Geraldine Weir-Rodgers (plaintiff/respondent) and The S.F. Trust Ltd (defendant/ appellant).
Occupier's liability - Plaintiff injured when she fell from edge of cliff - Whether breach of duty on the part of the occupier - Whether there was reckless disregard for the safety of the person using the land. - Whether failure to have a warning notice and/or to fence the area to prevent entry on to it was a breach of duty - The Occupiers Liability Act, 1995 section 4
The Supreme Court (the Chief Justice Mr Justice Murray, Ms Justice Denham, Mr Justice Geoghegan); judgment of Mr Justice Geoghegan delivered on January 21st, 2005.
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 land 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 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.
The Supreme Court so held in allowing the defendants' appeal, setting aside the judgment of the High Court and dismissing the action.
John Finlay SC and Declan McHugh BL for the plaintiff/respondent; Harry Whelehan SC and Frank Duggan BL for the defendant/appellant.
Mr Justice Geoghegan in delivering his judgment began by giving a summary of how the matter had come before the court. On April 11th, 1997, the respondent suffered serious injuries as a result of an accident. She had been sitting down with some friends close to the edge of a cliff at Coolmore, Rossnowlagh, Co Donegal, admiring the sunset over the sea.
When the respondent stood up she lost her footing and fell down the edge of the cliff, which was much more sheer than she would have expected. Due to loose materials she was unable to stop herself and ended up in the water, from which, she was rescued by her friend. The respondent suffered fractures to her left shoulder, left elbow, left hip and pelvis, injuries to her ankle and foot, as well as other injuries.
The respondent instituted proceedings to recover damages for her injuries against the appellant, owner and occupier of the unused land, which is 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 described the respondent as a "recreational user". It was accepted in the High Court and in the Supreme Court that were the respondent to succeed it would have to be by reason of a breach of duty towards her under s. 4 of the 1995 Act. The duty, under that section, is the same for recreational users and trespassers. Mr Justice Butler in the High Court found the appellant to be in breach of such duty, and assessed damages at €113,000, with the respondent guilty of contributory negligence by 25 per cent. The net judgment was for €84,666.
The appellant appealed to the Supreme Court against the finding of liability and against the apportionment, in so far as it was limited to 25 per cent. By notice to vary the respondent cross-appealed against the finding of contributory negligence and the assessment of damages, claiming said assessment was too low.
Mr Justice Geoghegan then went into the facts in greater detail and noted that on the night of the accident the respondent, with other, had been out in Donegal town for a social evening and after a meal had decided to go for a walk. As they travelled down towards the road there was an isolated section of fencing on their left, a piece of which had fallen down. Mr Justice Geoghegan stated that the liability alleged against the appellant under the 1995 Act was twofold: 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 for her on the second. At the area of the broken-down fencing there was some trodden grass which the respondent said she regarded as a path that led her to believe people walked there a good deal. Mr Justice Geoghegan found this credible. The respondent said she was misled as to the nature of the cliff and it would never have occurred to her that there was a dangerous stony gradient in such a position and that she could end up sliding on it and falling over the edge.
Mr Justice Geoghegan referred to the respondent's affirmative answer when asked by counsel for the appellant that if she had been there with two of her children and they went and sat in the position she took up, would she have been fretful and told them to come back from the edge lest they fall. He also referred to her statement in re-examination that she would never have gone into the area if there had been a warning notice.
Mr Justice Geoghegan then referred to the evidence of the respondent's companions.
He highlighted that of Mr Dara O'Donnell, which he felt was the high point of the respondent's case, that he did not sense any danger at the time because the sheer drop was hidden from view, and though the slope looked gradual enough, it was deceptive. Mr Justice Geoghegan then went through the evidence of the respondent's engineering expert. Mr McMullan said there should have been a barrier to prevent entry by the public onto this piece of ground. That was rejected by the trial judge and not appealed. He also thought there should have been a warning notice which was accepted by the trial judge. Mr Justice Geoghegan referred to the fact that Mr McMullan in cross-examination stated that the place would be littered with notices if one were to be put up everywhere there was a ridge or cliff. Mr Justice Geoghegan was of the view that it was highly unlikely that the Oireachtas intended huge areas of the coastline around Ireland to be fenced against the public and littered with warning signs, but said that was the question he had to address when dealing with the law.
Mr Justice Geoghegan then proceeded to analyse the law and reiterated that for the respondent to succeed she must establish a breach of duty towards her under section 4 of the 1995 Act. As the duty under the section was the same for recreational users and trespassers, whilst expressing no view as to whether the respondent was a recreational user, for convenience Mr Justice Geoghegan from then on referred to the duty owed to trespassers.
