2019. I am also not satisfied that what Mr. Walsh observed as a buff coloured dust was anything more than light silt deposited by water run-off, and that it could not be characterised as a particular slip hazard.
59. In my view only Mr. Duggan at his second inspection has taken photographs of the surface in the vicinity of the access lane where Mr. Stephenson saw the plaintiff actually slip and fall. His photographs images nos. 30, 31 and 32 feature this area. I am satisfied that it consists of a concrete surface which, closer to the rock embankment, has a coarse textured finished, and a little further out is quite smooth. It is photographed on a dry day and while there may be a film of dust on it in my view this could not be said to represent a slip hazard, even in wet conditions.
60. I accept as correct Mr. Duggan’s opinion that this concrete surface finish had no biofilm or algal growth and showed good slip resistance in dry conditions. I also find that where the access lane is contaminated with mud or silt deposits from surface water run-off, this would provide a slippery surface, irrespective of the slip resistance of the concrete surface, in wet conditions. However, critical in this regard is that the plaintiff and her husband in their evidence did not identify any contamination, whether from mud, silt deposits, grass, algal growth or otherwise, as the cause of her slipping, or as being present where she fell, or afterwards on her clothing.
61. Accordingly, although I accept Mr. Walsh’s evidence in particular that the general condition of the laneway access is very poor in the vicinity of the rock face, I cannot draw an inference that she slipped on mud or silt deposits or some other contaminant on the concrete surface. Her slipping could equally be consistent with the simple presence of rain/surface water on the concrete surface which has of course a steep downhill gradient in the order of 14% – 15%. While the defence asked the court to infer that she was not taking reasonable care for her own safety, I do not believe that such criticism is justified. In particular no criticism can be made of her footwear, or of the careful slow pace with which she was descending – clearly slower than her husband. Nor can she be criticised for looking straight ahead at the moment that she slipped, rather than watching where she was putting her feet at all times. In making these findings it is of particular significance that it is a steep access route, and it was a wet morning.
62. This raises an immediate difficulty for the plaintiff in maintaining this action, as she has not satisfied me that she slipped on any identifiable danger or slip hazard on the access lane. Her account, as corroborated by her husband, is equally consistent with slipping on a smooth part of the concrete surface in rainy conditions on a steep incline. Nevertheless I will go on the consider the legal issues that arise, particularly in the context of the claim of misfeasance.
Legal issues
63. Based on these findings, the pleaded claim and the party’s legal submissions, the following legal issues may be said to arise:-
(a) Whether the plaintiff can maintain a claim under the Occupier’s Liability Act 1995 as against the defendant as a road authority; and
(b) Whether the defendant is entitled to rely on the defence of nonfeasance.
Application of Occupier’s Liability Act 1995 to a Road Authority
64. The plaintiff’s claim is pleaded as an action in negligence and nuisance, and in breach of s.4(4) of the Occupier’s Liability Act 1995 (“the 1995 Act”).Section 4(1) sets out the duty owed to “recreational users”, which is: —
“(a) Not to injure the person or damage the property of the person intentionally, and
(b) not to act with reckless disregard for the person or the property of the person […]”
65. It was never suggested that there was intention to injure, but Mr. Christle S.C. did rely on “reckless disregard”.Section 4(4) provides:-
“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:
Provided that, where a stile, gate, footbridge, or other similar structure on premises is or has been provided not for use primarily by recreational users, the occupier’s duty towards a recreational user thereof in respect of such a structure shall not be extended by virtue of the subsection.”
For the purpose of this section, I have no doubt but that the plaintiff and her husband are properly characterised as “recreational users” and fully entitled to be using the access lane for their walk to Aughris Pier.
66. Interestingly in written and legal submissions Mr. Christle raised another argument, namely that the defendant was in breach of the “common duty of care” arising under s. 3 of the 1995 Act, which is owed towards an entrant as of right. This duty is:-
“[…] to take such care as is reasonable in all the circumstances (having regard to the care which a visitor may reasonably be expected to take for his or her own safety […].) to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon.”
For the purposes of this argument Mr. Christle submitted that the access road to the pier was being used by the plaintiff at the time not for the purposes of engaging in recreational activity, but rather for the sole purpose of accessing the pier – and he maintained that only when she reached the pier would she have been a “recreational user”.
67. This latter argument is unduly narrow and is not reflective of the facts.
Quite clearly the plaintiff and her husband were holiday/weekend visitors to this area and went on a recreational walk; the walk from the Beach Bar B&B to the pier was just as much part of that recreation as the intended act of walking on the pier itself.
68. Although there was no direct evidence as to the ownership of the land on which the access road exists, all of the evidence pointed to it being part of the public roadway. It appears to have been constructed, along with the pier by the Grand Jury. It facilitated public access from the roadway proper down to the pier, and there is no suggestion that such access was ever closed off or limited in any other way. Further, the uncontested evidence was that resurfacing work on the access road was undertaken by the local authority in the 1960’s or 1970’s, that at some point prior to 1985 some further patching work was done – involving the shallow drain at the base of the access route – and that pier improvement works were carried out in or about 1985 and further works in or about 2016 to repair storm damage.
69. There was no evidence that the access road had ever formally been taken in charge by the defendant. However, s. 2 of the Roads Act 1993 defines “public road” to mean “a road over which a public right of way exists and the responsibility for the maintenance of which lies on a road authority”. “Road” is widely defined to include “any […] lane […] or passage […] or footway”. It was not disputed that the access lane is and was at all material times a public right of way, and the evidence showed that it was under the maintenance and control of the defendant. It therefore comes within the definition of “public road”.
70. I am satisfied that the fact that the defendant undertook surfacing of the access lane in the 1960’s and 1970’s further demonstrates that it accepted it was a public right of way in respect of which Sligo County Council had a maintenance function.
71. It must follow that the plaintiff’s claim is against the defendant qua road authority. Such a claim engages the common law liability of the road authority for misfeasance and negligence and public nuisance, which I accept has survived the Occupier’s Liability Act, 1995 which placed the former law of occupier’s liability to entrants on a statutory footing. In particular I accept Mr. Bland’s submission that the 1995 Act contains no express repeal of s. 60 of the Civil Liability Act 1960. Section 60(1) provides that:-
“(1) A road authority shall be liable for damage caused as a result of their failure to maintain adequately a public road.”
72. Subsection (1) was directed at changing the common law on misfeasance. Subsection (7) provided that s .60 should not come into operation until such day, not earlier that 1 April, 1967 as might be fixed therefore by order of Government. It is notorious that no such order has ever been made by Government, so that s. 60 remains in abeyance. It is in this statutory context that, since 1961, the courts have continued to hold road authorities liable under the old common law rule where a trip/fall or road traffic accident occurs as a result of their proven misfeasance. Mr. Bland on behalf of the defendant submitted that “no slip or trip and fall claim against the road authority has been determined under the Occupier’s Liability Act 1995 in the twenty-four years and thousands of slip and fall claims since its enactment for the very good reason that it has been universally accepted that the Occupier’s Liability Act 1995 has no application to such claims against roads authorities.” This accords with my own experience as a practitioner and as a judge.
73. Mr. Christle sought to rely on section 13(2) of the Roads Act 1993 as placing on the defendant an obligation to maintain the access lane. It provides:-
“(2) It shall be a function of the Council of a County, the Corporation of a County or other borough or Council of an urban district to maintain or construct all local roads – (in the case of the Council of a county – in its administrative county, […].”
However, this provision is empowering, and does not create a mandatory or actionable duty to maintain or upgrade any particular road. As Mr. Bland argued, it is a matter of policy for the road authority to decide how and where and when to spend the monies at its disposal for road maintenance and construction, and it is not an area in which the courts can or should interfere. As Keane C.J. stated in Glencar Exploration plc v. Mayo County Council [2002] IR 84, at p.140 – 141:-
“For the purposes of this case, it is sufficient to say that the mere fact that the exercise of a power by a public authority may confer a benefit on a person of which he would otherwise be deprived does not of itself give rise to a duty of care at common law. The facts of a particular case, however, when analysed, may point to the reasonable foreseeability of damage arising from the non-exercise of the power and a degree of proximity between the plaintiff and the defendant which would render it just and reasonable to postulate the existence of a duty of care. That approach is consistent with the reluctance of the law to impose liability for negligence arising out of an omission to act rather than out of the commission of positive acts which may injure persons or damage property.” [Emphasis added].
This principle was applied by Finnegan P. in the context of a road traffic accident in Flynn v. Waterford County Council (unreported, High Court, 20th October, 2004), where the “Stop” sign had been vandalised, left in the ditch and led to an accident at the junction. There was no positive obligation on the road authority to erect a sign.
74. It is therefore clear that the road authority has no statutory or common law duty to improve an existing road which can be the basis for an action in negligence.
Mr. Bland’s submissions on this issue receive express support from the decision of McDermott L.J. in Neill v. Department of the Environment for Northern Ireland and the Northern Ireland Housing Executive [1990] NI 84. The facts there were that the plaintiff slipped and fell on a wet patch of footpath which was slippery by reason of silt and grime brought out from the base of an adjoining hedge by the seepage of water from a spring. He claimed damages from the first defendant, the Department of the Environment for breach of Article 8 of the Roads Order (NI) 1980, breach of Article 3(1) of the Water and Sewerage Services (NI) Order 1973 and negligence, and from the Northern Ireland Housing Executive for negligence. In effect the plaintiff had to prove some defect in the road surface rendering it dangerous to the traffic in order for him to succeed against the first defendant. The second defendant was sued as the owner of two flats abutting the footpath and from which the seepage from a spring emanated. McDermott L.J. determined that the first named defendant, insofar as it had responsibility under the Roads Order, was not liable for negligence when the negligence alleged amounted to nonfeasance and did not contain any element of misfeasance. He also held that the Department of the Environment could not be liable in negligence in the absence of evidence of faulty design, stating:-
“[B]ut in this case we do not know when the road was made, who made it, or when thereafter seepage began to occur. It is not without significance that faulty design is not specifically pleaded and even if it could be spelt out of existing particulars the evidence stops far short of persuading me that the Department of the Environment was negligent in this regard.”
Accordingly, he struck out the case against the first named defendant. The plaintiff went on to succeed against the second named defendant for negligence in failing to remove or reduce hazard to its neighbours. However, this has no application to the present case, at any rate in circumstances where the owner of the property from which seepage may have occurred on to the lane access is not a party.
75. I therefore conclude that the Occupier’s Liability Act 1995 has no application to consideration of liability in the present case. Further the common law rule applies – nonfeasance is a defence, and in order to succeed the plaintiff must prove that her slip and fall were caused by misfeasance on the part of the defendant.
Nonfeasance v. Misfeasance
76. In Kelly v. Mayo County Council [1964] IR 315, at p. 318, Lavery J. described the doctrine of nonfeasance as follows: –
“[…] They are liable in damages for injuries sustained by road users if they have been negligent in doing repairs or interfering with the road. They are not liable for injuries suffered or caused by the want of repair of a road. This is a familiar distinction – they are liable for misfeasance but not nonfeasance.”
77. As we have seen from the Neil case, there the plaintiff slipped on slime on a footpath caused by seepage from a spring from an adjoining hedge, it was held that the roads authority was not liable in respect of nonfeasance. In the recent decision of McCabe v. South Dublin County Council [2014] IEHC 529, the plaintiff tripped when she caught her foot in an opening in the footpath caused by a missing stopcock cover. After treating of the major authorities on misfeasance Hogan J. stated at paras. 23 – 24:-
“23. In the present case the Council did not repair the opening at all, even though it had set out to do so, or having done so, the opening was subsequently tampered with and removed by person’s unknown. On any view of these two possibilities the Council is not liable by reason of the operation of the nonfeasance rule.
24. If the opening was not repaired at all then the Council has no liability by reason of its inaction, even if it had intended to repair the opening itself following a notification of the missing stopcock cover. It is true that, as the plaintiff argued the Council intended to repair the opening. This in itself is not sufficient to take the case outside of the nonfeasance rule, since the authorities are at one that there must be actual negligence in the actual repair of the highway before the case comes outside the scope of the nonfeasance immunity.”
78. I also accept that the court must view the alleged defects as at the time of the construction of the footpath or the carrying out of relevant repairs. As O’Hanlon J. concluded in Hampson v. Tipperary County Council [2018] IEHC 448 at para. 45: –
“The Court has to view this locus in the standards of the time and while it may have been somewhat unusual in terms of its construction, that by the standards of the time it was adequate for its purpose i.e. pedestrian traffic on footpath. This Court therefore dismisses the plaintiff’s claim.”
79. Mr. Bland also opened to the court the decision of the UK Court of Appeal in Burton v. West Suffolk County Council [1960] 2 WLR 754. There the plaintiff drove off the road due to a patch of ice. The council had carried out some drainage works earlier in the year, which were not in themselves dangerous, but they had not made further inlets at the side of the road which might have allowed for surface water drainage, thus avoiding flooding and icing over. The claim was dismissed, and the judgments in the Court of Appeal affirming such dismissal establish the principle that a local authority cannot be held to be guilty of misfeasance if it carries out work on a road to remedy a specific defect, and it fails to carry out further work to another defect, when the claim relates to the other defect that was not addressed. Per Ormerod L.J. at p. 10:-
“I think the rule is clear. If a highway authority does work on a road by way of repair or reconstruction it must be done properly and in such a way as not to cause a danger on the road. That does not mean, in my judgment, that in a case like the present one, where some work has been done and done properly to improve the drainage of the road, the Defendants should be held liable for failing to do further work which would result in further improvement of the drainage, although without further work the road may still be liable to flooding. To hold otherwise would, in my judgment, be extending the rule as to misfeasance to a point far beyond that established by authority.”
80. I find this decision helpful both as to its facts, which bear some resemblance to the present case, and as to the principle thus enunciated which in my view is a logical application of the broad principle that the road authority is only liable for some positive act of negligence when it undertakes repair or reconstruction of a roadway.
Application of the Law to the Facts
81. In claiming that the defendant was negligent in failing to clean the surface of the access lane viz. by removing all the grass/weed growth, mud/sand or gravel, or any other slip hazard, the plaintiff was clearly relying on acts of nonfeasance.
82. Similarly, in alleging that the defendant should have used chemicals to clean the lane, just as it did when periodically cleaning slime off the pier/slipway, the plaintiff was pleading acts of nonfeasance. However it may be dressed up in words, the failure to clean is a failure to maintain.
83. Moreover, the fact that the chemical cleaning happened so close to the access lane, but did not extend onto it, cannot be relied on for misfeasance. Even if it could be characterised as maintenance work, the principle in Burton applies – the defendant had no obligation to carry out further works beyond the pier/slipway.
84. In any event I do not consider that the case for the use of chemicals to treat a roadway such as this is made out from an engineering or environmental perspective. The use of chemical cleaner may be justified to combat the risk of slipping on algae or sea-weed on a pier or slip-way, exposed as they are to the marine environment, but it would take a lot more to persuade me that the use of such chemicals on approach roads is appropriate, justified or financially feasible.
85. There was no real engineering criticism, in the context of normal and acceptable local authority practice at the time, of the manner in which the lane resurfacing work was carried out in the 1960’s – 1970’s. In particular no evidence was adduced that would satisfy me that a drain – be it a shallow open drain on concrete or of some other construction – should have been incorporated at that time.
86. It is clear that at some point prior to 1985 council workers put in a short section some 5 feet in length of shallow open drain below the rock face at the bottom of the access lane. As the photographs show, and as Mr. Walsh accepted, I find that this was part of a very limited “patching” job. It did not extend up the lane, or down towards the harbour. I further accept that this was not planned to any degree, but rather was probably done on the initiative of the ‘ganger’ or council workers when patching in the vicinity. It was at a remove of 12 or 14 feet from where the plaintiff slipped.
87. In applying the Burton principle I find that carrying out this minor patching did not have the effect of imposing on the defendant a positive duty at or about the same time to construct such a drain (or any other more elaborate drain) along the length of the access lane, or even along the length of the rock embankment, to carry water run-off from the laneway and rockface. While some such works may well have been desirable to render the lane access safer for use by pedestrians and others, there was no duty to carry out such works.
88. Accordingly, if the defendant was negligent it was by omission, and the defence of non-feasance must therefore succeed.
89. Finally if, contrary to the views just expressed, the defendant by reason of its interference with the access lane had assumed a duty at some time in the past to construct drainage at the side of the laneway, the issue of causation still arises. Even with a good side drainage channel, rainwater would still fall on the surface of the lane and, in combination with the steep incline, would create some risk of slipping – and the evidence adduced fails to satisfy me that the plaintiff’s slip, which probably occurred on a section of smooth concrete surface, was caused by any defect or danger created by the defendant.
90. The plaintiff’s action must therefore be dismissed.
OMahony V Tipperary CC
Recreational Use
Ssan O’Mahoney v Tipperary County Council, Kevin Kiely and Joseph Corbett
Sarah Kennedy v Tipperary County Council, Kevin Kiely and Joseph Corbett
[2018 No. 548 P], [2018 No. 1850 P]
High Court [Approved]
18 June 2021
unreported
[2021] IEHC 643
Mr. Justice Twomey
June 18, 2021
JUDGMENT
SUMMARY
1. In 2008, in the Supreme Court case of O’Keeffe v. Hickey and Ors., [2009] 2 I.R. 302Hardiman J. referenced the practice where parents take claims for personal injuries suffered by their children while playing in a playground. He was particularly critical of the view that every injury is compensatable and the eternal quest for a ‘deep pocket’ (such as a business, an insurance company, a local authority etc.) which could be made liable for an accidental injury. He expressed concern, at that time, that such claims were occurring at an ever-increasing pace and referenced the negative effects that they were having on the freedom of children to play. He quoted with approval the prediction that ‘ if parents continued to sue for playground accidents, children would not be allowed to run or play in school yards. ’ (at pp. 321-322)
2. Hardiman J. might be more than a little disappointed to learn that not only had claims by parents for injuries to their children in playgrounds continued apace since 2008, but that now, some thirteen years later, there is a new type of claim regarding playgrounds, namely a claim for injuries to adults when they are using swings, not in a hotel, bar or gym, but rather in a children’s playground. This and the other issues which arise in this case can be summarised as follows:
(i) Adult injured while on a child’s swing
3. This case concerns a claim by two adults who were injured when using a swing, not in an adult location, but in a children’s playground. It considers the ‘ chilling effect’ of claims such as these on the provision of play or adventure facilities for children (and indeed the provision of goods/services generally to all citizens) and the application of what is ‘ universally known by reasonable adults of normal intelligence’ , in other words, common sense, (as highlighted by the Court of Appeal in Cekanova v. Dunnes Stores[2021] IECA 12) to such a claim.
(ii) A claim that €54,700 is fair compensation for a ‘minor’ injury
4. This case also considers a claim made by the plaintiff through her lawyer that an injury which her counsel categorised as a ‘ minor’ ankle injury that kept someone out of work for just 10 weeks would nonetheless merit damages for ‘pain and suffering’ (in addition to any out of pocket expenses) of up to €54,700 under the non-binding Book of Quantum (assuming, of course, negligence was established), even though:
• the binding case law from the Supreme Court (in Simpson v. Governor of Mountjoy[2021] IESC 81) regarded the sum of €7,500 as appropriate compensation for a person who was wrongfully required to slop out for 7.5 months in a prison, and,
• it would take a person on the average wage in the State over 1.5 years to earn €54,700 (applying the binding principles adopted by the Supreme Court in McDonagh v. Sunday Newspapers[2018] 2 I.R. 79 for assessing the reasonableness of damages, i.e. ‘how long and how hard an individual would have to work to earn’ the proposed sum), and
• the amount of damages for the ‘pain and suffering’ caused by a minor injury to an ankle is required to be proportionate to the pain and suffering cap of €500,000 for quadriplegia/catastrophic injuries (according to the binding principles set down by the Court of Appeal in Nolan v. Wirenski[2016] IECA 56), yet a sum of €54,700 is almost 1/9th of the cap, which cannot in this Court’s view be regarded as proportionate in light of the huge difference between the pain and suffering involved in quadriplegia/catastrophic injuries on the one hand and the pain and suffering involved in a minor ankle injury on the other.
For this reason, as noted below, when the foregoing principles for the assessment of damages set down by the Supreme Court and the Court of Appeal (which, unlike the Book of Quantum, are binding on this Court) are applied, this Court concludes that a more appropriate sum for fair compensation for a minor ankle injury would be between €5,000 and €7,500, thus illustrating that in some cases the non-binding Book of Quantum will be of little or no assistance to a court in calculating damages. Accordingly, this claim, if it was to be brought at all, should have been brought in the District Court.
(iii) Minor injury claims instituted in the High Court rather than the District Court
5. This case also illustrates that there may be financial reasons why some claims, for minor and moderate injuries taken by impecunious plaintiffs may be brought in the High Court, rather than the District Court or Circuit Court. It is important to emphasise that it is not being suggested that this is what happened in this case and there is no suggestion that the plaintiffs’ lawyers did not bona fide believe that their client was genuinely entitled to compensation in excess of €60,000 (the floor for High Court damages), even though it is this Court’s view that the appropriate compensation for her injury was €5,000 – €7,500. Indeed, it is clear that the plaintiffs’ lawyers were making the best case possible for them.
6. Rather the point that is being made is that it is clear that issuing proceedings for minor injuries in the High Court, rather than the District Court, by an impecunious plaintiff may amount to greater leverage upon the defendant to settle that claim. This is because, where a plaintiff is not in a position to pay legal costs, if he or she loses, the Supreme Court in Farrell v. Bank of Ireland[2012] IESC 42 observed that litigating may be part of an ‘unfair tactic little short, at least in some cases, of blackmail’ to force a defendant to ‘buy off the case’, even if the claim is ‘ unwholly unmeritorious’. If one accepts therefore the Supreme Court’s conclusion that an impecunious plaintiff may, in some cases, be using his impecuniosity as leverage, it seems clear that instituting a minor claim in the High Court increases that leverage. This is for the simple reason that a defendant will make a much greater saving on legal costs (which he would not recover from an impecunious plaintiff) by settling a High Court action, than settling a District or Circuit Court action.
7. Accordingly, logic would suggest that the amount which a defendant will pay to settle a claim is much greater in the High Court, than in the District Court, since the saving on legal costs is so much greater. For example, in the case of Condon v. Health Service Executive, Szwarc v. Hanford Commercial Ltd. T/A Maldron Hotel Waterford[2021] IEHC 474, submissions were made to this Court that the price for buying off that High Court personal injury case, which was described as a nuisance claim, was €20,000, with the plaintiff’s lawyers getting €10,000 and the plaintiff getting €10,000.
8. When one considers that legal costs in the District Court are likely to be in the hundreds of euro, one can see the much greater ‘nuisance value’ of an unmeritorious claim for a ‘minor injury’ which is brought by an impecunious plaintiff in the High Court, than the same claim brought in the District Court. This is because the defendant will ‘only’ save say €500 – €1000 in legal costs by settling a District Court claim for minor injury, but could save €50,000 – €100,000 in legal costs by settling the same claim for damages for minor injury, if brought in the High Court.
9. Thus, for an impecunious plaintiff with an unmeritorious claim for say a minor ankle injury who hopes to get a settlement, instituting the proceedings in the High Court, rather than the District Court, would appear to increase the ‘nuisance value’ of the claim by circa €10,000 and thus make financial sense from his perspective (since as an impecunious plaintiff he will be unlikely to be paying the legal costs of the defendant, if he loses).
10. It is important to note that there is currently no legal bar on claims for minor injuries being taken in the High Court. It is a matter for the plaintiff to decide in which court he wishes to take his claim for a minor injury. For a plaintiff, the choice of the High Court for a minor injury will in many cases be of little import because, as noted below, 99% of cases settle (e.g. with the defendant buying off the cost of having to fight a High Court claim), and this is particularly the case, if the plaintiff is impecunious as he will not be paying the expensive High Court costs, even if the he loses. However, for the defendant, who is subjected to a claim for a minor personal injury in the High Court rather than the District Court, this choice is of huge importance, since in order to defend a claim for minor injury in the District Court, it will cost him €500-€1,000 in legal fees, a fraction of the €50,000-€100,000 which it will cost him to defend the exact same claim for a minor injury in the High Court.
11. It is important to emphasise of course that even though the lawyers’ fees will be greater in the High Court, than in the District Court, it is not being suggested that the lawyers in this case instituted the proceedings in the High Court for anything other than bona fide reasons. In any case, the decision to institute the proceedings, and in which jurisdiction they are instituted, is the decision of the client and lawyers act on the instructions of their clients.
Causing delays for plaintiffs with serious and catastrophic injuries?
12. The taking of a minor injury claim in the High Court, rather than the District or Circuit Court is relevant because there is a well-publicised delay in having cases heard in the High Court at present. As a result, plaintiffs who have serious and catastrophic injuries, and whose cases should unquestionably be dealt with by the High Court, are being delayed in receiving their urgently-needed compensation. To the extent that ‘minor’ injury cases are instituted in the High Court, this is a matter of general concern because it would be contributing to that delay for those plaintiffs with life threatening and life altering injuries.
13. However, the incentive to take unmeritorious claims for minor injuries in the High Court, rather than the District Court or Circuit Court, is likely to continue in the absence of objective criteria for the classification of those injury claims which are permitted to be brought in the District or Circuit Court (so it is not simply at the choice of a plaintiff) or, failing that, a financial disincentive for impecunious plaintiffs (who are unlikely to be paying the defendant’s legal costs if they lose and so for whom the choice of the High Court, with its considerable legal costs, is irrelevant), while of course at all times recognising a plaintiff’s right of access to the courts.
14. Of course, in referencing the right of a plaintiff to access the courts, it is important to note that the Supreme Court has pointed out that the more appropriate characterisation of this litigation right is not merely a right of access of a plaintiff to the courts, but rather the right of plaintiffs and defendants ‘ to have litigation fairly conducted’ ( per Farrell v. Bank of Ireland[2012] IESC 42 at para. 4.6). In this regard, having litigation fairly conducted for a plaintiff and defendant is arguably having a level playing field between defendants and plaintiffs regarding legal costs, so that as regards legal costs, it is not ‘lose-lose’ for a defendant sued by an impecunious plaintiff, yet ‘no lose’ for that plaintiff (as apparently in this case), or at least that there is some sufficient financial disincentive to a plaintiff in taking unsuccessful litigation.
BACKGROUND
15. This was a hearing involving a claim by two adults, for personal injuries which were sustained on two separate occasions when using the same swing in the same community playground. The swing in question is designed for children and is located in a children’s playground in Newcastle, Co Tipperary. It is relevant to note that there was a sign on the fence of the playground which provides that:
“This playground is for the use of all children 12 years and under.”
16. The swing is a basket swing, which is commonly to be found in modern playgrounds. It is also referred to as a bird’s nest swing, as a child can sit or lie in the centre of the swing, which is circular in shape with a diameter of 1.25 metres, with a rigid rim circumference and with lattice rope or webbing in the centre of the circular basket, which operates as the swing’s sitting or lying area.
17. Evidence was provided that the bird’s nest swing does not swing up or down to a high degree like the older traditional swings, because of the weight of the basket. Instead it sways back and forth relatively close to the ground. The plaintiffs’ engineer provided evidence that this swing was designed for children from age 1 up to adolescence.
18. To their credit, the residents of Newcastle, Co. Tipperary raised funding for the building of the playground, in which the swing is located, in order to provide what was recognised by the plaintiffs as an impressive amenity for the children of the locality. It is the local authority, Tipperary County Council (the “Local Authority”), which has responsibility for the maintenance of the playground and so it is being sued in these proceedings and it has taken over the defence of the action on behalf of the second and third named defendants.
19. It is not claimed by the two plaintiffs that the swing is not a child’s swing. Nor do they claim that it is an adult’s swing. However, in March 2016, one plaintiff decided to join the child under her care on the swing, and the other plaintiff decided to do the same thing with the child under her care in July 2016. The plaintiffs do not claim that they did so for their own enjoyment or the enjoyment of the children, but rather they both claim that they got onto the swing as they felt it was safer for the children, even though the swing is designed for use by children on their own and, as mentioned above, the swing is not designed to behave in the same way as a traditional swing and so does not swing up in the air to a high degree, but sways from side to side.
20. As regards the details of the two separate accidents, on 30th March, 2016, the plaintiff in the first set of proceedings (“Ms. O’Mahoney”) decided to accompany a boy of 2 years and 10 months of age, who she was childminding at the time, on the swing. Ms. O’Mahoney caught her right ankle on the underside of the swing as she attempted to get off the swing and she suffered an undisplaced fracture to her ankle as a result. She was in a cast for 6 weeks and then in a boot for 4 weeks and within 2.5 months she was back working as a carer.
21. An almost identical accident happened to a different woman, the plaintiff in the second set of proceedings, on 13th July, 2016, (“Ms. Kennedy”) when she decided to accompany her cousin, a boy of 16 months at the time, onto the swing. Ms. Kennedy confirmed in her evidence that Ms. O’Mahoney and herself know each other as acquaintances. Ms. Kennedy’s injury occurred when she had her young cousin in her arms when she was attempting to get off the swing, when she caught her right ankle in the underside of the swing. She suffered an undisplaced fracture of her ankle and some ligament damage. She was in a cast for four weeks and was out of work for eight weeks and had some ligament damage for a short time thereafter for which she wore an ankle support.
22. It was possible for Ms. O’Mahoney’s case and Ms. Kennedy’s case to be heard together, as they both sought advice from the same solicitor regarding their almost identical claims for personal injuries and he instructed the same expert engineer and counsel. Hence judgment is being delivered in both cases at the same time.
ANALYSIS
23. Both plaintiffs seek compensation at the High Court level (i.e. more than €60,000) from the local authority on the grounds that it set the height of the swing at a level that was too low and as a result of this alleged negligence/breach of duty, the local authority created an entrapment risk. As a result of this negligence, the plaintiffs claim that they caught their ankles under the swing when trying to get off and thereby suffered injuries. It is the plaintiffs’ case that they were recreational users under s. 4(1) of the Occupiers Liability Act, 1995 when sitting on the swing, on the basis that they were entitled to use the swing for the purpose of accompanying the children in their respective care, and that therefore they were both entitled to rely on the swing being kept in a safe condition for their use.
24. In essence therefore, the plaintiffs are claiming that the swing, which was designed for use by children under 12, was hung too low to the ground for use by them. In this regard, they are both adults of similar heights, 5 ft 5 inches in Ms. Kennedy’s case and 5ft 6 inches in Ms. O’Mahoney’s case. They claim therefore, that the swing was not safe for their use and this caused their respective ankles to get caught between the swing and the ground when they were getting off the swing.
Appropriate clearance for the swing
25. There is a dispute between the engineers as to whether in fact the swing was set at too low a level in breach of the relevant British Standard applicable at the time (BS EN1176). The plaintiffs’ engineer claims that the clearance of 350 mm (set down in that British Standard – ‘BS’) should be measured from the lowest point of the basket (in the centre of the ring) to the ground, while the defendant’s engineer claims that it should be measured from the hard edge of the circular rim of the basket (which is higher from the ground).
26. The applicable BS at the time states that the clearance is to be measured
‘between the lowest part of the seat or platform and the playing surface when the swing is at rest’
which the plaintiffs claim supports their contention that it should be measured from the flexible netting in the centre of the swing.
27. However, the defendants’ engineer points out that this is not a traditional swing and that the most appropriate place to measure the clearance is from the hard rim, since this is the point from where one gets on or off. He supports this interpretation by referring to the revisions to the BS made in 2017 (EN 1176-2: 2017). While this revised BS did not apply at the relevant time of the accidents, he relies on this change to support his interpretation of how the original BS should be applied to non-traditional swings, such as the bird’s nest swing. This revised BS provides that the clearance (which had increased to 400mm in the revised BS) is to be taken from the ‘underside of the rigid part of the seat in its most onerous position’.
28. While the clearance from the underside of the rigid part of the seat of the bird’s nest, namely the hard rim circumference of the bird’s nest swing, exceeded the minimum 350mm (and this was accepted by the plaintiff’s engineer), the clearance from the interior flexible netting did not do so, as it was 187 mm, which is almost 8 inches less than the clearance required under the BS.
29. It follows that the plaintiffs’ engineer claims that the swing should have been raised by approximately 8 inches and this would have avoided the entrapment. The defendants’ engineer disagrees and claims that the swing was set at the right height and in compliance with the relevant BS, since the clearance must be measured from the hard rim i.e. the rigid part of the seat.
30. It seems to this Court that there is logic in the interpretation proposed by the defendants’ engineer, such that the appropriate point from which to measure the clearance is from the bottom of the rigid part of the swing, for the simple reason that this is the point at which a child exits the swing. If the clearance is measured from this point, then the swing is in compliance with the BS standard. That is the end of the personal injuries claim, since there is no breach of duty/negligence on the part of the Local Authority, as it complied with the BS. However, even if this Court is wrong in that regard, for the reasons set out below, it finds that, in any case, the Local Authority has not breached any duty, statutory or otherwise, to the plaintiffs.
Common sense suggests that an adult should not use a child’s swing
31. Ms. O’Mahoney accepted in evidence that her common sense would have told her not to use the swing if she were on her own, since it was a child’s swing. This is just common sense and this Court did not need Ms. O’Mahoney to make this admission, for it to reach that conclusion. However, Ms. O’Mahoney maintained that she got into the swing with the child under her care, as she felt that he might get injured otherwise.
32. Ms. Kennedy made a similar claim regarding her reason for getting into the swing with the child under her care.
33. However, in this regard it is relevant to note that there was no evidence of this swing being an injury risk for children to use on their own, without an adult. Indeed, quite the contrary assumption might be taken (i.e. that it was safe for use by children alone ) from the notice on the playground which makes it clear that ‘ the playground’ , which must mean the equipment in the playground (since it would be normal for adults to accompany children into the playground itself) is for the use of children. The corollary of this is, of course, that the equipment, and thus the swings, are not for the use of adults.
34. Ms. O’Mahoney accepted that she was aware of the contents of the Notice regarding the playground being for the use by children of 12 and under. However, Ms. Kennedy, despite using the playground regularly for many years, claimed that she had not seen the Notice. On the balance of probabilities however, in view of the number of times she used the playground, this Court finds that Ms. Kennedy would have been aware of its contents.
35. Yet, even if Ms Kennedy were not aware of the notice, 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, since as noted by Keane J. in Turner v. The Curragh Racecourse[2020] IEHC 76 at para. 55 (when quoting from p. 57 of the judgment of Geoghegan J. in Weir-Rodgers v. S.F. Trust Ltd.[2005] 1 I.R. 47):
“the common law is just the formal statement of the results and conclusions of the common sense of mankind.” (per Lord M’Laren in Stevenson v. Corporation of Glasgow1908, SC 1034 at p. 1039)
36. A good example of the application of common sense to an accident claimis provided by the Court of Appeal in Cekanova v. Dunnes Stores[2021] IECA 12 where a claim, for personal injuries by a plaintiff, who made tea in a glass jug which shattered, was dismissed on the grounds that:
“It is universally known by reasonable adults of normal intelligence that boiling or very hot water has the potential to shatter an ordinary glass vessel.” (at para. 31)
37. Similarly, in this case, ‘reasonable adults of normal intelligence’ know, or should know, not to use swings designed for children. The corollary of this is that if adults get injured because they use a swing, designed for children, which they claim is too low to the ground for them (and particularly where no evidence was produced of children being injured because it was too low to the ground), those adults do not have a right to damages, for any injuries suffered, against the local authority which is managing the playground (on the grounds of any alleged breach of duty by it).
38. Furthermore, there is a duty on individuals to take reasonable care for their own safety (Lavin v. Dublin Airport Authority plc[2016] IECA 268 at para. 52) and the decision by the plaintiffs to use equipment which they knew, or should have known, was designed for use by children under 12, amounts to a failure by them to take reasonable care for their own safety. Accordingly, it is not a breach of any duty on the part of the local authority not to raise the swing so as to accommodate adults.
39. If the plaintiffs decide to use a child’s swing at their own risk, they should take extra care to plant their feet, before attempting to get off the swing and in this regard, engineering evidence on behalf of the defendant was provided that the accident would have been avoided by both plaintiffs, if this had been done.
40. Indeed, in the case of Ms. Kennedy, not only did she not take extra care when getting off a child’s swing, she actually appears to have taken even less care than Ms. O’Mahoney, since Ms. Kennedy attempted to get off a moving swing while holding a child in her arms – this apparent carelessness seems to fly in the face of Ms. Kennedy’s claim that her reason for getting on the swing in the first place was to protect the safety of the child.
The social effect on children’s playgrounds of a finding of negligence
41. Although not determinative of this Court’s finding, it is nonetheless relevant to note that engineering evidence was provided that if the swing was raised by approximately 8 inches, as the plaintiffs claim should have happened, this would, firstly, make the swing much harder to access for small children.
42. Secondly, making the swing higher by 8 inches in order to make it safer for adults (or indeed in order to reduce the chances of personal injury claims by adults) would have the direct effect of making the swing scarier for young children, since engineering evidence was provided that the swing is designed to sway over the ground as close as possible to the ground to make it less scary for young children to use.
43. Thirdly, this engineering evidence was also to the effect that the increase in height would make the swing less safe for young children when, from time to time children, as would be expected, fall from the swing on to the ground, since the ground would be a further 8 inches away.
44. Yet the purpose of these changes sought by the plaintiffs to a child’s swing, to the detriment of the children who use it, would be to prevent it becoming an entrapment risk for persons such as the plaintiffs, i.e. adults, for whom the swing was not designed and where no evidence had been provided of any entrapment risk to children using the swing.
The ‘chilling effect’ of an award of damages against a provider of play activities
45. Similarly, while also not determinative of this Court’s finding, it is relevant to note that individual claims for personal injuries such as in this case, can, in certain circumstances, have a wider effect and thus a considerable social cost on the freedom of citizens in this State. This was the view of Hardiman J. in O’Keeffe v. Hickey[2009] 2 I.R. 302 where he was critical of the view that
“it is widely believed that every misfortune must be compensatable.” (at p. 320)
46. He observed that the notion that unfortunate accidents, such as this one, must be compensatable, can have a ‘ chilling effect’ on public authorities, such as the local authority in this case (or indeed privately insured businesses providing play areas or play activities for children). At p. 321 Hardiman was also critical of the:
“eternal quest for a “deep pocket” which can be made liable [for accidents] not merely proceeds apace, but at an ever increasing pace.”
47. Hardiman J.’s comments in that case seems particularly apposite for the facts of this case, since Hardiman J. went on to note at pp. 321 – 322 that:
“And on the 22nd October, 2008, it is reported in The Irish Times that a Circuit Court Judge in Cork predicted that if parents continued to sue for playground accidents, children would not be allowed to run or play in school yards.”
48. In the 13 years since that judgment, matters are continuing to proceed at ‘ an ever increasing pace’ as regards the search for compensation from deep pockets for personal injuries, such that not only are parents suing for playground incidents involving injuries to their children, but we now have reached the stage where adults are suing for injuries to themselves where they use playground equipment intended for use by children, and the level of damages sought are such that the claims are not being made in the Circuit Court, but for the greater level of damages available in the High Court.
49. It is of course human nature, as observed by Hardiman J., to have sympathy for plaintiffs, such as Ms. Kennedy and Ms. O’Mahoney who fractured their ankles, as there is a ‘a human tendency to wish that that person should be compensated ’ (at p. 319). However, he pointed out that a finding of liability ‘is not a light thing and has an effect quite separate from its consequences in damages’ (at p. 317) since it can have a ‘chilling effect’ on the State and private initiatives. Although not determinative in this case, it remains to be observed that claims in the High Court by adults who use children’s swings in playgrounds, if they were successful, could well lead to this ‘ chilling effect’ on the provision by public authorities of playgrounds for children (or indeed adventure centres, crêches and other services for all citizens). The consequences, quite separate from an award of damages, in this instance might be an interference with the liberty of children to play in playgrounds. In this regard, it was noted by Lord Hobhouse in Tomlinson v. Congleton Borough Council[2004] 1 AC 46 at para. 81:
“The pursuit of an unrestrained culture of blame and compensation has many evil consequences and one is certainly the interference with the liberty of the citizen.”
The ‘chilling effect’ arises even where the claims are dismissed
50. Indeed, even where such claims are not successful, the very bringing of them can have a negative effect on the provision of such services, particularly where the plaintiffs, as appears to be the case here, may not have the financial resources to pay the defendant’s legal costs if they lose, since it appears that one and perhaps both defendants are unemployed. Accordingly, the local authority in such situations could end up ‘winning’ the case but losing financially, with the local authority, and therefore the taxpayer, having to pay the tens of thousands in legal costs of ‘winning’ a High Court personal injuries action (as noted in Dempsey v. Foran[2021] IEHC 39 at para. 73 et seq).
51. Unfortunately, for the children who use playgrounds, one way, for providers of playgrounds and other facilities or services for children, to avoid having to fight and win unmeritorious claims (at significant irrecoverable legal costs), is to cease providing such facilities in the first place. Hence there is the ‘ interference with the liberty of the citizen’ to which Lord Hobhouse referred, that the bringing of such claims can cause.
52. It is for this reason that this Court would observe that it is not only the case that a finding of liability for personal injuries can have a chilling effect on the provision of such facilities, it is also the case that where a provider of facilities (whether a local authority or a private entity) is subject to a claim from impecunious plaintiffs, even the dismissal of those claims will be at significant cost to that provider, since there is currently no effective way for the provider to recover legal costs for winning a claim against an impecunious plaintiff. In this respect, it is not a level playing field in such litigation, since as noted in Dempsey, it is a ‘ no lose’ scenario for an impecunious plaintiff as regards legal costs, but it is ‘ lose-lose’ for the defendant.
The ‘chilling effect’ arises even where the claims are settled
53. It is for this reason that claims, even those with little prospect of success are often settled by defendants, since it makes economic sense for a defendant to ‘ buy off’ a claim from an impecunious plaintiff, that it might regard as ‘blackmail’ , to use the expressions adopted by the Supreme Court in Farrell v. Bank of Ireland[2012] IESC 42 at para. 4.12. Such claims appear to fall within the description of ‘nuisance claims’ used by counsel in Condon v. HSE[2021] IEHC 474. This court understands this term to mean cases which have a low probability of success (say 10% or less), but which make economic sense for the defendant to buy-off. This is particularly so if it will cost the defendant more to ‘win’ the case (since it is unlikely to recover its legal costs from an impecunious plaintiff) than it would cost it to settle the claim (for a lesser sum than its irrecoverable legal costs).
54. However, if (using the figures supplied to this Court in the Condon case), those claims are bought-off by a defendant on the basis of €10,000 for the plaintiff and €10,000 for his lawyers (a total of €20,000, which is not an insignificant sum of money for a provider of children’s play activities), such a settlement of nuisance claims (on top of the legal costs of say €10,000 payable to the their own lawyers) may nonetheless have a ‘chilling effect’ for that provider (notwithstanding that it is less than the €50,000 – €100,000 that it might cost to ‘win’ the action if it were to be heard in the High Court).
55. However, clearly this is a catch-22 situation, since while it costs more to fight nuisance claims than settle them, if a defendant settles ‘nuisance claims’, then the greater the incentive there is for plaintiffs to bring nuisance claims. Accordingly, it seems that so long as there is no financial disincentive for an impecunious plaintiff to bring nuisance claims, in the hope of receiving a settlement, such claims will continue to be brought, particularly if it makes economic sense for the defendant to buy them off, rather than litigate them.
56. In this regard, it is perhaps not surprising that such a high percentage of personal injuries cases settle. In the Report of the Personal Injuries Guidelines Committee (published by the Judicial Council in December 2020) it is stated that only about 0.54% of all personal injury claims (in the period 2017-2019) were actually heard in court (unlike say judicial review cases, where there is anecdotal evidence that only circa 10% of such claims are settled).
57. Based on the foregoing, it seems that the chilling effect, to which Hardiman J. referred, arises not just with (i) a finding of liability by a court against a provider of play/recreational activities (and indeed other services to adults/children which might give rise to claims), but also (ii) where claims against impecunious plaintiffs are dismissed and (iii) where claims are settled (since it does not make economic sense to spend more to ‘win’ litigation against an impecunious plaintiff than it costs to settle the claim).
While law is required to protect freedom, too much law can restrict freedom
58. It is also relevant to note that the claim in this case appears, to this Court at least, to be a new category of claim (or what might be termed new law), in that it seeks damages for personal injury to an adult from her use of a swing designed for children. While it is clear that law is necessary to protect the freedoms of citizens, e.g. the law making it a crime for one person to assault another, this case also illustrates that the law (or what might be termed ‘too much law’) can in some instances have the effect of restricting the freedom of citizens. This is because a finding of a breach of a duty to adults when using children’s swings may lead to those swings being raised to prevent future claims (as noted by the engineer for Tipperary County Council), thereby depriving younger children of the freedom and pleasure of using those swings. It is this type of restriction of freedom by what might be termed too much law that the American jurist, Professor Grant Gilmore, may have had in mind, when he stated that “[i]n Hell, there will be nothing but law….” (Grant Gilmore, The Ages of American Law (1977) at p. 111).
