Mulcahy v Cork City Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 21 October 2020
• Neutral Citation: [2020] IEHC 547
• Docket Number: [2018 No. 02111]
• Court: High Court
• Date: 21 October 2020

CORK CIRCUIT COUNTY OF CORK

BETWEEN

LEAH MULCAHY (A MINOR SUING BY HER MOTHER AND NEXT FRIEND KRYSTLE MULCAHY)

PLAINTIFF

AND

CORK CITY COUNCIL

DEFENDANT

[2020] IEHC 547

Richard Humphreys

[2018 No. 02111]

THE HIGH COURT

Personal injury – Liability – Duty of care – Plaintiff claiming breach of duty – Whether the defendant was liable

Facts: The defendant, Cork City Council, owned and occupied land in suburban Cork City adjacent to the estate in which the plaintiff, Ms Mulcahy, lived. The land included a green area in which there were some boulders which seemed to have been there for a period of around 25 years. The plaintiff suffered an injury on 22nd July, 2017 when she broke her arm after jumping off a larger boulder onto an adjoining smaller boulder. The personal injury summons did not refer to the Occupiers’ Liability Act 1995 as such, but was rather framed in terms of negligence. However, the 1995 Act displaced the general law of negligence in relation to the tort liability of occupiers for the static condition of premises (s. 2(1)). Mr Lynch for the defendant did not take any pleading point. The particulars of breach of duty in the personal injury summons were that the boulders constituted a trap or allurement and that the defendant failed to fence them off, failed to remove them and ignored complaints.

Held by the High Court (Humphreys J) that, assuming that this action was to be viewed on the common duty of care basis, as opposed to the reckless disregard basis, it did not think that the particular danger of injury from jumping from boulders of this nature was one that the law should properly impose a liability on an occupier to obviate. Humphreys J clarified that this was essentially for two legal policy reasons: firstly the social cost of removing all such features from the landscape, including the loss of opportunities for unstructured children’s play; and secondly the undue burden on occupiers if one extrapolates the logic to require the removal of all structures and features which could be theoretically the subject of similar accidents.

Humphreys J dismissed the claim, purely because he did not consider that the action succeeded under the 1995 Act and not because of any lack of acceptance of the factual evidence on the plaintiff’s side.

Claim dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on Wednesday the 21st day of October, 2020

1 The defendant owns and occupies land in suburban Cork City adjacent to the estate in which the plaintiff lives. The land includes a green area in which there are some boulders which seem to have been there for a period of around 25 years. Children are known to play on the boulders and the adjoining wall and a lamp post every day, according to the plaintiff's mother.

2 The plaintiff was born in May 2009 and suffered an injury on 22nd July, 2017 when she broke her arm after jumping off a larger boulder onto an adjoining smaller boulder.

3 The personal injury summons does not refer to the Occupiers' Liability Act 1995 as such, but is rather framed in terms of negligence. However, the 1995 Act displaces the general law of negligence in relation to the tort liability of occupiers for the static condition of premises (s. 2(1)). Very reasonably, Mr Lynch for the defendant didn't take any pleading point.

4 The particulars of breach of duty in the personal injury summons can be summarised hopefully without too much injustice to them by saying that the boulders constituted a trap or allurement and that the defendant failed to fence them off, failed to remove them and ignored complaints (that latter aspect faded away somewhat on the evidence).

5 I have been greatly assisted by Mr. Seamus Roche S.C. (with Mr. David Kent B.L.) for the plaintiff and from Mr. John F. Lynch S.C. (with Mr. James Duggan B.L.) for the defendant. There was not a huge conflict on the material facts. While the mother's version of the accident was hearsay and differed somewhat from the direct evidence of the plaintiff, and while a somewhat different version is given in the contemporaneous medical documentation, I would accept the plaintiff's account at the hearing as being a correct explanation of how the injury was sustained.

Evidence of Krystle Mulcahy

6 The plaintiff's mother said that she always told the plaintiff to come off the rocks, but the children tended to stay out playing on those rocks. On the occasion in question, the plaintiff was with friends and her cousin. Ms. Mulcahy's father was just across the road and picked up the plaintiff after the incident. The mother was originally told by the plaintiff that she had fallen off the wall adjoining the two boulders. The reason why that account had been given, as the mother understood matters, was because the plaintiff had been told not to play on the boulders so did not initially want to admit to having done so. She confirmed that the area in question was open to all residents.

7 The plaintiff was taken to hospital and had a displaced fracture above the elbow. Her bones were manipulated and wired together. The wires were removed around four weeks later. She was referred for physiotherapy, but did not tolerate it very well.

8 Under cross-examination it was put to her that the pleadings suggested the incident happened at 3 pm, but the timing of incident in the hospital notes was 9.15 pm. She said it was at night and didn't know why the pleadings were incorrect, but said she brought the child to hospital straight away. It was put to her that all the records made at the time said that the plaintiff fell off a wall, and her answer was that her understanding was that the plaintiff had jumped from the wall to the smaller of two boulders. She agreed that the boulders had been there for 25 years. While she seemed to accept that their purpose was to prevent dumping or unauthorised visitors camping there, she didn't think that they were stopping people and pointed out that cars could still get around into the green area from the other side. It was put to her that there was no record of any complaint and she seemed to accept that by saying there didn't need to be any complaint.

Evidence of Leah Mulcahy

9 The plaintiff was eight at the time of the incident and is now eleven. I received her evidence under s. 28(1) of the Children Act 1997. She came across as a very bright and intelligent child who gave very factual, intelligible and calm evidence. I would be very confident for her future and I accept her evidence as to how the accident happened.

10 She was playing on the rocks at the time, this being something that regularly happened. Her mother had said the area was dangerous. She was jumping from the larger rock onto the smaller one, got to the middle of the small rock, lost her balance, fell to the left side (to the downhill side), and landed on her arm. She told her mother that she fell off the wall because the mother had told her to stay off the rocks. She had an operation, was in a cast for four weeks, found that painful, had physiotherapy which was also painful and had...