Ashmore v Dublin Land Securities

CourtCircuit Court
Judgment Date14 January 2003
Docket NumberRECORD NO. 11335/96
Date14 January 2003


RECORD NO. 11335/96


Land law - Occupier’s liability - Liability of local authority - Personal injuries - Duty of care - Whether ownership of property resulted in liability for accident - Whether owner of property controlled property - Occupiers Liability Act, 1995.

The plaintiff had tripped while walking across a forecourt and as a result sued the owners of the property and the local authority for damages. The first defendant was the owner of the area and disputed liability on the basis that it was not the occupier. In addition the first defendant contended that the shopkeepers beside the forecourt had assumed full responsibility for the forecourt and furthermore that the shopkeepers had an easement over the forecourt which created an obligation on them to repair the access over the forecourt to the shops.

Held by Judge McMahon in awarding damages to the plaintiff. The local authority had not taken over the forecourt and there was no evidence that they had carried out any works. Accordingly no liability attached to the local authority. In determining liability the courts were more concerned with the concept of control rather than ownership. The first defendant was an occupier at common law when the plaintiff tripped and fell. The first defendant was in breach of its duty of care to ensure that the premises were free from structural defects which could represent an unreasonable danger to lawful entrants.


Judgment of His Honour Judge Bryan McMahon delivered on the of 14th Jannuary. 2003, in Dublin Circuit.


The Facts.


On 3rd February 1995,the plaintiff was walking across the forecourt area outside a row at shops in Glassnevin in Dublin, when he tripped on uneven and broken pavement. He sued the first named defendant as owner and occupier of the forecourt and the second-named defendant as the local authority in occupation of and responsible for the maintenance of the pavement.

The Second Defendant: Dublin Corporation

At the end of the plaintiffs evidence, the second defendant, Dublin Corporation, applied for a direction and I had no difficulty in acceding to this request. When opening its defence, counsel for the first defendant conceded that it was legal owner of the forecourt: it had not been transferred to the shopkeepers, and, contrary to the earlier understanding of the first defendant, it had never been taken over by the Corporation. There was no evidence offered by the plaintiff that the Corporation had carried out any repairs or maintenance to the forecourt. Some excavations had


apparently been carried out by the Posts and Telegraphs people, after the forecourt was laid, and some stop-cocks from the photographs before the court, also appear to have been installed in the forecourt. But there was no evidence as to when these works were carried out, or by whom. Accordingly, these interventions were not sufficient to show that the Corporation Council had taken over responsibility for the maintenance of the forecourt.


If there was evidence that the Corporation had carried out work on the forecourt and had done so negligently, so that it caused the plaintiff an injury, the situation might be different. But if that had been the case the liability of the Corporation would not be based on its status as occupier. Further, the plaintiff in this case alleges that he tripped where part of the original concrete, laid in 1961, had begun to break up, and his fall in the circumstances could not be attributed to any subsequent interference by any third party.


Since it is clear therefore, that there is no evidence that the Corporation did any works to the forecourt, and that anything that the Corporation might have done did not cause the plaintiff to fall, there is no basis for imposing liability on the Corporation in negligence. Further, since it had not sufficient control of the forecourt to attract liability as an occupier, the case against the Corporation must also fail on that ground.

The First Defendant: Dublin Land Securities Ltd

What then is the position of the first defendant as owners of the forecourt? Was it an occupier for the purpose of this branch of the law when the accident happened in February, 1995?


Counsel for the first defendant argued that the fact that it was the owner is not conclusive in this case. This of course is true and I accept counsel’s argument to that extent. Liability in this context is on the occupier, not on the owner as such, and in determining who was an occupier at common law for the purposes of this branch of the law, the courts were more concerned with the concept of control than with ownership. Ownership might suggest control, but the two do not always coincide. Ownership is one thing, control is another, and for liability to arise the defendant must have control of the property. A landlord, for example, who lets his property, with a covenant of repair on the tenant, may not, in every circumstance, have sufficient


control over the demised premises to attract liability as occupier. (Keegan v. Owens and McMahon ( [1953] I.R.267)


As to the level of control required to attract liability in these cases, it seems that what is crucial from the case law in this area, is firstly, the ability by the party charged to regulate who comes on to the property, and secondly, the power or the duty such person may have to repair or...

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