59. This case therefore illustrates the risks, to the freedom of all citizens of too much law, or of what Hardiman J. referred to as the ‘ eternal quest for a “ deep pocket”’ . This is because it is important to bear in mind that what people sue for (whether the claim is won, settled or indeed lost – particularly if the winning local authority ends up footing the cost of ‘winning’ the claim) ends up defining the limits of freedom for all citizens. Ironically therefore, personal injury claims such as this one can have the greatest effect, not on the parties to the litigation, but rather people who are not party to the claim, nor even aware of its existence, but who may have their freedoms restricted by the chilling effect of such claims (i.e. other children who might have the birds’ nest swing altered or indeed taken away to prevent further claims).
60. The case of Tomlinson v. Congleton Borough Council has been previously referenced. It was concerned with a claim from an 18-year-old man who broke his neck and was paralysed for life when racing into a lake from a sandy beach and diving in at too sharp an angle onto the sandy bottom of the lake. If the claim was successful it might have given rise to a restriction on the freedom of other swimmers, not just in that lake, but in other lakes throughout England, so as to eliminate the risk of similar claims.
61. In considering whether the local authority should be liable, for allegedly not doing enough to protect against the swimming accident, the House of Lords considered not only the likelihood that someone might be injured and the seriousness of the injury which may occur, but they also considered the social value of the activity giving rise to the accident, observing that the Court of Appeal had made no reference to the social value of the activities in question. In Tomlinson, the social value was significant (namely the joy of swimming in a lake – similar to the joy of children playing in a playground) and that social value was such as to militate against a finding of liability (which liability was likely to lead to a restriction on other persons swimming in that lake).
62. It is clear from the various judgments of the House of Lords that it concluded that permitting Mr. Tomlinson’s claim would encourage the parks in England to restrict access to normal and healthy activities affecting the enjoyment of countless people. There was thus an important question of freedom at stake and it was held by the House of Lords to be unjust that the harmless recreation of others on the beaches should be prohibited in order to comply with what was an alleged legal duty to prevent accidents, on the part of the local authority.
63. The House of Lords held that this misguided perception of justice on the part of the English Court of Appeal in awarding damages can hurt the public generally (albeit that it may have resulted from an understandable sympathy which a court might feel for the life-altering injuries suffered by Mr. Tomlinson). However, this desire, which Hardiman J. described as ‘a human tendency to wish that that person should be compensated’ (O’Keeffe v. Hickey[2009] 2 I.R. 302 at p. 319) in respect of one injured citizen can have a negative effect on the freedom of all citizens . Lord Hoffman stated at para. 81:
“The arguments for the claimant have involved an attack upon the liberties of the citizen which should not be countenanced. They attack the liberty of the individual to engage in dangerous, but otherwise harmless, pastimes at his own risk and the liberty of citizens as a whole fully to enjoy the variety and quality of the landscape of this country. The pursuit of an unrestrained culture of blame and compensation has many evil consequences and one is certainly the interference with the liberty of the citizen.”
Lord Hoffman, at para. 46, also referenced the fact that it
“Is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious.”
He went on to criticise the misguided perception of the Court of Appeal of the impact an award of damages could potentially have on public enjoyment of facilities.
“Sedley LJ, … was able to say that if the logic of the Court of Appeal’s decision was that other public lakes and ponds required similar precautions, “so be it”. But I cannot view this prospect with the same equanimity. In my opinion it would damage the quality of many people’s lives.” (at para. 48)
Lord Hoffmann further noted at para. 34:
“The question of what amounts to “such care as in all the circumstances of the case is reasonable” depends upon assessing, as in the case of common law negligence, not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measures. These factors have to be balanced against each other.”
Lord Scott stated at para. 94:
“Of course there is some risk of accidents arising out of the joie-de-vivre of the young. But that is no reason for imposing a grey and dull safety regime on everyone.”
Does the law require that all trees be cut down because someone may climb and fall?
64. Lord Hobhouse also made remarks regarding the impact awards of damages could have on the freedom of others to enjoy amenities (at para. 81):
“It is not, and should never be, the policy of the law to require the protection of the foolhardy or reckless few to deprive, or interfere with, the enjoyment by the remainder of society of the liberties and amenities to which they are rightly entitled. Does the law require that all trees be cut down because some youths may climb them and fall? Does the law require the coastline and other beauty spots to be lined with warning notices? Does the law require that attractive waterside picnic spots be destroyed because of a few foolhardy individuals who choose to ignore warning notices and indulge in activities dangerous only to themselves? The answer to all these questions is, of course, no.”
Similarly, in this case, this Court might ask does the law require that the birds’ nest swing be raised 8 inches because an adult decides to use it and thereby deprive young children from climbing onto the swing because of its raised height?
65. It seems to this Court that the Tomlinson case illustrates that the goal of law is not just to decide whether or not to provide compensation for an accident to a particular individual, but also to bear in mind the daily freedoms of every citizen, who are not parties to that litigation. This is because what people sue for can result in key limitations on the freedoms of all citizens (whether adults swimming in a lake or children playing in a playground).
High Court is bound by Court of Appeal direction not to not deny children joy of playing
66. It is also relevant to note at this juncture that the High Court (and for that matter the District and Circuit Courts) are bound by the direction from the Court of Appeal that judges should ensure that they do not risk denying children positive experiences such as playing in a playground. In this case, the playground was one which was funded by a local community. In the judgment of Irvine J., as she then was, in Byrne v. Ardenheath[2017] IECA 293 at para. 49, she dismissed a personal injuries claim by a plaintiff who slipped on a grassy bank and she stated that:
“Judges should be careful when interpreting statutory provisions such as s. 3 of the [Occupiers’ Liability Act, 1995] to ensure that they do not inadvertently and contrary to the intention of the legislature by their judgments end up denying children the joy of running down a grassy slope in a public park on a dry summer day or the golfer the pleasure of playing to an elevated green surrounded by a grassy bank.” (Emphasis added)
67. In this context, it is to be noted that if the plaintiffs in this case were successful, it would be likely to lead to an increase in the height of the swing in question by approximately 8 inches. As noted by the defendant’s engineer, this is likely to prevent certain smaller children from getting on to the higher swing and would therefore ‘ deny children the joy’ of being on that swing, all because of a personal injuries claim by an adult using a swing in a children’s playground. This is therefore a further reason why the claim should be dismissed.
68. It is also relevant to note that Hardiman J. further referenced the effect of findings of negligence on children’s play in O’Keeffe v. Hickey, when he quoted with approval the judgment of Binnie J. in the Canadian Supreme Court case of Jacobi v. Griffiths(1999) 174 DLR (4th) 71 at p. 105. In that case, there was a dismissal of a claim of vicarious liability against a non-profit organisation and Binnie J. observed that in the event of a finding of liability, the ‘ rational response’ of non-profit recreational organisations dealing with such claims ‘ may be to exit the children’s recreational field altogether’ . Hardiman J. then went on to reference the decline in the number of people performing voluntary activities on a local community basis and he observed that the decisions which courts take imposing liability for negligence ‘ are not without relevance to these issues’ (at p. 343).
69. Similarly, in this case, if there were to be an award of damages for this new category of claim (of adults injured using children’s swings), it seems that it would be a rational response for organisations to exit the field of provision of play or adventure centres for children.
Conclusion on liability
70. This Court has concluded that there was no breach of duty by the Local Authority as it did in fact comply with the relevant BS standard for the height of swings. However, even if this was not the case, it is not necessary for this Court to determine whether in fact there was a deviation, in relation to the swing, from the British Standards applicable at the time. This is because there is a complete absence of causation between the alleged breach of duty (being the failure to raise the swing) and the occurrence of the accident. This is because the ‘legal cause’ of the accident was not the fact that there was an alleged shortfall in the clearance between the child’s swing and the ground, making it unsafe for use by the plaintiffs, who are both adults. Rather, the legal cause of the accident was that two adults chose, on separate occasions, to use equipment which was designed for children and which (as stated implicitly by the terms of the Notice but also based on common sense), was not for use by adults.
71. Then, when using the equipment, they failed to take sufficient care for their own safety. In this regard, since the plaintiffs chose to use equipment which was not for use by adults, but for children of 12 and under, it is perhaps not surprising that they found the swing to be ‘too low’ for their usage and so caught their ankles between the swing and the ground.
72. In those circumstances, they cannot, in this Court’s view, suggest that the accidents were legally ‘caused’ by Tipperary County Council, when in fact the accidents were caused by their decision to use equipment which was not designed for use by adults. Just as if an adult decided to accompany her toddler on a child’s tricycle because she was afraid that he might fall off and she ended up injuring herself when getting off the tricycle, she could not, in this Court’s view, apportion liability to the manufacturer of the tricycle, so too the plaintiffs cannot seek to apportion liability to the Local Authority in these circumstances for the plaintiffs’ failure to use common sense and look out for their own welfare.
73. For all the foregoing reasons, the claims of both plaintiffs are dismissed.
Accidents do not automatically give rise to a right to compensation
74. In concluding this part of the judgment, this Court would summarise and add to Hardiman’s comments in O’Keeffe v. Hickey that it is important for potential plaintiffs and their lawyers to bear in mind that, just because:
• an accident occurred and someone is injured, and
• it occurred on property which is insured or owned/managed by the State or another insured party or a ‘deep pocket’ to quote Hardiman J., and
• it could be said that ‘but for’ something (in this case the swing being low) it would not have happened (see Lavin v. Dublin Airport Authority plc[2016] IECA 268 at para. 54 et seq.), and
• an engineer provides an expert opinion that in his opinion the location of the accident was substandard (because courts should approach with caution opinions from experts engaged by one party in litigation – see Byrne v. Ardenheath[2017] IECA 293 and Hanrahan v. Minister for Agriculture, Fisheries and Food[2017] IESC 66)
does not give rise to a right to damages. As the foregoing analysis illustrates, there are other factors to be considered, such as the social value of the activity in question, the effect of a successful claim on the freedom and liberty of others, the duty of every citizen to take reasonable care for themselves, the application of common sense (i.e. what ‘ universally known by reasonable adults of normal intelligence ’) etc.
What would the reaction be if the accident occurred in her own home or on a sports pitch?
75. In this regard, in analysing whether someone else is legally liable for an accident, it is sometimes helpful to consider the likely reaction of the plaintiff if the accident had happened in her home or indeed on a sports field. It seems to this Court that if the plaintiffs had fractured their ankles while playing with children in their own home in similar circumstances or on sports field, they would, in this Court’s view, be likely to dismiss it as an ‘unfortunate accident’ or a failure of common sense or a misjudgement which befalls everyone at some stage in their lives and for which no compensation is available.
76. Just because the accident happens in a public place which is covered by insurance, or which is the responsibility of a State body, does not alter the essential character of what occurred as an unfortunate accident for which no one, other than the plaintiff, is responsible.
77. Accordingly, while a court might have sympathy for the plaintiffs for the fractured ankles they suffered, it is not the job of a court to be generous based on sympathy, with other people’s money, whether that money belongs to a taxpayer, an insurance company or an individual uninsured defendant. Accordingly, there is no basis upon which the plaintiffs’ ‘ quest ’ for ‘ a deep pocket’ can be satisfied in this case.
78. Furthermore, in light of the considerable backlog in the High Court, it seems to this Court that this backlog might be eased (for the benefit of litigants with serious injuries in need of urgent compensation) if litigants and their lawyers asked what the reaction would have been if the accident had occurred in their own home? Such a question would, in this Court’s view, have highlighted in this case (and perhaps in other cases) that the real cause of the accident is an absence of care or common sense and not alleged negligence by some third party, who has insurance or a ‘deep pocket’.
DAMAGES OF OVER €54,000 FOR ‘MINOR’ INJURY?
79. If this Court is wrong regarding liability, it is relevant to consider the submissions of counsel for the plaintiffs regarding what he regarded as fair compensation for the injuries sustained.
80. Mr. Counihan S.C for the plaintiffs made submissions in this case regarding the application of p. 64 of the Book of Quantum to the plaintiffs’ injury, which deals with what is described as ‘minor’ ankle injuries. On this basis he submitted that Ms. O’Mahoney was deserving of damages of in the region of €54,700. In this regard, it is to be noted that there was no claim for special damages in the form of loss of earnings as it seems that Ms. O’Mahoney was not employed at the time. Out of pocket expenses were claimed in the form of ‘medical expenses’ and ‘travelling expenses’, but these were not particularised.
81. There was no indication given to the Court that these out of pocket expenses were substantial or came anywhere close to €5,300 (which, when added to the figure of €54,700 relied upon by counsel, would give a total of €60,000, the floor for damages in the High Court). Accordingly, it seems that the plaintiff and/or her lawyers regard her minor ankle injury as justifying an award for pain and suffering alone of close to €60,000.
82. Counsel for Tipperary County Council, Mr. Bulbulia BL agreed with Mr. Counihan’s description of the plaintiffs’ injuries as ‘minor’ and he quoted from the Book of Quantum as to the inclusion of ‘ a simple non-displaced fracture in the ankle’ in this category of minor injuries. In doing so, he referred the Court to the non-binding Book of Quantum referencing damages of ‘up to €54,700’. Both counsel referred only to the non-binding Book of Quantum and they did not made any submissions regarding the effect of the principles (set down by the Court of Appeal and the Supreme Court and set out below) which bind this Court regarding the assessment of damages on the appropriate compensation in this case.
Personal Injuries Guidelines are not binding in this case
83. Both counsel placed reliance on the Book of Quantum, as the proceedings were issued prior to the 24th April, 2021, when the Personal Injuries Guidelines were passed by the Judicial Council (the “Personal Injuries Guidelines”). For this reason, the Personal Injuries Guidelines are not binding regarding the assessment of damages in this case.
84. It is relevant to note that when this Court heard High Court personal injuries actions in June 2021, most, if not all, the cases which were heard were instituted on average six years earlier. Accordingly, it seems likely that many, if not the majority, of cases to be heard in the High Court over the next six years will be ones initiated prior to 24th April, 2021. Therefore, the Personal Injuries Guidelines may not be binding regarding the assessment of damages in the majority of cases to be heard for the next six years and hence it is important to clarify the binding legal principles which will apply during that period.
85. In particular, each time a plaintiff relies on the Book of Quantum to support his claim for damages, it is important for this Court to consider what the appropriate level of damages should be, in light of the case law for calculating damages set down by the Court of Appeal and the Supreme Court, particularly since the Book of Quantum is not binding on this Court (this is because s. 22 of the Civil Liability and Courts Act, 2004 provides that ‘ The court shall, in assessing damages in a personal injuries action, have regard to the Book of Quantum.’ (Emphasis added)).
86. This issue is particularly relevant in the present context since, as noted below, this Court concludes that the non-binding Book of Quantum figure of €54,700 is considerably more than the sum for fair compensation reached, when this Court applies the binding principles for assessing compensation, set down by the Court of Appeal and the Supreme Court.
87. For the avoidance of doubt, it is important to emphasise that the Personal Injuries Guidelines which have been described as reducing personal injury awards by 50% (see The Irish Times, ‘ Personal injury awards drop 50% following introduction of new guidelines’ , 6th July, 2021) are not binding on this Court in relation to the assessment of damages in this case and were not relied upon by this Court.
88. However, it is important to note that this does not mean that the principles set down by the Court of Appeal and the Supreme Court are not binding on this Court, regarding how to assess damages (which are referenced in the Personal Injury Guidelines themselves and in the Report of the Personal Injuries Guidelines Committee published by the Judicial Council in December 2020, as the basis for the calculation of damages). The High Court (and indeed the Circuit and District Courts), are bound by those principles and so those principles, which will be considered next, have a direct and binding impact on the assessment of damages by this Court.
The law which governs the calculation of damages
89. When calculating the level of damages for an award in a case such as this, while the non-binding Book of Quantum is of relevance, it is of limited assistance in comparison to the principles of the Court of Appeal and the Supreme Court which bind this Court. Significantly the figure that this Court would regard as fair compensation for Ms. O’Mahoney (applying the binding principles of the Court of Appeal and the Supreme Court) is less than the figure which counsel suggest is appropriate based on the Book of Quantum.
Compensation of up to €54,700 for ‘minor’ ankle injuries according to Book of Quantum
90. The section of the Book of Quantum to which this Court was referred by counsel for Ms. O’Mahoney was the following at p. 64:
“Fractures – distal Tibia, distal Fibula and Talus
Three bones form the ankle joint; the distal (bottom end) tibia bone (known as the medial malleolus), the distal (bottom end) fibula (known as the lateral malleolus) and the talus bone (one of the tarsal bones in the foot). Fractures that involve the joint are usually considered more complicated than others due to the increased impact on limb movement. The more severe injuries involve displacement and ligament damage (which may be treated with either open or closed reduction).
Minor up to €54,700
These injuries will include simple non-displaced fracture in the ankle which has substantially recovered.
Moderate €39,100 to €87,600
These injuries will include displaced fractures to a single bone in the ankle, or nondisplaced fractures to multiple bones with a full recovery expected with treatment.
Moderately Severe €79,900 to €89,300
Multiple fractures that have resolved but with ongoing pain and stiffness which impacts on movement of the ankle.
Severe and permanent conditions €80,500 to €93,300
These injuries include all three bones of the ankle structure which required extensive surgery and extended healing but may result in an incomplete union and the possibility of having or has achieved arthritic changes and degeneration of the ankle joint and may affect the ability to walk unaided.”
The injury in this case
91. Ms. O’Mahoney suffered a straightforward or undisplaced fracture of her ankle. She was in a cast for six weeks and a boot for four weeks and was out of work for ten weeks. The fracture healed very quickly and an x-ray after her return to work showed that it had healed without complications.
The Personal Injuries Guidelines are not yet binding but can be relied upon
92. This case was instituted prior to 24th April, 2021 and so the figures in the Personal Injuries Guidelines regarding minor ankle injuries are not binding on this Court regarding its assessment of damages.
93. While this Court does not feel it needs to refer or rely upon the figures set out in the Personal Injury Guidelines to assist it assessing damages in this case, it remains to be observed that there is no reason why, in appropriate cases, an Irish court cannot, if it so wishes, refer to the Personal Injury Guidelines to assist it in reaching its assessment of damages, even though the Personal Injury Guidelines are not ‘binding’ on the court (in relation to litigation commenced prior to 24th April, 2021). (In this regard,s. 22(2) of the Civil Liability and Courts Act 2004states thatsubsection (1)(cited above) ‘shall not operate to prohibit a court from having regard to matters other than the Book of Quantum when assessing damages in a personal injuries action’).
94. This conclusion is based on the fact that the Supreme Court, in Morrissey v. Health Service Executive[2020] IESC 6 at para. 14.18, in deciding whether the cap for damages at €500,000 was reasonable, relied on Judicial Guidelines for the Assessment of Damages in Northern Ireland and also on Judicial Guidelines for the Assessment of Damages in England and Wales. Clarke C.J. stated:
“In the Guidelines for the Assessment of General Damages in Personal Injury Cases in Northern Ireland (5th Ed.), which were published in 2019 as a resource for courts and practitioners in the assessment of damages in personal injury cases, the highest level of damages specifically provided for is in respect of injuries resulting in quadriplegia, which attract awards between £475,000 and £700,000. In the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases (14th Ed.), published in 2017, which are for the benefit of the judiciary in England and Wales, the highest awards of damages recommended are also in respect of injuries resulting in quadriplegia, which will generally attract an award of between £284,610 to £354,260.”
95. Thus, even though those foreign judicial guidelines on damages are clearly not binding as a matter of Irish law on the Supreme Court, that court relied upon them to reach its conclusion as to whether a particular figure for damages, in that case the cap of €500,000, was reasonable.
96. It is difficult to see therefore why an Irish court could not, if it so wished, rely on other non-binding guidelines (in this case the Personal Injury Guidelines issued by the Judicial Council in Ireland), even if those Guidelines are not binding on the court (if the litigation was commenced prior to 24th April, 2021), in order to assist the court, if it felt it needed assistance, in reaching its conclusion as to the reasonableness of a certain figure for damages.
97. Indeed, the argument for an Irish court relying on the Judicial Council’s Personal Injury Guidelines is much stronger than the argument for an Irish court relying on the Northern Irish or the English & Welsh Guidelines. This is because the Personal Injury Guidelines are binding as a matter of Irish law (in relation to cases instituted since 24th April, 2021), while these ‘foreign’ guidelines are not, and are unlikely to ever to be, binding on an Irish court, yet the Supreme Court had no issue relying upon them.
THREE PRINCIPLES HIGH COURT MUST APPLY IN ASSESSING DAMAGES
98. However, this Court does not feel it needs to rely on the Personal Injury Guidelines, since it does not need to go beyond the three core principles set down by the Court of Appeal for the assessment of damages, which are binding on the High Court. In Nolan v. Wirenski at para. 31, Irvine J. (as she then was) set out these three founding principles which apply to the assessment of damages as follows:
“Principle and authority require that awards of damages should be (i) fair to the plaintiff and the defendant; (ii) objectively reasonable in light of the common good and social conditions in the State; and (iii) proportionate within the scheme of awards for personal injuries generally. This usually means locating the seriousness of the case at an appropriate point somewhere on a scale which includes everything from the most minor to the most serious injuries.”
Thus, while it seems clear that the High Court may , in reliance on Morrissey, rely on the Personal Injuries Guidelines as assistance in calculating damages (which this Court does not feel it necessary to do), it is ‘ required ’ to apply these three principles in the calculation of damages, which this Court will now do:
(I) IS THE AWARD FAIR TO THE PLAINTIFF AND DEFENDANT
99. The first principle is that awards of damages should be ‘fair to the plaintiff and the defendant.’
100. Therefore, in every case in which damages are being assessed, the Court must consider not only whether the amount of damages proposed is reasonable in light of the pain and suffering which the plaintiff has had to endure previously and into the future, but also whether the amount of damages is a reasonable amount to ask a defendant to pay for causing (usually accidentally) the pain and suffering in question.
101. It seems to this Court that what is fair compensation arises independent of the financial standing of the plaintiff or the defendant. This is because the test is not what a defendant can afford, but rather what is a fair award in light of the second and third principles for assessing damages i.e. the proportionate principle and the common good/social conditions (which as noted below relates, inter alia, to the general level of incomes in the State).
102. Thus, it seems to this Court that it is irrelevant, in calculating the level of damages, whether the defendant is an insurance company, the State/taxpayers, an uninsured person on the average wage or an unemployed individual. Thus, as noted by Hardiman J. in O’Keeffe v. Hickey at para. 42 (albeit, in the context of finding a defendant vicariously liable for injury)
“I do not consider that companies, institutions or even the State itself are necessarily to be considered in a different light than an individual.”
103. Similarly, as noted hereunder, while the amount due to a plaintiff in respect of special damages, such as loss of earnings, will vary depending on whether she is a successful business woman or unemployed, what is fair in respect of general damages for pain and suffering is in general the same whether the plaintiff is wealthy or unemployed, since pain and suffering takes no account of a person’s wealth.
104. While the concept of what is ‘fair’ compensation to a plaintiff and a defendant would, in the absence of further guidance (in the form of the second and third principles), be open to very differing interpretations, it seems to this Court that, when it comes to coming up with a figure to compensate a plaintiff for the injury caused, the second and third principles provide much more concrete assistance (because of the reference to actual euro figures as a touchstone for calculating damages).
(II) IS THE AWARD PROPORTIONATE?
105. The second principle derives from a number of cases including the Supreme Court decision in M.N. v. S.M.[2005] 4 I.R. 461 and the Court of Appeal decision in Wirenski. It is whether the proposed award, of general damages for pain and suffering, as distinct from special damages, is proportionate within the scheme of awards generally and in particular to the general cap on damages for catastrophic/quadriplegic injuries. As regards that cap, Irvine J., as she then was, noted in Wirenski at para. 32 that:
“It can however generally be said that insofar as cases which involve catastrophic or life changing injury have come before the Courts in recent years, the level of general damages awarded in respect of injuries of this type has generally been somewhere in or around €450,000. That is not to say that €450,000 is a maximum. There has been the rare case in which a sum in excess of that figure has been awarded.”
106. At para. 42, she noted:
“As Denham J. advised in M.N. v. S.M. damages can only be fair and just if they are proportionate not only to the injuries sustained by that plaintiff but also proportionate when assessed against the level of the damages commonly awarded to other plaintiffs who have sustained injuries which are of a significantly greater or lesser magnitude.”
107. Compliance with this ‘ proportionate’ principle is important in order to avoid what the Court of Appeal described in Payne v. Nugent[2015] IECA 268 at para. 18 as the ‘concertina’ effect on damages. The judgment in Payne v. Nugent refers to four classes of injuries in this regard, namely:
• modest (or minor),
• middle-ranking (or moderate),
• serious, and,
• catastrophic.
108. The Supreme Court judgment in M.N. v. S.M.[2005] 4 I.R. 461 and the Court of Appeal judgments in Nolan v. Wirenski[2016] IECA 56 and Fogarty v. Cox[2017] IECA 309 make it clear that:
• modest damages should be awarded for minor injuries,
• moderate damages for middling injuries,
• severe injuries should attract damages which are distinguishable from catastrophic injuries.
109. The judgment in Payne v. Nugent discusses the necessity for awards of damages to avoid the ‘ concertina type effect’ , in order to avoid an injustice being caused to persons with catastrophic injuries or serious injuries. This injustice would arise if persons with modest/minor injuries, receive awards which are not significantly less than those received by persons with moderate/middle ranking injuries , which are themselves not significantly less than those received by persons with serious injuries such as a loss of a limb, which themselves are not significantly less than those with catastrophic injuries/quadriplegia.
110. It is important to note that while the Wirenski judgment referenced €450,000 as the cap for damages it is clear from para. 14.24 of the Morrissey decision that the current cap is now €500,000.
Application of the proportionate principle in this case
111. In this case, one can apply the proportionate principle by noting that the suggested award of up to €54,700 for the pain and suffering, relating to (what the Book of Quantum and counsel for Ms. O’Mahoney described as) a ‘minor’ ankle injury and led to her being out of work for 10 weeks, is almost 1/9th of €500,000 (the maximum award for the pain and suffering for a quadriplegic/catastrophic injury).
112. It is difficult for this Court to see how this could be regarded as ‘proportionate’ (bearing in mind the requirement that awards for minor injuries must be proportionate to quadriplegia/catastrophic injuries) in light of the respective pain and suffering attaching to, on the one hand, quadriplegia/catastrophic injuries, and on the other hand, a minor ankle injury – i.e. how could it be proportionate for the latter injury to give rise to an entitlement to almost 1/9th of the damages of the former life-changing catastrophic injuries.
113. It is this Court’s view that this would not be proportionate. Rather an award of closer to €5,000 – €10,000 would be more proportionate and consistent with the need to avoid the ‘ concertina’ effect.
114. When applying this principle for the assessment of damages, it seems to this Court to be undoubtedly easier to compare serious injuries such as loss of a limb with catastrophic injuries such as quadriplegia which are in some way comparable, so as to decide if the proposed award is proportionate, than it is to compare a modest injury with catastrophic injuries, since a minor ankle fracture is so far removed from quadriplegia/catastrophic injuries.
115. For this reason, the real value of this proportionate principle, in this Court’s view, is not so much to come up with an actual award (for which the third principle regarding the general level of incomes is of greater assistance), but rather to help a court to ‘reality-check’ a proposed award. Nonetheless this proportionate principle is of relevance for modest/minor injuries, particularly in view of the importance of avoiding the ‘concertina’ effect as outlined by the Court of Appeal.
(III) IS AN AWARD REASONABLE IN LIGHT OF THE COMMON GOOD & SOCIAL CONDITIONS IN THE STATE?
116. The third and final principle, which the High Court is obliged to apply by the Court of Appeal decision in Wirenski (and, as noted below, by the Supreme Court decision in Sinnott v. Quinnsworth[1984] I.L.R.M. 523), is whether the proposed compensation is objectively reasonable in light of the common good and social conditions.
117. The perception of what is in the common good will vary depending on the particular circumstances of a personal injuries case and is a somewhat subjective criteria and less concrete than the term ‘social conditions’. In this Court’s view, it is unlikely to be a regular factor in assessing the precise amount of damages in a particular case, but it could well be necessary, in the particular circumstances of a case, for reference to be made to the common good in assessing damages. For example, in rare circumstances, it is possible that the common good might necessitate an award of increased or reduced damages, than might otherwise be the case, if the court felt that the common good justified such a reduction/increase.
118. The most helpful aspect of the third principle in assessing damages, is in this Court’s view, likely to be the ‘social conditions’ aspect of this principle. This is because the term ‘ social conditions’ is, in this Court’s view, a much more specific term than ‘ common good’ and accordingly capable of being of concrete assistance in assessing how much compensation should be paid in respect of a particular personal injury. This is because it seems clear from the judgment of O’Higgins C.J. in Sinnott v. Quinnsworth[1984] I.L.R.M. 523, that the term ‘social conditions’ refers, inter alia, to the general level of incomes in the State. At p. 532 of that judgment, he stated that in determining whether a figure for general damages for pain and suffering was fair and reasonable:
“some regard should be had to the ordinary living standards in the country, to the general level of incomes and to the things upon which the plaintiff might reasonably be expected to spend money.” (Emphasis added)
The fact that this Court is obliged to have regard to the general level of incomes in assessing damages for pain and suffering is also clear from the High Court decision in Yang Yun v. MIBI[2009] IEHC 318.
119. In that case, in determining the appropriate level of general damages for personal injuries, Quirke J. makes it clear that account must be taken of ‘ economic realities’ (at para. 157) and in particular regard must be had to ‘individual disposable income’ (at para. 156), which he regarded as a relevant factor in the measurement of ‘contemporary standards’ (at para. 135) and in particular current ‘social conditions’ (which is the same expression used by the Court of Appeal in the Wirenski case). He clarifies why disposable incomes have no relevance to pecuniary loss or special damages, but they are relevant to general damages or non-pecuniary losses, at para. 153 of his judgment:
“However, in Heil v. Rankin[2001] Q.B. 272 at p. 297, the Court of Appeal (Lord Woolf M.R.) pointed out that:
“A distinction exists… between the task of the court when determining the level of pecuniary loss and when determining the level of non-pecuniary loss. In the case of pecuniary loss, and issues such as that which engaged the House of Lords in Wells v. Wells, the court is only required to make the correct calculation. Economic consequences are then irrelevant. When the question is the level of damages for non-pecuniary loss the court is engaged in a different exercise. As we have said, it is concerned with determining what is the fair, reasonable and just equivalent in monetary terms of an injury and the resultant PSLA. The decision has to be taken against the background of the society in which the court makes the award.”
Those observations and the distinction identified by Lord Woolf between pecuniary loss (compensated by special damages) and non-pecuniary loss (compensated by general damages) are quite consistent with the principles and further distinctions identified by the Supreme Court in Sinnott v. Quinnsworth and M.N. v. S.M.
Hence, the need for the courts to hear evidence of and to consider “contemporary standards and money values” when assessing and calculating the limit or “cap” to be imposed on awards for general damages from time to time.
It was confirmed in evidence that this country is presently enduring a period of unprecedented recession. There has been a significant drop in individual disposable income and it is anticipated that this will become more acute during the next several years. Wealth and living standards have declined appreciably and economic growth has been replaced with contraction.
Those factors are relevant to the measurement of “contemporary standards” and current “social conditions” within this country and it can be validly argued that, in general, awards of general damages should reflect such economic realities.” (Emphasis added)
120. In that case of Yang Yun v. MIBI, which considered the rise in the ‘cap’ on general damages in the period since its introduction in 1984 (by the Supreme Court in Sinnott v. Quinnsworth) to 2007 (when Yang Yun v. MIBI was heard), Quirke J. relied on the rate of increase in the ‘average industrial earnings’ during that period as an appropriate rate of increase to apply to the cap on damages.
High Court obliged to have regard to the general level of incomes in assessing damages
121. Based on the foregoing case law, it seems clear therefore in applying the third founding principle for the assessment of general damages in a personal injuries case, this Court is obliged to have regard to the general levels of income.
122. Furthermore, this Court believes that the general level of incomes (which this Court interprets to mean the average earnings of people in the State) is a very useful tool, in conjunction with the ‘proportionate principle’, in calculating an appropriate figure for compensation, particularly when one is dealing with modest or middle ranking injuries, which in severity are a long way from catastrophic injuries, for which €500,000 is the ‘cap’ on general damages.
123. This is because for very minor injuries in particular, it may be difficult to even contemplate that the injury is any way referable or even on the same scale as quadriplegia, e.g. a soft tissue injury, which is the type of injury which a court often has to deal with in personal injury cases. For such injuries a touchstone such as general level of incomes/average earnings in the State is, in this Court’s view, crucial in the assessment of damages (in conjunction with the proportionate principle).
Touchstone is not unemployment rate or large salary, but ‘general level of incomes’
124. Of course, the general level of incomes is not what an unemployed person might receive per annum on job seeker’s allowance (circa €10,000 per annum) or what an old-aged pensioner receives (circa €13,000). On the other hand, the general level of incomes is not what a successful lawyer or other successful professional or businessperson earns per annum, which could be many multiples of these amounts. Rather the general level of incomes or touchstone amount appears to this Court to be the average earnings of everyone in the State from those on social welfare up to and including those on the highest salaries.
125. The logic of this approach seems to this Court to be that pain and suffering does not discriminate between the wealth of victims. If one is unemployed or wealthy, the calculation of damages for pain and suffering should be related to average incomes. In this instance, it means that the general level of incomes/average earnings of a person in Ireland is to be used as a touchstone in deciding on the appropriate level of damages for all claims of pain and suffering for personal injuries. As previously noted, Hardiman J. observed in O’Keeffe v. Hickey at p. 317 that ‘ companies, institutions or even the State itself are necessarily to be considered in a different light than an individual.’
126. While this observation was made in the context of finding a defendant vicariously liable for personal injuries, it seems to this Court, equally applicable to the calculation of damages, since the relevant principles for calculating damages, and in particular the ‘general level of incomes’ takes no account of the financial position of the defendant or indeed if he is insured or not.
127. Of course, it is important to bear in mind that this is not the case in relation to special damages (or pecuniary losses), which will often vary depending on the financial position or wage of the plaintiff. So, while general damages for pain and suffering do not discriminate based on a person’s wealth, special damages will apply differently to people depending on their financial circumstances. For example, if a person is out of work for 10 weeks because of an ankle injury and she was earning €10,000 a week, then she will have in addition to a claim for general damages for pain and suffering, an entitlement to receive from the defendant special damages in respect of a loss of earnings of €100,000. Thus an award of damages could be for a figure of €100,000 in special damages plus a figure for say €7,500 in general damages for pain and suffering, giving a total award of €107,500. However, in this judgment, this Court is not concerned with special damages, but only with general damages for pain and suffering.
What is the general level of incomes in Ireland?
128. Since a court has to turn the abstract (pain and suffering) into the concrete (a sum of money), it is important to have a precise figure for the general level of incomes, in much the same way as one has regard to a concrete figure for the ‘cap’ on damages, which is currently a figure of €500,000.
129. For this purpose, this Court relies on the figures published by the Central Statistics Office (“CSO”), and in particular the annual release of the ‘average weekly earnings’ in the State. The most recent figure released by the CSO is €867.52 per week i.e. €45,111 per annum (CSO Statistical Release, 1 June 2021), which is circa €35,000 after tax.
The after-tax amount of the general level of incomes
130. In this regard, it seems clear to this Court that in determining the ‘general level of incomes’, the after-tax income has to be considered since this is the amount actually received by an employee. Support for this view is to be found in the approach of the Supreme Court in McDonagh v. Sunday Newspapers[2018] 2 I.R. 79 to assessing whether a damages award by a jury in a defamation action was fair. At pp. 109 and 110 O’Donnell J. stated:
“Finally, the award was on any view a very large sum of money which would have meant that the plaintiff could live very comfortably for the rest of his life. Given the fact that tax is not chargeable on the award, it is worth considering how long and how hard an individual would have to work to amass such a sum, and in turn what €900,000 in 2008 or its equivalent in today’s money could purchase. I agree with all my colleagues that the award was excessive and must be set aside.” (Emphasis added)
Thus, it is to be noted that the Supreme Court concluded that it was relevant, in determining whether an award was reasonable, that no tax was paid on the award. To put it another way, it was the ‘after-tax’ amount which was considered by the Supreme Court in assessing the reasonableness of damages. Similarly, it seems to this Court that a court must take account of the ‘after-tax’ amount of the ‘general level of incomes’ in the State (and not the gross earnings), in deciding whether an award for pain and suffering is reasonable, when it is applying the third principle for assessing damages.
131. Accordingly, it is to this figure of circa €35,000 per annum (after tax) or circa €3,000 per month, which this Court will refer to as the ‘ average earnings’ or the ‘general level of incomes’ (to use the expression used by O’Higgins C.J.), in order to determine what is a fair and reasonable amount of compensation in a particular case.
Application of ‘general level of incomes’ to this case
132. Applying the Supreme Court’s analysis in Sinnott v. Quinnsworth therefore, one might ask whether, bearing in mind that the average earnings for a year in the State is circa €35,000 per annum, a figure of €54,700, as suggested by counsel for the plaintiffs, would be fair and reasonable compensation for a person who had a straight-forward fracture of an ankle which healed without complications and led to her being out of work for 10 weeks.
How long would someone have to work to earn those damages?
133. Another way to apply this third principle is to ask how long someone would have to work to earn the proposed damages, since this is what was done by the Supreme Court in McDonagh v. Sunday Newspapers when assessing whether a particular figure for damages was reasonable. In that case, it asked how long someone would have to work to earn the amount in question. At pp. 109 and 110, in determining whether an award of damages was reasonable, O’Donnell J. stated:
“Finally, the award was on any view a very large sum of money which would have meant that the plaintiff could live very comfortably for the rest of his life. Given the fact that tax is not chargeable on the award, it is worth considering how long and how hard an individual would have to work to amass such a sum, and in turn what €900,000 in 2008 or its equivalent in today’s money could purchase. I agree with all my colleagues that the award was excessive and must be set aside.” (Emphasis added)
Although this test as to the reasonableness of damages was done in the context of a defamation award, there seems no reason why the same exercise cannot be done in relation to damages for pain and suffering, since in either case one is seeking to determine whether an amount of damages in euro terms is reasonable.
134. In addition, it seems to this Court that, although not explicitly stated by O’Donnell J., the question was not how long a wealthy person would have to work, since logic would seem to dictate that it is how long a person on average earnings would have to work. Accordingly, this approach by the Supreme Court in McDonagh is consistent with, but perhaps a slightly more user-friendly adaptation of, O’Higgins CJ.’s test in the Sinnott v. Quinnsworth case.
135. When the analysis is done in this manner, it appears to this Court that €54,700 could not be said to be fair to the plaintiff and the defendant. To put the matter another way, if the defendant were uninsured and he was a person on the average wage, he would have to work for over a year and a half to earn enough to pay the plaintiff damages for the pain and suffering caused to her by his accidental infliction of the ankle injury, which fully healed and kept her out of work for just 10 weeks.
136. Similarly, looking at it from the plaintiff’s perspective, for her to earn this sum of money, she would have to work for over a year and a half, if she was on the average wage. Viewed in the ‘general level of incomes’ context (the third principle), which this Court is required to consider, it seems clear that €54,700 is well in excess of what could be regarded as fair compensation for a minor ankle injury.
137. It has already been noted, that when considering the ‘proportionate’ principle (the second principle), this Court concluded that a sum of €5,000 – €10,000 would amount to fair compensation for Ms. O’Mahoney’s injury to her ankle (relative to the cap of €500,000 for paraplegia/catastrophic injuries).
138. It is helpful to now consider this sum of €5,000 – €10,000 in light of the general level of incomes/how long one would have to work test, to see if it is reasonable in that context. A sum of €10,000 is the net sum of money which would be earned by a person on the average wage working for a period of just over 3 months (based on net average earnings of €3,000 per month). It seems to this Court therefore that a figure of €5,000 – €7,500, i.e. between two and three months’ income, would be fair compensation for the pain and suffering caused to Ms. O’Mahoney for her ‘minor’ ankle injury. It must be remembered that Ms. O’Mahoney, or indeed any other plaintiff, will also be entitled to any out of pocket expenses (or special damages), such as loss of earnings, medical expenses etc. on top of this figure for pain and suffering (or general damages).
139. Having considered the three founding principles for the assessment of damages set down by the Court of Appeal and the Supreme Court, and having concluded that a sum of a maximum of €7,500 would be fair compensation, it is useful to now consider a rare case in which the Supreme Court had to calculate what it regards as moderate damages (since appeals in relation to damages for minor injuries are rarely if ever heard by the Supreme Court) and in particular the type of injury for which the Supreme Court regarded €7,500 as fair compensation.
Type of injury for which Supreme Court regards €7,500 as fair compensation
140. In Simpson v. Governor of Mountjoy[2019] IESC 81 the Supreme Court considered the appropriate amount of compensation for a person who cannot be said to have ‘sustained significant injuries’ (at para. 118). This Supreme Court case is being considered in the context of the plaintiffs’ counsel having referred to their injuries as falling within the category of ‘minor’ ankle injuries in the Book of Quantum ( albeit that he did so by reference to the €54,700 figure and in the context of proceedings that were taken in the High Court with a jurisdiction of €60,000 for damages in personal injury cases).
141. Since minor injuries are normally dealt with in the District Court (with a final appeal to the Circuit Court) or perhaps in the Circuit Court (with a final appeal to the High Court), it is unusual for there to be a judgment from the Supreme Court on the appropriate level of compensation for ‘minor’ injuries. Hence the Simpson decision assumes particular importance not just for this Court, but also for the Circuit and District Courts when these courts are presented with minor/modest or moderate/middling injuries.
142. In the Simpson case, the plaintiff took an action seeking damages against the State as he was, for a period of seven and a half months, forced to slop out in prison. Although not a personal injuries action (as it was an action for damages for breach of constitutional rights, including his right to dignity, privacy and autonomy), nonetheless it is relevant to note that the plaintiff was claiming damages for the harm caused to him, since he sought damages for the fact that he felt ‘deeply humiliated, alienated from support and denigrated’ as a result of his exposure to conditions which were ‘ distressing, humiliating, and fell far below acceptable standards’ (at para. 116 et seq.). In many ways, the claim therefore was similar to a claim for ‘pain and suffering’ in tort law made by a person who suffered personal injuries.
143. Crucially, it is important to note that the approach of MacMenamin J. (at para. 126 et seq.) was ‘ insofar as practicable, to adhere to principles applicable in tort law’ and he applied a ‘ restitutionary element’ to the assessment of damages. In making the award, he stated that ‘ the award should be characterised as compensatory damages’ . This is the same approach which is taken to assessing damages for pain and suffering in personal injury actions. This case therefore is an important statement by the Supreme Court regarding what amounts to ‘minor’ or moderate damages for injuries which the Court determined could be said to not be ‘significant’ (at para. 118) or serious and so in this Court’s view, is of considerable relevance to the District, Circuit and High Courts in considering ‘minor’ or ‘moderate’ damages for personal injuries which are not serious.
144. In that case, the Supreme Court determined that the sum of €7,500 was appropriate compensation for a prisoner who was forced to slop out for seven and a half months and MacMenamin J. described the sum of €7,500 as ‘ moderate compensatory damages’ (at para. 130) for the injury caused to the plaintiff. This sum was claimed in respect of the stress and humiliation suffered by the prisoner and so it seems clear that the damages which were awarded were designed to compensate him for the pain and suffering endured by him during that seven and half month period, in exactly the same way as general damages for pain and suffering are designed in a personal injuries action to compensate a plaintiff.
145. Since the Supreme Court regards €7,500 as ‘fair’ damages from the perspective of the plaintiff and the defendant for the pain and suffering caused to a plaintiff for having to slop out for seven and a half months, which sum the Court described as ‘ moderate compensatory damages’ , it is difficult to see how Ms. O’Mahoney who was out of work for just over two months as result of a minor ankle injury, which healed without complication, would be entitled to multiples of that amount for her pain and suffering, as suggested by her counsel in reliance on the Book of Quantum.
