Thomas v Leitrim County Council
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hardiman |
| Judgment Date | 07 March 2001 |
| Neutral Citation | [2001] IESC 19 |
| Court | Supreme Court |
| Date | 07 March 2001 |
[2001] IESC 19
THE SUPREME COURT
Keane C.J.
McGuinness J.
Hardiman J.
Between:
and
Citations:
THOMAS V LEITRIM CO COUNCIL 1998 2 ILRM 74
MCMAHON & BINCHY IRISH LAW OF TORTS 2ED 213
BOYLAN V DUBLIN CORPORATION 1949 IR 60
SUTTON V BOOTLE CORPORATION 1947 1 KB 359
OCCUPIERS LIABILITY ACT 1995
BOHANE V DRISCOLL 1929 IR 428
ROONEY V CONNOLLY 1987 ILRM 768
MERSEY DOCKS & HARBOUR BOARD V PROCTOR 1923 AC 253
AHERNE V ROTH 1945 IR JUR REP 45
O'SULLIVAN V DWYER 1971 IR 275
CARROLL V CLARE CO COUNCIL 1975 IR 221
Synopsis
Negligence
Negligence; trespass; apportionment of liability; plaintiff involved in an accident on tourist site owned by Defendant; trial judge's finding being appealed by plaintiff on grounds of apportionment of liability and by defendant on grounds of finding that plaintiff an invitee; whether plaintiff a licensee on defendant's lands; whether evidence establishes that material benefit conferred on defendant; whether trial judge entitled to conclude that defendant in capacity as licensor had not acted with reasonable diligence to prevent the particular area from misleading the licensee; whether plaintiff must bear the larger share of the fault for this accident;
Held: Plaintiff's appeal dismissed: plaintiff must bear two thirds of fault; defendant's appeal upheld.
Thomas v. Leitrim County Council
Supreme Court: Keane C.J., McGuinness J., Hardiman J. - 07/03/2001 - [2001] 2 ILRM 385
The appellant had been injured while out walking and had sued the defendant. In the High Court McCracken J had found that the plaintiff was a invitee and should be awarded damages. However the plaintiff was held to have been guilty of contributory negligence. On appeal in the Supreme Court Hardiman J found that the plaintiff was in fact a licensee but upheld the findings regarding contributory negligence.
Mr. Justice Hardimandelivered the 7th day of March, 2001 . [nemDiss]
This is the Plaintiff's appeal against the finding of the High Court (McCracken J.) which apportioned liability for an accident in which the Plaintiff had suffered personal injuries on the 1st May, 1995 in the proportions of two thirds against the Plaintiff and one third against the Defendant. The Plaintiff maintains that there was no contributory negligence on her part or, if there was, it was in a much smaller degree than the learned High Court Judge found.
The Defendant has cross appealed against the finding that the Plaintiff was an invitee as opposed to a licencee, on its lands at the relevanttime.
The facts of this matter have been comprehensively set out in the judgment of the learned High Court Judge, which is now reported at [1998] 2 ILRM 74.
The Plaintiff, together with her husband and three other people had travelled from England to take part in a ballooning event in Sligo. However, weather conditions prevented the event from going on on the 1st May, 1995 and the party went sight seeing instead. They had read about Glencar Waterfall in Co. Leitrim in the Michelin Guide and decided to gothere.
The area around Glencar Waterfall had been purchased by the Defendant in 1986. It is a well known place of resort and an area of considerable natural beauty. Whilst in private ownership a concrete footpath was laid some thirty or forty years ago. The local authority developed a car park with toilet facilities across the road from the area of the waterfall. They also renewed all the footpaths. They made the area accessible, up to a point, to disabled persons. This occurred in 1991/92. The local authority also had the trees onthe site inspected by Coillte Teoranta as a result of which four trees were removed. The premises were visited by or on behalf of the area Engineer "on a reasonably regular basis" and had been last visited on the 6th April, 1995. A lady was employed on a part time basis who looked after the toilet facilities. There was no full time maintenance staff because, according to the Engineer "Itis the type of area that doesn't need maintenance. It is leftwild".
On the evidence, the site was acquired by the County Council and developed in the way described "in order to provide an amenity within their administrative area".