He then quoted from McMahon and Binchy on Torts (3rd edn.) to the effect that the 1995 Act had reversed the decision in McNamara v ESB IR 1 which laid down a duty to take reasonable care and restored the old common law standard that the duty to trespassers was not to injure intentionally and not to act with reckless disregard for their person or property, and thus the common law caselaw was relevant in determining what recklessness meant in this context. Mr Justice Geoghegan stated that though the trial judge referred to the expression "reckless disregard" he did not go on to consider what it meant, but rather moved to the matters under the section which a judge should have regard to and Mr Justice Geoghegan quoted section 4(1) and (2).
Mr Justice Geoghegan then stated this was a case where it was suggested that there was an inherent danger in the nature of the actual ground and portion of cliff where the respondent fell.
He said, of course this 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, and went on to say it would be reasonable to assume that the occupiers in this case would have had some awareness of the danger.
For the purpose of the case, and without deciding the issue (leaving that to a case where it properly arises), Mr Justice Geoghegan was prepared to accept that the test of recklessness is an objective one as suggested by McMahon and Binchy.
It seemed to Mr Justice Geoghegan that was exactly what happened in this case.
Mr Justice Geoghegan took the view that even if the duty on the occupier in this case was the ordinary Donoghue v Stevenson AC 562 neighbourly duty of care, the respondent would not be entitled to succeed. Mr Justice Geoghegan noted that in Donovan v Landy's Ltd IR 441, though agreeing with the judgment of Kingsmill Moore J (who had reviewed all the Irish and English authorities), Lavery J made the apposite comment that he was in some doubt as to whether the distinction between negligence and reckless disregard was necessary and that Judge McMahon, in his submission to the Law Reform Commission, was strongly of the view that the duty should be an ordinary duty of reasonable care, but the Commission rejected his advice and recommended a threshold of "gross negligence".
Given the rejection by the Oireachtas of the Commission's recommendation, and the adoption of the expression "reckless disregard", Mr Justice Geoghegan said it may well be reasonable to argue that the threshold is even higher than "gross negligence", but did not find it necessary to express any definitive view on that, due to his belief that even if the duty was a duty of reasonable care and not the higher duty not to act with reckless disregard, the result in this case would be the same.
Mr Justice Geoghegan said 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 land 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.
Mr Justice Geoghegan then referred to Tomlinson v Congleton Borough Council 3All ER 1122 where the House of Lords considered potential liability under the (English) Occupiers Liability Act 1957 and gave some views on the Occupiers Liability Act 1984 which dealt with the duty to trespassers.
Mr Justice Geoghegan said that the wording of the Irish and English Acts is sufficiently different to render the case of limited assistance, but felt that the Law Lords reference to the commonsense expectations of persons engaged in outdoor activities such as, for instance, mountain climbing, walking or swimming in dangerous areas, was relevant and stated that the other side of the coin is that the occupier is entitled to assume that knowledge of such dangers and risks would exist and safety measures would be taken. Mr Justice Geoghegan then quoted some passages from the judgment commencing with Lord Hutton's approval of a statement in Stevenson v Corporation of Glasgow SC 1034: ". . . 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 . . . precautions which have been rejected by common sense as unnecessary and inconvenient are not required by the law."
Mr Justice Geoghegan stated that said statement would seem to be apposite to this case and would seem to apply to any suggestion that a warning notice should have been put up.
He then quoted further from Lord Hutton who cited Corporation of the City of Glasgow v Taylor 1 AC 44.
"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." And Hastie v Magistrates of Edinburgh SC 1102, where Lord Dunedin said there are certain risks against which the law does not give protection, as they are "just one of the results of the world as we find it".
Mr Justice Geoghegan endorsed those sentiments and stated that the person sitting down near a cliff must be prepared for oddities in the cliff structure, or in the structure of the ground adjacent to the cliff, and he or she assumes the inherent risks associated therewith. He went on to say that 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 stated that this was not such a case.
Mr Justice Geoghegan was satisfied there was no liability on the part of the appellant and set aside the judgment of the High Court, and dismissed the action and thus the issue of the notice to vary did not therefore arise in his view.
The Chief Justice, Mr Justice Murray and Mrs Justice Denham concurred.
Solicitors: Patrick J. Sweeney & Co (Dungloe) for the plaintiff/ respondent; O'Gorman Cunningham & Co (Letterkenny) for the defendant/appellant.