Advantage of the three founding principles in calculating damages
146. Before concluding on the appropriate level of damages in this case, it is worth noting that, while the first founding principle (of what is ‘ fair to the plaintiff and defendant’ ) is necessarily subjective for each judge, the second and third founding principles for the assessment of damages are considerably less subjective, since they use concrete figures, namely a cap of €500,000 and the general level of incomes of circa €35,000 per annum after tax.
147. The use of these concrete figures as the basis for calculating damages are useful since it illustrates for litigants that damages are not plucked out of the sky by courts, but rather the courts are required by the Court of Appeal and Supreme Court to conduct an exercise using concrete figures (for the cap on damages and the general level of incomes) that change over time with inflation.
148. It does not mean that two judges will reach the same figure, since one judge might regard the pain and suffering for an injury as worth in monetary terms say one year’s average income, while another judge might be of the view that it is worth one and half years’ average income, but it does mean that the final figure is relatable to concrete figures and provides in each case therefore a type of ‘reality-check’ for a plaintiff and a defendant, as to the level of damages.
149. Applying the three founding principles for the assessment of damages should therefore make it easier for litigants and their lawyers to understand how a court comes up with a figure for pain and suffering, and therefore it may facilitate the settling of claims, without litigants and their advisers themselves being expected to pluck figures out of the sky.
Conclusion regarding damages
150. Based on the foregoing, it seems to this Court that if Ms. O’Mahoney were to be awarded damages, it should be in region of €5,000 – €7,500 and so this claim should, in any case, have been brought in the District Court.
151. Such an award is, in this Court’s view:
• proportionate to the cap of €500,000 for damages for pain and suffering for quadriplegia/catastrophic injuries in view of the vast difference between the respective injuries, and,
• reasonable in light of the general level of incomes (after tax) of circa €35,000 per annum, bearing in mind it would take a person on the average wage 2-3 months to earn that amount of damages (in reliance on the Supreme Court in McDonagh).
152. In addition, to ‘reality-check’ the award, it is to be noted that the Supreme Court determined that an award of €7,500 was fair compensation for a person who felt ‘ deeply humiliated, alienated from support and denigrated ’ as a result of having to slop out for seven and half months which the Court found was ‘distressing, humiliating, and fell far below acceptable standards’. Accordingly, a sum of €5,000 – €7,500 seems reasonable for the ‘pain and suffering’ endured by Ms. O’Mahoney as a result of her undisplaced fracture which fully healed without complications and led to her being out of work for just over two months.
153. In conclusion, this Court would observe that although no reliance was placed in this judgment on the Personal Injury Guidelines, it remains to be observed that the range of awards set out in the Personal Injuries Guidelines for ‘ minor ankle injuries’ , which include ‘ less serious, minor or undisplaced fractures’ states that an ankle injury which recovers within six months is assessed at €500 – €3,000 and where there is recovery within six months to two years, the award is in the region of €6,000 – €12,000.
Why some unmeritorious claims might be brought in the High rather than District Court
154. This Court has expressed the view that even if this was a meritorious claim, it should have been instituted in the District Court.
155. However, if an impecunious plaintiff with an unmeritorious claim hopes to receive a settlement, it is to be noted that if he institutes proceedings in the High Court, rather than the District Court or Circuit Court, he may be increasing the likelihood of a settlement as well as increasing the amount of that settlement.
156. This is for the simple reason that there is a much greater financial incentive for a defendant to settle a High Court claim against an impecunious plaintiff, than a District Court claim. To take an example, if the details provided to this Court in the Condon case regarding the settlement of two nuisance claims were representative of the value of nuisance claim settlements generally in the High Court, then a plaintiff with a nuisance claim might expect to get €10,000 to withdraw his High Court action and his lawyers might get €10,000. In contrast, legal costs in the District Court for a ‘minor’ injury are likely to be €500 – €1,000. Accordingly, in the context of a High Court action, settling an unmeritorious claim by an impecunious plaintiff for €20,000 may make economic sense for a defendant, since he may save perhaps €50,000 – €100,000 in legal costs, which he would not recover if he were to win the litigation.
157. This saving in legal costs for the defendant is likely to be fifty times more than the defendant would save in settling a District Court case (a saving of legal costs of €500 – €1,000), and perhaps ten times more than the defendant would save in the Circuit Court (say legal costs of €5,000 – €10,000).
158. It should be clear therefore that there are economic reasons why an impecunious plaintiff with an unmeritorious claim for a minor injury, who is hoping for a settlement, would choose to institute proceedings in the court where legal fees are highest, since there will be a greater incentive for the defendant to settle the claim.
159. As noted by the Supreme Court in Farrell v. Bank of Ireland[2012] IESC 42, the inability of an impecunious plaintiff to pay legal costs if he loses the litigation can be used as ‘ a form of unfair tactic little short, at least in some cases, of blackmail’ . If this approach is taken by a plaintiff (and it is not suggested that it was taken by the plaintiffs in this case), it follows that the higher the legal costs, the bigger the blackmail or leverage for a settlement. Hence, there are economic reasons why such a plaintiff might institute an unmeritorious claim in the High Court, rather than the District Court, particularly as there appears to be little if any economic disincentive to doing so.
160. In the absence of any financial disincentive to taking minor injury claims in the High Court (or indeed a system in which the jurisdiction in which a claim is brought, is determined by objective criteria, rather than at a plaintiff’s choosing), this continued approach is likely to lead to some personal injuries cases for minor injuries continuing to be taken in the High Court.
161. This is a significant issue because while one might have thought that the High Court is reserved for serious and significant cases (and the District Court for minor injuries), this case perfectly illustrates that even where the plaintiffs’ counsel and the Book of Quantum categorise an injury as ‘minor’ it can still end up in the High Court and occupy that court, in this case, for two days. It seems to this Court that it is not a one-off occurrence that minor injury cases, which should be taken in the District Court, end up in the High Court, since the same week as this case was heard by this Court, a claim for an even more minor injury ( albeit an appeal from the Circuit Court) took up a similar amount of expensive and valuable High Court time (see Hardy v Bible[2021] IEHC 614, a claim involving alleged soft tissue injuries in which the plaintiff self-referred to a busy emergency department for ‘ occasional neck pain’ for which he had taken one painkiller).
162. The reason that it is significant that minor injury claims are being brought in the High Court, is because there is considerable backlog in the High Court, which means that other litigants, some with far from minor injuries (i.e. terminal or life-altering conditions) are left waiting for a High Court judge to become available to hear their cases.
163. It must be emphasised that in making this point that minor injury claims can end up clogging up the High Court, it is not being suggested that the plaintiffs or their lawyers in this case believed that the claims were unmeritorious or indeed instituted the claims in the High Court in order to increase the chances of a significant settlement or indeed believed that their claims were not deserving of compensation at the High Court level. Nor is it being suggested that lawyers would institute proceedings in a higher court on behalf of impecunious plaintiffs, on the basis that a settlement in a higher court is likely to lead to a greater settlement sum in respect of legal fees. This is because it also must always be borne in mind that lawyers act on instructions of their clients regarding the issuing of proceedings and the jurisdiction in which they are issued.
‘No lose’ for the plaintiffs but ‘lose/lose’ for the defendants
164. Finally, this case is another example of a case, where it is likely to be ‘no lose’ for the plaintiffs, as regards legal costs, but ‘lose/lose’ for the defendants, as the plaintiffs may not be in a financial position to pay the legal costs which have been awarded against them and so the defendants may end up paying their own High Court legal costs of circa €50,000-€100,000 even though they have won this case.
165. Indeed, were the plaintiffs to appeal, and even though at first instance the claim has been found to be unmeritorious (and so such an appeal would be, not just on quantum, but also on liability), there is at present no requirement for such losing plaintiffs to provide security for the costs of such an appeal. Accordingly, even though the defendant has won the case in the High Court (but is likely to have ‘lost’ on legal costs), if the plaintiffs appeal, the defendant will for a second time face the prospect that if it wins that appeal it will still have to pay its legal costs.
Weir Rodgers v SF Trust Ltd
[2005] 1 I.L.R.M. 471
JUDGMENT of Mr. Justice Geoghegan delivered the 21st day of January 2005
On the 11th April, 1997 the respondent suffered serious injuries as a consequence of a most unfortunate and unusual accident. She had been sitting down with some friends close to the edge of a cliff at Coolmore, Rosnowlagh in County Donegal admiring the sunset over the sea. When the respondent stood up from that position she lost her footing and fell down the edge of the cliff which turned out to be much more sheer than she would have expected. Due to loose materials she was unable to stop herself and she ended up in the water from which she was rescued by her friend. She suffered fractures to her left shoulder, her left elbow, left hip and pelvis and injuries to her ankle and foot and other injuries. The respondent instituted these proceedings to recover damages for her injuries against the appellant which was the owner of the unused land in question and was, therefore, also the occupier. The appellant company appears to have been a company formed by the Franciscan Order. The Statement of Claim pleaded negligence and breach of duty “and in particular, breach of duty provided for by section 4 of the Occupiers Liability Act, 1995” and it described the respondent as a “recreational user”. In the event it appears to have been accepted in the High Court, as it was in this court, that if the respondent was to succeed it would have to be by reason of a breach of duty towards her under the said section 4. Under the section that duty is the same for “recreational users” and trespassers. The trial came on before Butler J. who found the appellant to be in breach of such duty and assessed damages at €113,000. However, he found the respondent to be guilty of contributory negligence to the extent of 25 per cent. The net judgment therefore was for €84,666.
The appellant has appealed to this court against both that finding of liability on the part of the appellant and against the apportionment of liability in so far as it was limited to 25 per cent. By a notice to vary the respondent has cross-appealed against the finding of contributory negligence and against the assessment of damages claiming that the assessment was too low.
The facts
I have already given a short summary of how the accident occurred. I propose now to go into it in somewhat more detail. On the occasion of the accident the respondent with others were out for what is described as a “social evening” in Donegal town and they had dinner in a restaurant called The Smugglers Creek. After the meal the respondent and one of the group decided to go for a walk. Later they were joined by two others. The beach was close by and they decided to walk towards it. This was shortly after 8.00 p.m. The respondent in her evidence said that the sun was high in the sky, that it was sunset and that this is what attracted them to go to the beach to watch the sun set. In order to get to the beach they had to walk along a road which is very clearly shown in photographs which were produced. The photographs show that the lower half of the embankment or cliff leading to the beach is particularly sheer. This would have been within the view of the walkers but nothing turns on that in my opinion for the purposes of this action. As they travelled down the road toward the beach there was an isolated section of fencing on their left, a piece of which had fallen down. Considerable significance was attached to this by the respondent at the trial and I will return to it later. Essentially, the negligence (by that expression I mean the liability under the Occupiers Liability Act, 1995) alleged against the appellant was twofold. It was suggested that the area should have been fenced so as to prevent anyone entering into it and additionally or alternatively that there should have been a warning notice. The trial judge held against the respondent on the first ground but held with the respondent on the second. As already mentioned there was in fact a short stretch of broken-down fencing in existence. At that particular area there was some trodden grass which the respondent said she regarded as a path that led her to believe that people had walked there a good deal. Since it would have been the obvious place that people would have used to walk in on the grassy area this evidence was perfectly credible. The respondent was then asked where did she sit down. I think it worth quoting the exact wording of her answer which was question 37.
“We sat, I am looking at picture No. 4, we sat on a grassy area just looking out over that stony gradient.”
Later she explained that they had all sat down but one of them lay on her stomach. At a certain stage they decided to get up and go back to the restaurant. The respondent described how when she stood up she went to stand up and her foot slipped and she just started to slide down the stony gradient that was shown on picture 4 and as she slipped she started to gather speed and continued to fall. She could not stop herself, the stones were coming through her fingers and she kept picking up speed. She remembered then being in the tide. I have already explained how she was rescued from the water. Under cross-examination the respondent maintained that she was misled as to the nature of the cliff. She said that it did not seem as if she was over a cliff and that she never thought she could fall over it. Throughout the cross-examination the respondent consistently alleged that it would never have occurred to her that there was this dangerous stony gradient in such a position that she could end up sliding on it and falling over the edge. Mr. Whelehan, S.C., counsel for the appellant put the following question to the respondent:
“If you had been there with two of your children and they went over and sat down in the position you took up, would you have been fretful for them or told them to come back from the edge and say ‘mind you don’t fall over the edge’?”
The answer given was:
“Yes, I would.”
In re-examination Mr. John Finlay, S.C., counsel for the respondent asked his client what would have been her reaction if there had been a warning notice. She answered that she would never have gone into the area. For reasons which I will elaborate upon when dealing with the law I think that that answer was of minimal evidential value.
Two of the companions gave evidence but I do not find it necessary to go into that in any detail. It was largely a repetition of what the respondent herself said. In fairness to the respondent, however, I think that I should specifically refer to one question and answer in the evidence of Mr. Dara O’Donnell. He was asked about the gravelly area that she had described and in particular as to how it struck him. He gave his answer as follows:
“I did not sense any danger at the time because the sheer drop was hidden from view for a start and the slope looked gradual enough. It did not look like a steep slope that you would find yourself falling if you fell. It was deceptive.”
I have highlighted that answer because it would seem to me to represent the high point in the respondent’s case. In due course, I will give my opinion as to how it affects liability if at all.
Only one expert was called, a Mr. Laurence McMullan, an engineer called on behalf of the respondent. The thrust of his evidence was that there should have been a barrier to prevent the public entering on to this bit of ground, a suggestion rejected by the trial judge. That finding has not been appealed. He also thought that there should have been a warning notice and that found favour with the trial judge. There was a good deal of discussion about the stretch of broken-down fence. It was at all material times part of the appellant’s case that that fence was never there to prevent pedestrians walking in. Even if the fence had been in perfect order it was merely a section of fence and the public could still have gone in at the end of it. It may have been to do with the traffic on the road. Though there was no specific finding by the trial judge, it does seem to be highly unlikely that it was in any way designed to prevent pedestrians entering. Mr. McMullan was asked, was it obvious that the incline went down to a sheer drop and, therefore, straight down on to the beach and he said it would be obvious to some people but not necessarily to everyone and he said that there would be a danger there. At one point in the cross-examination of Mr. McMullan, Mr. Whelehan asked him if you were to put up a notice every place that there was a ridge or a cliff how many notices would have to be erected. His answer was that the place would be littered with notices. One does not have to be an engineer to agree with that answer and one does not have to be blessed with a high degree of common sense to opine that it is highly unlikely that the Oireachtas ever intended any such thing. Mr. McMullan’s evidence was extreme but, in my view, it logically had to be given to support the case of the respondent. For instance, in re-examination Mr. Finlay referred to a question Mr. Whelehan has asked Mr. McMullan as to whether he was suggesting that every stretch of the coast line should be fenced. I rather suspect that Mr. Finlay was hoping for a different kind of answer than he got. Mr. McMullan said that any area that is heavily pedestrianised should certainly have some warning signs and that there should also be a fence there as well. I must confess that this conjures up in my mind huge areas of coastline right around Ireland fenced against the public and littered with warning notices. An Oireachtas intention to that effect would seem unlikely but if a statute required it, the courts would be bound to uphold it. That is the question which I have to address when I deal with the law.
The law
As I have already indicated the respondent in order to succeed in this action had to establish a breach of duty towards her under s. 4 of the Occupiers Liability Act, 1995. Under that section the same duty is owed to recreational users within the meaning of the Act and to trespassers. For this reason and for shorthand convenience, I will be referring from now on to the duty owed to trespassers but this does not mean that I am expressing any view as to whether the respondent was a recreational user within the meaning of the Act or not. I will begin my treatment of the law by quoting paragraph 12.16 of McMahon and Binchy Law of Torts 3rd edition under the heading of “Occupiers Liability to Trespassers”. The learned authors say the following:
“This branch of the law was drastically overhauled twenty five years ago in Ireland. After McNamara v. ESB was handed down by the Supreme Court in 1975, the duty owed to trespassers in Ireland was the duty to take reasonable care. The Occupiers Liability Act, 1995, however, has reversed this and has restored the old pre-McNamara common law standard, that is, that the duty owed to trespassers is not to injure them intentionally and not to act with reckless disregard (for) their person or property. All the common law case law on this branch of the law, which had become largely redundant during the period 1975 to 1995, is once more very relevant in determining what recklessness means in this context. Furthermore, the judicial techniques which were developed to mitigate this harsh common law rule must all be revisited as they represent real options for a judiciary wishing to avoid a draconian rule in particular situations.”
With the greatest respect to the learned trial judge there is nothing to indicate that he addressed himself to this much higher threshold now enacted for a plaintiff trespasser. In fairness to him he undoubtedly referred to the expression “reckless disregard” and he said that he had been told by Mr. Whelehan that the expression had not been discussed in the courts or determined in any written judgment. Unfortunately, he did not then go on to consider what it meant but rather moved to certain matters which under the section, a judge should have regard to. To understand this point, I think it necessary to cite in full the first two subsections of s. 4.
“4(1) In respect of a danger existing on premises, an occupier owes towards a recreational user of the premises or a trespasser thereon (‘the person’) a duty –
(a) not to injure the person or damage the property of the person intentionally, and
(b) not to act with reckless disregard for the person or the property of the person,
except in so far as the occupier extends the duty in accordance with section 5.
(2) In determining whether or not an occupier has so acted with reckless disregard, regard shall be had to all the circumstances of the case, including –
(a) whether the occupier knew or had reasonable grounds for believing that a danger existed on the premises;
(b) whether the occupier knew or had reasonable grounds for believing that the person and, in the case of damage, property of the person, was or was likely to be on the premises;
(c) whether the occupier knew or had reasonable grounds for believing that the person or property of the person was in, or was likely to be in, the vicinity of the place where the danger existed;
(d) whether the danger was one against which, in all the circumstances, the occupier might reasonably be expected to provide protection for the person and property of the person;
(e) the burden on the occupier of eliminating the danger or of protecting the person and property of the person from the danger, taking into account the difficulty, expense or impracticality, having regard to the danger of the premises and the degree of the danger, of so doing;
(f) 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;
(g) 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;
(h) the nature of any warning given by the occupier or another person of the danger; and
(i) whether or not the person was on the premises in the company of another person and, if so, the extent of the supervision and control the latter person might reasonably be expected to exercise over the other’s activities.”
At paragraph 12.109 of the third edition of McMahon and Binchy the following is stated:
“It is clear from consideration of the several factors prescribed in the legislation that recklessness connotes objective default rather than necessarily requiring any subjective advertence on the part of the occupier to the risk of injury.”
I do not intend to express any view on the subjective/objective question. Such consideration should be left for a case where it properly arises. My concern in this regard arises from the fact that notwithstanding the recommendations contained in both the Consultation Paper and the ultimate report of the Law Reform Commission that the liability towards trespassers and recreational users should be one of “gross negligence”, the Oireachtas appears to have rejected this recommendation and adopted the phrase arising from the old case law namely “reckless disregard”. It may well be, therefore, that the liability is something more than what might be described as “gross negligence”. However, this is a case of a lady falling down the edge of a cliff. It is suggested that there was an inherent danger in the nature of the actual ground and portion of cliff where she fell. This, of course, is so but only in the sense that wherever there is a cliff edge it is to be reasonably expected that there may be parts of it more dangerous than others. At any rate, it would be reasonable to assume that the occupiers in this case would have had some awareness of the danger. For the purposes of this case and without deciding the issue, I am prepared to accept that the test of recklessness is an objective one as suggested by the authors of McMahon and Binchy. In the same paragraph of that work the authors make a very astute and prescient remark. They state the following:
“One can only speculate about the extent to which the courts are in practice going to set the standard at a lower level than the (equally objective) standard of reasonable care. The 1995 Act gives no guidance as to how much lower the level should be. The nine factors specified in section 4(2) contain no such yardstick; indeed, they might constitute a trap to an unwary judge who could easily seek to apply them without adverting to the fact that, although they are similar to criteria applicable for determining the issue of negligence, they have to be pitched at a level more indulgent to the defendant.”
It would seem to me that that is exactly what happened in this case and that the learned trial judge unconsciously fell into this trap.
As it happens, I take the view that even if the duty on the occupier in this case was the ordinary Donoghue v. Stevenson neighbourly duty of care the respondent would not be entitled to succeed. Interestingly in Donovan v. Landy’s Limited [1963] I.R. 441 a case in which, as the Law Reform Commission noted, Kingsmill Moore J. reviewed all the Irish and English authorities, Lavery J. gave a judgment agreeing with the judgment of Kingsmill Moore J. but making the following apposite comment:
“I agree with his conclusions and in the main with the reasons which he has given. I am, however, in some doubt as to whether the distinction between negligence and reckless disregard is necessary to be drawn and I fear that such a distinction may well lead to difficulty in a trial before a jury in explaining a case of this kind. There are already so many distinctions which have been elaborately explained in enumerable judgments.”
More or less the same view was taken by Judge McMahon one of the authors of McMahon and Binchy in his submission to the Law Reform Commission between the time of the Consultation Paper and the ultimate report. He was strongly of the view that the duty should be an ordinary duty of reasonable care.
The Commission rejected his advice and again recommended a threshold of “gross negligence”. The Oireachtas, however, did not adopt that expression in the legislation and instead went back to the old expression “reckless disregard”. It may well be reasonable to argue therefore that the threshold is even higher than “gross negligence”. I do not find it necessary to express any definitive view on any of this because as I have already indicated I believe that even if the duty was merely a duty of reasonable care and not the obviously higher duty not to act with reckless disregard for the personal property of the person the result in this case would be the same. It is perfectly obvious to all users of land higher than sea level but adjoining the sea that there may well be a dangerous cliff edge and in those circumstances the occupier of the lands cannot be held to be unreasonable in not putting up a warning notice. Still less has he reckless disregard for the safety of the person using the land. The whole area of reasonableness in an outdoor land situation has been quite recently considered by the House of Lords in Tomlinson v. Congleton Borough Council [2003] 3 All ER 1122. That case involved potential liability under the English Occupiers Liability Act, 1957 and there were some views expressed in the speeches of the Law Lords relating also to the Occupiers Liability Act, 1984 which was the Act dealing with duty to trespassers. While there is some overlap, the wording of the English Acts is sufficiently different to render it of limited assistance in interpreting the Irish legislation. But at least one aspect of that case is relevant to this case. The Law Lords in their speeches referred to the common sense expectations of persons engaged in outdoor activities such as, for instance, mountain climbing or walking or swimming in dangerous areas. The other side of that coin is that the occupier is entitled to assume that knowledge of such dangers and risks would exist and safety measures would be taken. For this purpose, I find it sufficient to refer only to some passages from the speech of Lord Hutton. At p. 1155 of the report he cited with approval a Scottish case Stevenson v. Corporation of Glasgow [1908] SC 1034 at 1039 where Lord M’Laren stated:
“…in a town, as well as in the country, there are physical features which may be productive of injury to careless persons or to young children against which it is impossible to guard by protective measures. The situation of a town on the banks of a river is a familiar feature; and whether the stream be sluggish like the Clyde at Glasgow, or swift and variable like the Ness at Inverness, or the Tay at Perth, there is always danger to the individual who may be so unfortunate as to fall into the stream. But in none of these places has it been found necessary to fence the river to prevent children or careless persons from falling into the water. Now, as the common law is just the formal statement of the results and conclusions of the common sense of mankind, I come without difficulty to the conclusion that precautions which have been rejected by common sense as unnecessary and inconvenient are not required by the law.”
That passage would seem to be apposite to this case also and would seem to apply to any suggestion that a warning notice should have been put up. Lord Hutton also cites Corporation of the City of Glasgow v. Taylor [1922] 1 AC 44 where at 61 Lord Shaw of Dunfermline stated:
“Grounds thrown open by a municipality to the public may contain objects of natural beauty, say precipitous cliffs or the banks of streams, the dangers of the resort to which are plain.”
In support of these propositions, Lord Hutton cited yet another Scottish case Hastie v. Magistrates of Edinburgh [1907] SC 1102 where the Lord President (Lord Dunedin) at 1106 said that there are certain risks against which the law in accordance with the dictates of common sense, does not give protection – such risks are “just one of the results of the world as we find it”.
I would heartily endorse the sentiments expressed in these passages. The person sitting down near a cliff must be prepared for oddities in the cliff’s structure or in the structure of the ground adjacent to the cliff and he or she assumes the inherent risks associated therewith. There could, of course, be something quite exceptionally unusual and dangerous in the state of a particular piece of ground which would impose a duty on the occupier the effect of which would be that if he did not put up a warning notice he would be treated as having reckless disregard. But this is certainly not such a case. While obviously sympathetic to the respondent in her serious injuries, I am quite satisfied that there was no liability on the part of the appellant in this case and I would set aside the judgment of the High Court and dismiss the action. The issues on the notice to vary do not, therefore, arise in any view.
Damien Clancy v The Commissioners of Public Works in Ireland and The Attorney General
1983 No. 1749 P
High Court
8 July 1987
[1988] I.L.R.M. 268
(Barr J)
8 July 1987
BARR J
delivered his judgment on 8 July 1987 saying: The facts of this case are simple. Donegal Castle in the town of Donegal is an ancient, partly ruined building. It is a national monument which is now and has been for upwards of 80 years in the possession and control of the Commissioners of Public Works in Ireland (The Board of Works). The Board employs a caretaker and for many years the practice has been that he unlocks a gate each morning to enable the public to gain entry to the curtilage of the castle. He has no supervisory duties other than to clear the premises and lock the gate each evening. There is an open arch which leads to the interior of the castle where there is a staircase giving access to the first floor. At that level there are two large windows or openings, one of which has a balcony which constitutes an obvious viewing point for the public. It had been in part built by the Board, presumably for that purpose, in course of restoration work prior to August 1980. Close to the latter viewing point there is an aperture in the floor about two feet wide and extending almost the entire width of the balcony.
On 16 August 1980 the plaintiff, then a 13 year old schoolboy, and seven other youngsters, being his brothers and cousins, visited the castle and gained access to the first floor. There were also a number of adult visitors on the premises at the time. The aperature to which I have referred was then open and was totally unguarded. There was also a lip or step along the inside edge of it. There was no direct evidence at the trial as to how the plaintiff came to be injured. His elder brother, Colm, who was elsewhere on the first floor of the castle at the time, heard a shout and found that the plaintiff had fallen a distance of about 16 feet through the aperture and was lying beneath it unconsious and seriously injured. There was no notice in or about the castle warning the public of any particular danger or exhorting them to take care for their own safety.
I have already held that the Board of Works was negligent and in breach of duty to the plaintiff in failing to fence or cover the aperture in the first floor of the castle. The only issue on liability which remains for determination is whether the plaintiff was guilty of contributory negligence, and, if so, how fault should be apportioned between him and the defendants in all the circumstances of the case.
The plaintiff, having entered the castle, had a duty to take reasonable care for his own safety. However, in determining what was reasonable in the circumstances the court should have regard to the age of the plaintiff; the nature of the premises (being a partially ruined ancient castle which, per se, is likely to be a particular delight for an average boy of that age) and the fact that the plaintiff was accompanied by several boys within the age *271 group 10 to 17 years. All interesting scenario for exploration and fantasy was presented to the plaintiff. Added to this it should be recognised that boys of his age in those circumstances have a natural propensity to run rather than to proceed sedately and with the degree of caution one would expect of an adult.
The plaintiff’s older brother, Colm, was first up the stairs. He and others following him made for a particular viewing window. The plaintiff appears to have been following the first group of youngsters and I am satisfied that he elected to make for the second larger viewing balcony close to the aperture and on the far side of it as the boy approached. I have already mentioned that there is no evidence as to how he came to fall down the hole. It may well be that he ran towards the balcony and that he either attempted unsuccessfully to jump the aperture, as Mr Geraghty surmises, or that while running he tripped on the lip or step which was near the hole. In either event it follows that if he did so he adopted a course of conduct which, even having regard to his age, he ought to have known was dangerous in the circumstances and exposed him to the risk of falling through the hole. I am satisfied from the evidence that the aperture, though unguarded or fenced in any way, was of substantial dimensions and was situated in an area of the floor which was clearly exposed by daylight. It follows that the plaintiff, if taking reasonable care for his own safety, ought to have seen it and should have realised that it presented a danger to him which might lead to serious injury. Therefore, he ought not to have run towards it or attempted to jump the gap — if that is what he did. In the absence of specific evidence as to how the plaintiff came to fall down the hole, it seems to me that the court should adopt a reasonable construction of the events, consistent with the established evidence, which is most favourable to the defendants. There is no evidence that the child fell because he was pushed by one of his companions. The question of horseplay was raised by counsel for the defendants with the plaintiff’s brother, Aidan, and he denied that any such thing had taken place. I accept his evidence in that regard and I consider that it is most unlikely that the plaintiff was pushed. The other two alternatives to which I have referred are each eminently more likely. Of these, the suggestion that the boy may have attempted to jump the aperture is the explanation most favourable to the defendants and I adopt it as the basis for the assessment of the plaintiff’s conduct. In that premise it follows that the boy failed in his duty to take reasonable care for his own safety. However, if the aperture had been properly protected, as it should have been by the Board of Works, the risk of a child meeting with such an accident could not have arisen. The fact that an exuberant young boy might attempt to jump over the aperture on his way to the viewing platform was clearly forseeable. I am satisfied that on apportionment of degrees of fault greater blame rests on the defendants than on the plaintiff and, accordingly, I apportion blame as to two thirds and one third respectively.
Damages
The plaintiff suffered the following injuries:
(a) A serious head injury resulting from an intra cerebral haematona and associated severe concussion.
(b) A fracture of the left shoulder blade.
(c) A displaced fracture in the sub-trochanteric area of the right femur.
(d) Various small wounds, contusions and abrasions.
The plaintiff was originally treated at Letterkenny Hospital. From there he was transferred to Dungannon Hospital and then on to the Royal Victoria Hospital in Belfast where he was detained for two months. The fractured femur required a lengthy period of traction.
Ultimately, the plaintiff made a reasonably good recovery from that fracture but the injured leg remains slightly substandard and Mr Adarie accepts that it probably continues to be the cause of intermittent discomfort in the thigh. The plaintiff has a slight limp and I accept his evidence that he has some pain and discomfort in the injured after strenous activity. This minor disability is likely to continue indefinitely. As to the shoulder injury; no complaint is now made in that regard and it appears to have cleared up completely.
By far the most serious aspect of the matter are the sequelae which follow from the head injury sustained by the plaintiff. He suffered an epileptic manifestation in the first year following the accident. However, there has been no recurrence since then and I accept Mr Lanigan’s evidence that, having regard to the lapse of time, the risk of further epileptic attacks is now two to three per cent.
I accept the evidence of the plaintiff’s father, a principal primary teacher, and of the other teachers who knew the boy prior to the accident. This evidence establishes that at the time he was a bright, active child of at least average intelligence and ability. Unlike any of his brothers, he had been selected for Grammar School and was progressing well there. This evidence is also borne out by the assessment made by Doctor McKenna, clinical psychologist. A major change in the intellectual capacity of the plaintiff has become manifest since then. I accept the evidence of the plaintiff’s father, Doctor Greg and Doctor McKenna that he has now sunk to the intellectual level of ‘dull normal’. This means that from being in the top twenty per cent of his peer group intellectually, he has now descended to the lowest ten per cent of that group. Because of intellectual impairment he was unable to remain in Grammar School and was transferred to a Secondary Technical School where his performance also was poor.
Apart from intellectual impairment, the head injury, allied to the sequelae of the leg injury, causes the plaintiff to be clumsy, sometimes unsteady and liable to fall. While working for a contracting firm after the accident he fell down stairs and fractured his ankle. It seems that this injury was caused by impairment in his balance resulting from the head injury. His hand *273 movements are also affected to some degree. These manifestations are indicative of permanent brain damage and it appears that no further significant improvement is expected.
The end result for the plaintiff is that his way of life and his future prospects have changed radically. He is no longer a bright, intelligent, active person but instead is dull and clumsy. He has lost the capacity or the urge to socialise in a normal way and in terms of working capacity he can expect, at best, to obtain light menial employment
I am satisfied that, having regard to the general family history of employment, the plaintiff would, at the very least, have qualified in some trade if he had not been injured in the accident. The evidence of Mr McCann, the Trade Union Official, has not been challenged. He states that the wage for light unskilled labouring work in Northern Ireland presently is £103.00 gross per week including a £7.00 bonus or £88.00 net of income tax and other deductions for an unmarried man with no special allowances. Qualified bricklayers and other craftsmen in the building trade have a minimum wage of £117.00 per week including bonus or £102.00 per week net of tax and deductions. Mr McCann deposed to the fact that there is a high degree of unemployment in the Dungannon area (about 25%) but that the situation is improving to some degree in the building trade.
In the light of the evidence to which I have referred it emerges that the plaintiff has suffered a net loss of earning capacity of not less than £14.00 per week sterling or IR£16.00 per week to the nearest pound. Mr Seagrave Daly’s net actuarial multiplier on that basis is £1,260.00 per IR£1.00 per week loss. Accordingly, the acturial value of IR£16.00 per week loss is £20,160.00. However, having regard to the decision of the Supreme Court in Reddy v Bates [1984] ILRM 197 this sum must be adjusted to take account of employment prospects in the future and the risk of absence from work through ill-health. Accordingly, in my view the capital sum should be reduced by 25% to IR£15,120.00. However, I am satisfied that the plaintiff will probably find great difficulty in the present economic climate in obtaining the type of semi-sheltered employment which is within his restricted physical and intellectual capacity. A further sum of £5,000.00 is reasonable compensation to cover that factor.
There remains, finally, compensation for pain, suffering and disablement to date and for continuing disablement in the future. Both of these include compensation for the permanent sequel of his injuries; the substantial alteration in the plaintiff’s personality and way of life; his loss of sporting capacity and also loss of job satisfaction. There is no doubt that his life as a qualified tradesman would have given him greater pleasure and sense of fulfilment than will be the case as a labourer performing menial tasks only. I assess compensation under these headings at £30,000.00 and £70,000.00 respectively.
The total amount of damages, therefore, is as follows:
(a)
Net Capital value of loss of earning capacity
£15,120.00
(b)
Probable delay in obtaining work
£5,000.00
(c)
General damages to date
£30,000.00
General damages in the future
£70,000.00
TOTAL
£120,120.00
Less 1/3 on apportionment of degrees of fault
£40,040.00
Net amount of compensation
£80,000.80
The plaintiff is entitled to judgment for that amount.
Perry v. Statham, Ltd. (No. 2).
[1929] IR 277
Supreme Court.
that purpose. [They referred to Holdringshaw v. Rag (1);Roscoe, Nisi Prius, vol. 2 (19th ed.), 820.] In Harris v. Perry and Co. (2), there was evidence of authority. The plaintiff here was not an invitee, as he was not on the premises on any business in which he and the defendants had a common interest.
Even if the plaintiff was a licensee, he must take the premises as he finds them. The only duty on the defendants was not to”set a trap,” which phrase imports the idea of something active on the defendants’ part involving added danger. It must be something not to be expected by a reasonable person coming on the premises. No such case was made by the plaintiff. [They referred to Grand Trunk Railway of Canada v. Barnett (3); Hounsell v. Smyth (4); Gautret v. Egerton (5); Mersey Docks and Harbour Board v. Proctor (6); Coleshill v. Manchester Corporation (7); Sullivan v. Waters (8).] Further, a person walking in the dark, as the plaintiff says he was, walks at his peril: Latham v. Johnson (9); Wilkinson v. Fairrie (10); Great Central Railway Company v. Bates (11).
The findings of the jury are perfectly consistent, although exception is taken to No. 2. The finding that the plaintiff was aware of the pit shows that it was not a “trap.” The finding that the pit was a concealed danger means that it was such only to persons not knowing of its existence.
The usual third question in negligence cases is applicable only to acts forming a series in point of time, and cannot be applied here. The principle of continuing negligence does not apply to the case of a licensee, where the only duty which arises at the time of the licence is the negative duty not to set a trap. [They also cited O’Sullivan v. O’Connor (12).]
Lynch K.C. , in reply:
The idea of fraud imported into the term “trap” has been modified by later decisions. [He referred to Latham v.Johnson (13).]
Cur. adv. vult.
KENNEDY C.J. :
22. March
This is an appeal by the plaintiff, who seeks to have the verdict given and judgment directed on the trial of the action before the President of the High Court and a jury set aside, and to have a new trial of the acti
intention to apply (if necessary) to set aside the finding of the jury, in answer to the second question submitted to them, that Conway had authority from the defendants to permit the plaintiff to enter the defendants’ workshop and inspect his car, on the ground that the question should not have been left to the jury, and that the answer was without evidence and against evidence.
The material facts and evidence are fully dealt with in the judgment about to be delivered by FitzGibbon J., which I have had the advantage of reading. As regards the plaintiff’s appeal, made on the basis that the answer to the second question stands, I entirely concur in that judgment, and cannot usefully add anything to the statement of the law applicable to the case or the conclusions stated. I agree that the plaintiff’s motion must be refused.
As regards the defendants’ cross-notice, however, though served only for the event of a different view being taken by the Court of the plaintiff’s appeal, I wish to offer some brief observations upon the question raised by it, which is discussed rather fully by FitzGibbon J. I have formed a different opinion as to the fact on the evidence. I agree, of course, that “invitation”as defined by the authorities has not been established in the present case, and that the issue is between licence and trespass. In my opinion, the plaintiff was at the time and place of the accident a trespasser in the defendants’ workshop. He could only be taken out of that category by proving that Conway was an agent of the defendants for the purpose of granting him a licence to enter the defendants’ workshop. I agree that such agency need not be proved by evidence of an express authority (there was no such evidence here), but may be established by implication from other facts, as, for example, by implication from the nature of the licensor’s employment and the purpose of the licence as proved in evidence: Holdringshaw v. Rag (1); Tayler v. Fisher (2); Harris v. Perry & Co. (3). The question is not whether the plaintiff might draw an inference from the facts and circumstances that Conway had authority as the defendants’ agent to grant him licence to enter the defendants’ workshop such inference might be erroneous and unreasonable but whether the existence of such authority in Conway is implied in the conditions, facts, and circumstances of his engagement or employment so as to bind the defendants. The matter is one of wide interest to employers and insurers.
I can find nothing in the evidence to raise an implication of authority in Conway to give licence to anyone to enter the defendants’ workshop.
The defendants’ premises are divided into a garage, where customers have of necessity free access, and a workshop, where they have not free access so conceded, for it was not suggested that the plaintiff would not have been a trespasser there had he entered without the alleged licence. Conway is a mechanic employed in the workshop, not a foreman, or otherwise in a position of any authority, either in the shop generally or in respect of any particular part of it or particular work in it. It was not even suggested that he was engaged on the repairs to the plaintiff’s car. At the time in question the workshop was closed, the lights extinguished, and Conway’s work for the day ended. He appears to have been the last to leave, and naturally had the key of the shop, presumably for the purpose of locking up the place as he left. I cannot find in these circumstances the slightest ground for an implication of authority in a mechanic to give licence to any person to enter the shop. I see no reason for this attribution of agency to a mechanic as distinguished from any other person a cleaner, for example.
It is to be borne in mind that there was no case of necessity made the plaintiff himself disclaimed urgency. Necessity or urgency might have gone towards the implication of a special authority in the absence of a more responsible person than the mechanic. I do not consider that case, which does not arise on the facts. This was an unnecessary act of personal courtesy.
In my opinion there was no evidence to go to the jury on the second question, and, that being so, there was not, in my opinion, a case of any kind to go to the jury.
If, however, contrary to my view, there was evidence of authority in Conway to give a licence to the plaintiff to enter the workshop, I am of opinion that the plaintiff fails in the action on the other grounds stated by Mr. Justice FitzGibbon in his judgment.
FITZGIBBON J. :
This action was instituted by the plaintiff to recover damages for injuries suffered by him on the evening of January 13th, 1928, through falling into an inspection pit in the workshop attached to the defendants’ motor garage, in the City of Kilkenny.
The plaintiff’s claim is founded on negligence on the part of the defendants or their servants in leaving the inspection pit open, unguarded, and unlighted, or in omitting to warn him of its existence; and he alleges that he was in the workshop on the invitation or with the permission of the defendants.
The defendants deny that the plaintiff entered the workshop by their invitation or with their permission, and they allege that the accident was due to the sole negligence, or at least the contributory negligence, of the plaintiff himself.
The injuries to the plaintiff were occasioned as follows: About half-past five on the afternoon of Friday, January 13th, he drove his car into the garage of the defendants, intending to leave it there, as he had often done before, until the following Monday morning. He gave directions to Farrell, the defendants’ secretary, about some repairs which he wanted done by Monday. He then went across the street to his hotel, where he found a letter from his employers, which made it necessary for him to ascertain a certain number upon the car for the Customs authorities. About 6.15, after a short delay, he went back to the garage, which was fully lighted, to obtain what he required, but at the moment there does not appear to have been any representative of the defendants in the garage itself. He looked for his car, but it was not there, as the defendants’ servants had removed it into the adjoining workshop for the purpose of effecting the repairs, and it had in fact been placed in position over one of the two inspection pits in the workshop. As the plaintiff was leaving the garage, a mechanic in the defendants’ employment came out of the workshop by a small door, and a conversation ensued between him and the plaintiff. The plaintiff told him what he had come for. He does not seem to have considered the matter very urgent, as he was late for that night’s post, and the information he wanted would have been in plenty of time on Saturday; and, according to his own account, he said: “It doesn’t matter. I see you have closed up; it will do to-morrow; there is no immediate hurry about finding this number. I’m not going to trouble you.”The mechanic Conway replied: “It’s no trouble; it’s a pleasure. I will just go do it now; it will only take a minute or two. Come along and we will do it now.” The version given by Conway is substantially the same: “He asked me if the foreman were in. I said, ‘No, that they were all gone.’ He asked me if I belonged to the workshop myself. I said, ‘Yes.’ He told me he had a car in the workshop, that he wanted to get the engine number of it; he asked me if I would oblige him by going back to the workshop with him. I told him I would. I led the way. I opened the wicket gate.”The plaintiff said that Conway was in overalls, while Conway says he had discarded them, and had put on his overcoat. Nothing turns upon this discrepancy, which is only of importance as a test of the accuracy of the witnesses’ recollection. What is certain is that Conway, who must have been acquainted with the regulations, if any, concerning admission to the workshop, either invited or, if he did not actually invite, facilitated and sanctioned the entrance of the plaintiff into the workshop. It is at this point that the divergence of testimony commences, and it becomes acute. The plaintiff alleges that the workshop was in complete darkness until Conway turned on or connected up a hand inspection lamp, which was attached to a long flex, and that Conway then led him along to his car, which they proceeded to search for the number. He and Conway were looking for it inside the bonnet on the right-hand side of the car, which was standing over the inspection pit, when Conway turned away, and went round with the lamp by the back of the car to open the bonnet on the left side. The plaintiff closed the right-hand side of the bonnet, and proceeded to go round by the front of the car to meet Conway, and in doing so fell into the open end of the inspection pit, which projected a couple of feet beyond the front of the car, and received very serious injuries. There is not much dispute about the way in which the accident occurred, but there is absolute contradiction upon the question of lighting. The plaintiff swears positively that the workshop was pitch dark, except for the one flex lamp; and it would appear that this must have been the story originally given by Conway to his employers, for when the plaintiff asked for particulars of the negligence or contributory negligence upon which the defendants relied as a defence, their answer was: “The plaintiff wrongfully entered the workshop of the defendants, and, in disobedient and disregard of the notice thereon, ‘No admission,’ and at the time in question the workshop was not open for business or at all, and the lighting thereof had been extinguished; and the plaintiff, whilst so wrongfully therein, carelessly and negligently approached and fell into the motor pit, which is in the floor of the said workshop, for the convenience of the defendants’ business, and the existence and position of which were well known to the plaintiff. Further, or alternatively, the plaintiff, whilst so wrongfully in the said workshop, carelessly and negligently approached and fell into the said motor pit before the servant of the defendants had opportunity to light the said workshop, and after the said servant had offered to light the same.” This amounts to an averment that the plaintiff deliberately went into a pitch dark workshop and proceeded to wander at large in it, without giving his companion time or opportunity to turn on the lights, which would enable him to avoid possible danger. These particulars, unless they are pure invention, must have been obtained from Conway, who was the only person except the plaintiff present at the time; and in view of them it was amazing to find that the defendants were permitted, without apparent objection by the plaintiff, to make, and, it appears, to prove the case that from the moment Conway led the plaintiff into the workshop the latter was fully illuminated in the region in which the plaintiff’s car was standing by three 60-watt lamps and one 100-watt lamp, in addition to whatever light was furnished by the flex. The whole object of particulars, the saving of expense to litigants by narrowing down so far as possible the issues of fact to be tried, and the avoidance of surprise at the trial, would be nullified if parties were to be permitted to turn round during the actual hearing of the case and present a story diametrically opposed to that stated in the particulars furnished by them. If a party who has given particulars desires to amend them, he ought, in my opinion, to furnish his proposed amendments, or obtain leave to do so, a reasonable time before the trial, that the other party may know the altered case he is to meet.
