The High Court (Humphries J.) has affirmed a decision of the Circuit Court, dismissing a plaintiff's personal injuries action on the basis that the action did not succeed under the Occupiers' Liability Act 1995 (the 1995 Act).
The plaintiff, who was eight at the time of the accident, brought proceedings against Cork City Council after she broke her arm falling from a boulder situated on a green area beside her estate. Boulders had been placed on the green many years ago by the local authority to prevent unauthorised access and dumping, but the court accepted that they no longer served a useful purpose. Children were known to play on the boulders and the plaintiff argued that they were an allurement to the children and should have been fenced off.
Interestingly, the personal injuries summons did not refer to the 1995 Act but it was accepted that the 1995 Act displaced the general law of negligence in relation to the matter.
Duty of Care
The Judge noted there was disagreement as to whether the plaintiff should be regarded as a visitor or a recreational user of the green under the 1995 Act. A higher duty of care is owed to visitors - occupiers must take such care as is reasonable in the circumstances to ensure the visitor does not suffer any injury or damage due to a danger arising on the premises. By contrast, the duty owed to a recreational user is not to intentionally injure an entrant or to act with reckless disregard for their safety.
The Judge indicated that he would assume "for arguments sake" that the plaintiff was a visitor as the green formed part of the amenities of the plaintiff's estate, meaning there was an "implied permission" for residents to use the lands. Accordingly, Cork City Council would be under a higher duty of care than if the plaintiff were to be regarded as a recreational user.
The Judge found that an occupier should not be required to remove all dangers arising on a premises, lest "we end up with a bland and featureless landscape". The boulders in this case did not represent an unusual or hidden danger that was substantially different from other natural structures such that the public needed to be protected from them. The Judge accepted the evidence that removing the boulders would not have been particularly onerous in this case. However, he found that to apply that logic across the whole country would "go beyond the duty that the law should properly impose on occupiers" and would result in a "social cost" including the loss of opportunity for children to play. Ultimately, the Judge stated:
".danger plus allurement plus knowledge plus lack of legitimate purpose do not in themselves add up to negligence in the absence of a final legal policy factor, which is that the danger is one that it is reasonable for the law to require a defendant to obviate"
On that basis, the claim did not succeed under the 1995 Act and was dismissed.
This is an important decision which provides welcome clarity on the extent of the duty of care owed by an occupier, in this case a local authority, to those who may be considered visitors to their property. The judgment reinforces the wording of section 3 of the 1995 Act, which requires occupiers to take "such care as is reasonable in all of the circumstances" to prevent visitors being injured, and clarifies that the statutory requirement to protect against "any danger" on the property does not mean all danger.
This would appear to be a sensible approach and ensures that occupiers are not put under an undue burden when seeking to comply with their obligations under the 1995 Act.
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