The Plaintiff and her party arrived at the area and went up a footpath which led from the road up the side of the waterfall to a viewing platform. It then continued at a sharp angle to the left and rose to its highest point. From there it descended again quite steeply by way of steps, turned to the left and rejoined an original pathway thus creating a roughly triangular loop. The pathway consisted of stone slabs 4ft.wide.
The Plaintiff and her party, having proceeded to the top of the path, began to descend on the looped pathway. Towards the bottom of a steeppart of that pathway, they came upon a tree which had fallen across the path completely blocking it. A row of trees made it impossible to pass the obstruction on the right hand side. To the left hand side there was a very steep bank leading downwards towards the bottom. This had been grassed but it had been used as a short cut to some extent and there were two distinct bare tracks on it, one on either side of a tree stump. There was a considerable amount of bare earth where the grass had been worn away.
When the Plaintiff's party came upon the obstruction they were walking in single file, with the Plaintiff at the back. There was no discussion about what was to be done but the various members of the parties stepped off the path and on to the bank. It was necessary to go sideways down the bank and to hold on to whatever supports offered in order to keep one's balance. The Plaintiff's husband in fact slipped shortly after leaving the path but was not injured. It appears that just as he was getting up, the Plaintiff stepped off the path higher up and immediately or almost immediately slipped.
There is no doubt that the Plaintiff unfortunately sustained a serious injury to her ankle. Furthermore, having regard to her age, which was 62 years at the time of the accident, her occupation, her weight and build and herpreviously active lifestyle, the injury and its consequences have been serious for her. However this appeal is not concerned with the question of damages, which have yet to be assessed. The question is whether she can make the Defendant liable in whole or in part for her injuries.
As the case was argued on appeal, this general question involves several issues. Firstly, was the Plaintiff's status on the lands around Glencar Waterfall that of an invitee or a licencee? Secondly, was the Defendant in breach of its duty to her as an invitee or a licencee? Thirdly, if they were in breach of their duty to her, was the damage suffered by her caused partly by her own negligence or want of care, and if so in whatproportion?
The learned trial judge held that the Plaintiff was an invitee on the premises, on the basis that there was a material benefit to the Defendants in having Glencar Waterfall opened to the public. He held that the Defendants had been in breach of their duty of care to the Plaintiff in not ensuring that the pathway was kept clear and passable, particularly in an area where there was a steep and possibly dangerous bank at the side of the path. He went on to hold that the Plaintiff had decided to take the risk of going down what must have appeared to be a somewhat dangerous bank. He held that "she took acalculated risk in the knowledge that there was a danger offalling". He held that this risk could have been avoided by simply retracing her steps, a distance of 178yds. He assessed the contributory negligence of the Plaintiff at two thirds.
This case was argued with great economy and precision on both sides. It was agreed that the question of whether the Plaintiff was invitee or a licencee turned on whether the Plaintiff's presence on the lands conferred a "material benefit" on the Defendants. Neither side took issue with the statement of the law contained in the second edition of McMahon and Binchy, Irish Law of Tort, page213:-
"The benefit which the occupier must enjoy before the entrant becomes an invitee is a material interest (frequently, although not invariably, a financial interest) - a social benefit is not enough. But it must be noted that, in looking for the occupier's benefit, the test is not one of absolute material interest in all cases, but rather where the visit, under normal circumstances, would usually involve a material benefit for the occupier. "What is to be looked at is the nature of the purpose for which the visitor comes, and whether the party in occupation would normally have a material interest in visits made for that purpose". So a person whocomes into a shop with the intention of purchasing and does not buy because the shop does not at present stock the commodity, is nevertheless an invitee....".
This passage draws heavily on the judgments of the former Supreme Court in Boylan v. Dublin Corporation [1949] IR 60. In that case the Plaintiff had attended a social event promoted by a charitable society who had hired part of the Mansion House from Dublin Corporation for the purpose. It was held that his presence on the premises constituted a material benefit to the Corporation so as to make him an invitee, on the basis that the presence of persons in that capacity "helps to bring about continued profitable hirings as a natural probably and intended result and therefore the owners interest in it is the very reverse of remote".
The facts of this case do not reveal any such commercial interest on the part of the Defendant. However, the learned trial judge held that the presence of the Plaintiff and people...
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Thomas Fitzgerald v South Dublin County Council
...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......