In the present case, however, the plaintiff made no objection to the defendants’ change of front, and the evidence that the workshop was fairly well lighted when the plaintiff fell into the pit is overwhelming. I must now consider the relative rights and duties of the parties. The plaintiff, in entering the defendants’ workshop, was either a trespasser, a licensee, or an invitee. There is no fourth category in which he could be placed. If he was a trespasser, he entered the workshop at his own peril, and the defendants owed no duty to him at all. The workshop was private property, and no question of the existence of a dangerous nuisance upon private property adjoining a public place is involved. To prove that the plaintiff was a trespasser, the defendants gave in evidence the following facts. The workshop was separated from the garage, to which admittedly the defendants’ customers were not only allowed, but invited to come, by two large sliding doors, which were closed and bolted, and by a wicket door, upon which the words,”No admittance,” were plainly legible. George Statham, the managing director of the defendant company, deposed that:”The management staff have authority, and the foreman, to take visitors into the workshop. None of the mechanics or apprentices in the workshop have authority.” He defined the management staff as himself, the secretary, and the assistant or sales manager. He expressly said that Conway had no authority to bring the plaintiff into the workshop on the night of Friday, January 13th, and if he meant “express authority,” the statement appears to be correct. It would appear, however, that this is only Mr. Statham’s view of the duties of his employees, and that there are no actual regulations in force upon the point, for when he was asked in cross-examination whether he would refuse to allow a customer to go back to his premises to get things out of a car, whether it was in the workshop or not, his answer was: “It is unusual in the workshop. I have never known a case; I can’t recall a case. I never had a case of it. I have never considered it;” and when the direct point is put to him: “And therefore I take it you can never have told any of your men to refuse to allow a customer to have access to his car, even in your workshop, for the purpose of getting something out of it which he wanted to get?” his reply is: “I never had a case of it.” The warning, “No admittance,” cannot be taken literally as meaning that no one was allowed to pass through the door upon which it was exhibited. The plaintiff had seen Conway coming through the door, with the key of it in his possession, and to all appearance in control of it; he had himself been admitted to the workshop by the foreman on at least one previous occasion; if “No admittance” does not connote total exclusion, it would mean to the ordinary person, “No admittance except on business,” which is at least an equally common form; and in the admitted absence of any superior authority, it appears to me that the jury were entitled to come, as they did, to the conclusion that in all the circumstances of this case Conway had implied authority to permit the plaintiff to enter the workshop for the purpose of inspecting his car. There was no express prohibition; he was acting in what he believed to be his employers’ interest in facilitating a frequent customer; the key of the workshop was at the time in his actual custody; and in my opinion the company which had put it in the power of Conway to admit or exclude the plaintiff are not entitled to insist that the latter, who was invited by Conway to enter the workshop, was a wilful trespasser against whom they could have maintained an action for damages quare clausum fregit. The plaintiff had been admitted to the workshop on a previous occasion without protest; it is hard to see why he should have known that Farrell, in overalls, had authority to admit him, and that Conway, in or out of overalls, had not. If the distinctions in the hierarchy of garage mechanics are so clear, I think some evidence should have been given to prove it, and to prove that the plaintiff should have appreciated them; but there was none, and the man who permitted him to enter the workshop had the key of it, and was at the time the sole person in apparent control on behalf of the defendants.
Upon the other hand, the jury did not find, and I am not prepared to hold, that the plaintiff was an invitee, one who, as Pigot C.B. said in Sullivan v. Waters (1), “enters and uses the owner’s premises by the owner’s express invitation, or as a customer, who, as one of the public, is induced by the owner to come to his premises for the purposes of business carried on by the owner there,” and whom he contrasted with “a mere visitor or guest, invited or uninvited, or a person who has a mere licence to go upon the premises of the owner.” The duty to such an invitee, described by Willes J. in Indemaur v.Dames (2) as “a person [on the premises] on lawful business, in the course of fulfilling a contract in which both the plaintiff and the defendant had an interest, and not upon bare permission,”is thus stated by the same great Judge in the same judgment (3): “With respect to such a visitor, at least, we [Erle C.J., Willes, Keating, and Montague Smith JJ.] consider it settled law that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken by notice, lighting, guarding, or otherwise, and whether there was contributory negligence in the sufferers, must be determined by a jury as matter of fact.” That passage is cited verbatim by Kelly C.B. in delivering the judgment of himself, Blackburn and Mellor JJ., and Channell and Pigott BB. in the Exchequer Chamber (4). So far as the plaintiff relies upon the existence and breach of such a duty towards him,
I am of opinion that there is no evidence which could entitle him to the rights of an invitee as defined by either Pigot C.B. or Willes J. He did not go into the workshop “by the owner’s express invitation,” nor “for the purposes of business carried on by the owner,” nor “in the course of fulfilling a contract in which both the plaintiff and the defendant had an interest,”but to obtain information in which he alone had any interest, for a purpose which did not concern the defendants at all; and although Conway may have told him to “Come along,”that was not such an “invitation” as to impose the obligations of an “invitor” upon Conway’s employers. Holding, as I do, that there was evidence to support the finding of the jury that he was in the workshop by the permission of the defendants, it is necessary to ascertain their obligations to him as a licensee.”A mere licensee has no cause of action on account of dangers existing in the place he is permitted to enter,” per Channell B.: Holmes v. North-Eastern Railway Co. (1) “If the plaintiff had gone where he did by the mere licence of the defendants, he would have gone there subject to all the risks attending his going,” per Bramwell B.: Holmes v. North-Eastern Railway Co. (2). The only restriction upon the owner of the premises is that he shall not “set a trap.” He is not liable for mere nonfeasance. “Suppose the owner of land near the sea gives another leave to walk on the edge of a cliff, surely it would be absurd to contend that such permission cast upon the former the burden of fencing: Hounsell v. Smyth (3).” “A bare licensee is only entitled to use the place as he finds it”: Indermaurv. Dames (4), but he is entitled to this, that the owner of the premises shall not alter them to his danger, shall not be guilty of misfeasance, shall not “set a trap.” But the very phrase, “to set a trap,” itself implies the doing of some act. It seems to have been first used by Willes J. in Corby v. Hill (5)of the act of placing an unlighted obstruction upon a private road which the plaintiff was permitted and accustomed to use. He gives as an illustration of his meaning: “One who comes upon another’s land by the owner’s permission . . . has a right to expect that the owner will not dig a pit thereon, or permit another to dig a pit thereon, so that persons lawfully coming there may receive injury.” In Bolch v. Smith (6), where the plaintiff, a mere licensee, fell over a shaft, which was a dangerous obstruction to a path, but which had been there for several years, the Court of Exchequer set aside a verdict for the plaintiff on the ground that there was no obligation on the owner of the land to fence the shaft; and Wilde B. (at p: 746) gives us an instance of what would amount to “setting a trap”:”I do not mean to say that if the defendant had made a hole in the yard, and had covered it in a way that was insufficient, but which appeared to be sufficient, he would not have been liable. But here there was nothing of that character. The danger was open and visible; there was nothing which could be called a ‘trap.'” In Gautret v. Egerton (1), the leading case upon this subject, Willes J., in what Lord Collins described as a “memorable judgment,” says: “The dedication of a permission to use the way must be taken in the character of a gift. The principle of law as to gifts is, that the giver is not responsible for damage resulting from the insecurity of the thing, unless he knew its evil character at the time, and omitted to caution the donee. There must be something like fraud on the part of the giver before he can be made answerable. It is quite consistent with the declarations in these cases that this land was in the same state at the time of the accident as it was in at the time the permission to use it was originally given.To create a cause of action something like fraud must be shown.”What the learned Judge intended to imply by “trap” and”fraud” appears from an interlocutory observation by him, reported at p. 373, and referred to with approval in later cases:”If I dedicate a way to the public which is full of ruts and holes, the public must take it as it is. If I dig a pit in it, I may be liable for the consequences, but if I do nothing I am not.” These cases, with others to the like effect, were all considered at length and approved, and the law, so far as it relates to licensees, was summed up by Farwell L.J. and Lord Sumner, then Hamilton L.J., in judgments with which Cozens Hardy M.R. agreed in Latham v. Johnson (2). Applying these principles to the facts of the present case, we find that the plaintiff had been in the workshop upon at least one former occasion, when his car was over the same inspection pit; that, so far from the pit having been specially prepared to trap him, boards were never put over the pits, and they were never covered at night when cars were over them, and there was nothing unusual about the car or pit upon this occasion. It is difficult to see why the mechanics should put covers over the extremities of an occupied pit when ceasing work. No unauthorised person could reasonably be expected to enter the workshop during the night, and time would be lost removing the covers in the morning, when the workmen came to resume operations upon the car. The Jury have found that the open pit was “a concealed danger.” I am unable to find any evidence to support this finding. It was part of the ordinary equipment of the workshop; there was evidence that the plaintiff knew, or might reasonably have been aware, of its existence; there was no evidence that he had ever seen it in any other condition than open and uncovered; and not only was there no ground for suggesting that he might reasonably have expected to find it covered that evening, but there was direct and uncontradicted evidence that pits were never covered when cars were over them; and the jury have found that the plaintiff was aware of the inspection pit, or should have anticipated its existence. If he was, the defendants were under no obligation to guard him, as a licensee, from any risk which its existence might occasion to him, and their omission to guard him was not an omission to take any precaution which it was their duty to take, because, as I have endeavoured to show, their only duty was not to set a trap. No question was asked, and the President was not requested to leave one, about the lighting of the premises; and upon the case as it was tried I feel bound to assume the truth of the defendants’ amended story, that the four large lamps, and the hand-lamp upon the flex which Conway held, were all lighting from the time the plaintiff entered the workshop. If so, and even more so if the hand-lamp was the only illumination, I cannot find any ground for disturbing the jury’s finding that the plaintiff was negligent. As long as he was with Conway he was in perfect safety. When Conway left him to go round to the far side of the car, if he had no light to guide him, he was negligent in moving about in darkness in a workshop in which the jury have found he knew, or ought to have known, there was a pit, which, therefore, was not a concealed danger. If he had followed Conway, he would again have been quite safe. Instead of doing so, he elected to follow a course of his own, and went round by the front of the car, where the open pit end happened to be. If he could not have seen the pit, the jury were entitled to find that he was negligent in moving about in darkness; if he could have seen it with whatever light there was, he can only have fallen into it because he was not looking in front of him. In either case there was plenty of evidence upon which the jury were entitled to find as they did. My own opinion is that there was no evidence of any negligence on the part of the defendants, that they did not fail in any duty owed by them to the plaintiff as a licensee, and that his own want of ordinary care found by the jury was the sole cause of his accident. If I be wrong in this view, and there was any justification for the finding that the defendants were negligent, the plaintiff is still unable to succeed, because the jury’s finding amounts at least to one of contributory negligence; and in my opinion, after the plaintiff had been guilty of negligence, it was quite impossible for the defendants, by the exercise of any care, ordinary or extraordinary, to avert the consequences of the plaintiff’s negligence; and the learned President was absolutely right in declining to leave any question upon that point. The plaintiff was safe as long as he stuck to Conway; he was in a perfectly safe place when Conway parted from him; Conway never saw him leaving it; and after he had negligently left it, no warning from Conway could have saved him, because he fell directly into the pit through his own conduct in going off in the opposite direction to that taken by Conway, and without looking to see what was in front of him.
Upon the whole case I am of opinion that the plaintiff’s motion should be refused. I think there was evidence to support the findings of the jury in answer to this question: “Was the plaintiff aware of the inspection pit, or should he have anticipated its existence?” upon which the learned President gave the jury most careful and admirably impartial instructions, and the eighth question, “Was the plaintiff negligent?” I am of opinion that there was no evidence upon which the jury could properly find that the inspection pit was a concealed danger, or that the defendants were negligent; but the cross-notice served by the defendants does not seek to have these answers set aside, and it is not necessary that they should be, inasmuch as even if they are allowed to stand, the finding of contributory negligence on the part of the plaintiff disentitles him to judgment in the action. I am further of opinion that the plaintiff’s objection to the admission of evidence of negligence other than that alleged in the defendants’ particulars was taken too late. It was only made after all the evidence had been given and the President had charged the jury, and after the plaintiff had made such capital, from a jury point of view, as he could out of the discrepancy between the defendants’ particulars and their evidence at the trial. That consideration disposes also of the objections that there was no evidence of negligence on the plaintiff’s part within the particulars of negligence pleaded, and that the learned Judge misdirected the jury in not confining them to a consideration of the negligence set forth in the particulars. There was, in my opinion, no evidence upon which the learned Judge could have asked the jury to find that the plaintiff was an invitee, to whom the principles laid down in the judgment of Willes J. in Indermaur v. Dames (1), and approved in subsequent cases, which followed or adopted it, are applicable. As to the cross-notice served on behalf of the defendants, I am of opinion that there was evidence upon which the jury might find that Conway had implied authority in all the circumstances to admit the plaintiff to enter the workshop, that the learned President was right in leaving that question to the jury, and that the affirmative answer of the jury to it was not perverse.
MURNAGHAN J. :
I also am of opinion that this appeal should be dismissed.
The jury were, in my opinion, entitled to find that the plaintiff was on the defendants’ premises by their leave and licence, and that their servant Conway had authority to grant such permission. There is no question of express authority or express prohibition. The words, “No admittance,” painted on the door, do not mean that the defendant company forbade entrance under all circumstances, and indeed the defendants admit that the manager and certain officials had authority, according to their view, to give the necessary permission. I am of opinion that the jury were entitled to say that, in the absence of the manager, the mechanic, who was the only person visible on the spot, might fairly be regarded as having authority to admit the plaintiff.
The duty which the law cast upon the defendants toward the plaintiff, who was on the premises as a licensee, was that the plaintiff should not be exposed to a hidden danger or trap. The jury have found that the defendants were negligent in not performing this duty. In considering this finding of the jury, I think there was some evidence that the extreme end of the pit was covered with planks, and that the jury were entitled to come to the conclusion that the gap between the motor car standing over part of the pit and the planks at the end of the pit might, in the circumstances, be a hidden danger or trap, and that the defendants were negligent in leaving the pit as it was at the time.
The finding of the jury, which bars the plaintiff from recovering damages for the injuries which he sustained, is that the plaintiff was negligent, and himself contributed by his negligence to this damage. Two accounts of the occurrence were given. The plaintiff himself states that he walked round the front of the pit. The jury were entitled, on the true view of the facts as it appeared to them, to find that he was negligent in so doing, as they were entitled to form the opinion that the plaintiff should have seen the gap through which he fell. On the defendants’ version of the occurrence, the plaintiff was negligent, if the jury thought it right so to find, for, by this account, he went forward before the small hand-lamp was lighted and fell into the pit.
Whatever may be the exact legal position as respects the existence of the hidden trap, the finding of negligence on the plaintiff’s part is fatal to his claim. Over and over again the principle has been enunciated that negligence on the part of the plaintiff which contributes to the damage debars him of his cause of action against a defendant who was also negligent. There is no question of weighing the culpability of the negligence on the plaintiff’s part and balancing it against the negligence of the defendants.
I see no ground for saying that the jury had no evidence on which they could find the plaintiff guilty of negligence. The jury were sympathetic to the plaintiff, and found the other questions in his favour. We cannot, in the face of the finding of the jury, which they were entitled to make, that the plaintiff was himself negligent, do anything save enter judgment for the defendants.
Coleman v Kelly and Others
Supreme Court.
27 July 1950
[1951] 85 I.L.T.R 48
Maguire C.J., Murnaghan, O’Byrne, Black, Lavery JJ.
Maguire, C.J., in the course of his judgment said that the plaintiff was an invitee, for consideration, to an agricultural show held in grounds at Elphin, Co. Roscommon, of which the Elphin Gaelic Athletic Association were the owners. The defendants, who organised the show, accepted liability as invitors.
The plaintiff was knocked down by a mare which was taking part in a jumping competition at the show. He brought the action for damages. The jury had found that the premises in which the show was held were not reasonably safe so far as reasonable care and skill could make them—that the defendants were negligent, and that the plaintiff was not guilty of contributory negligence. They assessed damages at £750.
The defendants now moved the Court to set aside the verdict and enter judgment for them, or in the alternative to grant a new trial on the ground that there was no evidence to support the findings of the jury.
The horse show at which the accident occurred took place in an enclosure which was designed and mainly used as a football field. It was prepared for use as a show jumping ground by the erection of fences in the part of the field which formed the arena, and by the erection of fences consisting of posts carrying a single strand of wire one on each side of the football playing field. On the side of the field near which the accident took place a wire fence 116 yards long had been erected. The paddock in which competing horses waited was in a corner of the field. It was roughly rectangular in shape and opened on to the jumping arena. The opening was 125 feet wide. The wire fence on that side stopped short of this opening.
The plaintiff, who had paid a shilling to go into the grounds, had gone across the end of the field and at the time of the accident was standing near a tree trunk 3 feet 9 inches high, which was in the opening to the paddock 75 feet away from the wire fence, and 77 feet from the boundary wall. There was evidence from which the jury could find that the plaintiff had been at the end of the field when a steward urged him and others to move away towards the side, and that shortly before the accident he was standing with one of the stewards in friendly conversation, and was engaged in filling his pipe. He asked the steward some question about Miss White, the first competitor in the jumping competition which was about to begin, who had passed out from the paddock into the arena, and was awaiting the signal to jump. There was evidence that the judge of the competition, before giving the signal to Miss White, caused an appeal to be broadcast through loud speakers, with the object of clearing away spectators from the paddock and its vicinity, and that he delayed the signal to begin until all but a few persons, including the plaintiff, were left in that region. There was some difference of recollection between the witnesses as to what were the precise terms of the broadcast announcement. Some said that it urged the spectators to leave the mouth of the paddock, and others that it asked them to leave the paddock. The plaintiff said that he did not hear any broadcast. Miss White began her round of the course; she negotiated two fences successfully, but when nearing the third fence her mount baulked and she was thrown. There was evidence that the mare which she was riding was calm for a moment or so after throwing her rider, but then began to move away. The saddle had slipped, and apparently as the mare began to move the loose saddle banging on her flank made her run away. An effort to catch her was being made by one of the stewards when the judge shouted to leave her alone that she would go back to the paddock. She narrowly avoided the broadcasting van, skirted the two fences she had jumped with Miss White, and galloped furiously towards the paddock.
On those facts two questions arose: (1) What was the duty of the defendants who accepted payment from the plaintiff to view the horse jumping in their premises. (2) That duty being ascertained was there evidence upon which the jury could reasonably find that the defendants had not complied with it.
His Lordship said that in the case of Hall v. The Meath Hospital (unreported) to which Lavery, J. had drawn his attention, Sullivan, C.J., accepted the view of Greer and Slesser, L.JJ. in Hall v. Brooklands Auto Racing Club [1933] 1 K. B. 205, that the liability in a case such as the present case arose out of contract, and as stated by Slesser, L.J., at p. 227: “Despite certain obiter dicta to the contrary …. the better opinion is that even in cases in which there are no higher terms expressly imported, where for reward persons are invited to use premises, the duty upon the invitors is higher than in a case where action *50 is founded merely on tort. Their duty is to take reasonable care that the public may use their premises without danger to their lives or property.” In other words to ensure that the premises were reasonably safe. Slesser, L.J., at p. 228 said: “In a case of tortious liability the obligation is, to quote. Wills, J., in Indermaur v. Dames ( supra ) ‘that the occupier of a building owes a duty to persons resorting thereto in the course of business, to use reasonable care to prevent damage from unusual danger which he knows or ought to know.’ In the present case, the relation being contractual, I would apply the former of these tests and ask whether there was evidence on which the jury could find that the plaintiff might use the premises without danger to life and limb.”
His Lordship said that two elements appeared to be necessary to create liability; forseeability of the risk, and the possibility by reasonable care and skill of guarding against it. In his Lordship’s opinion there was evidence upon which the jury might have held that the defendants ought to have foreseen that a horse taking part in a jumping competition might throw its rider and take fright. There was, furthermore, evidence that a horse so frightened might dash amongst the spectators or otherwise behave in an unaccountable manner; it had a tendancy, even when running away, to return to the point from which it started.
It was not the duty of the defendants to provide against improbable or unlikely happenings such as the dashing of a horse through the railings in amongst spectators. They were, however, under an obligation to provide against damage to spectators from happenings which any reasonable occupier of premises in their position ought to foresee, and in his Lordship’s opinion the jury were clearly entitled to hold, on the evidence, that the likelihood of a horse losing its rider in the course of a competition and dashing back to the paddock should have been foreseen. The jury were also, entitled to hold that danger arising from such a happening could have been guarded against by the erection of a wooden paling or even a wire fence leading towards the opening into the paddock. Either of those methods could have been easily and inexpensively adopted. In his Lordship’s view there was evidence that with the additional precaution of efficient stewarding to keep the opening into the paddock clear of spectators the risk of an accident of the kind that had happened could have been eliminated; Accordingly he was of opinion that the answers to both the first and the third questions could be supported on the evidence.
The plaintiff was bound to take reasonable care for his own safety. There was evidence however that he was allowed by one of the stewards to remain in the position where he was injured. In view of that the jury could reasonably find that it was reasonable for him to be lulled into a sense of security and that his remaining there was not negligence. The appeal should be dismissed.
Murnaghan, J., delivering a dissenting judgment referred to the facts leading up to the accident, and said that what had happened to the plaintiff was, on all the evidence, quite unusual. The mare having thrown her rider ran away, but as the saddle kept hitting the animal’s hind legs it got panic stricken and in its course hit the plaintiff and injured him. When it reached the paddock it knocked down two other horses before coming to a standstill. Continuing, his Lordship said that the plaintiff had suffered serious injuries for which the jury had awarded him the sum of £750. The defendants had appealed to the Supreme Court against the refusal by the learned Judge at the trial of an application for a direction sought by the defendants. They now contended that there was in law no case to go to the jury.
The plaintiff had paid 1/- admission fee for entrance to the field and the evidence was that the spectators did not exceed 500. The contractor received about £20 for the erections which he had made for the Committee, so that if the receipts were of any relevance, the committee had little funds to do more than they did.
Referring to the jury’s findings as the first question, his Lordship said that it seemed clear that that question related to the structure and layout of the arena, as an independant question was asked as to whether there was negligence on the part of the defendants. Evidence was tendered first, that the showground was unsafe unless the jumping arena were surrounded by a wooden paling, preferably a white wooden paling. Secondly, that if a fence with a single wire did not extend to the mouth of the paddock the premises were unsafe. Thirdly, that the entry from and into the paddock should have been delineated by a wire fence or by a line of stewards.
His Lordship referred to the evidence given concerning the layout of the arena and said that it was the settled practise that the Court must rule whether or not there was evidence upon which a finding could be made before the jury were asked if the finding should be made. In his opinion it would not be justi *51 fiable for a jury to say that the absence of a wooden paling made the ground not reasonably safe. Neither reason nor custom required any such arrangement. Neither, in his opinion, was the ground unsafe by reason of the fact that the wire did not extend further south. The line of people and not the wire made a horse keep away. He was also of opinion that a closed in entrance and exit to the paddock was not requisite to make the ground safe, having regard to the nature of horses and the common experience of mankind in relation to horses.
In his opinion the answer to question No. 1 should be set aside on the ground that there was no legal evidence to support the finding of the jury.
Continuing his Lordship referred to question No. 3 and said that if the evidence established as a fact that the defendants allowed the plaintiff to stand in a place where the horses were likely to knock him down, the jury’s finding might be justified. The evidence did establish that there was no physical impediment to prevent the horses coming into the paddock over a distance of 125 feet, but several witnesses called for the plaintiff proved that the horses came out much further down to the south than where the plaintiff was standing.
The plaintiff was pressed with the argument that if he were standing in a dangerous place he should have known it, and the Court was asked to set aside the finding of the jury that the plaintiff was not guilty of contributory negligence. The plaintiff’s own case was that the plaintiff might think it was safe, but it was said that the defendants as experts should know that a horse which ran away might take a course where the plaintiff was standing. But why should the defendants have imputed to them the knowledge of an expert or anything more than what would be expected of reasonably careful men. In Caminer and Another v. Northern and London Investment Trust Ltd. [1948] 2 All E.R. 1101, Goddard, L.J., imputed to a landowner expert knowledge about elm trees. His decision was, however, reversed by the Court of Appeal in [1949] 1 All E. R. 874. Singleton, L.J., said: “It seems to me that the Lord Chief Justice’s judgment places an undue burden on the occupiers of property and goes far towards laying down the standard of an expert rather than that of the reasonably careful man who has elms in his garden or on his farm.”
In reality there was in his Lordship’s opinion no evidence that the plaintiff was guilty of contributory negligence. Having regard to where the plaintiff was standing there was, in his opinion, no evidence which would justify a jury in finding that the defendants were negligent in allowing the plaintiff to stand where he did. Judgment should be entered for the defendants.
O’Byrne, J., agreed that the appeal should be dismissed. He referred in the course of his judgment to the first two questions put to the jury and to their findings thereon. Those findings were questioned by the appellants on various grounds said his Lordship, but mainly on the ground that there was no evidence upon which the jury could reasonably answer these questions as they did. Referring to the evidence given as to the general layout of the showground, his Lordship stated that he could not say that there was not some evidence in support of the finding of the jury that the premises were not safe so far as reasonable care and skill could make them for the purpose for which they were being used. If the plaintiff’s claim depended upon those findings he would have to consider with great care whether such evidence was sufficient to reasonably justify those findings. In his opinion the plaintiff’s claim did not depend on the foregoing findings.
Continuing, his Lordship referred to the jury’s finding on the third question put to them, and said that in his opinion there was ample evidence that the defendants and their stewards were negligent in the control and management of the spectators (including the plaintiff) and that the plaintiff sustained injuries by reason of that negligence. He was of opinion that the defendants had entirely failed in their contention that there was not sufficient evidence to justify the finding of the jury to the third question.
In answer to the fourth question the jury found that the plaintiff was not guilty of contributory negligence. It was contended by the defendants that that finding was unsupported by any evidence, and further and in the alternative that it was against the evidence and the weight of evidence. It was alleged by the defendants that the plaintiff was negligent in standing in a position of danger, and it was argued that if the defendants were negligent in allowing him to stand in that position, it followed that the plaintiff must himself have been negligent in standing there. He was not satisfied that that was a sound argument. It depended for its validity on attributing to both parties an equal knowledge of the sequence of events at the jumping competitions and of the risks involved. *52 That did not seem to him to be warranted by the circumstances.
It was, undoubtedly, the duty of the plaintiff to take reasonable precautions for his own safety; whether he did in fact take such precaution was a question of fact to be determined by the jury in accordance with the evidence and having regard to the events leading up to and surrounding the accident.
When the plaintiff entered the show grounds, he at first took up a position behind the goal posts at the end of the field. There were about 50 or 60 other persons in the vicinity. One of the stewards approached the group and said: “Boys you will have to leave here.” Following on that request the group, including the plaintiff, moved in the direction pointed out by the steward and took up a position in the vicinity of a tree stump. The plaintiff remained in or about that position until the accident took place, and was standing in that vicinity when struck by the riderless horse. There was the clearest evidence that the group, including the plaintiff, stood in a place pointed out to them by the steward, and further evidence that one of the stewards was mixing with, and talking to, this group immediately prior to the accident. In view of all that evidence his Lordship was not prepared to hold that it was not competent for the jury to find that the plaintiff was not guilty of contributory negligence.
The defendants had relied upon certain broadcast announcements made to the spectators shortly before the accident. It had not been proved that the plaintiff heard any of these announcements and there was conflict in the evidence as to the exact nature of the announcements. The extent of the paddock was not clearly defined, but his Lordship considered that the jury were entitled to find that the place occupied by the plaintiff was not in fact within the paddock.
Referring to the evidence which established the manner in which the horse broke loose, his Lordship said that the fact that the saddle slipped and was striking the animal on the legs was alleged to be the cause of its running away, and it was contended that it was such an unusual occurrence that the defendants could not, reasonably, be expected to foresee it and guard against it. In his Lordship’s view what the defendants were expected to foresee and guard against, so far as they reasonably could, was the risk of spectators being struck and injured by a horse. The risk materialised in the present case in actual injury to the plaintiff, and he was of opinion that the defendants were not entitled to rely on the foregoing circumstance to relieve them of liability. The defendants also relied on the doctrine volenti non fit injuria. In his opinion there was no evidence that the plaintiff voluntarily accepted, or that he realised the risk; accordingly, he was of opinion that that doctrine had no application to the facts of the case.
For those reasons the findings of the jury in answer to the third and fourth questions should stand and the appeal should be dismissed.
Black, J., agreed that the appeal should be dismissed. He referred to the facts leading up to the accident and the appeal, and said that the defendants sought to set aside the verdict and judgment on various grounds, but substantially on the alleged ground that there was no evidence to support the findings of the jury. Each of the items complained of, could, with the exception of one, be disposed of so far as his lordship’s judgment was concerned in a few words. The first was that adequate fencing was not provided. In such a matter, said his Lordship, the Court must be guided by its knowledge of the custom of the country and by what public opinion normally sanctioned at rural events of a sporting character in the open air. So guided he would waste no words beyond saying that in his opinion it would be unreasonable, if not ridiculous, to expect the local promoters of a useful and popular event of this kind to surround the area where such event took place with a barrier, sufficiently strong to keep horses from getting amongst the spectators, if they ran away, or were determined to get amongst the spectators. The next item was that the defendants had failed to take proper measures to stop the horse that ran away and injured the plaintiff. Referring to the agitated and excited condition of the animal when it broke loose, his Lordship said that a person who risked his life in trying to stop a horse in such a state, was usually accounted something of a hero, like the gallant policeman in Haynes v. Harwood [1935] 1 K. B. 146, and in his Lordship’s opinion rightly so. He did not think that it would be reasonable to say that the defendants were negligent because they did not discover and provide a body of heroes to hurl themselves upon any horses that might chance to take fright and run madly away during the competitions. The next item was that they had not provided a sufficient number of stewards to prevent loose horses from running amongst the spectators A finding that would support that complaint would in his Lordship’s view be as unreasonable as a like finding would be on the preceding item. The ultimate item was that the defendant’s stewards directed the plaintiff to *53 a part of the field where there was no fencing. If they had done so he thought it would be unreasonable to hold that in itself to be negligence. His Lordship had passed over, and now returned to, the penultimate item, namely that the defendants had failed to warn the plaintiff of the danger created by a horse acting as the runaway horse in question in fact acted. It was alleged, said his Lordship, that the stewards did not fully carry out their orders to clear the mouth of the paddock, and that if they had not negligently neglected to do so, the plaintiff would not have been injured. His Lordship referred to the evidence of one of the stewards who admitted that after the broadcast announcement he had remained chatting with the plaintiff at the spot where the accident subsequently occurred. That was inconsistent with his having made proper efforts to get the plaintiff away from the position in which he was standing, and hardly consistent with his having warned him that his position was dangerous. If that position were really dangerous and if the defendants ought to have known that it was, his Lordship had no doubt that the stewards ought to have warned the plaintiff and done their best to get the plaintiff to leave it, and if so, he had no doubt that that the defendants who controlled the stewards would be liable for the stewards’ ineffectual performance of the duty in question But, was the plaintiff’s position really dangerous to the extent and in the sense that the stewards ought to have warned him of it and done their best to get him to leave it?
His Lordship said that the promoters of outdoor games and sporting events were not insurers of spectators, even when they paid for admission. They were not bound to warn or protect spectators against every kind of possible danger that might materialize. There were many potential dangers incidental to such events that the “reasonable man” expected to encounter and did not expect to be guarded against. That his Lordship attributed to either or both of two factors: the remoteness of such a danger becoming operative, and the magnitude of the trouble and expense that would be necessary to guard effectually against it. He imagined that both those factors underlay the exoneration of the defendants in Hall v. Brooklands Auto Racing Club [1933] 1 K. B. 208, and also in Potter v. Carlisle Golf Club [1939] N. I. 114, where a visitor at a golf club, while putting on a green, was struck by a golf ball driven by a player from an adjoining tee. The same principle would apply if a spectator at a cricket match were struck by a cricket ball during the game. Taking another example his Lordship referred to the Dublin Horse Show, and said that the risk of injury occurring to spectators by the action of horses who passed by them in the grounds, was regarded as so remote, and the cost of rearranging the grounds so as to exclude the possibility of such injury could be so great, that the common sense of the public prevented it from regarding it as negligence for the promoters of the show not to thus alter the grounds.
Apart from the evidence as set forth in the transcript, his Lordship should have thought that the chance of the plaintiff being injured by a horse in the position in which he took his stand, would be even more remote than that of a visitor to the Dublin Horse Show being so injured, or than the chance of a spectator at a cricket match being struck by a ball. It certainly would never have occurred to his Lordship that he would have been in any appreciable danger, had he been where the plaintiff was. In view of those facts his first, and indeed very obstinate impression of the case, was that no reasonable jury could hold that the injury to the plaintiff ought reasonably to have been anticipated by anybody. Apart from the evidence, he should have regarded the performance of the particular runaway horse in question as so extravagently exceptional an event, that nobody could have been expected to anticipate it. The evidence of one witness rid his Lordship’s mind of that firm conviction. He referred to a Mr. Nutley, an expert in equine matters, who was called, not for the plaintiff, but for the defendants. His Lordship stated that this witness, in answer to questions put to him, stated that it would be dangerous to allow a spectator to stand anywhere in front of the 125 feet opening of the pocket during a jumping competition, and further that it would be the duty of the stewards to remove people who stood there.
His Lordship was far from satisfied that the expert, Mr. Nutley, if questioned meticulously, would not have admitted that the danger he spoke of would be of that very remote and improbable character which a spectator at a cricket match or golfing competition encounters of a ball happening to strike him Nevertheless there was no such qualification of his evidence to be found in the transcript. Unless his Lordship had got further particulars from the witness as to what he meant when he used the word “dangerous,” even his testimony as an expert would not have convinced his Lordship as a juror, that the risk incurred by the plaintiff was not too remote to make it negligence for the defendants not to have anticipated and taken adequate precautions to have the plaintiff re *54 moved from his position, or at least warned of the danger. His Lordship therefore, did not agree with the verdict, but disagreement was a very different thing to holding that a jury could not reasonably arrive at it. The jury might well have thought it reasonable that when Mr. Nutley assented to the word “dangerous” he meant sufficiently dangerous to make it a real duty for the stewards to anticipate it and remove the plaintiff from it.
Dealing with the plaintiff’s alleged contributory negligence he thought that the jury might reasonably have concluded that the danger to which the witness, Mr. Nutley, referred, was not one that a person like the plaintiff would anticipate, but was a danger that people like the defendants who promoted the competition ought to have anticipated. His Lordship would be slow to agree with that view himself but he thought a jury might reasonably take it.
His Lordship said that in spite of his own strong opinion as to the merits of the case, he did not feel able to hold that the jury must have been unreasonable in finding as they did. He held very strongly that the findings of a jury on any question of pure fact should never be interfered with by any Court unless it was fully satisfied that they were absolutely irreconcilable with reasonableness. In the present case, being unable to go so far, he was bound, rather reluctantly, to conclude that the Court would not be justified in interfering with the verdict. That conclusion would mean that the appeal should be dismissed.
Lavery, J., agreed that the appeal should be dismissed. In the course of his judgment he referred to the facts leading up to the accident, and said that the plaintiff in his statement of claim laid his causes of action firstly in tort, alleging that the defendants had negligently failed to protect him as an invitee on premises to which they had admitted him, and alternatively in contract alleging a breach of a term to be implied in the contract between him and the defendants that the premises were reasonably safe for the contemplated use of a jumping competition in public and that the proceedings would be properly and safely conducted. The defendants moved to set aside the verdict and judgment, substantially on the grounds that there was no evidence of actionable negligence or of breach of contractual duty on their part, and further that there was no issue of fact in controversy necessary to be determined by the jury to establish contributory negligence on the part of the plaintiff and that accordingly the trial judge should have withdrawn the case from the jury and directed a verdict for the defendants.
In the Supreme Court, continued his Lordship, the plaintiff appeared still to rely on his alternative causes of action. The Court had heard a good deal of discussion as to whether the measure of liability falling on the defendants would be different in tort or in contract.
They were referred at length to the English case of Hall v. Brooklands Auto Racing Club [1933] 1 K. B. 205 where the question was discussed. To quote Scrutton, L.J., at p. 212. “There are doubts whether an invitee on payment is only entitled to that degree of care which Willes, J., formulates in Indermaur v. Dames ( supra ) a duty to warn of traps, or whether he is further entitled to have the premises for which he pays reasonably safe.” His Lordship remarked that the Lord Justice appeared to mistake the law laid down in Indermaur v. Dames ( supra ) no doubt in an effort to express it in a single phrase, but later, at page 217 he set it out more fully and accurately.
That question, however, had been fully discussed and decided in the Supreme Court in Hall v. Governors of Meath Hospital (unreported) so far as his Lordship knew. Sullivan, C.J., delivering the judgment of the Court on the 17th December, 1940, discussed the authorities fully, beginning with the case of Parneby v. Lancaster Canal Co. (11 Ad. & El. 223) and ending with Hall v. Brooklands Auto Racing Club ( supra ). In the course of his judgment he said:—“I will assume that in such cases as Indermaur v. Dames in which the only relationship between the visitor to and the occupier of the premises is that implied by law from the fact that the former enters the premises for purposes of business in which the latter is concerned, the duty of the occupier is to take reasonable care to prevent damage from unusual danger of which he knows or ought to know, and not as was decided in Norman v. Great Western Railway Co. [1915] 1 K. B. 584, the duty to use reasonable care to see that the premises are safe. But the present case is distinguishable from these cases on the ground that in this case the plaintiff was upon the defendant’s premises in exercise of a right conferred on her by contract with the defendants, entered into for valuable consideration. The duty imposed on the occupier of premises in such a case has been considered in several cases, and there is clear authority which I am willing to accept that the duty is to take reasonable care to see that the premises are safe.” *55
The Chief Justice was dealing with the term to be implied where the contract itself contained no express term dealing with the liability undertaken. It was, continued his Lordship, open to the parties contracting to provide expressly for limiting liability, even probably to the extent of requiring the person admitted to the premises to go there entirely at his own risk. In the present case there was no more than the circumstances of payment for admission and the term to be implied was, in his lordship’s opinion, clearly that stated by the late Chief Justice, that the defendants undertook that they would take reasonable care that the premises should be safe for the mutually contemplated use.
The accident involved in the case of Hall v. Meath Hospital was a fall on a staircase in the hospital found by the jury to be of dangerous construction and insufficiently lighted and, except perhaps in respect of the lighting, the decision might have been confined to the responsibility of the defendants in respect of the construction of the premises.
In the present case it was not only alleged that the layout of the premises was not reasonably safe but was further alleged that the defendants did not properly protect the plaintiff by sufficient stewarding and warning notices, and, in his Lordship’s view, that allegation was the important matter.
A question of that kind arose in Cox v. Coulson [1916] 2 K. B. 177 where a playgoer was injured by the discharge of a firearm on the stage in the course of a play. In the course of his judgment Swinen Eady, L.J., at p. 183 said: “If there are incidents in a play which are intrinsically dangerous unless carefully performed, especially if they involve the use of firearms, and which the manager knew or ought to have known of, then, in my opinion, it is an implied term of the contract between the playgoer and the other contracting party that such contracting party will use reasonable care and diligence to see that such incidents are performed without risk to the playgoer. He is not, however, under liability for any accident which he could not have prevented by the exercise of reasonable care or supervision but which happens through some carelessness or want of skill on the part of a member of the company. He does not warrant that there shall be no such negligence or want of skill. His liability is that of an invitor towards an invitee as expressed in Indermaur v. Dames (supra); and in Norman v. Great Western Railway Co. ( supra ) per Buckley, L.J., the duty of the invitor towards the invitee is to use reasonable care to prevent damage from unusual danger which he knows or ought to know. If the danger is not such that he ought to know of it, his liability does not extend to it.”
The other members of the Court gave judgment on the same lines.
It was to be noted said his Lordship that although a case of contract, the measure of liability was stated to be that of an invitor towards an invitee.
Slesser, L.J., in Hall v. Brooklands Auto Racing Club referred to Cox v. Coulson with approval, and Sullivan, C.J., quoted Slesser, L.J., in extenso from page 227 of the report and adopted his statement of the law where he said: “In my opinion the liability in these cases arises out of contract, and, despite certain obiter dicta to the contrary, I think it is the better opinion that even in cases in which there are no higher terms expressly imported, where for reward persons are invited to use premises the duty upon the invitors is higher than in the case where the action is founded merely in tort.” In the Brooklands Case, said his Lordship, the issue involved not only the state of the premises but also the supervision and control of the races and of the spectators.
In his Lordship’s opinion the law must be taken to be settled by the decision in Háll v. The Meath Hospital, and the present case should be dealt with as a case of contract. The terms to be implied in the contract should be that the defendants undertook to use reasonable care and skill to make the premises safe for the purpose for which they were being used and to use reasonable care and diligence to see that the competitions were conducted without risk to the spectators. The spectators in general and the plaintiff in particular undertook on their part to take reasonable care for their own safety and to obey the reasonable directions of the defendants’ servants and agents. The spectators further undertook to accept, subject to discharge by the defendants of their responsibilities, the dangers inherent to the entertainment. His Lordship agreed with the Chief Justice that the elements of foreseeability of the risk and the reasonable possibility of guarding against it were necessary to create liability.
His Lordship thought that he might have gone into the matter at perhaps undue length having regard to the course of the trial, and the arguments before the Court, in which the law as stated above appeared to have been accepted by both parties. It was, however, necessary to do so in order adequately to deal with the question whether or not there was evidence fit to be submitted to the jury and to support their findings thereon. *56
Referring to the finding of the jury on the first question that had been put to them, his Lordship stated that in his opinion there was no evidence to support the finding and the questions should not have been put. In his opinion the third question was properly put and there was ample evidence justifying the answer. He was very far from saying that he, as a juror, would have answered in the same way but the only matter for the Court was, was there evidence to support the finding.
Continuing, his Lordship said that the conclusion he had come to on the first question did not mean that the structure and condition of the premises was not a material consideration to be taken into account in dealing with the third question. If the ground were open and unprotected obviously greater precautions in warning notices and stewarding would be reasonably required than if the spectators were confined to railed enclosures. Referring to the evidence his Lordship said that it seemed to justify the jury in their affirmative answer to question No. 3.
Treating of the issue of contributory negligence his Lordship stated that he agreed with the examination of the evidence made by O’Byrne, J. and with his conclusion thereon.
In his Lordship’s opinion the appeal should be dismissed, notwithstanding that he considered that the finding on the first, and therefore on the second, question should be set aside. The finding on the third was sufficient to support the verdict and in the circumstances it did not seem to be vitiated by what he considered the error in answering the other questions.
Representation
Ryan (Minor) -v- Golden Vale Co Operative Mart Ltd
[2007] IEHC 159 (04 May 2007)
Composition of Court: Peart J.
Judgment by: Peart J.
Status of Judgment: Approved
Judgment of Mr Justice Michael Peart delivered on the 4th day of May 2007:
On the evening of 30th December 2001, when this young plaintiff was ten years old, he was in the company of three of his friends of similar age. His evidence is that on this date at around dusk, which I take to mean in the late afternoon, as the four boys were making their way, by way of a short-cut, through the premises of the defendants in Rathkeale, Co. Limerick intending to get to the library which is located on the opposite side of the street to the defendant’s premises, their intention was to exit onto that street by means of a large metal gate onto the road.
This gate is a metal farm-type gate made of tubular steel and consists of two halves which join at the centre. At the centre point there is a hasp and slide bolt mechanism, which the defendants say was always, and on this occasion was, secured by a padlock or a chain and padlock. When not locked together they can be opened both inwards and outwards.
The top of the gate in question is about 42” above ground level, and the combined width of both halves of the gate spans about 24 feet. Each leaf of the gate would be very heavy.
The plaintiff says that on this occasion the gate was unlocked. The defendants deny that this was the case. Nevertheless that is what the plaintiff says the situation was, and he recalls that as they approached this gate with the intention of exiting through it, the other three boys were walking ahead of him. He described how one of these boys swung the gate inwards in his direction in such a way that it struck him heavily on the front of his body, causing him to fall to the ground and sustain the injuries for which he seeks to be compensated.
The basis of the allegation of negligence made against the defendant is that the defendants ought to have known that this gate was an allurement for boys such as these and should have ensured that the gate was locked so that this type of incident could not happen.
