Ward (A Minor) v Commisioners of Public Works in Ireland
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hanna |
| Judgment Date | 10 May 2017 |
| Neutral Citation | [2017] IEHC 336 |
| Docket Number | [2014 No. 2111P] |
| Court | High Court |
| Date | 10 May 2017 |
[2017] IEHC 336
THE HIGH COURT
Hanna J.
[2014 No. 2111P]
Tort – Damages and Restitution – Personal injuries – Trip and fall – Breach of duty of care – Occupiers Liability Act 1995 – Balance of probability test – Child trespasser
Facts: The plaintiff filed personal injuries summons against the defendants for sustaining personal injury. The plaintiff alleged that the defendants had breached their duty of care by failing to prevent the hazard posed by the kerbing stone in the garden on which the plaintiff had fallen. The defendants contended that the plaintiff was a trespasser and that no hazard was posed by the kerbing stone, and if any, the accident was not foreseeable.
Mr. Justice Hanna dismissed the plaintiff's claim. The Court held that the kerbing stone in the given circumstances of the case did not amount to hazard. The Court observed that the accident, as described, was not consistent with the injury to the plaintiff's right leg, and as the surgeon opined, it would have been a bruise instead of the cut that occurred. The Court also held that because of the different versions of the accident given in evidence, it was not clear as to how the accident actually happened. The Court observed that the duty of an occupier in the circumstances was not intentionally to injure the trespassers and that the defendants did their best to secure the premises, and imposing any greater duty on the defendants would be to put unnecessary obligation on a public authority.
The Plaintiff in this case, who was aged seven years at the time of the accident the subject matter of these proceedings, resided with his family at the time of the accident at 9 Ardnacassa Avenue, Ballinalee Road in Longford, in the County of Longford.
This dwelling house is beside what has been referred to as 'government buildings'. These are relatively modern buildings and contain a number of government services. The offices to be found there include the driving test centre, offices of the Department of Social Protection, and, I understand, some offices relevant to the Department of Agriculture. The premises were opened in or around the year 1993.
The premises generally have been described and photographed by Mr. O'Brien, a consulting engineer, and, as well as buildings, contain, inter alia, a large grassy area which adjoins a service road. The premises are bound in by a boundary wall which appears to be something in the region of three to four feet in height and this constitutes a clear, marked-off boundary. That is not to say that it could not be scaled or accessed by anyone, including children, wishing to enter the premises. But it is a clear boundary. Otherwise, the property is gated and those gates are locked outside office hours.
Security is provided during the course of the day, which will begin at around 8 o'clock, with the gates being opened at around ten minutes to eight, and throughout the day thereafter by an appropriate services officer, who then closes the premises at close of business at around 7 or 8 o'clock at night. The buildings are then secured and the gates are closed and padlocked and the premises are thus, and to that extent, rendered secure and closed to all members of the public each night. In addition to this, they are closed throughout the weekend from Friday evening until the following Monday morning, or, presumably, on bank holiday weekends until the Tuesday morning, and are then, again, rendered accessible to members of the public.
The Plaintiff and his parents allege that outside these hours, sometimes at weekends, maybe in the evening on sunny days, and during holidays these lands were accessed by children, who would use the grassy area as a play area including for football.
There was no evidence outside of the Plaintiff and his immediate family of this particular use and this, of course, was recounted to Mr. O'Brien who, understandably, reported and advised this Court based upon the instructions given to him. But beyond this, there was no evidence whatsoever of this alleged continuous use of the grassy area as some sort of occasional ad hoc sports and recreation ground for local children. Given the well-populated nature of the location, this was somewhat surprising.
The precise circumstances of the accident put forward by the Plaintiff are that he was playing a 'kick around' game of football on this grassy area with his brother, a cousin or cousins, and maybe a couple of friends - about seven children in all. He ran after the ball and, as he described in Court, while running for the ball he slipped on stones or gravel which were on the grass, fell forward and his right knee met the edge of a kerbing stone which flanked the service road in the premises. As a consequence of this, there is no doubt that he suffered a very nasty injury, comprising a cut to his right knee which required stitching and had certain complications. The end result of this is that, whereas there are otherwise no long lasting effects of this injury, he is, however, left with a very noticeable and very unpleasant scar.
The green area to which I have referred adjoins the service road and is flanked by kerbing stones. These kerbing stones, according to Mr. O'Brien, come in lengths of about 1 metre and border the road surface at a height of approximately 99 millimetres. The outer top edge of their presenting face on the roadside is slightly curved and bevelled away from the tarmac surface. On the inner, grass side, it is not so curved and is more acute than the roadside.
The outer side is like kerbing such as we meet not only adjoining grassy areas, but every day on the public footpath and the public highway and stands some 90 millimetres proud of the road surface. The intent on the other side is that the surface which it adjoins - in this case grass but it could equally be a paving area - is infilled or built up to the top of the paving stone so, therefore, the top of the surface would be flush with the top of the kerb stone.
In this particular case it would seem, as described by Mr. Darcy the Higher Executive Officer in charge of the premises, that through the passage of time and general wear and tear, including the application of weed killer over the years, the inner side or the grass side beside the kerbing stone has become denuded and depressed, leaving a shortfall of between some 60 or so and 70 millimetres between the top of the paving stone and the ground surface. This has given rise to what is in effect a step-like arrangement from the lower level to the top sharper level of the paving. That proceeds for a certain distance alongside the service road and it was with that portion of the kerbing with which the Plaintiff alleged in Court that his knee came in contact.
The description of the accident as set out in the Personal Injuries Summons is that the Plaintiff ran along the green area close to and parallel to the service road in front of the building and, by reason of the dangerous and defective condition of the said property, was caused to trip and fall by reason whereof he sustained severe personal injuries, loss and damage, which bring us to where we are. The Plaintiff, now aged, I think, some 12 or 13 years,...
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