By way of summary of the injury, it appears that in the aftermath of the injury the other boys or at least one of them helped the plaintiff walk back to his house which was not too far away. The evidence has been that when he arrived at the house he told his mother what had happened, and that he vomited and was seen to be weak and unwell. His mother who gave evidence stated that she and another woman who was in the house at the time decided that he should be brought to the Limerick Regional Hospital and a friend of the family who was present brought him by car where he was admitted to the Accident and Emergency Department at 6.15pm. He was admitted later and underwent an operation for the removal of his spleen which had been severely damaged. This removal has left the plaintiff vulnerable to infection in the future and to address this he is obliged to take antibiotics for the remainder of his life. Apart from the loss of his spleen, and his predisposition to infection and the scar which he is left with on his abdomen, there are no other sequelae reported.
As I have stated the defendants have given evidence through the yard manager, Mr Kett that he at all times had responsibility for ensuring that all the numerous gates into the defendants were at all times closed and locked, and he states that at the date of this accident the premises was closed up for the Christmas period and he is certain that on this occasion the gate in question was locked. There is a clear conflict of evidence in this regard, and the defendants plead that injury, however it was sustained by the plaintiff on this date, was not caused in the manner alleged.
At the outset of the case, Michael McMahon SC requested an adjournment of this case as it had not been possible to secure the attendance of the three boys who were with the plaintiff on this occasion. In view of the conflict of evidence in relation to whether the gate was locked or unlocked, he submitted that their attendance, or at least one or more of them, would reasonably be expected to assist the plaintiff, and he had not become aware that they would not be attending to give evidence until the morning of the hearing. It appears, according to what the Court was told, that they were working on the continent laying tarmacadam.
I refused this adjournment having considered the potential significance of the evidence any of these boys was likely to give. I came to the conclusion that in all probability each would agree with the account given by the plaintiff, and that I could proceed to hear the case on the basis of what the plaintiff might say happened. The fact that the three other boys or any one of them might say the same thing, and were not present to do so, did not in my view cause any real prejudice to the plaintiff.
In spite of the conflict in the evidence given by the plaintiff and by Mr Kett I am prepared to proceed to my conclusions on the basis of accepting as a matter of probability that the gate was capable of being opened on this occasion. That is not because I do not believe that Mr Kett is an honest witness. I believe he is and I accept that he honestly and genuinely believes that this gate was locked. But I have had regard to the notes made by the medical personnel who attended the plaintiff on his admission at the Limerick Regional Hospital. Those notes taken in the immediate aftermath of the accident record that the plaintiff stated that he received an injury from a gate. That account of how the injury was sustained has been consistent from the start. I confess to being very puzzled how this could be so given the integrity of Mr Kett as a witness, but I must decide the matter on the basis of likelihood and not mathematical certainty. I have some doubts about the matter but on balance I am prepared to accept the plaintiff’s evidence.
But that does not conclude the issue of liability in my view. 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, 23rd March 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] AC 104 and Smith v. Littlewoods Organisation Ltd [1987] AC 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 climb 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.
With regret I must dismiss the plaintiff’s claim.
Cray v Fingal County Council
[2013] IEHC 19
JUDGMENT of O’Neill J. delivered on the 29th day of January 2013
1. The plaintiff in this case sues the defendants for damages in respect of an injury she suffered to her left ankle on 22nd April 2009.
2. On the day in question, the plaintiff, with her two sisters, Ms. Donna Kelly and Ms. Deirdre Cray, went for a walk on the beach at Malahide, County Dublin. They arrived there at approximately 10.30am. They parked in the car park adjacent to the beach and proceeded to get down onto the beach via a concrete ramp which was built by the defendants in 2001. The weather on the day was good; it was a bright day with some cloud.
3. The ramp in question is shown in all its aspects on the many photographs that have been put in evidence and it leads from the car park area down to the beach. It is approximately 9m or 10m in length. It is obviously fairly steeply sloped and on the right-hand side, as one descends, a handrail is provided which terminates a few inches back from the edge of the ramp where it ends. The ramp is constructed of Newton 40 concrete which is apparently the strongest concrete available, so that it would resist erosion by sea, sand and wind. The ramp 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.
4. As is apparent from all of the photographs and from the expert evidence given by the two engineers, Mr. Osborne for the plaintiff and Mr. Maguire for the defendants and also Mr. Sean Healy, an administrative officer in charge of the Claims Department of the defendants, because 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 Mr. Healy 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.
5. Some controversy in the evidence centred around a clump of grass visible on Mr. Osborne’s photographs which were taken in April 2010. This clump of grass was located to the right-hand side of the ramp as one descends. This large clump of grass was missing in the photographs taken by Mr. Maguire on 6th July 2010. It was suggested on behalf of the plaintiff that works had been carried out in the area, causing the removal of the clump of grass. This, however, was vehemently denied by Mr. Healy who said no works had been carried out in the area and that the clump of grass had been removed simply by the action of the sea. I accept Mr. Healy’s evidence in this regard and it illustrates the extraordinary power of the action of the sea, to continuously alter the landscape in this area of sand dunes.
6. On the day of the plaintiff’s accident, the three sisters descended the ramp. Donna Kelly was in front and the plaintiff was behind, towards the left-hand side of the ramp. Her sister, Deirdre, was to her right and slightly behind her. When Donna Kelly got to the end of the ramp ahead of the others, she stepped off the ramp onto the sand, uneventfully. The plaintiff described reaching the end of the ramp with her right foot close to the edge, hesitating for a second because the step down was a big step and then stepping out in a normal way, but when her left foot reached the sand, she went over on her left ankle and fell down to the left side. She fractured her ankle in this fall and cried out in pain. She felt she had stood on something hard which caused her to fall. Neither she nor her sisters could understand, initially, why she could not get up or what caused her fall. When they realised she was unable to get up, her sisters assisted her up and put her sitting on the end of the ramp. At that stage, they examined the area and their evidence was that they found a ledge of concrete protruding outwards from the edge of the ramp on its left-hand side. This ledge came out a distance of approximately four to six inches from the edge of the step and all of them said that it was covered by about a half-inch to an inch of sand which was brushed away by one of them to reveal the surface of the piece of concrete which was described as having a jagged or uneven surface.
7. The plaintiff denied standing on something which moved underneath her foot, when it was suggested to her in cross-examination that she may have said something of that kind at a meeting on 9th November 2009 at the scene, attended by Mr. Healy, Mr. Osborne and the plaintiff. Because the tide was in on that occasion, a proper inspection could not be carried out that day.
8. The case made against the defendants in these proceedings is that they failed in their duty as occupiers of the location where the plaintiff’s accident occurred in causing or permitting this piece or ledge of concrete to protrude from the end of the ramp which, in combination with the shallow covering of sand over it, created a trap for the plaintiff as she attempted to step off the ramp onto the beach. The evidence of the plaintiff’s engineer, Mr. Osborne, may have added a slight variance to the plaintiff’s case insofar as in his evidence he accepted that for the plaintiff to have tumbled or fallen on a piece of concrete, as she described, it would have had to have been loose or detached from the face of the step and he said that when he did his inspection in April 2010, he found about two to three inches from the face of the step a piece of concrete which he said, in his opinion, was the result of concrete protruding from under the shuttering and which had probably become detached from the ramp by the process of erosion. It was his opinion that the piece or ledge of concrete which the plaintiff said she stood on, although very close to the ramp, was probably detached from it.
9. The defendants’ status as the occupier of this place was not in dispute, nor was there any controversy about the plaintiff’s status as a “recreational user”. Accordingly, the duty owed by the defendants to the plaintiff was that set out in s. 4 of the Occupiers’ Liability Act 1995 [the Act of 1995], and was as follows:
“4.—(1) In respect of a danger existing on premises, an occupier owes towards a recreational user of the premises or a trespasser thereon (‘the person’) a duty—
(a) not to injure the person or damage the property of the person intentionally, and
(b) not to act with reckless disregard for the person or the property of the person,
except in so far as the occupier extends the duty in accordance with section 5 .
(2) In determining whether or not an occupier has so acted with reckless disregard, regard shall be had to all the circumstances of the case, including—
(a) whether the occupier knew or had reasonable grounds for believing that a danger existed on the premises;
(b) whether the occupier knew or had reasonable grounds for believing that the person and, in the case of damage, property of the person, was or was likely to be on the premises;
(c) whether the occupier knew or had reasonable grounds for believing that the person or property of the person was in, or was likely to be in, the vicinity of the place where the danger existed;
(d) whether the danger was one against which, in all the circumstances, the occupier might reasonably be expected to provide protection for the person and property of the person;
(e) the burden on the occupier of eliminating the danger or of protecting the person and property of the person from 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;
(f) 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;
(g) 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;
(h) the nature of any warning given by the occupier or another person of the danger; and
(i) whether or not the person was on the premises in the company of another person and, if so, the extent of the supervision and control the latter person might reasonably be expected to exercise over the other’s activities
. . .”
10. Before embarking upon a consideration of whether or not the defendants failed in their duty as set out in s. 4 of the Act of 1995, it is necessary to consider precisely what caused the plaintiff to fall, as the defendants, through the evidence of their engineer, Mr. Maguire, disputed the mechanism of the plaintiff’s fall as she described it in her evidence.
11. Photographs of the scene of this accident were taken on four different occasions, the first being 9th November 2009, when the original inspection was arranged but could not be completed because the tide was in. The second occasion was when Mr. Healy visited the scene alone on 16th December 2009. The next photographs were taken by Mr. Osborne, the plaintiff’s engineer, on 7th April 2010. Finally, the scene was photographed by Mr. Maguire on 6th July 2010. As is apparent from all of these photographs, the level of sand around this ramp changes to a considerable degree as a result of the action of the tide. It is apparent that this force of nature has the capacity to shift large quantities of sand, to the extent of at times leaving the ramp where it meets the beach almost fully buried, to at other times leaving the ramp, or at least the smooth concrete part of same, almost standing proud of the beach.
12. The plaintiff and her two sisters selected Photograph 6 of Mr. Osborne’s photographs as being a close representation of the state of the sand on the beach vis a vis the ramp when the plaintiff’s accident occurred. Mr. Osborne measured the depth of the step to the beach in that photograph as being approximately eight and half inches.
13. The first issue to be determined is whether or not the concrete ledge as described by the plaintiff and her two sisters was there when she had her accident.
14. I am quite satisfied from the evidence, and in particular, the evidence of Mr. Osborne, that when this ramp was constructed, there was some leaking or oozing out of concrete underneath the shuttering at various parts of the ramp. Mr. Osborne, in his evidence, described this and in his Photographs 7 and 8, demonstrated two pieces of protruding concrete, one on either side of the ramp. The main criticism which Mr. Osborne made of the manner in which the ramp was constructed was that the shuttering was not continued down to a much greater depth into the sand. He said it should have gone down another two to two and half feet which, he said, would have meant that even if there was some leakage at that level it would be well below the sand level at all times and not cause a hazard to anybody.
15. When Mr. Healy visited the scene on 16th December 2009, he excavated along the front of the step to a depth of about six inches with a small trowel and then, with a screwdriver, penetrated the sand further down to an additional depth of two to three inches. His evidence was that he could find no protruding concrete. It is apparent from the photographs that he took on that day that the sand at the front of the step varied in height. On the left-hand side, as one faces the step, it was at depth of about eight inches, similar to that in Mr. Osborne’s Photograph 6 and on the right-hand side it was a couple of inches higher.
16. When Mr. Maguire visited the scene on 6th July 2010, he excavated in front of the step down to a depth of 18 inches and exposed the entire façade of the step down to that depth. The photographs which he took of that excavation clearly demonstrated that there was smooth concrete down to about a depth of 12 inches, below which there appeared to have been further concrete but without a smooth edge. His evidence was that there was no protrusion of concrete as described by the plaintiff and her sisters. I accept the evidence of Mr. Healy and Mr. Maguire as to their findings on the occasions when they inspected the front of this ramp. That does not, of course, mean that there was not the ledge or protrusion of concrete there on the date of this accident as seen by the plaintiff and her sisters. It may very well have been the case that this was there, but subsequently became detached by erosion, and washed away. I do not think that the piece of concrete that was found by Mr. Osborne on 7th April 2010, could have been the ledge the plaintiff and her sisters described for the simple reason that if it had become detached between 22nd April, 2009, and 16th December 2009, when Mr. Healy was there, it is unlikely to the point of impossibility that it would simply have been lying in the position where Mr. Osborne found it, because undoubtedly, the action of the sea and the movement of the sand would have carried it far away from that location by 7th April 2009, almost one year after the plaintiff’s accident. It is, of course, the case that if this ledge was there, it would have had to have been at a depth of at least one foot from the top of the step because it was not in dispute that the smooth concrete went down to that depth around the ramp. This necessarily means that if, on the day of the plaintiff’s accident, the sand was eight or eight and half inches below the top of the step, the concrete ledge would have had to have been four inches below the surface of the sand. If there was approximately four inches of sand on top of this ledge, it could hardly have interfered with any footfall over it. Thus, the only way in which a ledge at that level could have interfered with the plaintiff’s footfall would be if the sand or beach level was lower than estimated by the plaintiff and her two sisters. They all said that there was about an inch or half-inch of sand on top of this ledge. That would necessarily have meant that the sand would have had to have been approximately eleven inches below the top of the step. It is quite clear from the evidence of Mr. Healy that variations in the level of the sand at the step commonly go down to that level or even below if it is the case that the tide can pass under the ramp.
17. I accept the evidence of the plaintiff and her two sisters that they did find a ledge of concrete protruding from the front of the ramp but down at a depth of approximately one foot below the top of the ramp, which means that, on that day, the level of the sand was lower than eight inches and probably around eleven inches below the top of the ramp. I am also satisfied from the evidence of Mr. Healy and Mr. Maguire that between the date of the plaintiff’s accident and 16th December 2009, this ledge became detached and was washed away by the action of the sea. As said earlier, I do not think that the piece of concrete found by Mr. Osborne on 7th April 2010 could have been the same piece as detached from the face of the ramp because between April 2009 and April, 2010, it would almost certainly have been moved far away from the ramp. Thus, it follows that the piece of concrete found by Mr. Osborne in all probability came from somewhere else and it is not possible to explain where it came from or to establish any connection between it and the plaintiff’s accident.
18. The next question which must be considered is whether or not this ledge was the cause of the plaintiff’s fall.
19. In her evidence, the plaintiff described walking down to the end of the ramp, hesitating at the edge of the step and then stepping off with her left foot. While she hesitated because of the height of the step, her evidence was that she took a normal step. There is nothing surprising in this. Her sister, Donna, had gone ahead of her and walked off the step uneventfully from the ramp onto the beach. The plaintiff was, and indeed is, a young, apparently healthy person, and it would have been surprising if there was anything more than a second’s hesitation before stepping normally from the ramp onto the beach. It was quite clear from her evidence that she did not use the handrail nor did she turn sideways so as to carefully lower herself from the ramp to the beach. In taking a normal step, in my view, it is highly probable that her foot came to land on the sand well in excess of six inches from the front of the ramp. Mr. Osborne’s evidence was that a normal stride is about a yard, and if allowance is made for the plaintiff being of short stature, it is very hard to see how the plaintiff’s foot could have landed on the sand any closer than a foot and half from the ramp, and in reality it probably came to ground about two feet from the ramp. This would, of course, have taken her footfall well beyond the concrete ledge found by the plaintiff and her two sisters after her fall. Thus, I have come to the conclusion that it is very unlikely that this concrete ledge was the cause of the plaintiff’s fall and very unfortunate injury.
20. 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.
21. The foregoing conclusion leads inexorably to a finding that there was no fault on the part of the defendants which led to the plaintiff’s accident. This conclusion is sufficient to dispose of the issues raised in this action. However, for the sake of completeness, I should add that even if the protruding ledge of concrete did cause the plaintiff’s fall, I would be of opinion that that would not amount to a breach of the duty imposed upon the defendants under s. 4 of the Occupiers’ Liability Act 1995.
22. 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.
23. 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. Whilst Mr. Osborne criticised the way in which the ramp was constructed on the basis that the shuttering should have been extended much further downwards, namely, a further two to two and a half feet, his opinion in this regard was countered by the view expressed by Mr. Maguire and Mr. Healy which was to the effect that the ramp was designed and built on stiles specifically to allow the sea get under it, thereby reducing its exposure to the forces exerted by the sea. Thus, the design and construction of the ramp in that way would appear to have out ruled the depth of shuttering recommended by Mr. Osborne.
24. 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 Mr. Osborne 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.
25. 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 and therefore it must be dismissed.
Ahmed v Longford Town Council
[2014] IESC 46,Judgment of Mr. Justice Clarke delivered the 17th July, 2014.
1. Introduction
1.1 Usaman Ahmed is now 15 years of age. When he was ten, on the 10th May, 2009, he was playing with his siblings at a children’s playground in Longford town maintained by the defendant/respondent (“Longford Town Council”). While he was playing on a swing he fell and landed, at least in part, on a hard divider which was placed at the sides of rubber matting to mark the edge of a landing area. As a result he suffered a fracture of his left humerus and a greenstick fracture of his left distal radius. In substance the case in negligence made on behalf of Usaman Ahmed was first that the swing seat was set too low (by 20 millimetres) which was said to have caused him to catch his foot on a downward swing thus in turn leading to his fall and second, that the distance from the swing seat to the edge of the rubber matting of the landing area was insufficient so that the edge of the matting and, thus, the hard edge should, it was said, have been further away from the swing itself. It was submitted that both of those features deviated from appropriate standards, amounted to negligence or breach of the appropriate standard of care and that both factors contributed to the accident and the injuries.
1.2 In the High Court the proceedings were dismissed on the question of liability. An appeal has been brought to this Court against that finding. In order to properly understand the grounds of appeal relied on at the hearing, it is necessary to identify the reasoning of the trial judge in reaching his conclusions on liability.
2 The Judgment
2.1 The case was heard before by deValera J. on the 26th July, 2011. In his judgment the trial judge noted that it was common case that there were two deviations from an appropriate standard being a reference to the height at which the swing seat was fixed and the distance from that seat to the edge of the landing area. The relevant standard was BS EN 1176-2: 2008 on Playground Equipment and Surfacing. This standard embodies recommended minimum standards at both British and European level.
2.2 The trial judge noted the evidence of Dr. Richard Webb who indicated that he had inspected the playground. Dr. Webb had given evidence that he considered the deviations in question to be, as the trial judge put it, “too minor to be of sufficient significance to do anything about them”. The trial judge also noted the evidence given by a consulting engineer, Mr. O’Brien, called on behalf of Usaman Ahmed. The trial judge clearly preferred the evidence of Dr Webb as to whether it was foreseeable that, as a result of the identified and admitted deviations to which reference has been made, an accident might occur. The trial judge placed significant reliance on the fact that the playground had, apparently, been in use for a reasonable period of time without any accident or incident occurring.
2.3 Having reviewed that evidence, deValera J. came to the conclusion that he was:-
“satisfied that the defendants in this case were not negligent, they took all appropriate steps in designing, in manufacturing, if that’s the correct word, or having built for them and in subsequently supervising the use of this particular facility. You can’t avoid accidents to children, I know this as a fact, it just can’t be done.”
2.4 On that basis the trial judge dismissed the claim. However, one further part of the trial judge’s reasoning emerged in the course of a debate between the parties as to the proper order for costs which should be made. In the course of that discussion the trial judge indicated that he should have included in his ruling a further finding that he was not satisfied that it had been established that there was any causal connection between the deviations identified and the actual accident which was the subject of the proceedings.
2.5 It follows that there were two key findings of the trial judge. First, the trial judge was not satisfied that there was any lack of appropriate care notwithstanding the deviations from standard which had been identified. Second, it is reasonable to infer that the trial judge took the view that, even if he was wrong in respect of that first issue, no causal connection with the actual accident and unfortunate injury suffered had been established. Clearly, in order to succeed on this appeal, it is necessary that it be established that both of those conclusions of the trial judge should be overturned for, in order for Usaman Ahmed to succeed in these proceedings generally, it would be necessary to establish both a breach of a duty of care and a causal connection between such breach and his accident and injuries. Against that background it is next necessary to turn to the appeal.
3. The Appeal
3.1 It is worth setting out the grounds of appeal in full:-
“1. That the learned trial judge misdirected himself on the law.
2. That the learned trial judge failed to have any sufficient regard to the weight of the evidence.
3. That the learned trial judge’s findings as to fact were perverse and contrary to the weight of the evidence.”
3.2 I will come to the written submissions filed in due course. Thankfully, those submissions convey some reasonable idea as to the basis upon which it is suggested that an appeal lies. It does have to be commented that the notice of appeal is completely deficient in giving even a hint as to the true grounds of appeal. It is said that the trial judge misdirected himself on the law but no clue as to how the trial judge was in error on the law is given. What law? In what way did the trial judge take a wrong view of the law? It is said that the trial judge did not have sufficient regard to the weight of the evidence. Likewise, it is said that the trial judge’s findings as to fact were perverse and contrary to the weight of the evidence. In the light of the well established jurisprudence of this Court deriving from Hay v. O’Grady [1992] 1 I.R. 210, it is difficult to see how, at least without much more, such a ground of appeal can lie. Was it to be said that the trial judge reached a finding for which there was no evidence or was it to be said that the trial judge made a clear error in his assessment of the evidence or is it said that some inappropriate inference was drawn? The notice of appeal gives no clue. In respect of what facts or inferences or conclusions is it said the trial judge came to an unsustainable finding? Again there is no clue. Indeed, it is very much open to the view that an application could have been brought to have the notice of appeal in this case dismissed on the grounds that it disclosed, on its face, no stateable basis for appeal.
3.3 It is striking that, almost a quarter of a century ago, in the State (Gallagher Shatter & Company) v. deValera [1991] 2 I.R. 198, Finlay C.J., giving the judgment of this Court, commented, at p. 202, as follows:-
“Grounds of Appeal
The notice of appeal in this case unfortunately does not contain specific grounds, but merely states in bald fashion that the judge misdirected himself and was wrong in law and in fact in allowing the sums claimed and in ordering and adjudging them to be allowed, and contains as a purported second ground “such further grounds as will be presented to this Honourable Court on the hearing of the appeal”.
These are not grounds of appeal as was pointed out by the Court during the course of the hearing, and I would like in this judgment to emphasise again that whereas, as occurred in this case, it may be necessary in the interests of justice to permit the prosecution of an appeal, even though no specific grounds have been put forward, what appears to be an expanding practice of submitting grounds of appeal to this Court which contain no more than a mere statement of grievance with an order of the High Court should be discontinued.”
3.4 It really does need be noted by legal representatives of parties wishing to appeal to this Court that the time has long since passed when it is acceptable to express the grounds of appeal in such vague and generalised terms that they give no clue as to the true basis on which it is intended to argue that the judgment of the High Court was incorrect. Likewise, although given its sparseness it is not a criticism which could be made of the notice of appeal in this case, the time has long since passed when it could be considered appropriate to draft a notice of appeal that almost goes through the judgment of the trial judge as if it were a pleading and, point by point, almost in the manner of a defence which amounts to a full traverse, states that each point is wrong without giving any real indication of why that is said to be the case.
3.5 There is a duty on those bringing appeals to this Court to at least make a reasonable attempt to identify the true basis of appeal and set out, in a concise, non-repetitive, and focused way the true grounds which are to be pursued. It is accepted that a notice of appeal requires to be drafted within a relatively short period of time. For that reason some leeway as to precise points of detail must be allowed. However, it must also be recognised that a notice of appeal is drafted very soon after the case is concluded when the issues ought be clear in everyone’s mind and the issues which it is considered justify an appeal ought, for like reason, be capable of reasonably precise identification. Appeals should not be filed unless the losing party has some identifiable basis for believing that they have a genuine appeal; otherwise it will be an abuse of process. But having identified some genuine basis for appeal, it is not too much to expect that the notice of appeal itself should set it out in a way which allows the respondent (and indeed, the Court) to at least have a reasonable picture as to what the appeal is all about.
3.6 Happily, as indicated earlier, the written submissions filed on both sides did bring greater clarity to the real issues which were likely to arise on the appeal although, for reasons which it will be necessary to address, one significant legal issue which appeared from the written submissions to be likely to be highly to be contentious did not feature at the trial because of a concession which was (most correctly, in the Court’s view) made by counsel for Longford Town Council at the oral hearing. I, therefore, turn to the written submissions.
4. The Written Submissions
4.1 The arguments put forward in favour of the appeal in the written submissions were, principally, the following:-
(a) It was said that the trial judge placed insufficient emphasis on the relevant standards and in particular attention was drawn to the fact that the trial judge used the phrase that they were “merely a standard”;
(b) it was said that the trial judge placed too much emphasis on the fact that the playground had been used without incident. It was suggested that a reference in his judgment to its use by hundreds of thousands of children was incorrect whereas the evidence referred to thousands with emphasis also being placed on the fact that the evidence established that the playground had been open for four years and that it was conceded that there might have, in that time, been many falls which did not give rise to injury;
(c) it was argued that a proper analysis of the evidence could lead only to the conclusion that there was a failure to meet an appropriate standard of care and that such failure caused the accident in question.
As these matters were elaborated further in the course of oral argument I will return to them in due course.
4.2 In their written submissions Longford Town Council addressed the standard of duty on the owner of a recreational facility. Reference was made to Weir-Rogers v. SF Trust Ltd [2005] 1 I.R. 47, in which Geoghegan J., in this Court, considered the consequences of the enactment of the Occupiers Liability Act, 1995 (“the 1995 Act”) for the potential liability of owners of property in relation to recreational users. It was suggested that the effect of the criteria set out in s. 4(2) of that Act created a significantly more onerous threshold for a plaintiff. On that basis it was submitted that there was no evidence before the High Court which could have led to a proper conclusion that Longford Town Council had acted in such a way as allowed this case to meet that higher threshold.
4.3 However, at the oral hearing, as already noted, a concession was made. Counsel accepted that the proviso contained in s.4(4) of the 1995 Act applied. Under that provision the general effect of subs. (1), which is indeed to significantly increase the threshold by reference to which an occupier can be found liable, does not apply “where a structure on premises … for use primarily by recreational users” is present. In such a case the occupier owes a duty to recreational users “to take reasonable care to maintain a structure in a safe condition”. While not conceding that s.4(4) is necessarily, in all cases, identical as to the duty which it imposes on occupiers to the common law duty, counsel accepted that, on the facts of this case, there was no material difference between the two tests.
4.4 Indeed, it is worthy of note that it does not appear that any case for a particularly enhanced threshold was advanced by Longford Town Council in the High Court. Be that as it may, there was, in reality, no significant difference between counsel as to the appropriate approach of the Court to the facts of this case. The test was either, as counsel for the plaintiff argued, the common law test, or, as counsel for Longford Town Council suggested, a reasonable care test under s.4(4) of the 1995 Act with neither counsel arguing that there was any significant practical difference between the application of the two tests at least so far as this case was concerned.
4.5 As to the facts, it was said on behalf of Longford Town Council that the trial judge was entitled to accept the evidence of Dr. Webb to the effect that any deviation from standard was too minor to be of sufficient significance to take action, and it was also argued that there was evidence from which it was open to the trial judge to conclude that there was no causal connection between any deviation from standard and the accident and injuries suffered in this case.
4.6 Thus, in the light of the written submissions and the adjusted position taken by Longford Town Council at the oral hearing, the real issues which remain for decision were as to whether, in the light of the principles identified in O’Hay v. Grady, there was evidence from which the trial judge could reach a sustainable conclusion both as to the materiality of the undoubted deviations from standard (in the context of whether reasonable care can be said to have, nonetheless, applied) and as to causation. I propose to turn to the question of causation first, for if the decision of the trial judge in that regard was sustainable then the appeal would necessarily fail irrespective of the position in respect of the extent of the duty of care.
5. Causation
5.1 It is necessary to consider the issue of causation separately in relation to both of the deviations from standard identified. For the purposes of this analysis I propose to assume, for the purposes of the argument and without so deciding, that it was negligent or in breach of a statutory obligation to use reasonable care for Longford Town Council to permit the playground to operate with swings which deviated from standard in the manner identified. The analysis is as to whether there was evidence, or absence of evidence, from which the trial judge could properly conclude, nonetheless, that such deviation or deviations did not cause or contribute to the accident.
5.2 There was some debate at the oral hearing as to the evidence concerning how the accident actually occurred. Usaman Ahmed gave clear evidence that the immediate cause of his fall from the swing was that he hit his leg off the ground. In the course of their evidence both Mr. O’Brien and Dr. Webb agreed that such was the probable cause of his fall. There was no evidence to suggest that he was engaged in any form of inappropriate activity on the swing. In any event there was no finding by the trial judge which rejected his evidence in that regard. It seems to me to follow, as was urged by his counsel, that the only evidence which was before the Court was to the effect that the accident occurred as he described.
5.3 However, counsel for Longford Town Council suggested that there was an absence of compelling evidence which connected the undoubted deviation from standard as to seat height with the accident as described. It must be recalled that questions of causation are questions of fact. Where an issue as to causation arises it is for the trial judge to determine, on the balance of probabilities and as a matter of fact, whether any established or alleged wrongdoing on the part of a defendant actually caused the alleged harm to the plaintiff. In the context of a case such as this, it was for the trial judge to decide, as a matter of fact, whether the deviation from standard (if it was established to amount to negligence or a lack of appropriate care) actually caused or contributed to the accident and injuries which are the subject of these proceedings. The role of an appellate court in considering such a finding of fact is clear.
5.4 In Hay v. O’Grady McCarthy J. delivered the unanimous decision of this Court and dealt with the role of an appellate court in relation to facts. In particular, at p. 217, McCarthy J. set out a number of propositions which define the respective roles of a court of first instance and an appellate court in relation to factual findings. At item 2 the following is stated:-
“If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous, and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority.”
5.5 The judgment goes onto make some comments concerning inferences from primary fact and in particular observes that the extent to which an appellate court should interfere with inferences from facts may depend on the extent to which those inferences may themselves have been influenced by a judge’s assessment of witnesses (as opposed to, for example, matters deriving from documentary evidence).
5.6 It is also appropriate to note what this Court said in Doyle v. Banville [2012] IESC 25, where, having analysed Hay v. O’Grady, the following is said at para. 2.7 of my judgment:-
“Finally, before moving on to the specific issues which arise in this appeal, it is also important to note that part of the function of an appellate court is to ascertain whether there may have been significant and material error(s) in the way in which the trial judge reached a conclusion as to the facts. It is important to distinguish between a case where there is such an error, on the one hand, and a case where the trial judge simply was called on to prefer one piece of evidence to another and does so for a stated and credible reason. In the latter case it is no function of this Court to seek to second guess the trial judge’s view.”
5.7 Thus, the proper approach of an appellate court to a question of primary fact is to determine whether there was any significant and material error in the way in which the trial judge reached a conclusion as to that fact on the evidence and, if there is not, to leave that finding of fact undisturbed provided that it was supported by credible evidence even if there was other evidence to the contrary. It is as against those principles that the finding of the trial judge in this case to the effect that he was not satisfied that causation had been established needs to be assessed.
5.8 In that context a number of facts need to be noted. First, the deviation from standard was 20 millimetres. For those less attuned to the metric system in its detail that is a distance of approximately 4/5 of an inch. On the question of causation the real issue is as to whether it was open to the trial judge to conclude that a causal link between such a small difference in the seat height and this particular accident had not been established. In the context of the argument concerning whether there had been a breach of any duty of care counsel for Usaman Ahmed had made significant play of the fact that standards, particularly in the context of children’s playgrounds, are designed to create a reasonable balance between the need for children to be able to play in a free and happy environment but also safely. In addition, in the context of swings, a balance between not having the seat too high for younger (and therefore, on balance, shorter) children with not having the seat too low for older (and on balance, taller) children needed to be struck. On that basis it was sought to argue that a seat height which was too low created a potentially increased risk for taller children, for this case does, indeed, involve a tall child. Whatever may be the merits of that argument, it seems to me that there is a separate question as to whether, in the circumstances of this accident, the evidence constrained the trial judge to find a causal connection between the 4/5 of an inch seat height deviation and the fall.
5.9 Second, it must be recalled that, on any view, the swing had been in use for some time (approximately four years) and had been used before the day in question by Usaman Ahmed and also used by him for some period of time before the accident actually occurred. In those circumstances it necessarily follows that there must have been something different about the way in which he was positioned on the swing when he fell as opposed to all previous occasions (including the earlier part of his use of the swing on the day in question) when no such problem had arisen. The real question on causation which arises is as to whether, as a matter of probability, an extra 4/5 of an inch would have made any difference on the day in question.
5.10 Much of Mr. O’Brien’s evidence was directed towards the question of whether such a small difference could be said to have increased the risk. But whether it increased the risk or not does not answer the question of whether it, as a matter of probability, caused or contributed to this actual accident. If, for example, the way in which the swing was being used at the immediate point of the accident was such that, unfortunately, the ground would have been clipped anyway in a sufficiently serious way to cause a fall in much the same manner as occurred, even if the seat had been 4/5 of an inch higher, then there would, in truth, be no causal connection between that deviation from standard and this accident. Having carefully reviewed the transcript, I am not persuaded that this issue of causation was addressed in the expert evidence on both sides in a way which constrained the trial judge to find that there was a causal link. It might well have been open to the trial judge to reach such a conclusion. He was not, however, in my view, bound to come to that view.
5.11 For those reasons I am satisfied that the trial judge was entitled, on the evidence, to reach the conclusion, on the balance of probabilities, that the 4/5 of an inch deviation from standard in the seat height did not cause or contribute to this accident.
5.12 So far as the extent of the rubber matting issue was concerned, Dr. Webb, in giving his evidence, referred to recent research which seemed to show that the principal benefit of rubber matting was in the reduction of significant head injuries. Dr. Webb referred to research conducted by Prof. David Ball, who is Head of Risk Management at Middlesex University. Dr. Webb gave evidence that studies conducted by Prof. Ball seem “to show … that the incidents of head injuries has decreased but there hasn’t been any significant fall off in long bone fractures…” Again, the principal focus of the cross-examination of Dr. Webb seemed to relate to whether, in the light of that research, it was reasonable to ignore a relatively small (approx. three inch) divergence from the recommended distance between the swing seat and the edge of the matting. However, that evidence was also relevant to the question of causation. If it is the case, as that research by Prof. Ball seems to suggest, that matting does not seem to have led to a significant reduction in long bone injuries, it was, in my view, open to the trial judge to take the view that it did not necessarily follow from the fact that Usaman Ahmed fell slightly outside the matting area that, as a matter of probability, he would not have suffered the same or broadly similar injuries had the mat area been three inches wider.
5.13 The plaintiff’s case, as put through Mr. O’Brien, almost seemed to suggest that this was axiomatic. Falling onto a harder and unmatted surface was likely, it was said, to have led to very different injuries than if the fall was onto a matted area. However, the relevant research seems to cast significant doubt on that proposition. There also was no medical evidence which might have been of some assistance in determining whether it was probable that these injuries were attributable to falling outside as opposed to inside the matted area and, indeed, if that be so, whether significant injuries were likely to have arisen even if the fall had occurred completely within the matted area.
5.14 In the light of that review of the evidence I am satisfied that it was open to the trial judge to conclude that a causal connection between the scale of the matted area and the injuries actually suffered in this case had not been established.
5.15 In those circumstances I am satisfied that the finding of the trial judge, to the effect that no causal link between the two deviations from standard identified and the accident and injury actually suffered in this case, had been established on the balance of probabilities, was a finding which was open to the trial judge on the evidence. In the light of that finding the question of whether, in the context of s.4(4) of the 1995 Act, there was any actionable lack of reasonable care deriving from those deviations from standard is no longer relevant.
5.16 In fairness to the case made it is important to emphasise that there was credible evidence put forward on behalf of the plaintiff which could have persuaded the trial judge to find in his favour on the question of causation. This case is far removed from the type of proceeding which fails because the Court disbelieves an account of an incident given by a plaintiff. The problem in this case was that Longford Town Council also proffered credible expert evidence consistent with an absence of causation. This was quintessentially a case where the trial judge had to choose between two expert views on that question of causation. Given that there was credible evidence for both sides on that issue, the decision as to which to prefer was ultimately a matter for the trial judge and cannot be disturbed unless there was a clear significant and material error in the trial judge’s approach. It was, of course, therefore, a case where the trial judge could have accepted the evidence of either expert. In the light of the fact that there were undoubted deviations from standard, there was clearly a stateable basis for seeking to put forward the claim in these proceedings. It is simply that there was also a stateable defence on the facts in relation to causation and the trial judge was entitled to prefer the expert evidence which formed the basis of that stateable defence.
6. Conclusions
6.1 For those reasons I am satisfied that it was open to the trial judge to make the finding concerning lack of causation which he did. It follows that the issues concerning the duty of reasonable care do not arise for, in the absence of a causal link, even if it were possible to overturn the trial judge’s determination on those matters, it would not avail the case made on behalf of Usaman Ahmed.
6.2 For those reasons I would uphold the decision of the trial judge and dismiss the appeal.
Fitzgerald v South Dublin County Council
[2015] IEHC 343JUDGMENT of Mr. Justice Bernard J. Barton delivered the 21st day of May 2015.
1. This is an action brought by the plaintiff against the defendant for damages for personal injuries and loss arising as result of an accident which occurred on the 11th June 2006 when the plaintiff was playing on a common area of a housing estate situated adjacent to 34 Cloonmore Crescent, Jobstown, Tallaght, Dublin 24; then the plaintiff’s home.
2. The plaintiff’s case is that whilst he was crossing the common area to retrieve a football, he slipped and fell to the ground. When he did so, his back struck part of a broken bottle which was lying in the grass and as a result of which he sustained a laceration injury to the right hand side of his upper back. He brings this case in negligence and for breach of statutory duty against the defendant as the owner and occupier of the common area in question.
3. A full defence was delivered on behalf of the defendant who pleaded, inter alia, that the plaintiff was a recreational user on the common area within the meaning of s.4 of the Occupiers’ Liability Act 1995 (the Act). The defence also included a plea of negligence and/or contributory negligence on the part of the plaintiff; the essence of which is that the plaintiff was the author of his own misfortune in failing to keep a proper lookout, to exercise due care and attention and playing on the open space when he knew or ought to have known that broken glass was present.
4. The plaintiff was born on the 22nd November 1996 and was therefore only 9 years old when this accident occurred. He has since attained his majority and the court has made an order amending the title of the proceedings enabling him to proceed in his own name.
5. It was accepted by the defendant during the trial that in the particular circumstances of this case the plaintiff was too young to be held guilty of contributory negligence. Accordingly, if legal liability is found to rest with the defendant, the plaintiff is entitled to succeed 100% in respect of his claim.
6. The plaintiff is currently studying for his Leaving Certificate. He is hoping to qualify as a carer. He has already obtained experience as a carer in the context of undertaking voluntary work in Northampton for the Prince’s Trust. After he finishes his exams, it is his intention to go back to Northampton where he has been offered an apprenticeship in becoming a carer.
7. At the time of the accident the plaintiff was very keen on soccer and was a follower of the Shamrock Rovers team, and for which it was his ambition to play when he was older.
8. The estate where the plaintiff lived at the time of this accident has a number of open green spaces. One of these was a triangular-shaped common area adjacent to his home where the plaintiff often kicked a ball about with his friends and where the accident occurred. In the housing estate there were also a number of regulation football pitches to which the plaintiff , depending on the time of year and weather permitting, would go to play organised games a couple of times a week .
9. On the evening of the 11th June 2006 the Plaintiff was involved in a football ‘kick-about’ with some friends. A couple of jumpers or jackets had been used to create a goal. In the course of play the ball was kicked across part of the open green space towards the entrance to the plaintiff’s home. The accident occurred when he went to retrieve the ball.
10. The plaintiff’s mother took photographs of the triangular open green space within 24 hours of the accident. These photographs were introduced into evidence. Those photographs show that at the time when they were taken the grass was cut short. These photographs also show a few bits and pieces of what might be described as rubbish scattered about on the open green space, as well as what appears to be a bicycle lying on the ground next to one of the boundary walls. In addition, the photographs show what appear to be a number of brown coloured shards of glass. One photograph, said to be taken at the accident locus, shows what appears to be blood on and in the vicinity of some broken glass.
11. The football pitches and all of the common areas of the Cloonmore estate, including the triangular area where the accident occurred, are the property and under the control of the defendant. It was accepted in the course of the trial that the defendant was responsible for the maintenance of these open areas, and which included grass cutting.
12. As a result of the accident the plaintiff sustained a significant laceration to the upper right hand side of his back, which created a ten centimetre flap and which included the subcutaneous fat but not the underlying muscle. The wound was inspected and cleaned at the Adelaide and Meath Hospital and on the next day it was closed with sutures.
13. Some two weeks after the accident it was noted on medical review that the edges of the laceration were mildly inflamed .The plaintiff was prescribed and kept on antibiotics in respect of a discharge from the wound. When he was reviewed subsequently, it was noted that the wound had completely dried up.
14. The plaintiff went on to make an uneventful recovery but has been left with a 10 cm scar which I have had the opportunity of viewing. There is no functional impairment of the right arm and the reports of Mr Awadalla, consultant paediatric surgeon, dated the 4th December 2006 and the 16th December 2014, were admitted into evidence.
15. Although the plaintiff’s scar is well healed, it is very obvious – even beyond conversation distance. There is some keloid tissue present and the scar is about half an inch in width. The plaintiff does not like the sight of the scar and generally keeps it covered. He sometimes experiences pain in the area of the scar and for which he takes pain killers intermittently depending on the level of symptomology.
16. In its defence the defendant pleaded, inter alia, that the plaintiff was guilty of inordinate and inexcusable delay in bringing the proceedings, thereby greatly prejudicing the defendant in its defence of the proceedings.
17. This defence was pursued at the trial of the action. Insofar as the plaintiff himself was concerned, he felt that it would be entirely unjust that he should be blamed for the delay which, admittedly, took place before he attained his majority. In relation to that the plaintiff’s mother, who had been his next friend, gave an explanation for the delay which she admitted had taken place, and which she fully accepted ought not to have taken place. She sought to excuse the delay by virtue of circumstances in which she found herself, and which included a significant post natal depression. Having heard all of the evidence, I am satisfied that the defendant was not prejudiced by the delay in its defence of the proceedings and, in any event, the delay was in all of the circumstances excusable.
18. The evidence of the plaintiff’s mother, Mrs Fitzgerald, was that for some considerable time prior to the date of the accident, she had regularly phoned the relevant department of the defendant Council to complain of problems in relation to the triangular-shaped open space. In essence her complaints related to anti-social behaviour which included, amongst other things, young people sitting up drinking on low walls which bounded the open green space. Mrs Fitzgerald gave evidence as to how her calls would be dealt with and that she would be put through to an individual in the appropriate department. Apart from making these calls she did not at any stage confirm their content either by email or by letter. She assumed her complaints would simply have been recorded and would be acted upon. On occasion she also went to the County Council offices to make similar complaints.
19. In evidence she said that her complaints also related to rubbish being left around and in the vicinity of the open space. She accepted that the defendant Council cut the grass but in relation to the presence of rubbish her view was that, more often than not, the rubbish encountered would just be pushed up against the side of the boundary wall rather than removed. She herself cleaned up rubbish from time to time, especially after the accident, and accepted that on a few occasions the defendant did come and collect the rubbish that she had picked up. She described the rubbish as consisting of all sorts of things including bits of bikes. She never saw any litter pickers in the vicinity of the green open space but she accepted that the height of the walls had been increased by the defendant; most likely in response to complaints about anti social behaviour.
20. Having notified the defendant of the accident, Mrs Fitzgerald gave evidence that some days later an official called to her house with cleaning-up equipment, which included big green bags. She did not recall seeing litter wardens either before or after the accident, nor litter pickers at any time, though she did recall some grass cutters whom she assumed were the defendant’s employees. She accepted that the grass was cut often enough to keep it short but that rubbish scattered here and there was a continuing problem and that it was only through the efforts of herself and a neighbour that this problem was in some areas ameliorated. As far as she was concerned, however, the defendant did not follow up on the promises made to board up the area, or plant flower beds or otherwise deal with the rubbish problem.
21. Expert evidence on behalf of the plaintiff was given by Mr Donal McCarthy, chartered engineer. He accepted, however, that he had no expertise in the management of open green spaces. Nevertheless, as an engineer his view was that the rota system of men and machinery, which had been the subject matter of discovery and which was put to Mr McCarthy, was deficient and that there ought to have been rubbish bins located at different places around the estate. In addition it was his opinion that there ought to have been warning signs erected in the vicinity of the open space. It was also his opinion that there ought to have been independent inspections of the green open spaces later in the week since, on his analysis of the rotas prior to the accident, most all inspections and/or maintenance works took place in the early days of any given week. Mr McCarthy’s opinion was that warning signs and the presence of rubbish bins would have assisted in ameliorating an obvious litter problem and which was apparent from the account given to him by Mrs Fitzgerald and also upon his own inspection of the area as shown in his own photographs.
22. Evidence was given on behalf of the defendant by Ms Paula O’Rourke, executive park superintendent, and by Mr Paul Allen who was responsible for the organising and management of the litter and grass cutting crews employed to maintain the open green spaces. These witnesses gave evidence in relation to the defendant’s system of recording public complaints prior to and at the time of the accident, as well as to the defendant’s system of maintenance of the open green spaces under its control and which extended in area to in excess of 4,000 acres. It became apparent from this evidence that, in addition to the dates of attendance for maintenance of the Cloonmoore area set out in a letter of 11th February 2013 which had been sent to the plaintiff’s solicitors, there were attendances on other dates as well. In this regard there was evidence that the Kubota grass cutting machine, which was utilised for cutting certain types of open spaces and which would have included the triangular open space the subject matter of these proceedings, would have been particularly liable to sustain damage if it were driven over or onto debris such as stones, bits of bricks, pieces of metal or broken bottles. Accordingly, it was necessary for employees to proceed to inspect and pick up any such objects prior to grass cutting. This was always done in advance of the cutting itself. That could be done on the day of the actual cutting or on the day before. That litter was a problem in the housing estate as a whole was not really in dispute. Some areas were known black spots but the open space in question was not one of these. The defendant did what it could, given its resources and the extensive open parks and green spaces under its control. Rubbish was picked up prior to or during grass cutting operations but there was nothing the defendant could do to prevent rubbish being deposited or scattered on the open spaces thereafter. Mr Allen’s evidence was that he would have been regularly out and about carrying out inspections to ensure that the system was being complied with, directing special attention to problems as and when they arose, and ensuring his teams carried out their tasks in accordance with instructions and to a required standard.
The law.
23. Section 1 (1) of the Occupiers Liability Act 1995 defines a “recreational user” as:-
“an entrant who, with or without the occupier’s permission or at the occupier’s implied invitation, is present on premises without a charge (other than a reasonable charge in respect of the cost of providing vehicle parking facilities) being imposed for the purpose of engaging in a recreational activity, including an entrant admitted without charge to a national monument pursuant to section 16 (1) of the National Monuments Act, 1930, but not including an entrant who is so present and is—
(a) a member of the occupier’s family who is ordinarily resident on the premises,
(b) an entrant who is present at the express invitation of the occupier or such a member, or
(c) an entrant who is present with the permission of the occupier or such a member for social reasons connected with the occupier or such a member.”
24. Section 1 (1) of the Act of 1995 also defines the meaning of “recreational activity” as “… any recreational activity conducted, whether alone or with others, in the open air (including any sporting activity), scientific research and nature study so conducted, exploring caves and visiting sites and buildings of historical, architectural, traditional, artistic, archaeological or scientific importance.”
25. The duty owed by an occupier to a recreational user or a trespasser is set out in s.4 (1) of the Act of 1995 as follows:-
“In respect of a danger existing on premises, an occupier owes towards a recreational user of the premises or a trespasser thereon (“the person”) a duty—
(a) not to injure the person or damage the property of the person intentionally, and
(b) not to act with reckless disregard for the person or the property of the person, except in so far as the occupier extends the duty in accordance with section 5.”
26. This section also sets out the factors to which, together with all of the circumstances of the case, the court must have regard in determining whether or not the occupier acted with reckless disregard towards a recreational user or trespasser and which are as follows:-
“(a) whether the occupier knew or had reasonable grounds for believing that a danger existed on the premises;
(b) whether the occupier knew or had reasonable grounds for believing that the person and, in the case of damage, property of the person, was or was likely to be on the premises;
(c) whether the occupier knew or had reasonable grounds for believing that the person or property of the person was in, or was likely to be in, the vicinity of the place where the danger existed;
(d) whether the danger was one against which, in all the circumstances, the occupier might reasonably be expected to provide protection for the person and property of the person;
(e) the burden on the occupier of eliminating the danger or of protecting the person and property of the person from 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;
(f) 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;
(g) 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;
(h) the nature of any warning given by the occupier or another person of the danger; and whether or not the person was on the premises in the company of another person and, if so, the extent of the supervision and control the latter person might reasonably be expected to exercise over the other’s activities.”
27. Absent any evidence of intention to injure, the test of recklessness on the part of the occupier is, in my view, an objective one and that this is so is apparent from the wording employed by the Oireachtas in s.4 (2) of the Act of 1995.
28. It is also my view quite clear from the wording in s.4 of the Act that the duty owed by an occupier to a trespasser or a recreational user is not only less onerous than the statutory duty of care owed by an occupier to a lawful visitor within the meaning of s.3 of the Act , but significantly so. The statutory duty of care under s.3 may be said to be co-terminous with the ordinary duty of care at common law as enunciated by Lord Atkin in Donoghue v. Stephenson [1932] AC 562 and as thereafter explained and applied in the many decisions of the courts in the United Kingdom and the courts in this jurisdiction. See Vega v.Cullen ( unreported) HC PeartJ. delivered 9th November 2005.
29. By adopting the phraseology “reckless disregard” used in the old case law, the Oireachts 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 .
30. It may, I think, be argued with some force that the effect of the provisions of s.4 of the Act – with regard to the liability of an occupier in respect of the static condition of the premises involving a danger existing at the time of an accident – has been to return broadly to the state of the law regarding such liability as enunciated in the authorities prior to the decisions of the Supreme Court in Purtill v. Athlone UDC [1968] I.R. 205 and McNamara v. ESB [1975] I.R. 1.
31. However, for the sake of completeness and clarity it would seem appropriate to observe that these statutory provisions do not affect the duty of care under common law negligence principles in respect of the occupier’s acts or omissions (sometimes referred to as “activities”) in or upon the premises. That this is so is evident from the provisions of s.2 (1) which stipulates that the duties, liabilities and rights provided for by the Act in substitution for those applying to occupiers at common law, are confined to dangers existing on the premises. In short, the effect of s.2 (1) is to preserve the common law relating to the acts or omissions of an occupier otherwise than in relation to the static condition of the premises.
32. Finally, in the same way that an omission as well as a positive act can constitute negligence, there would seem to be no good reason in law why the use of the word “act” in the wording of s.4 (1) (b) should be interpreted otherwise than as connoting acts of omission as well as commission on the part of the occupier in relation to the danger.
33. That the effect of s.4 (1) (b) is to significantly restrict the liability of the occupier towards trespassers and recreational users has in fact long since been recognised by our courts. In Thomas v. Leitrim County Council [2001] 3 JIC 0701, where the Supreme Court held that the plaintiff was a licensee, when visiting Glencar waterfall, County Leitrim, in a suit which arose from an accident which occurred prior to the coming into force of the Act , Hardiman J., delivering the unanimous judgment of the court, observed in relation to the Act that:-
“…had this law been in force at the time of the plaintiff’s accident her position would have been a less favourable one than under the old law, which applies to this case”.
As to the effect of s.4 generally, see the judgment of Geoghegan J. in Weir Rodgers v. S.F. Trust Limited [2005] 1 ILRM 471.
Submissions and Decision
34. It was submitted on behalf of the plaintiff that in order for recreational use to arise, it was necessary that there be some form of organisational activity in which the plaintiff was involved. It was submitted that merely kicking a ball about on the open space did not satisfy such a requirement and that, in essence, the plaintiff was a lawful visitor to whom the defendant owed a statutory duty of care prescribed by s.3 of the Act.
35. The defendant submitted that no such issue had been raised by way of special reply to the defence. However, even if the court considered the delivery of a special reply unnecessary by virtue of the provisions of Order 23 of the Rules, the case had proceeded on the premise that the plaintiff’s presence on the common open space was one of recreational use rather than as a visitor within the meaning of s.3 of the Act.
36. Whilst I accept the submission of the defendant on this aspect of matters, it is also clear that the plaintiff pleaded and sought to make a case at the trial against the defendant for ordinary common law negligence.
37. It was submitted on behalf of the plaintiff that given certain inconsistencies between the documented rotas in respect of different open green spaces (including the area the subject matter of these proceedings) and the diary entries made by Mr Allen in relation to additional work carried out by his team, and further, having regard to the inadequacies of the defendant’s system relating to the recording of complaints and action taken in response to complaints made prior to the date of the accident and which failed to disclose any complaints having been made by Mrs Fitzgerald, that the court should reject such evidence as being unreliable with regard to those matters.
38. I have had the opportunity to observe the demeanour of both Ms. O’Rourke and Mr. Allen during the course of their giving evidence. I found both witnesses to be most credible and I accept their evidence as being reliable in relation to the system for recording and responding to complaints, as well as in relation to the defendant’s system for the inspection and maintenance of the open green spaces under its control.
39. It was not suggested to Mrs. Fitzgerald that she had not made complaints or that there hadn’t been any complaints generally about anti-social behaviour or litter problems. The court accepts that, although for reasons explained by Ms. O’Rourke that not every complaint at the time would have been recorded in a permanent form, the plaintiff did make complaints which included complaints in relation to litter. However, the court is also satisfied that there was a reasonable system in place for dealing with such complaints.
40. The defendant employed litter wardens, litter pickers and grass cutters as part of its management of something over 4000 acres of open spaces under its control. Its parks department is, not surprisingly, organised around the seasons and so grass cutting is rarely an issue during the winter but is a priority during the growing season. Not surprisingly, therefore, personnel are deployed during the year to meet the demands of the seasons as well as those arising by reason of human activity.
41. That litter on the open green space was a problem and that there were well known black spots in areas under the control of the defendant was, on the evidence, beyond question.
42. Having had an opportunity to peruse the defendant’s records in relation to its grass cutting and maintenance system for the area in question, which includes quotas for both men and machines and, further, having regard to the days on which the Cloonmore open spaces were maintained as set out in the defendant’s letter of the 11th February 2013, the entries made in his diary by Mr. Allen and accepting his evidence, as I do, that he designated and supervised his maintenance and grass cutting crews , I am satisfied that the records in relation to the rotas, the nature of the work involved, and the dates on which it occurred, are reliable.
43. It is also clear on the evidence, and the court finds, that the plaintiff did slip and fall whilst in the process of retrieving a football and that as a result of doing so he fell backwards onto the ground striking a piece of broken glass – most likely from a broken beer bottle – and that as a result he sustained a laceration which has left a permanent scar described earlier in this judgment. The question, of course, is whether the defendant has a liability in law for that accident and its consequences.
44. Mr. Allen explained that the grass of the open space where the accident occurred was regularly cut in the summer with a Kobota grass cutting machine. He referred to photographs taken by the plaintiff’s engineer, Mr. McCarthy, which show a considerable amount of litter close to one of the boundary walls of the open green space. These photographs also show that the grass of the open green space had been cut no more than two or three days previously.
45. Most of the litter, on my viewing of the photographs, is seen to be lying not only on top of the grass but also on top of the grass cuttings which have started to turn brown in colour. I am satisfied, on the evidence of Mr. Allen in relation to the operation of the Kobota grass cutter, that it would either have been damaged or, alternatively, would have shredded the litter seen in these photographs had litter or rubbish such as that seen in Mr. McCarthy’s photographs been present on the day when the grass was cut. It is also evident from these photographs that the litter in question had not been subjected to shredding of the type that would have occurred if it had been caught up in the blades of the Kobata. On the balance of probabilities, I am satisfied that the litter shown in these photographs came to rest where it is seen in them; most likely as a result of being blown there by wind after grass cutting had taken place.
46. The fact that the litter seen in the photographs is intact also happens to be consistent with the evidence given on behalf of the defendant that litter was picked up a day before or the day of the grass cutting. Moreover, the photographs taken by Mrs. Fitzgerald within 24 hours of the occurrence of this accident, while showing bits of litter here and there on the open green space as well as bits of glass – including the piece of glass on which it is most likely the plaintiff fell – also show that the grass was short. It follows therefore that the grass had to have been cut within a few days at most before the accident.
47. These photographs are also corroborative of Mr. Allen’s evidence as to the regularity of grass cutting during the spring and summer of the year in which this accident occurred, which fortifies me in my conclusion that the evidence of the defendant in connection with its system for the supervision and maintenance of this open green space is reliable.
48. Whilst it was submitted on behalf of the plaintiff that the presence of the glass on the ground in the grass (which would have been visible to the plaintiff or anyone else walking on the common area as it was the next day when photographed by Mrs Fitzgerald ) was a danger of which the defendant was aware on the day of the accident by virtue of the plea in that regard contained in its defence, it is quite clear from any reading of the defence in this case that the plaintiff was being put on proof of his claim. The plea of negligence and/or contributory negligence alleged in the defence was made without prejudice to the demurrers in the proceeding paragraphs and was, in any event, withdrawn at the trial.
49. Mr. Allen gave evidence at the trial in relation to the functions of litter pickers and grass cutters. Quite apart altogether from any safety considerations, it is abundantly clear from that evidence that the removal of bits of debris and litter – including bottles or broken glass – was essential if the grass cutting machinery was not to be damaged. That machinery is in daily use during the summer. If it were rendered inoperable or less effective by coming in contact with debris of one sort or another capable of damaging the machine, the parks department would be left without that machine pending repair, something it could ill afford in the summer months and given the vast area of open green space to be maintained.
50. It also means, of course, that the defendant was aware that such problems existed and so was required to devise a system to deal with them. I am satisfied that the defendant’s management and grass cutting system had the dual purpose of protecting men and machinery as well removing litter and debris from the green open spaces.
51. In the course of the trial one of the suggestions made by the plaintiff for dealing with the problem of broken glass was that signs should have been erected and/or bins supplied or a hoarding could have been erected. The latter of these , it seems to me, would be completely counter-productive and contrary to the policy of providing open green space for the general enjoyment of the public at large.
52. Finally, given the necessity of having to remove objects which might likely cause damage to the Kobota grass cutting machine and, given the shortness of the grass evident from the photographs taken by Mrs. Fitzgerald, I think it highly likely that the bits of broken glass and the bits of litter shown in those photographs were deposited on the green open space at some time within the day or two following the last grass cutting.
Conclusion.
53. In my view there is no credible evidence upon which the court could come to a conclusion that the defendant was guilty of common law negligence. Similarly, I am satisfied that s.3 of the Act has no application to the facts of this case.
54. The plaintiff was involved in a ‘kick-about’ with some of friends. They had erected a temporary goal by using some clothes. What else was this if it wasn’t a recreational activity within the meaning of the Act? The plaintiff was a recreational user of the open green space and as such the defendant’s duty towards him was that as set out in s.4 of the Act.
55. There can be no doubt but that the piece of broken glass lying on the grass of the open space constituted a danger which was present at the time when this accident occurred. I am satisfied on the evidence that the defendant was aware that pieces of broken glass or objects which could cause damage to the machines, as well as causing injury to members of the public using the open green spaces, was a recurrent problem and that this was most likely generated by anti-social or other miscreant behaviour.
56. There was no suggestion in this case that the defendant intended to injure the plaintiff. Accordingly, there being no liability at common law or under s. 3 of the Act, any liability on the part of the defendant for the danger which existed on the premises can arise only if, in relation to that danger, the defendant acted with reckless disregard towards the plaintiff. As to that, the court is bound to have regard to all of the circumstances of the case including the matters set out in S. 4 (2) of the Act. As to that the defendant relied on the decision of this court in Kirwan v Dublin City Council (Unreported, High Court, Feeney J., 9th March, 2011) delivered by Feeney J. on the 9th March 2011.
57. That was a case which arose as a result of an accident when the infant plaintiff, together with a number of friends who were playing on a green open space, caught her foot in a hole. The facts of that case differ in a number of respects and in particular with regard to the making of complaints. The court was satisfied on the evidence that the defendant had procedures in place which ensured, insofar as was reasonable, that the area was kept in a reasonably proper and fit condition. In this regard Feeney J. observed:-
“It (the defendant) couldn’t operate a system which avoided all holes or depressions being present, because it was a general recreational area where all sorts of uses could take place, where children used it, where holes could be dug, where animals could scrape and excavate and where depressions could be caused as a result of subsidence. To place an onus on the Defendant to avoid the presence of depressions or small holes in those circumstances, would, in fact, require constant observation and inspection of the very highest degree and one which could not be suggested as being necessary or required.”
58. With an appropriate modification by reference to broken glass or other bits of debris being discarded, I adopt this statement of the learned trial judge.
The court found that whilst the defendant clearly owed a duty to the plaintiff as a recreational user, it was satisfied that the defendant was not in breach of the provisions of the Act and had not acted towards the plaintiff with reckless disregard.
59. As in that case, the court is satisfied that the system of management and maintenance of the open green spaces devised and employed by the defendant prior to and at the time of the accident was reasonable and entirely appropriate for what was a general recreational area.
60. Whilst on the evidence the factors set out in s.4 (2) (a), (b), (c) and (h) are satisfied, the court is also bound to have regard to the other factors, including:
(d) whether the danger was one against which the defendant might reasonably be expected to provide protection; (e) the burden on the defendant of eliminating the danger or of protecting the person from the danger , taking into account the difficulty, expense or impracticality, having regard to the character of the premises and the degree of the danger, of so doing; and, (f) the character of the premises, including, as in this case, premises used for recreational activity and the desirability of maintaining the tradition of open access to such premises for such activity.
61. 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.
62. This was an unfortunate accident which has left the plaintiff with a permanent scar. Whilst it represents a permanent cosmetic deficit the scar has not resulted in any functional disability, nor will it affect his chosen career as a carer – a choice for which he is to be commended. Regrettably, whilst I accept his evidence as being entirely truthful, on the findings made by the court the accident is not attributable to negligence and even less so to reckless disregard on the part of the defendant. Accordingly, the claim will be dismissed and the court will so order.
Ryan v Office of Public Works
[2015] IEHC 486
JUDGMENT of Ms. Justice Murphy delivered the 21st day of July, 2015
1. The plaintiff’s claim is for damages for personal injuries sustained by him on or about the 3rd April, 2013 at a children’s playground in Kilkenny Castle when he tripped over a horizontal bar in a multi play unit and landed on another horizontal bar as a consequence of which he sustained a severe, potentially life threatening injury to his spleen. The plaintiff claims that at the material time he was a visitor on the premises and as such was owed a duty of reasonable care by the defendant who is the occupier of the premises. The plaintiff claims that the defendant was guilty of negligence and breach of duty; that it created a nuisance and that it was in breach of its statutory duty within the meaning of s. 3 of the Occupier’s Liability Act 1995. Twenty two particulars of negligence, breach of duty, breach of statutory duty and nuisance are pleaded; essentially they fall into two main headings. Firstly, the plaintiff contends that the defendant created and maintained a hazard and secondly that they failed to warn the plaintiff either by signs or markings of the presence of the hazard. The defendant in its defence specifically pleaded that the plaintiff was not a visitor within the meaning of s. 3 of the Occupier’s Liability Act 1995 and that his status was instead, that of a recreational user within the meaning of the Occupier’s 1995 Act. In addition the defendant put the plaintiff on full proof of all matters alleged.
The Facts
2. On the morning of the 3rd April, 2013 the plaintiff and his then partner, Ellen Cruise, travelled into Kilkenny where they had an appointment for developmental checks on their children. They have three children, Richard, Cody and Alex. At that time the children were aged five, three and two. Having completed their business they brought the children to the playground in Kilkenny Castle as a treat. They arrived there at approximately 12.30 pm. Ms. Cruise brought the youngest child Alex to the swings while the plaintiff brought the two older boys to play on what is described as a junior multi play unit. The Court has been supplied with many photographs of the unit and for the purposes of this judgment has relied on the comprehensive booklet of photographs furnished by the plaintiffs engineer Mr. Vincent O’Hara of O’Keeffe and Partners Consulting Engineers. The main feature of the unit is a slide which can be accessed in a variety of ways. At the right of the unit as one looks at it in photograph number 2 of the booklet, one can see that the slide can be accessed by a conventional stairway. When one goes around to the other side of the unit as shown in photograph 7, one sees that the slide area can also be accessed by a more unconventional and challenging twisted ladder which leads to a platform adjacent to the slide. When one looks at photograph D in the second part of the booklet of photographs one can see that the platform can also be accessed by a climbing wall. Underneath this structure there are a further two play areas. On the left as one looks at it from the bottom of the slide there are two swinging seats connected to the uprights of the structure and on the right there are asymmetrical bars fixed to the uprights of the structure. Each bar is 40 mm in diameter and is of steel construction. The distance between the vertical uprights upon which the bars are fastened is 1250 mm, the first bar starts at 365 mm above ground level and continues at that level for 400 mm, before sloping upwards for a length 550 mm and straightening out for the final 200 mm at which point it is 565 mm above ground level. The second bar attached to the vertical uprights was 850 mm beyond the first bar and its configuration started high on the left hand side and after 200 mm sloped down before again straightening out to join the vertical upright. Both the play units under the structure are designed for smaller children. The plaintiff stationed himself at the bottom of the slide which one can see in photograph number 1 and Richard and Cody went to access the slide by means of the twisted ladder that one can see in photograph (insert).
3. This is the Court notes, quite a challenging means of access for a three year old. Richard, the elder boy, apparently successfully negotiated the ladder and while the plaintiff was waiting for him to come down the slide he noticed his younger son, Cody’s legs appeared to be dangling from the platform at the top of the twisty ladder. Keeping his eyes on Cody’s legs he ran under the structure in the area where the asymmetrical metal bars are placed. In doing so he tripped on the first bar and landed heavily on the second bar. He suffered a major injury to his spleen which was potentially life threatening. Fortunately his then partner reacted promptly and drove him to the emergency department at St. Luke’s Hospital, Kilkenny where he arrived at approximately 1.30 pm. There, full advanced trauma life support protocols were deployed. Fortunately a splenectomy was not required and the medics were able to manage his condition conservatively. He was discharged to outpatient care on 15th April, 2013 and was seen for a follow-up CT scan on the 26th April, 2013 which showed continued resolution of the injury. While the plaintiff experienced considerable difficulties, discomfort and limitations in the months following this injury he has been fortunate in that he has now made a full recovery.
The Plaintiff’s Case
4. In essence the plaintiff’s case is that the placement of these bars at a low height in this location constituted a trap or hazard for the plaintiff. Furthermore, the plaintiff’s engineer argued that the structure and in particular the placement of the play bars for toddlers was not in compliance with BS EN 1176 and he instanced two failures of design. Firstly, he relied on what he considered to be a breach of Article 4.2.8.5 of the British Standard for playground equipment which provides for protection against injuries due to other types of movement. It states “the space in, on or around the equipment that can be occupied by the user should not contain any obstacles that the user is not likely to expect and which could cause injuries if hit by the user” and notes that “examples of such obstacles are shown in Figure 18” of the British Standards. When one turns to Figure 18 one can see that what is to be avoided is the projection of obstacles beyond the play area into the area of movement either at head height or ankle height. It does not prohibit the placing of bars at those heights within the play structure. Secondly, the plaintiff’s engineer pointed to Article 4.2.3 headed “Accessibility for Adults” which provides that “equipment shall be designed to ensure that adults are able to gain access to assist children within the equipment.” Looking at the photographs which have been supplied the Court is satisfied that there are multiple points of access for an adult to assist a child within the play unit.
The Defendant’s Case
5. The defendant points out that no play area is risk free. In relation to the design and construction of a play area, risk assessment, according to the Royal Society for the Prevention of Accidents (ROSPA) is about balancing risk against return. This playground was designed and installed by a company called Kompan which is a Danish company with an international reputation in this area. Following the installation of the equipment in 2008 the defendant had the playground assessed by ROSPA, an independent body with international accreditation. In the preamble to their report on this playground which was conducted on 15th July, 2008 they point out at note 3:
“Play is all about “doing” and by “doing” accidents will from time to time occur. Play is an essential part of a child’s physical and mental development and ROSPA believes that it is essential that a level of assessed challenge and risk is provided to enable children to properly develop their survival skills. Risk assessment is all about balancing risk against return. ROSPA believes that there are instances where even high risk is acceptable provided that the risk cannot be further reduced and the development value to the child is high.”
6. They go on at paragraph 4 to state:
“A risk assessment is attached to this report, clients are reminded that there is no such thing as no risk, consequently no risk is as low as you can get where items are indicated as being no risk, clients may well wish to consider if any remedial action is economically justified in terms of improvement and safety, also where we have not indicated any suggested remedial action against medium or even high risk items, we feel that either these items have sufficient development value to justify the risk or that no remedial action is possible and the alternative of closing a site or removing an item of equipment poses a greater risk to the user, the operator may well wish to consider the same.”
7. In their assessment of this particular multi play unit, ROSPA certified that it was EN1176 standard compliant and it assessed it as being a unit of low risk. No alterations or remedial actions were recommended. Since that time the Court has had evidence, and accepts, that all appropriate inspections and maintenance have been carried out.
The Law
8. The plaintiff pleaded his case on the basis that he was on the premises as a visitor within the meaning of s.1 of the Occupier’s Liability Act, 1995 and that as such he is owed the duty of care provided for by s. 3 of the same Act. The defendant contends that the plaintiff was present on the premises as a recreational user within the meaning of s. 1 of the 1995 Act. 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. As a recreational user, the duty owed by the defendant to the plaintiff is set out a s. 4 of the Act which provides at s. 4(1):-
“In respect of a danger existing on premises, an occupier owes towards a recreational user of the premises or a trespasser thereon (the person) a duty;
(a) not to injure the person or damage the property of the person intentionally and;
(b) not to act with reckless disregard for the person or property of the person.”
Decision of the Court
9. 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.
10. 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.
11. 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”.
12. 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”. Even if the Court is wrong in its view that the play unit in question does not constitute a “danger” within the meaning of s. 4(1) , the Court is satisfied that the plaintiff’s claim would in any event fall at the second hurdle, that of establishing that the defendant acted with reckless disregard for his person. Section 4(1)(b). In the circumstances of this case the occupier had no reason to consider that the asymmetrical bars in the toddler play area of the unit constituted a danger. The defendant in providing this playground, including this particular unit, took all appropriate steps to ensure that it met the highest standards. They retained a company of international renown to design and construct the playground. Once completed, they had it inspected and assessed by independent experts, the Royal Society for the Prevention of Accidents (ROSPA). This particular unit had been declared to be compliant with EN 1176 by ROSPA. In such circumstances it would be a travesty to hold that the defendant had recklessly disregarded the safety of the plaintiff.
13. Finally, the plaintiff’s counsel sought to rely on s. 4(4) of the 1995 Act as creating a duty of care separate to and more onerous than that created by s. 4(1). Section 4.(4) provides:
“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.”
Counsel for the plaintiff argued that this subsection created and imposed a general duty of care on the defendant in and about the design and construction of the play unit and that they had been in breach of that duty in placing the asymmetrical toddler bars in the location in which they are found in the unit. Counsel for the defendant argued that the duty of care created by this subsection is a duty to maintain the structure once installed, in a safe condition, so that it does not in effect become “a danger existing on the premises” within the meaning of s.4 (1), through lack of maintenance. The Court considers that the latter construction is 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.
14. Even if the Court is wrong in its construction of s. 4(4) and the general duty of care referred to applies to the design construction and installation of the play unit, as opposed merely to its maintenance, it would not alter the outcome for this plaintiff. 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, as one can see in the photographs, 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. As a matter of law the Court must dismiss the plaintiff’s claim.
Wall v National Parks and Wildlife Service (CC)
[2016] IECC 1
Judge Linnane
1. The plaintiff brings these proceedings for damages for personal injuries sustained due to the negligence, breach of duty and breach of statutory duty on the part of the defendant. With regard to the latter reliance is made on the Occupiers’ Liability Act, 1995 and in particular section 4(4) thereof- a failure on the part of the defendant to take reasonable care to maintain a boardwalk in a safe condition. A full defence has been delivered with a plea of contributory negligence. A plea of volenti non fit injuria is also included although that does not appear to have been pursued. In any event counsel for the plaintiff submits that it has no application as no prior agreement was made by the plaintiff to waive her legal rights. The personal injuries summons issued on 25th June, 2014.
2. Certain matters are not in dispute- On 6th August, 2013 the plaintiff went hill walking with her husband on the Wicklow Way. She was 56 years of age at the time and they were both very experienced and keen hill walkers. In addition the plaintiff was very fit- they travelled abroad on many occasions to do various walks, including the Himalayas and the plaintiff regularly ran marathons. They had prepared all their gear the night before and they were both wearing appropriate clothes, walking boots and using walking sticks. There was specific signage directing walkers to use the wooden boardwalk where provided in order to protect the mountain habitat. It is part of the national park and is a special area of conservation. In accordance with the signage they were on the boardwalk and walking back towards Roundwood when the plaintiff’s foot got caught in a depression or hole on the boardwalk causing her to fall and injure her right knee.
3. It is accepted that the plaintiff was a “ recreational user ” as defined by section 1(i) of the 1995 Act. The boardwalk is made up of second hand wooden railway sleepers which were installed between 1997 and 2000. In some areas there is a chicken wire stapled or nailed on to the sleepers. It would appear the sleepers were placed there to protect the habitat from being eroded by walkers. Within approximately a week of the incident the plaintiff phoned the defendant to report her accident and complained about the bad condition of the boardwalk where she fell. The District Conservation officer confirmed taking this call on 14th August, 2013 and that the plaintiff was upset. The evidence from witnesses on behalf of the defendant is that there is an audit inspection every two years and it relies on such an inspection to rectify any problems and also on hill walkers to report anything which needs attention. One of these two yearly inspections took place on 23rd September, 2013 but unfortunately the report received from the plaintiff some weeks earlier was not conveyed on to the inspector or that particular attention should be given to the boardwalk in the course of the inspection.
4. Mr. Culliton, the plaintiff’s engineer, carried out an inspection in April 2014 of the locus in the presence of the plaintiff. Where there was chicken wire in place in certain areas, the staples were loose. The locus of the fall showed a depression 22 inches long, 1 inch deep and 4 inches wide. The photographs taken at the time and indeed on the day of the fall clearly show rotted timber and a lack of maintenance. In Mr. Culliton’s view this was a hazard, pressure treated timber had not been used and at the time of the joint inspection with the defendant’s engineer, Mr. Romeril, in September 2015, the locus had deteriorated further, which would indicate no remedial work or maintenance had been carried out to rectify the problem. Mr. Culliton gave evidence, which was not challenged, that the boardwalk was a structure. However in written submissions counsel for the defendant disputes the boardwalk is a structure and claims it is part of the land itself. Photographs taken at the time of the joint inspection confirm the timber sleepers were badly rotted in places. In Mr. Culliton’s view an audit inspection every two years is insufficient and he questioned the standard of the audit, particularly taking into account the audit inspection which took place some weeks after the plaintiff complained about the bad condition of the boardwalk.
5. The defence basically put forward on behalf of the defendant in the course of the hearing was that the plaintiff was tired, was not looking where she was going, that in order to carry out works of repair and maintenance of the sleepers a crew would have to be air lifted in at a cost and the crew would cause erosion of the habitat. It is also argued that section 4(1) of the Act applies and in that regard the plaintiff has failed to establish that the boardwalk was a danger or that the defendant intentionally injured or acted in reckless disregard toward the plaintiff. Mr. Atkinson, who is a regional manager of the defendant gave evidence that this year, depending on funding being available, it is intended to replace the boardwalk.
6. Section 4(1) of the Occupiers’ Liability Act, 1995 provides as follows:
“In respect of a danger existing on premises, an occupier owes towards a recreational user of the premises or a trespasser thereon (“the person”) a duty-
(a) not to injure the person or damage the property of the person intentionally, and
(b) not to act with reckless disregard for the person or the property of the person…..”
7. Section 4(2) then sets out various criteria to which regard should be had in determining whether an occupier has acted with reckless disregard.
8. Section 4(4) provides as follows:
“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: provided that, where a stile, gate, footbridge or other similar structure on premises is or has been provided not for use primarily by recreational users, the occupier’s duty towards a recreational user thereof in respect of such structure shall not be extended by virtue of this subsection.”
9. Counsel for the plaintiff relies on section 4(4) and submits that it should be read independently and not in conjunction with section 4(1) and accordingly the plaintiff does not have to establish that the defendant was in breach of its duty not to injure the person intentionally and not to act with reckless disregard because of the danger existing on the premises. In essence therefore counsel for the plaintiff submits that the defendant was in breach of its duty to take reasonable care to maintain the boardwalk, a structure placed there for use by the plaintiff, a recreational user, in a safe condition.
10. Section 4 (4) was considered by the Supreme Court in the case of Ahmed (a minor) v. Longford Town Council [2014] IESC 46 – in that case the plaintiff claimed he was caused to fall from a playground swing as the seat was too low. It was accepted that s. 4(4) applied. In the course of his judgment Clarke J. states as follows:
“Under that provision the general effect of subsection (1), which is indeed to significantly increase the threshold by reference to which an occupier can be found liable, does not apply “where a structure on premises … for use primarily by recreational users” is present. In such a case the occupier owes a duty to recreational users “to take reasonable care to maintain a structure in a safe condition.”
11. Again, section 4(4) of the 1995 Act was considered by the High Court in the case of Ryan v. The Office of Public Works [2015] IEHC. That case involved a trip by the plaintiff over a bar in a playground when he ran to help his child on a play unit. In the course of the judgment Murphy J. states as follows:
“Counsel for the defendant argued that the duty of care created by this subsection is a duty to maintain the structure once installed in a safe condition, so that it does not in effect become “a danger existing on the premises” within the meaning of s. 4(1), through lack of maintenance. The Court considers that the latter construction is 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). This 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.”
12. It would appear therefore that a higher duty is imposed on occupiers under section 4(4) than under section 4(1) where a structure on the premises is provided for use primarily by recreational users. McMahon & Binchy’s Law of Torts (4th edition) at para. 16.86 p. 658 states:
“Recreational users are in a very disadvantaged position under the 1995 Act. The occupier of the premises does not owe them any duty of care in negligence in respect of dangers existing on the premises. All that the occupier is required to do is not injure them intentionally and not act with reckless disregard for them. The only instance when a higher duty is imposed is where a structure on the premises is provided for use primarily by recreational users. The occupier, in such a case, must take reasonable care to maintain it in a safe condition.”
13. Again in considering section 4(4) of the 1995 Act at para. 12.149 the authors state:
“An occupier owes a duty to take reasonable care to recreational users in one situation: this is where a structure on premises is provided for use primarily by recreational users. The occupier must take reasonable care to maintain it in a safe condition.”
14. It is clear to me taking everything into account that liability here rests with the defendant – the plaintiff was a recreational user, she was directed to use the boardwalk which was made up of second hand wooden railway sleepers, a structure placed on the land by the defendant. It is clear from the photographs that the timbers were badly rotten with staples protruding and chicken wire loose and reasonable care was not taken to maintain same in a safe condition resulting in the injury suffered by the plaintiff. There was no contributory negligence on her part.
15. With regard to damages, the plaintiff had to cancel plans for a walking holiday abroad and was unable to participate in the Dublin City Marathon the following October. She attended at the VHI swiftcare clinic where she was treated with antibiotics, painkillers and valium. She sustained bruising and a laceration to the front of her right knee which required seven stitches. While the wound to her knee healed fairly quickly, her activities were curtailed and her knee was painful and stiff when climbing stairs. She became depressed and has been left with a scar and discolouration on her knee. She was a very active person prior to this fall but now she is unable to run in marathons or pursue the activity of hill walking which she enjoyed doing very regularly with her husband. In all the circumstances I am awarding a sum of €40,000 in general damages.
Wall v National Parks and Wildlife Service (HC)
[2017] IEHC 85, White J.
JUDGMENT of Mr. Justice White delivered on the 17th day of February, 2017
1. This is an appeal from a judgment of the Circuit Court delivered on 15th April, 2016. The court found the Defendant negligent arising from injuries suffered by the Plaintiff while hiking on the Wicklow Way on 6th August, 2013, when she tripped and fell on a boardwalk made up of railway sleepers joined together.
2. The Honourable Judge of the Circuit Court found that:-
“The plaintiff was a recreational user, she was directed to use the boardwalk which was made up of second hand wooden railway sleepers, a structure placed on the land by the defendant. It is clear from the photographs that the timbers were badly rotten with staples protruding and chicken wire loose and reasonable care was not taken to maintain same in a safe condition resulting in the injuries suffered by the plaintiff. There was not contributory negligence on her part.”
She was awarded €40,000 in general damages.
3. The appeal was heard in this Court on 23rd, 24th, 25th November, 6th and 7th December, 2016 and judgment was reserved.
4. The negligence alleged against the defendant in the personal injury summons issued in the Circuit Court on 25th June, 2014, was as follows:-
(a) causing or allowing or permitting a defect to be present in a wooden boardwalk in the form of a hole (measuring approximately 20 inches long by 4 inches wide x 1 inch deep) where the timber had rotted away;
(b) causing, allowing or permitting a designated walkway to be in a defective and dangerous condition;
(c) creating or maintaining a tripping hazard at the accident site;
(d) failing to ensure that the wooden boardwalk was in good condition at the accident site;
(e) failing to replace the section of timber of the walkway which contained the tripping hazard;
(f) failing to thoroughly treat the timber of the walkway with preservative to prevent rotting;
(g) failing to repair the original wire mesh covering the walkway;
(h) failing to institute and/or ensure the operation of a system of inspection in repair of the walkway;
(i) leaving the boardwalk in a condition which was unsafe;
(j) failing to warn the plaintiff that the boardwalk was unsafe;
(k) failing to have any or any adequate regard for the safety of walker;
(l) failing to anticipate the danger which the accident site posed;
(m) creating or maintaining a public nuisance at the accident site;
(n) exposing the plaintiff to a risk of injury which the defendant knew or ought to have known;
(o) breaching the duty of care which was owed to the plaintiff by the defendant by virtue of the provisions of the Occupier’s Liability Act 1995; and
(p) the plaintiff will rely on the doctrine of res ipsa loquitur.
5. It was alleged that the plaintiff’s foot snagged on a hole in the timber of the boardwalk and she tripped and fell forward on her right knee.
6. The defendant, in it’s defence delivered on 28th November 2014 denied any breach of duty of care or any negligence or breach of statutory duty and alleged that the incident which the plaintiff complained of on 6th August, 2013, occurred in a manner in which the defendant was not liable or not wholly liable to the plaintiff on the grounds that the plaintiff was negligent and/or contributory negligent in that she:-
(a) failed to exercise reasonable caution in all the circumstances;
(b) failed to keep any or any proper lookout as to where she was going or how she was proceeding;
(c) failed to avoid the danger of which she now complains;
(d) was the author of her own misfortune;
(e) failed to apply her skill and expertise and/or training; and
(f) failed to apply her knowledge of the area and/or locus.
Brief History of the Accident
7. The plaintiff is a married woman with two grown up daughters and at the date of the accident was 56 years of age. She is an experienced hill walker having been walking with her husband regularly since they were in their 20s, both in Ireland and abroad. They mostly hiked in the Wicklow mountains. The plaintiff was also a marathon runner. Unfortunately, she suffered a nasty injury to her right knee on 6th August, 2013, when hill walking on the Wicklow Way in Co. Wicklow near the J.B. Malone Memorial. The injury had serious consequences for her active lifestyle.
8. The undisputed evidence is that the plaintiff and her husband, Damien, on the morning of 6th August, 2013, drove to Roundwood in Co. Wicklow to commence a hill walk to Djouce and return to Roundwood. They had prepared for the walk the evening before and had the appropriate equipment. The plaintiff was wearing Miendl walking boots and also had the assistance of two walking poles. The boots were100mm wide at their widest point. They started their walk from Roundwood and stayed on the road for approximately two miles and then went on to the Wicklow Way The initial part of the trail from the Sally Gap road was on a rough path The plaintiff then emerged onto a wooden boardwalk.
9. The boardwalk was constructed with used railway timber sleepers laid slightly suspended from the ground with steps where the slopes were too steep. The sleepers are about 2,700mm x 260m x 5mm thick. The sleepers were covered with u-shaped nails hammered into the wood but left proud of the timber to prevent walkers slipping when the railway sleepers were wet. In parts, the sleepers were covered in chicken mesh wire, which had disappeared in other places.
10. The Wicklow Way is a national way marked route of approximately 130km stretching from Marley Park, Dublin to Clonegal in Co. Carlow. A substantial portion of the route goes through the Wicklow National Park which is controlled and managed by the defendant. The location of the accident near White Hill is ecologically sensitive and had come under pressure from erosion or from trampling where the walk tracks became substantially widened. In or around 1997, these railway sleepers were laid to preserve the habitat and to encourage walkers to use same. This particular area is about 600m above sea level. When the railway sleepers were originally laid down, the practice was to lay half inch mesh chicken wire on the sleepers and staple them. Because of the very high foot fall and the weather conditions, the wire began to deteriorate and in or around 2006/2007, the sleepers were retrofitted with u-shaped nails for grip. Any chicken wire that was still in tact was left in situ because it was hard to get off and any areas that were obviously torn were removed.
11. The Wicklow Way is inspected by the National Trails Office which involves a trail inspection every second year and a report is issued outlining any corrective action needed. It is run by a number of bodies called the Wicklow Partnership. While most of the land is in public ownership, some of the Wicklow Way goes through private land.
12. The plaintiff has accepted that she was a very experienced hill walker and agreed it was a demanding pursuit, necessitating vigilance. The plaintiff completed her walk to the summit of Djouce Mountain successfully and was on the return journey when she fell. She accepts that she traversed the boardwalk area where she fell on the way to Djouce.
13. Along this section of the boardwalk, there are very obvious indentations where the wood has become worn. Some areas of the sleepers are more vulnerable than others where due to previous use on the railways, the rails had been secured onto the sleepers by base plates known as chairs. Water tended to collect under the base plates and it was not unusual to have a small hole under the base plate of a used sleeper. In the mountain environment, water entered the hole and once there is freezing conditions and then thaw, the ice gets into the wood and splits it and softens it.
14. The plaintiff was walking from south to north to Djouce and on the way back was heading south again retracing her route. Evidence is disputed as to the exact location of the accident on the boardwalk, how the plaintiff fell, where she landed and what she said afterwards to various parties.
15. The plaintiff’s evidence was that as she was descending from Djouce and had just passed the JB Malone monument on the way back the toe of her foot got caught in a hole in the sleeper which caused her to go down on her right knee. She stated that she had a pole in each hand and was using them on the boardwalk itself. When she fell on her right knee her walking trousers got ripped and her knee was cut by one of the nails embedded in the boardwalk. The plaintiff stated that there were some loose nails on the boardwalk but after clarification she stated that she got injured on the upturned nails hammered into the boardwalk which were part of the boardwalk itself. She stated that when her foot went down on the boardwalk she tried to lift it but it got caught in the wood and that this all happened in a split second. The plaintiff identified photograph 4 in the engineering report of Mr. Pat Culleton as the location where her foot got caught in the hole. She stated it was a perfect day for walking. She said the fall caused a severe impact and the right hand side of her body was bruised.
16. The plaintiff was treated that day at the VHI Clinic in Swords having been driven there by her husband directly from the scene of the accident. She got seven stitches in her knee. She returned to the clinic on 19th September and the wound was still infected and she was treated with antibiotics and further dressing. The plaintiff is still complaining of her injury. She stated that it has impacted on her hugely because she could not go back running as the knee would go from under her and she has not walked in the mountains since then but only now walks on the flat. She stated the scar has healed well but that the knee has not healed well. She stated that she had intended to run the Dublin Marathon that autumn on 31st October and after that to go on a walking holiday in Slovakia.
17. The plaintiff made contact with the defendant at its local office in Wicklow by telephone. She spoke to Monica Byrne who worked in an administrative role in the office. Ms. Byrne took a note of the conversation, some of which is disputed by the plaintiff.
18. The written contemporaneous note that Ms. Byrne noted from the telephone conversation states:-
“Message taken at 11am on Wednesday, 14th August.
Tuesday, 6th August, 4pm experienced walker reporting an accident bad condition of boardwalk at Djouce Teresa Wall 0863088683.
Fell on boardwalk from Djouce towards JB Malone wire loose and broken. Five stitches on knee. Supposed to go to Slovakia today but now can’t go.”
19. Ms. Byrne noted that the plaintiff was very upset on the phone and was crying and referred to the fact that she was making the telephone call from her bed. Ms. Byrne was of the opinion that she wrote the note as she was talking to the plaintiff on the telephone.
20. The plaintiff spoke to another employee of the defendant on the afternoon of 14th August, Ms. Enda Mullen. Ms. Mullen completed an accident report form which noted that the plaintiff had described the accident as:-
“fell on boardwalk (sleeper). Cut knee on wire staple. Needed five stitches in hospital. On antibiotics and painkillers. Should have been going to Slovakia on a walking holiday today. Very upset. A lovely day/dry and clear so weather was not a cause as the boardwalk was in bad condition with torn wire.”
21. It was indicated to Ms. Mullen that she was going to make a claim for compensation and Ms. Mullen explained that this would have to be done through the State’s Claims Agency. The plaintiff in her evidence stated that she was not aware that Ms. Mullen was filling out any form and that she just rang that day to say she had a bad fall and for someone to get back to her about it. She stated she could not remember saying that she had tripped on wire. Her memory was that she just stated that she had a fall on the mountain and was hurt badly. She has accepted that she did not tell Ms. Mullen about the hole in the boardwalk. The plaintiff stated that she would not have said she was going to Slovakia on a walking holiday that day as she was not going on this walking holiday until the Dublin City Marathon was over and also she had seven stitches in her knee, not five.
22. Ms. Mullen received another call from the plaintiff’s daughter, Ann, on 19th August, 2013, and Ms. Mullen gave Ms. Wall the address of Corporate Development and later that afternoon, the plaintiff rang to confirm the address of Corporate Development and informed Ms. Mullen that she had been talking to a solicitor.
23. The plaintiff in her account to Dr. Memon on 18th September, 2013, stated that she was walking on a sleeper in Wicklow Mountains and fell on right knee and had seven stitches.
24. On 19th August, 2014, on a return visit to the VHI clinic she informed Dr. Lincoln that she was walking on a boardwalk with her husband coming down a mountain and she fell onto the wooden boards and there was nails sticking out of the wood and her foot got caught. On attendance at Dr. Brian J. Hurson on 21st August, 2014, he noted in his report that she was involved in an accident when walking on the mountains, her foot got caught in wire mesh causing her to fall on her flexed right knee. She sustained a cut to the front of her knee.
25. In an email of 5th September, 2013, to her husband, the plaintiff stated:-
“The sleepers are covered with wire held in place by nails. The sleepers are very badly damaged in places as seen in the photographs. I slipped as I was walking and my knee was badly cut on one of the nails.”
26. A preliminary letter of claim was sent on 11th September, 2013, by the plaintiff’s solicitors, to the defendant.
27. The letter stated:-
“Our client was walking on the Wicklow Way with her husband, Damien, on 6th August, 2013. They were on the route from Sally Gap road to Djouce. They were walking on the railway sleepers which they are directed to walk on by signs to avoid damage to the surrounding vegetation. Unfortunately, the boardwalk is not maintained adequately and our client tripped when her foot came into contact with a hole in one of the sleepers and she fell seriously injuring her right knee which came into contact with an exposed steel staple which is used to keep the wire mesh covering the sleepers in place but unfortunately the steel staples are raised and these caused our client to sustain injury resulting in seven stitches to her right knee.”
28. Photographs were supposed to be enclosed but were not enclosed with the letter and subsequent to a reminder from the State’s Claims Agency by letter of 11th November, 2013,the solicitors furnished photographs. The photograph furnished was one taken by Mr. Damien Wall, the plaintiff’s husband, when he returned to the mountain on his own shortly after the accident and took a number of photographs.
29. The plaintiff has told the court that this was not in fact the location of the accident as this area was to the north of the JB Malone monument while the accident occurred on the boardwalk to the south of the monument.
30. There is also a dispute as to where she landed. The plaintiff, herself, stated that she fell forward onto the boardwalk in the area in which the hole was, however, her engineer has told the court that his understanding of the accident was that she fell as she approached a step down to another sleeper approximately 16 inches back from the step and ended up on the lower side of the step, landing on the sleeper beneath that on which she tripped.
The Mechanism of the Fall
31. The boardwalk was approximately 2km long. The plaintiff was walking on a downward slope of a gradient of 11.4% on the sleeper on which she fell. This sleeper was 2475mm or 8ft 1.5 inches long. The plaintiff had proceeded towards the end of that sleeper before she fell. The hole on which she states she snagged her foot on was 20 inches long, 4 inches wide and 1 inch deep according to Mr. Culleton and Mr. Romeril gave the measurements as 80mm long by 100mm wide by 35mm deep. This would equate to 26.7 inches long, 3.9 inches wide and 1.37 inches deep. It was accepted by Mr. Romeril and Mr. Culleton that the hole had probably deepened by about 10mm in the year since the accident, the date of the joint inspection being 21st September, 2015.
32. Considering the disputed evidence the court accepts the evidence of the plaintiff that she fell in the location she described. It is unfortunate that there was some confusion when the wrong photographs were sent to the defendant when the original claim was made but I am satisfied that the plaintiff when she visited the boardwalk with Mr. Culleton on 28th April, 2014, identified the location of the accident. The court is satisfied that the account given by the plaintiff to Mr. Culleton on that date as to where she landed is the more accurate rather than her own evidence before this Court. She landed on the next sleeper down from the sleeper that she fell on.
33. The court accepts that when the plaintiff spoke to Ms. Byrne and Ms. Mullen she was in a distressed condition, however, I have no reason to doubt the accuracy of Ms. Byrne and Ms. Mullen’s evidence as to what she told them and they are likely to be more accurate than the plaintiff at that point in time.
34. The various accounts given by the Plaintiff, lead the court to believe that the Plaintiff has become more certain of the mechanism of her fall since the accident. It is likely because of the suddenness of her fall, that she was uncertain about the cause of it originally.
In the courts opinion the most likely cause of the accident was that described in the initial letter of claim of 11th September, 2013, that the plaintiff tripped when her foot came in contact with the hole. The court finds that the foot did not get planted or fully snagged in the hole because of the measurements of the hole and the boots that I have described. So as the plaintiff was walking along, the most likely cause of the accident is that she tripped on the vertical lip of the hole and fell forward
35. The boardwalk in that location had a number of these indentations which were caused by the vulnerability of the sleepers where the original base plates or chairs had been placed. If the plaintiff had been looking down she would have had a good view of those indentations as she was walking on a downward slope for at least six feet on the sleeper before she came to it. The indentation was undoubtedly a trip hazard if you were not looking at it or if you did not lift your boot high enough to avoid it. The indentations were certainly not hidden and this was the second time that the plaintiff had traversed this area. The indentations would have been obvious to her on the way up the mountain. I do not accept that the boot got completely wedged in the indentation as it is more likely that she was not stepping high enough when the boot got caught in the front of the indentation causing her to fall.
36. I consider that the description by Mr Romeril of the likely mechanism of her fall set out at page 30 of the transcript of the 25th of November 2016 is an accurate description. He stated,
“This is the classic trip scenario. A person who is walking always has one foot on the ground, as you probably know if you’re in the Olympics they always watch you must have one foot on the ground. So you have your planted foot and we call it your passing foot, that’s the foot that’s passing the planted foot. When the planted foot is placed down, the first strike is the heel and then you rotate on to the sole. This is the conventional walking. You then lift the passing foot, it all happens simultaneously and the passing foot goes forward. If the passing foot is dropped, as often is, you are at risk of tripping on a lip or even a depression in this case. That’s why you have to lift your feet to avoid tripping on uneven ground. As you’re walking in this position you’re actually leaning forward. The body uses the weight to move forward. If you trip, if your passing foot trips particularly at or just beyond the planted foot, you will fall forward.”
37. Before considering the defendant’s legal liability, on the facts of the mechanism of the fall decided by this court there was a high degree of negligence on the plaintiff’s part in that she was not looking at the surface of the boardwalk when she fell.
Legal Issues
38. Was it permissible for the defendant to allow the deterioration of the sleepers before replacement. The location was not easily accessible for installation or replacement. The Plaintiff alleges that repair was possible and not difficult. The position taken by the defendant in relation to maintenance was that unless the holes were in locations as such that the sleeper was at risk of falling apart, they were not considered to be an unacceptable hazard to walkers on a trail of this nature classified as moderate.
Statute Law
39. The Plaintiff accepts she was a “recreational user” under section 1 of the Occupiers’ Liability Act, 1995 Act, but submits that s. 4(4) of the Occupiers’ Liability Act, 1995 provides that where an occupier places a structure on land for use by recreational users, this creates a positive duty on the occupier to maintain the structure in a safe condition., and that the duty of care under section 4(4) is similar to the common law duty of care. The Plaintiff also submits that Section 4(4) is independent of section 4(1) of the Act which sets out a less onerous duty for occupiers. The defendant disputes this.
40. The Plaintiff maintains that the boardwalk is a structure. The defendant argues that it is not, but also submits that there is a burden on the Plaintiff to establish, before the exceptional duty provided for in section 4(4) arises:-
(i) That the proceedings concern a structure within the meaning of the subsection
(ii) That the structure has been provided for use primarily by recreational users.
(iii) That the structure is unsafe.
(iv) That the unsafeness is attributable to a failure to exercise reasonable care to maintain the structure:.
41. The Defendant argues that the Plaintiff bears the burden of establishing each of these matters, and in the context of an outdoor pathway being used by an experienced hill-walker on a moderate mountain trail, visible and obvious depressions or indentations on the boardwalk were not dangerous or unsafe and the Defendant had no legal duty to remove, fill or otherwise to repair the offending parts of the walk.
42. The relevant sections of the Act are Sections 3 and 4, set out hereunder,
3. Duty owed to visitors.
(1) An occupier of premises owes a duty of care (“the common duty of care”) towards a visitor thereto except in so far as the occupier extends, restricts, modifies or excludes that duty in accordance with section 5.
(2) In this section “the common duty of care” means a duty to take such care as is reasonable in all the circumstances (having regard to the care which a visitor may reasonably be expected to take for his or her own safety and, if the visitor is on the premises in the company of another person, the extent of the supervision and control the latter person may reasonably be expected to exercise over the visitor’s activities) to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon.
4. Duty owed to recreational users or trespassers.
(1) In respect of a danger existing on premises, an occupier owes towards a recreational user of the premises or a trespasser thereon (“the person”) a duty—
(a) not to injure the person or damage the property of the person intentionally, and
(b) not to act with reckless disregard for the person or the property of the person, except in so far as the occupier extends the duty in accordance with section 5.
(2) In determining whether or not an occupier has so acted with reckless disregard, regard shall be had to all the circumstances of the case, including—
(a) whether the occupier knew or had reasonable grounds for believing that a danger existed on the premises;
(b) whether the occupier knew or had reasonable grounds for believing that the person and, in the case of damage, property of the person, was or was likely to be on the premises;
(c) whether the occupier knew or had reasonable grounds for believing that the person or property of the person was in, or was likely to be in, the vicinity of the place where the danger existed;
(d) whether the danger was one against which, in all the circumstances, the occupier might reasonably be expected to provide protection for the person and property of the person;
(e) the burden on the occupier of eliminating the danger or of protecting the person and property of the person from 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;
(f) 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;
(g) 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;
(h) the nature of any warning given by the occupier or another person of the danger; and
(i) whether or not the person was on the premises in the company of another person and, if so, the extent of the supervision and control the latter person might reasonably be expected to exercise over the other’s activities.
(3)
(a) Where a person enters onto premises for the purpose of committing an offence or, while present thereon, commits an offence, the occupier shall not be liable for a breach of the duty imposed by subsection (1) (b) unless a court determines otherwise in the interests of justice.
(b) In paragraph (a) “offence” includes an attempted offence.
(4) 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:
Provided that, where a stile, gate, footbridge or other similar structure on premises is or has been provided not for use primarily by recreational users, the occupier’s duty towards a recreational user thereof in respect of such structure shall not be extended by virtue of this subsection.
Is the Boardwalk a Structure
43. I have listened carefully to the arguments put forward by the Plaintiff and the Defendant, and I am satisfied that the boardwalk is a structure within the meaning of the act. I am also satisfied that it is provided for use primarily for recreational users.
44. I am satisfied that Section 4(4) is independent of Section 4(1) and must be considered as a separate duty of care, from that defined in section 4(1). There is an onus on the Plaintiff to establish that the boardwalk was in an unsafe condition, and that its unsafe condition was attributable to a failure to exercise reasonable care to maintain it. It has common characteristics to the duty imposed by Section 3, but is not exactly the same.
45. I approve of the statement of Clarke J. in Ahmed(a minor) v. Longford Town Council [2014] IESC 46, when he stated:-
“4.3 However, at the oral hearing, as already noted, a concession was made. Counsel accepted that the proviso contained in s.4(4) of the 1995 Act applied. Under that provision the general effect of subs. (1), which is indeed to significantly increase the threshold by reference to which an occupier can be found liable, does not apply “where a structure on premises … for use primarily by recreational users” is present. In such a case the occupier owes a duty to recreational users “to take reasonable care to maintain a structure in a safe condition”. While not conceding that s.4(4) is necessarily, in all cases, identical as to the duty which it imposes on occupiers to the common law duty, counsel accepted that, on the facts of this case, there was no material difference between the two tests.
4.4 Indeed, it is worthy of note that it does not appear that any case for a particularly enhanced threshold was advanced by Longford Town Council in the High Court. Be that as it may, there was, in reality, no significant difference between counsel as to the appropriate approach of the Court to the facts of this case. The test was either, as counsel for the plaintiff argued, the common law test, or, as counsel for Longford Town Council suggested, a reasonable care test under s.4(4) of the 1995 Act with neither counsel arguing that there was any significant practical difference between the application of the two tests at least so far as this case was concerned.”
Does The Standard Of Care Change Depending On The Context And Social Value Of The Activity Which Gave Rise To The Risk
46. Mr Pat Culleton, the expert witness called by the Plaintiff, stated that the condition of the boardwalk at the location of the accident was a trip hazard, and that the hazard was the same whether it is in a park or the mountains. He stated that for someone walking normally, this was a trip hazard in any environment.
47. The Defendant has argued that as a matter of law that is incorrect, and relies on a number of decided cases and an extract from McMahon & Binchy, The Law or Torts, (4th ed., Bloomsbury, 2013) at para. 7.27, which states that four factors relevant to the assessment of the standard of care are identified. Those are (i) the probability of an accident; (ii) the gravity of the threatened injury; (iii) the social utility of the defendant’s conduct; and, (iv) the cost of eliminating the risk.
48. The Defendant asserts that the circumstances of an accident have to be taken into account in assessing the standard of care, and that this has long been part of Irish law. In Purtill v. Athlone UDC [1968] I.R. 205 at pp. 212 and 213, Walsh J. observed that “[w]hat amounts to sufficient care must vary necessarily with the circumstances, the nature of the danger, and the age and knowledge of the person likely to be injured.” Similarly, in Donaldson v. Irish Motor Racing Club (Unreported, Supreme Court, 1st February, 1957), at p. 9, Kingsmill Moore J. observed that “the care taken need only be reasonable care, and what is reasonable depends on all the circumstances, including the probability of an occurrence causing danger, the probability of injury ensuing if such an occurrence takes place, the practicability of precautions, the legal categories involved, and other matters too diverse and numerous to be catalogued.”
49. The Defendant relies on a number of English authorities as being persuasive on the court particularly in relation to outdoor pursuits. Extracts from it’s legal submission states:-
“The exercise which must be undertaken by the courts in assessing the standard of care was set out by Lord Hoffman in Tomlinson v. Congleton [2003] UKHL 47, [2004] 1 AC 46. The case involved a plaintiff who sustained injuries after diving into a lake created in a disused quarry. In finding for the defendant, Lord Hoffman held, at p. 82:-
‘34 My Lords, the majority of the Court of Appeal appear to have proceeded on the basis that if there was a foreseeable risk of serious injury, the council was under a duty to do what was necessary to prevent it. But this in my opinion is an over-simplification. Even in the case of the duty owed to a lawful visitor under section 2(2) of the 1957 Act and even if the risk had been attributable to the state of the premises rather than the acts of Mr Tomlinson, the question of what amounts to “such care as in all the circumstances of the case is reasonable” depends upon assessing, as in the case of common law negligence, not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measures. These factors have to be balanced against each other.’”
50. In Mills-Davies v. Royal Society for the Protection of Birds (Unreported, English High Court, 21st May, 2004), the plaintiff suffered a significant eye injury on a woodland trail. The injury occurred when the Plaintiff tripped on a protruding stump of a small tree which had been cut down in the course of clearing operations to create the trail. He fell on another stump which had a jagged and sharply pointed top. His case was that tripping and penetrating hazards had been left in the pathway by RSPB rendering the trail unsafe. He sought to impose liability under the English Occupiers Liability Act 1957, which imposed a duty of care in respect of a lawful visitor. That duty was to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there. The duty was owed “in respect of dangers due to the state of the premises.”
51. The Court refused to impose such liability. It stated, at para. 57:-
“It would not be a breach of the common duty of care to fail to remove such a tree stump taking into consideration the nature of this part of the Reserve, the type of visitor to be expected, the numbers of visitors and the absence of any accident or even complaint.”
52. Thus, the tree stump was not, in the context in which it appeared, a danger which the Defendant was under an obligation to eliminate. The case is also significant in that it emphasises the impracticability of requiring occupiers of open terrain to avoid all risks associated with recreational activity. (see para. 59).
53. The Scottish case Leonard v. The Loch Lomond and Trossachs National Park Authority [2014] CSOH 38 reached a similar conclusion. There, the pursuer (a minor) fell along a track near Loch Lomond. He alleged that he fell off the path and down a bank onto a road. He complained that steps provided by the Defendants were uneven, inconsistent in shape and sloping downwards and different angles and with exposed roots and other tripping hazards such as man made gullies. These occurred in a context where there was no barrier preventing him from falling down the road.
54. Lord Uist conducted an extensive review of the authorities which emphasised that liability could not be imposed in circumstances such as those under consideration by the Court there in respect of a danger of which the person was aware. He stated, at para. 25 that this was the case whether the feature alleged to be defective was natural or man made:-
“The stone pitched path was not, of course, a natural feature of the landscape but a manmade one. I do not think that makes any difference. It was, as I have already held, a path constructed to accepted and normal standards. It is self-evident that it was constructed in order to secure greater safety for those going up or down the hill by providing greater grip and stability on the ground. Had there been no such path and only mother earth there would have been obvious dangers of slipping on the hill. It also blended or merged well with the landscape and by 2006 was an established feature. There was no history of complaints about, or accidents upon, it. In these circumstances I adopt the approach taken by Lord Emslie in Graham in relation to manmade or artificial features on land. The path was a long-standing artificial feature which was neither concealed nor unusual and did not involve exposure to any special or unfamiliar hazard. It had become a permanent, ordinary and familiar feature of the landscape in respect of which the defenders owed no duty to [the pursuer] or anyone else under section 2(1) of the Occupiers’ Liability (Scotland) Act 1960. Indeed, I would go further than Lord Emslie and hold that it is not a requirement that the artificial feature be well established or long standing before the principle of Stevenson and Taylor applies: it is sufficient that it is obvious, part of the landscape and does not involve exposure to any special or unfamiliar hazard. If, for example, an accident happened a week after an obvious artificial feature which became part of the landscape (such as a pond, swimming pool or path) had been constructed I see no reason why the principle in Stevenson and Taylor should not apply. Of course, by its very nature, the path in this case presented a danger in the form of the risk of tripping or slipping, but that is a risk which those venturing upon the hill must be taken to have accepted. Adapting the words of Lord Hutton in Tomlinson, it would be contrary to common sense, and therefore not sound law, to expect the defenders to provide protection to members of the public (by means of a handrail or barrier or anything else) against such an obvious danger”(emphasis added).
The social utility of the defendant’s conduct
55. It is well-established that conduct which is of high social utility will not be assessed as onerously as that of low social utility. In Whooley v. Dublin Corporation [1961] I.R. 60, the plaintiff injured her foot after stepping on a fire hydrant box whose lid had been removed. The evidence was that the lid was designed to be easy to remove in order to be easily accessible to the emergency services.
56. In Cole v. Davis-Gilbert [2007] EWCA Civ 396, Scott Baker L.J. in the Court of Appeal discussed the chilling effect which can result to socially valuable activities if too high a standard is imposed. At para. 36, he said:-
“Accidents happen, and sometimes they are what can be described as pure accidents in the sense that the victim cannot recover damages for the resulting injury because fault cannot be established. If the law were to set a higher standard of care than that which is reasonable in cases such as the present, the consequences would quickly become inhibiting.. There would be no fêtes, no maypole dancing and none of the activities that have come to be associated with the English village green for fear of what might conceivably go wrong.”
The legal submissions of the Defendant further stated,
57. “In these proceedings, the provision of the boardwalk serves two purposes, both of which should be taken into consideration. First, the provision of the boardwalk is a means of protecting against the erosion of a protected habitat. Second, it provides access for all entrants, including recreational users, to a site of great natural beauty and significance.”
58. “There is some comparison to be made between the present case and the English cases which deal with highway authorities’ positive duty to maintain roads and footpaths. In the context of trip and fall cases, reference is often made to the judgment of Steyn L.J. in Mills v. Barnsley Metropolitan Borough Council [1992] P.I.Q.R. P 291, at pp. 3 and 4:-“
“In my judgment the photographs reveal a wholly unremarkable scene. Indeed, it could be said that the layout of the slabs and the paving bricks appears to be excellent, and that the missing corner of the brick is less significant than the irregularities and depressions which are a feature of streets in towns and cities up and down the country. In the same way as the public must expect minor obstructions on roads, such as cobblestones, cats eyes and pedestrian crossing studs, and so forth, the public must expect minor depressions. Not surprisingly, there was no evidence of any other tripping accident at this particular place although thousands of pedestrians probably passed along that part of the pavement while the corner of the brick was missing. Nor is there any evidence of any complaint before or after the accident about that part of the pavement. Like Mr. Booth, I regard the missing corner of the paving brick as a minor defect. The fact that Mrs. Mills fell must either have been caused by her inattention while passing over an uneven surface or by misfortune and for present purposes it does not matter what precisely the cause is.
Finally, I add that, in drawing the inference of dangerousness in this case, the judge impliedly set a standard which, if generally used in the thousands of tripping cases which come before the courts every year, would impose an unreasonable burden upon highway authorities in respect of minor depressions and holes in streets which in a less than perfect world the public must simply regard as a fact of life. It is important that our tort law should not impose unreasonably high standards, otherwise scarce resources would be diverted from situations where maintenance and repair of the highways is more urgently needed. This branch of the law of tort ought to represent a sensible balance or compromise between private and public interest. The judge’s ruling in this case, if allowed to stand, would tilt the balance too far in favour of the woman who was unfortunately injured in this case. The risk was of a low order and the cost of remedying such minor defects all over the country would be enormous. In my judgment the plaintiff’s claim fails on this first point.”
59. “In this regard, it is submitted that regard must be had to what would be required to replace or to take such measures as to reduce to naught the risk of another person suffering the same injury as the plaintiff. In particular, having regard to the fact that such risks would remain for any person standing off the boardwalk.”
60. The Plaintiff argues that there is nothing in section 4(4) of the Act which reduces the duty to maintain the structure in a safe condition by reference to its location, and that the evidence demonstrated that the sleepers had a shelf life of approximately 25 years, and that there was a duty on the Defendant to maintain the boardwalk, and that the Defendant had replaced sleepers where holes had gone right through or more than halfway through the sleeper.
61. The Plaintiff submitted that the Defendants system of inspection was inadequate. It either failed to detect holes on the boardwalk or when holes were detected these were not identified as being sufficiently deep to be considered as dangers. This thus resulted in a failure to maintain the boardwalk at the accident site.
62. The Plaintiff relies on a Supreme Court judgment Doherty v Bowaters Irish Wallboard Mills Ltd [1968] I.R. at p. 277. The court was interpretating Section 34,1(a) of the Factories Act 1955, which stated:-
“a chain, rope or lifting tackle shall not be used unless it is of good construction, sound material, adequate strength and free from patent defect”
63. The Supreme Court held that the section imposed a distinct and absolute duty on the Employer.
64. This court does not accept that the duty imposed on an occupier by Section 4(4) of the Act is an absolute or strict duty. It has to be construed in its ordinary meaning, The duty of reasonable care to maintain a structure in a safe condition, has to be interpreted by applying the law of negligence, in particular the standard of care applicable.
65. The Court does not agree that a trip hazard is the same no matter what the location. It approves of the passages from the English and Scottish authorities recited, in respect of outdoor pursuits and it is also not the law as applied in the Irish courts. It also approves the passages of extracts from the judgments quoted on the social utility of the activity in dispute.
66. Because of the vigilance expected from hill walkers, walking on moderate mountain trails, and the application of the legal principle that the standard of care has to be adapted to the conditions, the social utility of the provision of the boardwalk, the isolated location of same, I do not hold that the defendant was negligent in not filling in the indentations or replacing the sleepers with new sleepers and will accordingly allow the appeal in full.
Stokes v South Dublin County Council
[2017] IEHC 228,
JUDGMENT of Mr. Justice Barr delivered on the 7th day of April, 2017
Introduction
1. This action arises out of an accident which occurred on 18th September, 2011, at a caravan park or halting site, owned by the defendant at Oldcastlepark, Bownogue, Dublin 22. The plaintiff, who lived with his parents in a caravan at the park, was jogging up a footpath leading from the entrance to the halting site, going towards the caravans, when he alleges that he tripped over a depression or hole in the surface of the footpath, causing him to fall to the ground and suffer a fracture to the knuckle on the third digit of his right hand.
2. The defendant accepts that on or about 18th September, 2011, the plaintiff suffered a comminuted fracture of the knuckle on the third digit of his right hand. Other than that, all matters are in issue. In particular, the defendant argued that having regard to the nature of the injuries, they were unlikely to have occurred in the manner suggested by the plaintiff. They argued that in all probability, the plaintiff had met with his injuries while pursuing his sport of boxing. They submitted that it was more likely that the plaintiff had injured his hand boxing and was fraudulently trying to place the blame on the defendant, by alleging that his injuries happened due to a trip and fall on an unsafe section of the footpath. They submitted that this was the more likely explanation of how his injuries occurred, having regard to the medical evidence in relation to the injuries which are usually suffered as a result of a trip and fall and having regard to the fact that the plaintiff delayed in informing his solicitor or the defendant, of this accident until in or about March 2013.
3. The defendant also argued that the road and footpath in the caravan park constituted a public highway and in these circumstances they were entitled to rely on the defence of non-feasance.
4. In the alternative, it was submitted that as the plaintiff was engaged in jogging, when he allegedly met with his accident, he was a “recreational user”, within the meaning of the Occupiers Liability Act 1995 and therefore the defendant only owed him a duty not to act with “reckless disregard” for his safety. They submitted that there was no evidence that they had so acted in this case.
5. Finally, the defendant submitted that having regard to the state of the locus as shown in the photographs taken by the plaintiff’s engineer, the hole or depression in the footpath was clearly visible. They submitted that if the plaintiff had kept a proper lookout while jogging up the path, he would not have met with his accident. They submitted that he was either entirely the author of his own misfortune, or was guilty of a substantial element of contributory negligence.
The Evidence on Liability
6. The plaintiff was born on 18th March, 1993. He was approximately 18.5 years of age at the time of the accident. He had lived with his parents in their caravan at the Bownogue halting site since it opened in 1998. He stated that on 18th September, 2011, at approximately 18:30hrs, he had gone jogging around the roads in the area and was returning up the footpath which led from the entrance to the halting site, to the caravans. The general layout of the footpath was shown in photograph 1 taken by Mr. Conlon, the plaintiff’s engineer. The depression or hole shown in photograph 2, was taken approximately 2m from the depression. A closer view of the depression was shown in photograph 3.
7. The plaintiff stated that as he ran up the footpath, his right leg went into the hole or depression and he fell forward. He stated that he fell onto his right hand, which had been turned inwards with the palm facing his body. This meant that his knuckles had come into direct contact with the ground. He felt severe pain in his right hand. On the following day, he went to his G.P. in relation to his hand injury. He was seen by Dr. Lindy Barnes, who was one of the doctors in the practice. She referred him for an x-ray of his right hand. This was carried out on the same day and revealed he had suffered a fracture of the knuckle on the third digit of his right hand. On the following day, 20th September, 2011, the plaintiff was brought to theatre where open reduction and internal fixation was carried out of the fracture site. The nature of the injury, its treatment and sequelea will be dealt with later in this judgment.
8. The plaintiff was asked about access to the halting site generally. Referring to photograph 12 of Mr. Conlon’s photographs, the plaintiff stated that this showed the entrance to the caravan park. On the extreme right, there was a pedestrian entrance which led to the footpath on which the plaintiff was jogging at the time of the accident. In the centre of the photograph, there were closed gates. The plaintiff stated that these were kept closed and were only opened by arrangement with the caretaker employed by the defendant, or by arrangement with the Traveller Accommodation Unit, which was based in Tallaght. The gates would be opened to enable caravans to be brought onto the site and taken from the site. To the left of the gates was another open entrance on which there was a fairly steep ramp. This entrance was always open. It was to allow vehicular entrance to the compound. The ramp was designed to prevent the entrance being used for the purpose of bringing caravans onto or out of the site. The plaintiff stated that in relation to the pedestrian entrance to the right and the vehicular entrance with the ramp to the left, these were open all the time and permitted 24hr access to the site.
9. The plaintiff stated that on 17th September, 2011, he had been involved in a road traffic accident, when he was a passenger in a car which was hit from the rear. He had suffered soft tissue injuries to his neck and back as a result of that accident. He confirmed that he had consulted a solicitor in relation to that accident and a claim had been submitted on his behalf to P.I.A.B. The plaintiff stated that he did not inform his solicitor about his trip and fall on 18th September, 2011, nor of the injury to his hand, as he did not realise that he would not get better quickly from this injury and would not be able to go back to his sport of boxing.
10. In cross examination, it was put to the plaintiff that it was somewhat incredible that he would decide to go jogging on the day after he was involved in a road traffic accident. The plaintiff stated that he had had neck and back pain on the day of the road traffic accident. On the following day, he had gone out jogging in the hope that this would alleviate his symptoms.
11. The plaintiff was asked about his initial visits to the G.P. practice. He stated that he went to that practice on 19th September, 2011 in relation to his hand injury. He saw Dr. Lindy Barnes on that occasion. He returned to see his G.P. on 23rd September, 2011, in relation to his neck and back injuries arising out of the road traffic accident. He saw Dr. Murphy on that occasion. By that time, he had had the operation on his hand, which had been carried out on 20th September, 2011.
12. The plaintiff was asked as to when he first consulted his solicitor. He stated that he went to his solicitor on 19th October, 2011, in relation to the R.T.A. He said his hand was in a cast at that time. However, he did not tell the solicitor about the hand injury, or why his hand was in a cast. He stated that he could not offer any explanation as to why he did not tell his solicitor about the accident and the hand injury at that time.
13. It was put to the witness that there was a caretaker employed by the defendant on the site. It was put to the witness that the caretaker was on site for a number of hours each day, Monday to Friday. The plaintiff accepted there was a caretaker employed on the site and that he had seen him after the accident. He was asked as to why he did not report his accident and his hand injury to the caretaker. The plaintiff stated that he thought that the hand would heal quickly and that he would be able to return to the sport of boxing. It was only later, when he realised that he would have ongoing symptoms in his hand and that he would not be able to return to boxing, that he went to his solicitor and reported the matter to him.
14. It was put to the plaintiff that he had had a number of consultations with his solicitor in relation to the R.T.A. and if his hand was the more the serious injury, why had he not told his solicitor about this injury. The plaintiff accepted that his hand injury was causing him more difficulty than the other injuries. He accepted that he knew how to make a claim to P.I.A.B. and that he had accepted their assessment of compensation in relation to the injuries arising out of the R.T.A. He accepted that in the weeks and months following the accident, he knew that his hand was not healing, but he did not tell any representative of the defendant about the accident.
15. It was put to the plaintiff that he had returned to his G.P. in relation to the injuries sustained in the R.T.A., at a time when, according to him, the hand injury was not healing, yet he did not mention it to his doctor. The plaintiff accepted that he had not mentioned the ongoing complaints in relation to his hand, when he consulted the G.P. on various occasions in relation to the neck and back injuries.
16. It was put to the plaintiff that on 4th March, 2013, he had received the compensation from the defendant in the R.T.A. as assessed by P.I.A.B. and that on the following day, his solicitor wrote to the defendants concerning this accident, which was the first that the defendant was made aware of any such accident. The plaintiff accepted that he had only informed his solicitor of the accident and the hand injury, in early 2013. There had been some delay due to the plaintiff being unsure of the date of the trip and fall accident and for this reason, the initiating letter from the solicitor did not issue until 5th March, 2013.
17. It was put to the plaintiff that it was not credible that if he was badly injured in the R.T.A., that he would go jogging on the following day. The plaintiff stated that he had gone for a little jog even though his back was sore. It was put to the plaintiff that it was not credible that if the accident had happened in the manner alleged by him, he had never reported it to the defendant’s caretaker on site. The plaintiff stated that he was very clear that he had fallen in the pothole. He did not know why he had not reported it to the caretaker, or made complaint to him. He was asked as to whether there was any logical reason why he did not report the matter to the caretaker. The plaintiff stated that he could not think of a logical reason for not reporting it to him, or to the Traveller Accommodation Unit in Tallaght. He accepted that his mother had a telephone in her caravan, yet they did not report the matter to the defendant.
18. It was put to the plaintiff that, where he had had surgery and his hand was in plaster and where pins and screws had been inserted in his hand, and four weeks later he had gone to his solicitor in relation to another claim, that he did not take the opportunity to tell his solicitor about the trip and fall accident, which had caused the hand injury. The plaintiff stated that he had gone to his solicitor in relation to the road traffic accident, for the purpose of making a claim. He stated that he did not mention the injury to his solicitor, because he thought that the hand would make a full recovery and he would be able to return to boxing. He accepted that his hand was the most painful of the injured areas, but he did not tell his solicitor about it at that time. He waited to see if he would get back to boxing.
19. The plaintiff was asked how long he had lived at the halting site. He stated that he had lived there with his parents since the site opened in 1998. He confirmed that the footpath shown in Mr. Conlon’s photographs was the only footpath in the site. He accepted that he had used it on an almost daily basis. However, he stated that he had never noticed the defect in the footpath as shown in the engineer’s photographs. It was put to him that, if he had been taking proper care and attention while jogging on the footpath, he would have seen the hole and could easily have gone around it, or jumped over it. The plaintiff stated that when he was jogging, he had kept a lookout of the general area in front of him. However, he was not looking directly down at the ground and for that reason did not see the hole as he approached it. He stated that if he had seen the hole, he would not have stepped into it, he would have run around it. He denied that he was not keeping a proper lookout at the time. He stated that he was looking generally ahead of him and not down at the ground immediately in front of his feet.
20. The plaintiff stated that his right leg went into the hole and he went down and landed with his right hand turned inwards. It was put to him that the defendant’s medical expert, Mr. McManus, would say that normally where people trip and fall forward, they land on their outstretched hands with their palms facing outwards towards the surface of the road. The plaintiff stated that he had fallen with his hands turned in and slightly in a fist and for that reason, he had broken his knuckle. It was put to him that Mr. McManus would say that this was a classical boxing injury. The plaintiff did not agree with this. He stated that in boxing, the hands are taped and gloves are worn, so it is not usual to get a fracture of the knuckle.
21. Evidence was given on behalf of the plaintiff by Mr. Alan Conlon, Consulting Engineer. He confirmed that he had inspected the locus and taken the photographs on 8th April, 2013. He had not needed to obtain any permission from anyone to inspect the locus. He merely drove in through the entrance, parked his car, met with the plaintiff and took the relevant measurements and photographs.
22. Mr. Conlon stated that the footpath was approximately 1.2m wide. The hole was approximately 400mm (16 inches) wide and at its centre it was 63mm (2.5 inches) deep.
23. Mr. Conlon stated that the damage to the footpath appeared to be made up of a hole and scoring which ran across the entire width of the footpath. He stated that the most likely cause of this damage, was either by vehicles bringing caravans onto this area of the halting site or alternatively, it was caused by the bucket of a JCB when bringing boulders onto the site as shown in the photographs, or the damage could have been caused by the boulders themselves when being placed in situ.
24. Mr. Conlon stated that a hole of the dimensions and depth of this hole, constituted a hazard on the footpath. While the damage to the footpath was clearly visible from some distance away, the exact depth of the hole and therefore the danger it posed, was obscured by the grass in the centre of the hole itself. This was clearly evident from photographs 2 and 3. Given the extent of grass growth at the locus, he thought that the hole had been there for quite a while.
25. In cross examination, Mr. Conlon accepted that a person standing in the position of the cameraman in photograph 1 which was approximately 12m from the hole, would be able to see the damaged area of the footpath. However, such a person would not be aware of the danger posed by the damage, due to the fact that the grass obscured the depth of the depression. He stated that he had had to use a ruler and a spirit level in order to demonstrate the exact depth of the hole. He accepted that if a person using the footpath saw the damaged area, they could elect to run around it, or step over it. He accepted that the damage was clearly visible in photograph 2, but the depth of the depression was obscured by the grass. Thus, the depth of the hole would not have been apparent to a jogger.
26. Mr. Conlon accepted that as the plaintiff had lived at the locus for a considerable number of years, he would have been familiar with the area. However, because this was an isolated area of damage to the footpath, a person using the footpath may not have been aware of the damage until the accident happened. He accepted that when jogging, a person must keep a proper lookout of the path in front of them.
The Evidence on Causation and Quantum
27. The plaintiff was asked about his involvement in boxing. He stated that he had been boxing since the age of 8 as a member in Drimnagh Boxing Club. He had taken part in the Dublin leagues. He had a boxing card. He stated that he had not been able to get back to boxing, as a result of the injury to his right hand.
28. The plaintiff stated that he had never tried to get back to boxing after the accident. He was afraid to try it. He stated that he had not done any jogging since the accident. He had not really done any other sporting activity since then.
29. The plaintiff was asked as to whether he had fallen into any other potholes. Initially he stated that he had not, but then corrected himself to say that in September 2013, he had fallen into another pothole, where he suffered bruising to his leg. It was put to him that the hospital notes from that admission stated “walked into a pothole”. The plaintiff accepted that that was correct. He accepted that he had had two falls in two potholes. This accident and the second one which caused bruising to his leg.
30. The plaintiff was asked whether he had had any physiotherapy treatment. He stated that he had had a few sessions of physiotherapy initially after the operation after his hand had been taken out of the cast. He stated that he had had difficulty closing his fingers for approximately a year after the accident. He was shown a number of exercises to improve hand and finger mobility.
31. The plaintiff stated that after the operation, his hand had been immobilised in a cast, which he had worn for a couple of months. His hand was very sore and painful. He had not been able to go to the gym, or to do any boxing. He never returned to the boxing. He stated that he missed the boxing and had become somewhat unfit. He did not have any actual hobbies. He stated that he had been doing a FAS course in woodwork and allied trades, in Bownogue Community Centre. He was not able to do that after the accident and he did not finish the course.
32. In relation to his present condition, the plaintiff stated that his hand was coming on “OK”. He would get pain in the hand now and then. It tended to be painful in cold weather.
33. Evidence was given on behalf of the plaintiff by Dr. Lindy Barnes, who was one of the doctors in his G.P. practice. She confirmed that she had seen the plaintiff on 19th September, 2011, when he had told her that he had fallen while out jogging the day before and injured his right hand. Examination revealed swelling and tenderness of the third metacarpal bone in the right hand. She sent the plaintiff to hospital for x-rays, which were done on the same day. He was admitted to hospital for operative treatment on the following day.
34. In cross examination, she stated that she may have seen the plaintiff at the practice before 19th September, 2011, but she had not seen him after that as far as she was aware. She stated that she accepted what she had been told by the plaintiff about the accident. He did not tell her about the R.T.A. on 17th September, 2011.
35. Evidence was also given on behalf of the plaintiff by Dr. John Murphy. He stated that he was the plaintiff’s G.P.. The plaintiff and his family had been patients of his, since he joined the practice in 2000. Dr. Murphy confirmed that the plaintiff had initially seen Dr. Barnes at the practice on 19th September, 2011. According to his records, he first saw the plaintiff on 15th June, 2012, approximately nine months post injury. At that time, the plaintiff complained of stiffness at the site of the fractured metacarpal on the right hand. He had a pin inserted in that area. There was decreased grip power in the right hand due to stiffness. The wound was healing well. He referred the plaintiff for physiotherapy treatment, as he had only had a short course of physiotherapy treatment in hospital after the operation. He also prescribed pain relieving medication.
36. The plaintiff was reviewed on 21st February, 2013, when he complained of ongoing episodes of pain and parasthesiae overlying the fracture site, particularly noticeable when the hand was cold. As a result of these symptoms, the plaintiff had been unable to return to his hobbies of boxing, or lifting weights at the gym. Examination revealed a scar consistent with a well healed wound overlying the right third metacarpopalangeal joint. There was prominence of this joint, due to the internal fixation which remained in situ. There was a satisfactory range of movement of the right third finger. Grip power of the right hand was satisfactory. There was no evidence of neurological deficit. The doctor noted that he remained moderately impaired in relation to reaching, manual dexterity and lifting/carrying. He expected that a full resolution of symptoms without any sequelea should occur within a period of six months. An x-ray was being arranged to confirm the situation. Treatment with anti-inflammatory analgesics or simple analgesics may be required intermittently for pain, whilst resolution of symptoms was occurring. He expected a full recovery to be made within approximately six months, depending on a satisfactory x-ray result.
37. The plaintiff re-attended at the surgery on 1st August, 2013, complaining of persistent pain in the right hand at the site of the fracture. An anti-inflammatory analgesic medication, Ibuprofen, was prescribed. The plaintiff re-attended on 16th October, 2015, complaining of ongoing right hand pain at the fracture site. He had decided to avoid taking analgesic medication if at all possible and only did so, when he was experiencing severely troubling symptoms. He was given a further prescription for Ibuprofen, to be taken as required.
38. The plaintiff was most recently reviewed by Dr. Murphy on 25th August, 2016. He reported that he had experienced severe pain at the fracture site at a level 8/10 in severity for the first three years following the injury. Subsequently, he had been experiencing almost constant pain at the site, which was at a level of 7/10 in severity for most of the time. The pain was noted to be more severe in cold weather. As a result of the symptoms, the plaintiff stated that he had been unable to return to boxing and was unable to lift or carry heavy weights and as a result, he had been unable to attend the gym since the accident, which was a pursuit which he had previously enjoyed. Dr. Murphy noted that he was right hand dominant. In view of the chronic nature of the pain, the plaintiff had not been keen to take analgesic medication, apart from when the symptoms were particularly distressing for him.
39. On examination on 25th August, 2016, there was a well healed scar over the third metacarpophalangeal (hereinafter, MCP) joint. There was tenderness to palpation at the scar, which was at the site of the fracture to the joint. Neurological examination was normal. There was no evidence of swelling of the third MCP joint. Flexion of the joint was slightly reduced to 90% of normal range, with extension of the joint also being reduced to 90% of normal range.
40. Dr. Murphy was of opinion that the plaintiff continued to experience moderately severe pain at a severity level of 7/10 on most days since the fracture had occurred almost five and a half years previously. This had interfered with his general lifestyle and had restricted his ability to lift and carry heavy objects. He noted the conclusion reached by Mr. O’Shea in September 2014, that it was unlikely that any further resolution of these symptoms would occur. That remained the situation as of August 2016.
41. Dr. Murphy stated that in the R.T.A., the plaintiff suffered a moderate soft tissue injury to his neck and back. In relation to the issue of the plaintiff going jogging on the day after the accident, he stated that after a car accident, some people would rest for a number of days to see if their injuries would settle, however, other people and in particular those who were involved in sports, may elect to try to “run it off”. They might go for a gentle jog in an effort to see whether the pain and stiffness in their neck and back would go away. He did not think that it was that unusual that the plaintiff should go jogging on the day after he was involved in the car accident.
42. He stated that given that the plaintiff had a plate and screw in situ, he would not recommend that the plaintiff return to boxing. However, he said that that was really a question for an expert.
43. A medical report from Mr. Kieran O’Shea, Consultant Orthopaedic Surgeon, dated 8th September, 2014, was admitted in evidence. Although the dates in this report appear to be incorrect, it appears that the operation carried out to the plaintiff’s finger consisted of plate and screw fixation of the metacarpal head fracture. Pre-operative x-rays had revealed a very comminuted fracture of the metacarpal head. A CT scan confirmed the extent of comminution and disruption of the joint surface at the metacarpal side of the MCP joint. A subsequent x-ray carried out on 23rd December, 2011, confirmed plate and screw osteosynthesis of the metacarpal head fracture, with satisfactory alignment of the fracture.
44. X-rays taken on 22nd September, 2014, demonstrated complete healing of the fracture. There was some alteration in the contour (flattening) of the metacarpal head, but no evidence of degenerative changes or secondary arthritis within the joint.
45. When examined on 8th September, 2014, the plaintiff complained of ongoing pain and swelling in the right middle finger. He was sensitive to cold weather and occasionally developed pins and needles in the hand. He attended his G.P. for analgesic prescriptions. He had previously enjoyed boxing, but he felt that he could not train any more. In particular, he could not hit a bag and he was afraid to use the right hand for weight training exercises. Clinical examination revealed a well healed scar measuring approximately 5cm over the knuckle of the middle finger. There was normal alignment of the digits. There was no neurological deficit. In terms of range of motion, there was flexion from 10 – 80 degrees at the middle finger MCP joint, compared with 0-90% in the normal contralateral side. There was near full composite digital flexion, there was no particular pain or tenderness to palpation. Mr. O’Shea did not anticipate that any further treatment would be required.
46. Mr. O’Shea noted that the plaintiff suffered a comminuted fracture of the right middle finger metacarpal head. Treatment consisted of plate and screw fixation of the fracture. Following from this injury, he had rehabilitated well. There was a modest loss of mobility at the joint where the fracture occurred. X-ray evaluation confirmed satisfactory healing and alignment with no evidence of secondary degenerative changes. In spite of this, the plaintiff reported significant symptoms and functional issues with his right hand as a result of the fracture. Due to the fact that the fracture involved the joint, there was a risk that he may go on to develop post traumatic arthritis, but he put this risk as low, given the fact that no changes were evident on the most recent x-rays and that three years had elapsed since the injury and surgical treatment. In terms of a prognosis, he was of the view that as the symptoms reported by the plaintiff, had not improved during the three years since the accident, it was unlikely that any further resolution of these symptoms would occur.
47. Evidence was given on behalf of the defendant by Mr. Frank McManus, Consultant Orthopaedic Surgeon. He first saw the plaintiff on 28th January, 2014. The plaintiff gave him a history of the accident and told him that he had not returned to boxing, as his hand was not one hundred percent recovered. Examination revealed that the plaintiff had a scar at the fracture site, otherwise his hand was relatively normal. The knuckle on the third finger was a little smaller than the adjoining knuckle. Mr. McManus said that the plaintiff had no disability when he saw him. He went on to state that when people suffer falls, usually the hand is outstretched in front of them, so they get a dorsi-flexion injury. Most commonly, this results in a Colles fracture to the wrist. If the hand is turned inwards, it causes what is known as a reverse Colles fracture. The plaintiff’s injury was unusual for a fall, but was a classic injury in boxing. The plaintiff injured the knuckle which is most prominent and to the fore in a boxing action.
48. Mr. McManus stated that it was difficult to explain how the plaintiff met his injuries from a fall. A split condyle, was caused by impact to the middle of the joint. This would be similar to having a chisel held directly over the joint and a hammer knocking down on the chisel, so that the knuckle itself would split. He could not recall ever seeing such an injury after a fall. If one had this injury to the third metacarpal, the cause would be either by hitting something in front of the person, or falling directly onto it.
49. In cross examination, Mr. McManus conceded that it was possible that the plaintiff could have got this injury in a fall. It was put to the witness that when the plaintiff had described his fall in his evidence, he had shown the hand turned inwards and the fingers somewhat closed over, but not in a fully closed fist. Mr. McManus stated that if the accident happened in that manner, the fracture to the knuckle could have happened, but the blow to the knuckle would have to be hit spot on, like a hammer and chisel to the knuckle. Counsel put it to the witness that if the plaintiff was boxing, with the hand bandaged and wearing boxing gloves, it would be unlikely that he would break his knuckle. Mr. McManus conceded that in those circumstances the plaintiff would be unlikely to suffer the injury that he did. Such an injury would be possible if there was a bare fist, as in bare knuckle boxing, but would be unlikely in ordinary boxing, where bandages and gloves were worn.
Legal Submissions
50. The defendant submitted that there were a number of features in the case which were quite simply incredible. Firstly, it was incredible that the plaintiff would go for a jog on the day after he had been involved in a car accident. Secondly, if the plaintiff had met with this accident in the manner alleged by him, it was incredible that he did not mention the accident or the injuries suffered by him, in the weeks and months following the accident, when he had been consulting with his solicitor in relation to his compensation claim arising out of the car accident. Thirdly, it was submitted that if the plaintiff had, in fact, tripped on the footpath, due to a hole in the surface of the path, it was hard to believe that he would not have made some complaint either to the caretaker, who was on site for a number of hours each day between Monday and Friday, or to the Traveller Accommodation Unit in Tallaght. Fourthly, there was no credible explanation furnished by the plaintiff as to why it was, that he delayed in bringing the accident to the attention of his solicitor until the early part of 2013. It was submitted that the plaintiff’s explanation in relation to his delay in this regard, was not credible.
51. The defendant’s second submission was that the locus of the accident, was a public highway. The uncontested evidence was that there was free access to the halting site for both pedestrians and vehicular traffic at any time during the day or night, throughout the week. Any member of the public, and not just those residing at the halting site, had a right of access to the locus whenever they wished. In these circumstances, it was submitted that the defendant was entitled to rely on the defence of non-feasance in relation to the condition of the footpath.
52. It was submitted in the alternative, that the plaintiff was a recreational user within the meaning of the Occupiers Liability Act 1995, due to the fact that he was jogging at the time that he met with his accident. In these circumstances, it was submitted that the duty owed to the plaintiff in respect of a danger on the premises, was a duty on the defendant not to act with “reckless disregard for the safety of the plaintiff”. It was submitted that there was no evidence before the court that the defendant had acted with reckless disregard for the plaintiff’s safety.
53. In support of this submission, counsel for the defendant referred to the decision of Barton J. in Fitzgerald v. South Dublin County Council [2015] 1 I.R. 150. In that case, the plaintiff lived on a council housing estate. On the day of the accident, he and some friends had gone to a green area within the housing estate, which was adjacent to his home. The boys set up a temporary football pitch by placing jackets and other items of clothing on the ground to act as goals. While the plaintiff was crossing the common area to retrieve a football, he slipped and fell to the ground, causing injury to his upper back, when it came into contact with a broken bottle which was lying in the grass. Barton J. held that in the circumstances of that case, the plaintiff was a recreational user within the meaning of the 1995 Act. He stated as follows at para. 54 of his judgment:-
“The plaintiff was involved in a ‘kick-about’ with some of friends. They had erected a temporary goal by using some clothes. What else was this if it wasn’t a recreational activity within the meaning of the Act? The plaintiff was a recreational user of the open green space and as such the defendant’s duty towards him was that as set out in s.4 of the Act.”
54. Mr. O’Scannaill, S.C., on behalf of the defendant submitted that the factors to which the court can have regard when determining whether a defendant acted with reckless disregard towards a plaintiff, were set out in s. 4(2) of the Act. He further submitted that the correct interpretation of what might constitute “reckless disregard”, meant conduct which was greater than “gross negligence”. He referred to the dicta of Barton J. at para. 29 of his judgment:-
“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’.”
55. Finally, counsel submitted that the hole or depression in the footpath was clearly visible in Mr. Conlon’s photographs. Photograph 1 showed the view of the locus from a distance of 12m. The subsequent photographs showed the view as one moved closer to the locus. Counsel submitted that the plaintiff had lived in the halting site for a large portion of his life. In these circumstances, he must have known of the presence of the hole or depression and he should definitely have seen it, if he was keeping a proper lookout. Had he done so, he could easily have gone around it, or jumped over it. Accordingly, it was submitted that the plaintiff must be found guilty of a considerable element of contributory negligence.
56. In response, Mr. Brennan, S.C., on behalf of the plaintiff stated that in regard to the assertion that it was incredible that the plaintiff would elect to go jogging on the day after being involved in an R.T.A., the evidence of the plaintiff’s G.P., was that some people will try to “run it off”, and in such circumstances, the plaintiff’s actions could not be seen as being unusual or incredible. In relation to the other areas where the defendant had suggested that the plaintiff’s behaviour was incredible having regard to the case made by the defendant, counsel submitted that although the defendant had not done so explicitly, it was clear from the tenor and content of the questions put to the plaintiff, that they wished the court to draw the inference that the plaintiff’s injuries had been sustained when he was boxing and that he was telling lies about this accident in an effort to blame the defendant for those injuries to wrongfully obtain compensation for them. Counsel stated that if the plaintiff had suffered his injury while boxing and he wished to obtain compensation in respect of that injury, he was in the almost unique position, in that he had an ideal opportunity to obtain compensation, due to the fact that he had been involved in a road traffic accident on 17th September, 2011, where liability was not in issue. Counsel suggested that it would have been far easier for the plaintiff to make the case that he got his hand injury in that accident, rather than dreaming up the trip and fall accident.
57. The plaintiff’s counsel accepted that there had been delay on the part of the plaintiff in pursuing the matter. Counsel suggested that that may have been because the defendant was effectively the landlord of the site and was landlord to the plaintiff’s parents. In these circumstances, it was understandable that he would have been reluctant to bring a claim against them. It was suggested that this was a logical explanation for the delay on the part of the plaintiff in pursuing the matter.
58. It was submitted that the locus was not a public highway. It was a footpath within an enclosed site, which was in the ownership of the defendant. The road leading from the entrance to the halting site, only serviced the caravans on the site. While members of the public did have an unrestricted access to the halting site, that did not convert the road into a public highway. Section 10(5)(a) of the Roads Act 1993, provides that a road authority shall keep a schedule and map of all public roads in respect of which it has responsibility. Counsel submitted that if the defendants wished to put forward the case that this was a public road in respect of which it had responsibility, they should have produced a copy of the statutory map or schedule showing the particular road and footpath marked thereon. They had not produced this evidence. Counsel pointed out that in a letter dated 10th November, 2014, the defendant confirmed that in relation to Oldcastlepark estate, residential caravan park, the roads, footpaths, sewers, water mains and public lighting abutting the above premises were in charge of the County Council Housing Department. When the defendant’s solicitor was asked to clarify the meaning of that letter, they replied by letter dated 4th June, 2015, stating that the basis for the letter of 10th November, 2014, was that responsibility for the maintenance of the entire of the Oldcastle Park residential caravan park lay with the housing department of South Dublin County Council. Counsel submitted that in light of these admissions, the defendant itself had accepted that the locus was under the charge of the Housing Department rather than the Road’s Department.
59. Counsel further submitted that even if it was held to be a public road, the defence of non-feasance was not available to the defendant, as the damage was not caused by ordinary wear and tear, but was a “scoring” across the path, which was probably caused by a caravan being pulled onto the path, or more likely by the bucket of a JCB, or by one of the boulders.
60. Counsel also made reference to the decision in Smeltzer v. Fingal County Council [1998] 1 IR 279, where Costello P. stated that the law relating to highways and the creation of public rights of way was a very ancient one. The relevant principles were well established. A distinction is made between a permission granted by an owner of land to members of the public to walk on pathways on his land, and the dedication to the public of those pathways. To establish a public right of way, what has to be proved is an intent on the part of the owner to dedicate his land to the public, an actual dedication and acceptance by the public of the dedication. It was submitted that none of these things had happened in relation to the locus of the accident.
61. In relation to the issue as to whether the plaintiff was a “recreational user” of the property within the meaning of the Occupiers Liability Act 1995, it was submitted that as the plaintiff lived at the caravan park, he was a “visitor” within the meaning of the 1995 Act. The fact that he was jogging up the footpath, instead of walking on it, did not convert him from a visitor into a recreational user. The defendant as the owner and occupier of the premises, owed him the common duty of care as defined in s. 3 of the 1995 Act. It was submitted that the defendant had breached that duty of care by failing to repair the damage to the footpath, which was reasonably longstanding, due to the growth of grass within the hole itself.
62. Finally, in relation to the allegation of contributory negligence, the plaintiff relied on the evidence of Mr. Conlon, that while the dimensions of the depression were visible, the depth of the depression of 2.5 inches, was not readily apparent due to the growth of grass in the depression. Thus, as the plaintiff was jogging up the path, he may have been aware of some scoring across the width of the path, but he would not have been aware of the depth of the depression. In these circumstances, it was submitted that he was not guilty of contributory negligence when his foot went into the hole.
Conclusions
63. The first question is whether the accident happened in the way described by the plaintiff. The defendant argued that this type of injury was typical of a boxing injury. Mr. McManus described it as a classical boxing injury, where there is the application of considerable force to the knuckle of the third digit, which causes the knuckle to split in two. He said that it was similar to someone holding a chisel against the knuckle and hammering on it. He stated that this injury was atypical for a trip and fall accident. Usually in such circumstances, a person will fall forward on their outstretched arms and hands, which will normally lead to a Colles fracture of the wrist. However, in cross examination, Mr. McManus conceded that one could get this injury in a fall to the ground. He also accepted that if a person was wearing bandages and boxing gloves when participating in boxing, they would be unlikely to suffer a comminuted fracture of the knuckle, as suffered by the plaintiff.
64. The defendant also pointed to the extraordinary delay in the plaintiff informing his solicitor or the defendant, of this accident. They maintained that it was significant that the initial letter from the plaintiff’s solicitor dated 5th March, 2013, had been written the day after the plaintiff had received a cheque from the defendant’s insurers in respect of the traffic accident, pursuant to acceptance of the P.I.A.B. offer. The defendant submitted that it was incredible that the plaintiff had attended with his solicitor on a number of occasions in relation to pursuing his claim for compensation arising out of the car accident, but did not mention his hand injury until 2013.
65. In considering this issue, the starting point must be that we know de facto that the plaintiff had a comminuted fracture of the knuckle on the third digit on his right hand on 19th September, 2011. This required operative treatment, which was carried out on 20th September, 2011. The defendant makes the case that it was incredible that the plaintiff would go jogging on the day after he had been in a road traffic accident in which he suffered soft tissue injuries to his neck and back. I accept the evidence of Dr. Murphy that some people, in particular those who are engaged in sport, would tend to try to “run off” a soft tissue injury, which may not have been that acute on the day after the accident. While some people would rest after an accident, others may try to “run it off”. I accept this as a credible explanation for the plaintiff going jogging on the day following the car accident.
66. While the defendant did not directly put it to the plaintiff that this was a fraudulent claim, it was obvious from the content and tenor of the questions put to the plaintiff, that the court was being invited to draw that conclusion. The defendant submitted that the plaintiff probably suffered the fracture in the course of boxing, but decided to fraudulently claim that his injury had occurred due to a trip and fall on the path in the caravan park on 18th September, 2011.
67. I do not think that this allegation is established on the evidence before the court. I think the submission made by Mr. Brennan S.C. on behalf of the plaintiff, which was to the effect that, if this plaintiff had in fact injured his hand while boxing and wanted to wrongly claim compensation for such injury, this plaintiff had an ideal opportunity to do so, by stating that he had suffered the injury in the course of the car accident on 17th September, 2011. Liability was not in issue in respect of that accident, so it would have been relatively easy for the plaintiff to ascribe the hand injury to that accident, particularly as there was no dispute but that the plaintiff did have a fracture of his knuckle when he attended hospital on 19th September, 2011.
68. The defendant also stated that the delay in the plaintiff mentioning this accident to his solicitor and failing to make any complaint to the caretaker, or to the Traveller Accommodation Unit in Tallaght, was highly suspicious. While the delay is certainly unusual, I am of opinion that it actually supports the proposition that this accident did in fact happen in the way alleged by the plaintiff. Usually, if a party wants to put forward a fraudulent claim, they do two things; firstly, they obtain the assistance of one or more “witnesses”, who will support their version of the accident. Secondly, they usually make sure to make complaint soon after the accident to the proposed defendant and to their solicitor. In other words, they take care to tee up their claim properly. They do not wait over a year to mention their fraudulent case to any one. I am satisfied that the plaintiff’s conduct after the accident, is not indicative of this being a fraudulent claim.
69. In the course of his submissions, Mr. Brennan put forward an argument that the delay in notifying the defendant and bringing the claim, could be explained by the fact that the plaintiff was a young man of eighteen and a half years, who lived with his parents at the caravan park, which was owned and run by the defendant. The defendant was effectively the landlord to his parents. He also wished to obtain a caravan in the same park in the future. It was submitted that in such circumstances, he was not likely to want to rush and bring a claim against the defendant.
70. That may well be an attractive and logical explanation for the delay on the part of the plaintiff, but unfortunately no evidence was given that this was in fact the reason for his delay. The plaintiff stated clearly that he did nothing about his injury, as he thought that it would go on to heal fully and that he would not have any lasting problems with his hand and in particular, that he would be able to return to boxing. It was only when it became clear that he would have ongoing symptoms and he would not be able to return to boxing, that he decided to bring a claim for compensation in respect of this injury. I am satisfied that, while it was certainly unusual for a plaintiff to wait approximately eighteen months to bring the accident to the attention of his solicitor and the defendant, the plaintiff has given a credible explanation for this delay. The court also notes that the plaintiff’s account is supported by the evidence of Dr. Barnes, who testified that the plaintiff had told her on 19th September, 2011 that he had fallen and hurt his hand when out jogging the previous evening. Thus, while he delayed in bringing the matter to the attention of the defendant, or his solicitor, he has been consistent in his account of the accident, since the day after the accident. Taking all of these matters into account, I am satisfied that this is not a fraudulent claim and that the accident happened in the manner described by the plaintiff. Having accepted the plaintiff’s explanation for the delay in notifying the defendant, I am satisfied that there has been sufficient explanation for non-compliance with s. 8 of the Civil Liability and Courts Act 2004.
71. The second issue is whether the locus was a public highway. From Mr. Conlon’s photographs, in particular photographs 1, 2, 4, 5, 8 and 12, it is clear that the caravan park is an enclosed space, which appears to be bounded by walls. The road and footpath lead from the front entrance to the caravans. They do not lead anywhere else, either to shops, or to another housing estate, or anything like that.
72. I accept the submission made by counsel for the plaintiff, that this road is similar to an internal road leading to a block of corporation flats. I also accept the fact that if the road was a public road, which had been taken in charge by the defendant, then it should have been noted in a schedule or map maintained by the Road’s Authority pursuant to s. 10(5)(a) of the Roads Act 1993. The defendant did not lead any evidence that this road was entered in any such schedule or map.
73. I have also had regard to the correspondence from the defendant and its solicitors, which confirmed that the area was under the control of the defendant’s housing department. Taking all of these matters into account, I am satisfied that the road and footpath at the locus, were not a public highway. Counsel for the defendant referred to the decision in McGeown v. Northern Ireland Housing Executive [1995] 1 A.C. 233. In that case, the plaintiff had suffered injury while walking on a footpath in a public housing estate, over which the public had acquired a right of way. In the House of Lords, it was held that a person using a public right of way did so by right and could not be the visitor of the owner of the land over which the way passed for the purposes of the Occupier’s Liability Act (Northern Ireland) 1957, or the Occupier’s Liability Act 1957 of England and Wales; accordingly the landowner was not liable to the user of a public right of way for negligent non-feasance.
74. The House of Lords further held that although the plaintiff would have been a licensee of the housing authority in respect of the path on which she had fallen, before it had become a public right of way, that license had merged in the right of way subsequently established; and accordingly it made no difference that the path had formed part of a means of access for the plaintiff to and from the house of which her husband was tenant. I do not think that this case is of relevance to the circumstances of the present case as we are not dealing here with the creation of a public right of way. Furthermore, I am not sure that the courts in Ireland would reach the same decision, having regard to the provisions of the Occupier’s Liability Act 1995.
75. Even if I am wrong in holding that the road and footpath did not constitute a public highway, I am satisfied that the defence of non-feasance would not apply in this case. The damage to the footpath was not caused by normal wear and tear. I accept the evidence of Mr. Conlon that the scoring across the footpath was most likely caused by the servants or agents of the defendant when placing the boulders in situ. In particular, that the damage was caused by the bucket of a JCB or a boulder being dragged across the path. I note that the same conclusion as to the probable cause of the damage to the footpath, was reached by Mr. Rowan, the engineer retained on behalf of the defendant, whose report was admitted in evidence. I am satisfied that the creation of the hole and the scoring across the path constituted misfeasance by the defendants, its servants or agents, rather than being due to normal wear and tear.
76. The next issue is whether the plaintiff was a “recreational user” within the meaning of the Occupiers Liability Act 1995, at the time of the accident. Again, one must look at the uncontroverted facts. The caravan park was owned and controlled by the defendant. Accordingly, they were the occupiers of the site pursuant to the 1995 Act. The plaintiff’s parents had lived there since the park was opened in 1998. The plaintiff had lived with them at that location since that time. In these circumstances, I am satisfied that he was a “visitor” on the premises, within the meaning of the 1995 Act. This meant that the defendant owed him the common duty of care as defined in s. 3 of that Act.
77. The defendant has relied on the decision of Barton J. in Fitzgerald v. South Dublin County Council, as authority for the proposition that, as the plaintiff was jogging at the time of the accident, he was on the premises as a “recreational user”. It was submitted that in such circumstances, the defendant only owed him a duty in respect of any danger on the premises, not to act with reckless disregard for his safety. They further rely on the dictum of Barton J. in that judgment, to the effect that in choosing the terminology “reckless disregard”, the Oireachtas determined that the point at which an occupier was to have a liability should be greater than that which may be said to constitute gross negligence. The defendant submitted that on the evidence, it was not established that the defendant had acted with reckless disregard for the safety of the plaintiff.
78. Prior to the 1995 Act, the common law set out the duties which an occupier owed to various entrants onto his property. The extent of the duty varied according to the category of the entrant. The most onerous duty was owed to the invitee, who was seen as conferring some social or commercial benefit on the occupier. The next level was the duty owed to a licensee, who had permission to enter the land, but did not confer any particular benefit on the landowner. The lowest duty was owed to the trespasser, who entered the land without any permission at all, or did so contrary to the express wishes of the landowner.
79. This area of the law was changed by the provisions of the Occupier’s Liability Act 1995. The statutory code provides for different duties of care being owed by the occupier to different classes of entrant onto the property. A “visitor” is defined as (a) an entrant other than a recreational user, who is present on premises at the invitation or with the permission, of the occupier or any other entrant specified in para. (a), (b) or (c) of the definition of “recreational user”; (b) an entrant, other than a recreational user, who is present on premises by virtue of an express or implied term in a contract, and (c) an entrant as of right, while he or she is so present as the case may be for the purpose for which he or she is invited or permitted to be there, for the purpose of the performance of the contract or for the purpose of the exercise of the right, and includes any such entrant whose presence on the premises has become unlawful after entry thereon and who is taking reasonable steps to leave.
80. The occupier owes a duty of care known as “the common duty of care” to a visitor. The common duty of care means a duty to take such care as is reasonable in all the circumstances (having regard to the care which a visitor may reasonably be expected to take for his or her own safety, and if the visitor is on the premises in the company of another person, the extent of the supervision and control of the latter person may reasonably be expected to exercise over the visitor’s activities) to ensure that a visitor to the premises does not suffer injury or damage from any danger existing thereon.
81. The next category is the duty owed to “recreational users” and “trespassers”. A “recreational user” is defined in the Act as an entrant who, with or without the occupier’s permission, or at the occupier’s implied invitation is present on premises without a charge (other than a reasonable charge in respect of the cost of providing vehicle parking facilities) being imposed for the purpose of engaging in a recreational activity, including an entrant admitted without charge to a national monument pursuant to s. 16(1) of the National Monuments Act 1930, but not including an entrant who is so present and is – (a) an member of the occupier’s family who is ordinarily resident on the premises, (b) an entrant who is present at the express invitation of the occupier or such a member, or (c) an entrant who is present with the permission of the occupier or such a member for social reasons connected with the occupier or such a member.
82. A “recreational activity” is defined in the Act as meaning any recreational activity conducted, whether alone or with others, in the open air (including any sporting activity), scientific research and nature study so conducted, exploring caves and visiting sites and buildings of historical, architectural, artistic, archaeological or scientific importance.
83. The duty owed by an occupier to a recreational user is set out in s. 4 of the Act. It provides that in respect of a danger existing on premises, an occupier owes towards a recreational user of the premises or a trespasser thereon “the person” a duty – (a) not to injure the person or damage the property of the person intentionally and (b) not to act with reckless disregard for the person or the property of the person except insofar as the occupier extends the duty in accordance with section 5. The section goes on to set out a number of factors which can be looked at in determining whether or not an occupier has acted with reckless disregard towards the recreational user.
84. It follows from the defendant’s submission, that a person could have a changing status depending on the exact activity being carried out by them at any given time. If one applies this argument to this case, it would mean that the plaintiff would be classed as a “visitor”, when he walked along the footpath when going to and from school, or when getting a message from the shops, but would be classed as a “recreational user”, when he went for a jog around the roads and jogged down the path on his way out and up the path on his way back. If, having returned to his caravan, he got cleaned up and walked down the path to meet his friends, or to go to the shops, he would revert to being a visitor.
85. I do not think that the legislation intended that there should be changing duties of care owed to an entrant, depending on what activity he or she was doing at any one time. It would be absurd that if I invited a man to come to my house he would be a visitor while he walked up to the front door and entered the property, but would be a recreational user if he went into the back garden to kick a ball with my son, only to revert to being a visitor when he finished the game and came back into the house to have a drink or a meal.
86. I am satisfied that the logical interpretation of the statute, is that the classification of the entrant as either a “visitor”, or a “recreational user”, is determined by the circumstances in which they enter the property in the first place. If they are present as a visitor as defined in the Act, they do not loose such status, merely because they engage in some form of recreational activity while on the premises. Accordingly, I am satisfied that the plaintiff did not loose his status as a visitor, merely because he was jogging up the footpath on the evening that he met with his accident.
87. I do not think that this interpretation of the law, is at variance with the decision of Barton J. in Fitzgerald. In that case, the plaintiff and his friends had entered onto the green space near his home for the express purpose of playing football. The green space was separate and distinct from the land constituting his house and garden. So when he entered onto the green area, he was entering a different locus separate from his house and he did so for the sole purpose of playing football. In these circumstances, it was reasonable to hold that he entered onto the green space as a recreational user.
88. Turning to the nub of the case on liability, the essential question is, whether the defendant as occupier, breached the common duty of care which it owed to the plaintiff on the day in question. I am satisfied that the depression and scoring on the surface of the footpath, constituted a danger to people using it. I am satisfied that on the balance of probabilities, this state of affairs had been caused by the servants or agents of the defendant, when placing the boulders in situ. Even if the damage was caused by some third party, it is clear from the growth of the grass in the depression, that it had been done a significant time prior to the plaintiff’s accident. The defendant, as occupier, should have taken steps to repair the damaged footpath. In the circumstances, the defendant must bear responsibility for the dangerous state of the locus on the day of the accident. In failing to repair the footpath, the defendant breached the common duty of care which it owed to the plaintiff.
89. In relation to the allegation of contributory negligence, I accept the evidence of Mr. Conlon that, while the existence of the depression and scoring was visible from a distance of approximately 12m, given the growth of grass in the depression, the depth of the depression was not readily apparent to someone using the footpath.
90. I also accept the plaintiff’s evidence that he was not looking directly at the ground while jogging. That is reasonable. A jogger will have a general view of the ground in front of him, when he is some distance away, but because his eyes are around 2m above ground level, he is not likely to see dangers on the surface of the path where he is actually running, unless he makes a conscious effort to look down at the ground immediately in front of him. As this hole and scoring were not readily apparent from far back, it was reasonable that he was not looking at his feet when traversing this area of the path. In the circumstances, I decline to make any finding of contributory negligence against the plaintiff.
91. In relation to the issue of general damages, the plaintiff suffered a nasty fracture to the knuckle on the third finger of his right hand. This required surgical treatment in the form of open reduction and internal fixation, which was carried out two days after the accident. The plaintiff’s wrist and hand was initially immobilised in a cast. He had some physiotherapy treatment in hospital and there is a suggestion that he had further physiotherapy after that. He stated that his hand was in a rigid position for approximately a year after the accident and that it took some time for him to gradually regain movement in all his fingers.
92. When examined by Mr. Kieran O’Shea, Consultant Orthopaedic Surgeon, in September 2014, the plaintiff complained of ongoing pain and swelling in the right middle finger. He experienced this pain from time to time and particularly in cold weather. He also complained of occasional pins and needles in the hand. Mr. O’Shea noted that there was a modest loss of mobility at the joint where the fracture occurred. However, he noted that the plaintiff had significant symptoms and functional issues with his right hand as a result of the fracture. As the symptoms had not improved during the three years since the accident, Mr. O’Shea was of opinion that it was unlikely that there would be any further resolution of these symptoms. Thus, it would appear that, while the symptoms were not terribly severe or grossly disabling, they would nevertheless be with the plaintiff into the longer term. This is significant having regard to the fact that he is only 23 years of age at present.
93. Part of the plaintiff’s case is that he has not been able to return to his sporting activity of boxing. This was a sport which he had been playing since the age of eight years. However, the plaintiff conceded that he had never in fact tried to get back to boxing after the accident. It seems to me that while loss of a sporting pursuit can be a serious loss of amenity for some plaintiffs, it is not appropriate in this case to award substantial damages in this regard. This is due to the fact that I am not satisfied that the plaintiff has made any reasonable attempt to get back to his sporting pursuit. One would have expected that he might have gone back to the club and tried boxing against a punch bag for a short period of time and perhaps built this up over a period of weeks. Thereafter, he may have tried to do some gentle sparing for a short period and again built this up over time. If things had progressed reasonably well, he may then have tried to get back to full boxing. However, as the plaintiff did none of these things, I do not propose to take this into account as a substantial element in the assessment of damages.
94. The plaintiff also stated in evidence that he had been doing a FAS woodwork course at the time of the accident. He stated that given his injury and in particular the limitation of movement of the fingers in the right hand, he was unable to proceed with the course. He did not give any evidence of having tried to reapply to take the course again at a later date. In fairness, he did not make much of this issue and I do not propose to make any substantial award on account of the interruption in his training with FAS.
95. I have had regard to the fact that, while the plaintiff has complained of ongoing symptoms, he does not appear to have found it necessary to attend with his GP on a frequent basis since the accident. Finally, I have had regard to the scar, which I viewed during the course of the hearing and which would appear to be permanent. It is a relatively small scar covering the knuckle on the third digit of the right hand. While it is visible, it is not particularly disfiguring. Taking all of these matters into account, I award the plaintiff the sum of €35,000 as general damages for pain and suffering to date. In measuring an amount for future general damages, I have had regard to the opinion given by Mr. O’Shea that the complaints which he had in September 2014, were likely to continue indefinitely. Given the plaintiff’s young age, and in the absence of any specific evidence that his lifespan is necessarily shortened by virtue of his membership of his particular ethnic minority, it would appear that he will have these symptoms for the next 55/60 years. In these circumstances, I award the plaintiff the sum of €20,000 in respect of future pain and suffering. There are no items of special damage.
96. There is one further matter for consideration. Having regard to the decisions in Conway v. Irish National Teachers Organisation [1991] 2 I.R. 305, Phillip v. Ryan [2004] 4 IR 241 and Lackey v. Kavanagh [2013] IEHC 341, it is clear that this Court can have regard to the nature of the defence run by a defendant when considering whether it is appropriate to make an award of aggravated damages. In this case, the defendant put forward the defence that the plaintiff had probably suffered his injuries while boxing, but had fraudulently tried to blame the defendant for these injuries. In essence, they accused him of putting forward a fraudulent claim. The court has found that the plaintiff did injure himself in the manner alleged by him. The court has found that he has not made a fraudulent claim in this case. He is entitled to be compensated for the upset caused to him by virtue of the nature of the unsuccessful defence put forward by the defendant. I award the plaintiff €5,000 as aggravated damages. This gives an overall award in favour of the plaintiff of €60,000.
Ward v Commissioners of Public Works
[2017] IEHC 336
Ex tempore JUDGMENT of Mr. Justice Hanna delivered in Sligo on the 10th day of May, 2017.
1. The Plaintiff in this case, who was aged seven years at the time of the accident the subject matter of these proceedings, resided with his family at the time of the accident at 9 Ardnacassa Avenue, Ballinalee Road in Longford, in the County of Longford.
2. This dwelling house is beside what has been referred to as “government buildings”. These are relatively modern buildings and contain a number of government services. The offices to be found there include the driving test centre, offices of the Department of Social Protection, and, I understand, some offices relevant to the Department of Agriculture. The premises were opened in or around the year 1993.
3. The premises generally have been described and photographed by Mr. O’Brien, a consulting engineer, and, as well as buildings, contain, inter alia, a large grassy area which adjoins a service road. The premises are bound in by a boundary wall which appears to be something in the region of three to four feet in height and this constitutes a clear, marked-off boundary. That is not to say that it could not be scaled or accessed by anyone, including children, wishing to enter the premises. But it is a clear boundary. Otherwise, the property is gated and those gates are locked outside office hours.
4. Security is provided during the course of the day, which will begin at around 8 o’clock, with the gates being opened at around ten minutes to eight, and throughout the day thereafter by an appropriate services officer, who then closes the premises at close of business at around 7 or 8 o’clock at night. The buildings are then secured and the gates are closed and padlocked and the premises are thus, and to that extent, rendered secure and closed to all members of the public each night. In addition to this, they are closed throughout the weekend from Friday evening until the following Monday morning, or, presumably, on bank holiday weekends until the Tuesday morning, and are then, again, rendered accessible to members of the public.
5. The Plaintiff and his parents allege that outside these hours, sometimes at weekends, maybe in the evening on sunny days, and during holidays these lands were accessed by children, who would use the grassy area as a play area including for football.
6. There was no evidence outside of the Plaintiff and his immediate family of this particular use and this, of course, was recounted to Mr. O’Brien who, understandably, reported and advised this Court based upon the instructions given to him. But beyond this, there was no evidence whatsoever of this alleged continuous use of the grassy area as some sort of occasional ad hoc sports and recreation ground for local children. Given the well-populated nature of the location, this was somewhat surprising.
7. The precise circumstances of the accident put forward by the Plaintiff are that he was playing a “kick around” game of football on this grassy area with his brother, a cousin or cousins, and maybe a couple of friends – about seven children in all. He ran after the ball and, as he described in Court, while running for the ball he slipped on stones or gravel which were on the grass, fell forward and his right knee met the edge of a kerbing stone which flanked the service road in the premises. As a consequence of this, there is no doubt that he suffered a very nasty injury, comprising a cut to his right knee which required stitching and had certain complications. The end result of this is that, whereas there are otherwise no long lasting effects of this injury, he is, however, left with a very noticeable and very unpleasant scar.
8. The green area to which I have referred adjoins the service road and is flanked by kerbing stones. These kerbing stones, according to Mr. O’Brien, come in lengths of about 1 metre and border the road surface at a height of approximately 99 millimetres. The outer top edge of their presenting face on the roadside is slightly curved and bevelled away from the tarmac surface. On the inner, grass side, it is not so curved and is more acute than the roadside.
9. The outer side is like kerbing such as we meet not only adjoining grassy areas, but every day on the public footpath and the public highway and stands some 90 millimetres proud of the road surface. The intent on the other side is that the surface which it adjoins – in this case grass but it could equally be a paving area – is infilled or built up to the top of the paving stone so, therefore, the top of the surface would be flush with the top of the kerb stone.
10. In this particular case it would seem, as described by Mr. Darcy the Higher Executive Officer in charge of the premises, that through the passage of time and general wear and tear, including the application of weed killer over the years, the inner side or the grass side beside the kerbing stone has become denuded and depressed, leaving a shortfall of between some 60 or so and 70 millimetres between the top of the paving stone and the ground surface. This has given rise to what is in effect a step-like arrangement from the lower level to the top sharper level of the paving. That proceeds for a certain distance alongside the service road and it was with that portion of the kerbing with which the Plaintiff alleged in Court that his knee came in contact.
11. The description of the accident as set out in the Personal Injuries Summons is that the Plaintiff ran along the green area close to and parallel to the service road in front of the building and, by reason of the dangerous and defective condition of the said property, was caused to trip and fall by reason whereof he sustained severe personal injuries, loss and damage, which bring us to where we are. The Plaintiff, now aged, I think, some 12 or 13 years, it must be said has stuck to his guns throughout the case, although pressed upon it, to the effect that he was chasing a ball and that he slipped on gravel and his knee hit the kerb.
12. Now there is no dispute in this case, as I have indicated, that the grassy area was the Defendant’s property and the Plaintiff’s justification, such as it might be, for being present was that he was playing there and that children habitually played there. No one ever told him to get off. It was suggested in cross-examination that the children might have been told to get away from the place on one occasion but that certainly wasn’t pursued in evidence. The Plaintiff’s case is: that he was somewhere where he was owed a duty of care by the Defendant and that this kerb constituted a hazard which was in breach of the Defendant’s duty of care to him; what occurred to the Plaintiff was reasonably foreseeable by the Defendant; and that the Defendant stands liable to compensate the Plaintiff for the injury which he has suffered.
13. The Defendant’s defence is that the Plaintiff was a trespasser although, as has been pointed out by Mr. Smith S.C. in cross-examination, this was a plea that came rather late in the day. That may well be so. But it is a plea that was permitted by Order of the Court. I don’t know if it was by consent or not. It is an important plea in law. The Defence also asserts that the kerbing, in any event, was not a hazard, that it materially would have made no difference even if the grass side of the kerbing had been infilled, and that the accident was not, in all the circumstances of the case, foreseeable.
14. Now with regard to what I might describe as the mechanics of the physical injury (as opposed to the mechanics of the accident) and as to what materiality the absence or presence of the infill and the presenting sharper edge of the kerbing would have had to the nature and degree of the injury, had the top of the grass service been flush with the kerbing, we have no medical evidence to advise us one way or the other. We do have Mr. O’Brien, who offered his own view that the outcome may have been that of a substantial bruise, rather than the cut that occurred. I think it is fair to point out that he conceded in cross-examination that the Plaintiff’s fall and the impact and the force of that fall may, had the grass been flush with the top of the paving stone, have suppressed the grass surface to the extent that the sharp edge of the kerbing would have come in contact with the Plaintiff’s knee anyway. In those circumstances, one could reasonably infer that this instant injury would have occurred anyway insofar as the so-called sharp edge had any part to play in the accident.
15. Since the passage of the Occupiers Liability Act of 1995 the law, which had been otherwise for a number of years as a consequence of the case of McNamara v. ESB [1975] IR 1, effectively reverted, as far as trespassers were concerned, to what it was before and the previous common law, with the various instances of judicial nurturing over the years, provides that the duty of an occupier in the circumstances is not intentionally to injure trespassers, or, not to act recklessly towards trespassers. An occupier can be liable for what would be negligent misfeasance carried out with the knowledge of the presence of trespassers. That duty is owed to the persons or a person whom they knew or ought to have known were going to be on the premises, albeit unlawfully.
16. Not surprisingly, much judicial attention has been paid over the years to the extent of the duty of care owed to child trespassers. This is what we are dealing with here and I should, in case I forget it later, point out that I have to take account of the fact that when this accident occurred, the Plaintiff was seven years of age and whereas there are certain differences in the narrative as to what may have occurred, one has to be careful not to be too strict as far as the Plaintiff personally is concerned, given the fact that he was but seven years of age and, obviously, had a very unpleasant and shocking experience. He might not be the most accurate narrator of what actually occurred.
17. In any event, one of the main stays of the case advanced by Mr. Smith is that this all constituted an allurement. An allurement is one of the features of this law concerning children which the courts have visited over the years and, indeed, some authority was opened to me on the topic.
18. Mr. O’Brien, in his evidence, said that in his view this grassy area constituted an allurement and, obviously, in this allurement was to be found a hazard, to wit the kerbing stone complained of. That’s the essence of the Plaintiff’s case.
19. Now Mr. Clarke, S.C., perhaps a little unkindly, badgered Mr. O’Brien in cross-examination about giving an opinion on law and I think he was probably justified to a certain extent. I’m sure Mr. O’Brien wouldn’t try to do other than “stick to his last” in this or any other Court and I think he probably meant an allurement in the commonly understood sense; the way one might say that a potential romantic partner of either or any sex is alluring and when one says that one does not mean that such a person is fascinating and potentially fatal. But in law an allurement, we are told as of 1913 Kings Bench, is something that is both “fascinating and fatal” and that is the way that the law views an allurement.
20. As described by Kingsmill Moore J. in the Supreme Court, as noted in McMahon & Binchy at page 435, that’s the 4th edition I think, quoted in O’Leary v. John A. Wood Ltd., from 1964 Irish Reports 269 at page 277, he 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.”
21. 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.
22. As to the exposed kerb, this was kerbing at the side of a roadway, it wasn’t kerbing that was presenting to people ordinarily walking up and down or driving up or down, which is the purpose of the roadway, and the purpose of the grass as far as the Defendants were concerned, as evidenced by Mr. Darcy, was largely aesthetic.
23. I have no doubt that an exposed paving stone in other circumstances would offer an open goal to a Plaintiff, who might, for example, lawfully have to pass and repass across it. But in the given circumstances, it was not, in my view, reasonably in the contemplation of the Defendants that people – if this was what happened – were pursuing footballs on the grass and I don’t think, in the circumstances of this case, that it amounted to a hazard.
24. 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.
25. I found the evidence of Mr. Darcy to be credible and persuasive. He says that he was not aware that children played as alleged on the grassy area. This alleged activity did not occur as far as he was concerned. Occasions could arise where children might be disruptive or difficult during office hours or were not under the care of parents and would have been asked to leave. I am satisfied to accept his evidence that, by and large, as far as the occupiers were concerned, trespassing children were not an issue. It may well have been the case that from time to time children did go in there and play. I am not persuaded that this was approaching the extent alluded to by the Plaintiff and his parents. I don’t think, in all the circumstances of this case, that any more could have been expected of the Defendants as far as the securing of the premises goes.
26. Turning to the mechanics of the accident, as opposed to the mechanics of the injury, there have been a number of versions of the accident. These are set out variously in the solicitors initiating letter, the application to PIAB, the Personal Injuries Summons, which I have already described, the accident as reported to Mr. O’Brien, the engineer, and the accident as reported to Mr. McMurray, the surgeon, all of whom referred to versions of the accident different to those as described by the Plaintiff when giving evidence.
27. Now, again, I stress my concern that I do not want to overly fault the Plaintiff’s recollection of what happened when he was seven years of age. However, if the same history and clarity had been relayed to his parents and lawyers following the accident and subsequently, although it is consistent with the injury, it is most improbable that such a narrative would have yielded the inconsistency that followed thereafter between the solicitors, Mr. O’Brien and Mr. McMurray. I think it is probably the case that matters have been reorganised in his head without, I stress, the Plaintiff trying to do anything other than to tell the truth as best he can.
28. The accident as described, certainly to Mr. O’Brien – he described the Plaintiff as running parallel to the kerb – is not consistent with an injury to the Plaintiff’s right leg. If anything, the Plaintiff’s left leg would have been injured and it would have been, perhaps, a different kind of injury to that described.
29. One of the doctors, that is Dr. Breslin, in the agreed reports does, from a report dated in 2013, give an account which is similar to what the Plaintiff has described here in Court. But it appears that other versions of events have abounded. All of this, sadly, causes me to be less than sure on the balance of probabilities as to what precisely happened or whether the accident happened as described by the Plaintiff in this Court.
30. The other difficulty I have is the nature of the injury he suffered to his right knee and specifically, whether the absence of infill made any real difference. I have, alas, not been persuaded that the absence of infill would have made any difference to this particular injury. That’s assuming it happened as the Plaintiff described it.
31. Unfortunately, we don’t have viva voce evidence from doctors, and this would be within their area of expertise, to tell us what the mechanics of the physical injury would be. But it is worthy of note that neither Mr. McMurray, who describes the Plaintiff falling over a kerb, nor Dr. Breslin, who describes the accident pretty well as the Plaintiff described it here, express any surprise that the injury was caused by a kerb. Now nothing much turns on it, but it is of significance that there was no mention to them, as far as we know, and it is certainly not recorded, of a sharp, inner edge of a kerb causing the injury. So when they were told that it was a kerb, one might infer that they thought of a kerb as we would all understand it; and that is the outer edge of a kerb. And there is no expression of surprise by Mr. Breslin that a kerb could have caused this injury or suggest that she would have expected a blunt trauma injury rather than the one that was actually caused. But that’s of no moment. I merely mention that to show that in reality the medical evidence, had it been given viva voce in accordance with the medical report, may not have advanced the Plaintiff’s case.
32. I have to be persuaded on the balance of probabilities on all of the matters with which I have dealt during the course of my judgment that what the Plaintiff has put to me constituted, firstly, the existence of a duty, the breach of that duty, and resultant injury for which he’s entitled to be compensated, and I’m afraid that on all of the tests, I have to say that the Plaintiff has failed to satisfy me on the balance of probabilities and I regretfully must dismiss the action.