Weir-Rodgers v S F Trust Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 21 January 2005
• Neutral Citation: [2005] IESC 2
• Court: Supreme Court
• Date: 21 January 2005

[2005] IESC 2

THE SUPREME COURT

Murray C.J.

Denham J.

Geoghegan J.

80/03

109/03

Weir-Rodgers v The S.F. Trust Ltd

BETWEEN/

GERALDINE WEIR-RODGERS

Plaintiff/Respondent

and

THE S.F. TRUST LIMITED

Defendant/Appellant

OCCUPIERS LIABILITY ACT 1995 S4

MCMAHON & BINCHY CASEBOOK ON THE IRISH LAW OF TORTS 3ED 2005 PARA 12.16

MCNAMARA v ELECTRICITY SUPPLY BOARD 1975 IR 1

MCMAHON & BINCHY CASEBOOK ON THE IRISH LAW OF TORTS 3ED 2005 PARA 12.109

LAW REFORM CMSN CONSULTATION PAPER ON OCCUPIERS LIABILITY (NO 7) 1993

LAW REFORM CMSN REPORT ON OCCUPIERS LIABILITY (NO 46) 1994

OCCUPIERS LIABILITY ACT 1995 S4(2)

DONOGHUE v STEVENSON 1932 AC 562 1932 SC (HL) 31 1932 SLT 317

DONOVAN v LANDYS LTD 1963 IR 441

TOMLINSON v CONGLETON BOROUGH COUNCIL & ANOR 2004 1 AC 46 2003 3 WLR 705 2003 3 AER 1122

OCCUPIERS LIABILITY ACT 1957 (UK)

OCCUPIERS LIABILITY ACT 1984 (UK)

STEVENSON v GLASGOW CORP 1908 SC 1034 1908 16 SLT 302

GLASGOW CORP v TAYLOR 1922 1 AC 44 1921 AER REP 1 1922 SC (HL) 1 1921 2 SLT 254

HASTIE v MAGISTRATES OF EDINBURGH 1907 SC 1102 1907 15 SLT 194

NEGLIGENCE

Occupier's liability

Duty of care - Reckless disregard - Personal injuries - Breach of statutory duty - Duty not to act with reckless disregard owed by occupier to trespassers and recreational users- Whether common law duty to take reasonable care applicable - Whether defendant liable in light of statutory duty -Whether plaintiff would have succeeded even if defendant under duty to take reasonable care - Occupiers' Liability Act 1995 (No 10),s 4 - Defendant's appeal allowed (80/2003 &109/2003 - SC - 21/1/2005) [2005] IESC 2, [2005] 1 IR 47; [2005] 1 ILRM 471

Weir-Rodgers v The SF Trust Ltd

The respondent sustained injuries as a result of an accident, whereby she fell down the edge of a cliff on lands owned and occupied by the appellant. The respondent stated that she was misled as to the nature of the cliff and claimed that the appellant was negligent in failing to fence off the area where the accident occurred and/or failing to erect a warning notice on the land. Mr Justice Butler in the High Court found in favour of the respondent on the latter argument and held that the appellant was in breach of its duty to the respondent under section 4 of the Occupiers Liability Act 1995. Consequently, the appellant appealed against that decision.

Held by the Supreme Court (Murray, Denham, Geoghegan JJ) in allowing the appeal: That the test of recklessness was an objective one. There was no liability on the part of the appellant. As occupier of the lands the appellant could not be held to be unreasonable in not putting up a warning notice. Still less had the appellant reckless disregard for the safety of persons using that land. Even if the duty on the occupier was the ordinary neighbourly duty of care the respondent was not entitled to succeed.

Reporter: L.O’S

1 Mr. Justice Geoghegan delivered the 21st day of January 2005

2 On the 11th April, 1997 the respondent suffered serious injuries as a consequence of a most unfortunate and unusual accident. She had been sitting down with some friends close to the edge of a cliff at Coolmore, Rosnowlagh in County Donegal admiring the sunset over the sea. When the respondent stood up from that position she lost her footing and fell down the edge of the cliff which turned out to be much more sheer than she would have expected. Due to loose materials she was unable to stop herself and she ended up in the water from which she was rescued by her friend. She suffered fractures to her left shoulder, her left elbow, left hip and pelvis and injuries to her ankle and foot and other injuries. The respondent instituted these proceedings to recover damages for her injuries against the appellant which was the owner of the unused land in question and was, therefore, also the occupier. The appellant company appears to have been 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 it described the respondent as a "recreational user". In the event it appears to have been accepted in the High Court, as it was in this court, that if the respondent was to succeed it would have to be by reason of a breach of duty towards her under the said section 4. Under the section that duty is the same for "recreational users" and trespassers. The trial came on before Butler J. who found the appellant to be in breach of such duty and assessed damages at €113,000. However, he found the respondent to be guilty of contributory negligence to the extent of 25 per cent. The net judgment therefore was for €84,666.

3 The appellant has appealed to this court against both that finding of liability on the part of the appellant and against the apportionment of liability in so far as it was limited to 25 per cent. By a notice to vary the respondent has cross-appealed against the finding of contributory negligence and against the assessment of damages claiming that the assessment was too low.

The facts

4 I have already given a short summary of how the accident occurred. I propose now to go into it in somewhat more detail. On the occasion of the accident the respondent with others were out for what is described as a "social evening" in Donegal town and they had dinner in a restaurant called The Smugglers Creek. After the meal the respondent and one of the group decided to go for a walk. Later they were joined by two others. The beach was close by and they decided to walk towards it. This was shortly after 8.00 p.m. The respondent in her evidence said that the sun was high in the sky, that it was sunset and that this is what attracted them to go to the beach to watch the sun set. In order to get to the beach they had to walk along a road which is very clearly shown in photographs which were produced. The photographs show that the lower half of the embankment or cliff leading to the beach is particularly sheer. This would have been within the view of the walkers but nothing turns on that in my opinion for the purposes of this action. As they travelled down the road toward the beach there was an isolated section of fencing on their left, a piece of which had fallen down. Considerable significance was attached to this by the respondent at the trial and I will return to it later. Essentially, the negligence (by that expression I mean the liability under the Occupiers Liability Act, 1995) alleged against the appellant was twofold. It was suggested 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 held with the respondent on the second. As already mentioned there was in fact a short stretch of broken-down fencing in existence. At that particular area there was some trodden grass which the respondent said she regarded as a path that led her to believe that people had walked there a good deal. Since it would have been the obvious place that people would have used to walk in on the grassy area this evidence was perfectly credible. The respondent was then asked where did she sit down. I think it worth quoting the exact wording of her answer which was question 37.

"We sat, I am looking at picture No. 4, we sat on a grassy area just looking out over that stony gradient."

5 Later she explained that they had all sat down but one of them lay on her stomach. At a certain stage they decided to get up and go back to the restaurant. The respondent described how when she stood up she went to stand up and her foot slipped and she just started to slide down the stony gradient that was shown on picture 4 and as she slipped she started to gather speed and continued to fall. She could not stop herself, the stones were coming through her fingers and she kept picking up speed. She remembered then being in the tide. I have already explained how she was rescued from the water. Under cross-examination the respondent maintained that she was misled as to the nature of the cliff. She said that it did not seem as if she was over a cliff and that she never thought she could fall over it. Throughout the cross-examination the respondent consistently alleged that it would never have occurred to her that there was this dangerous stony gradient in such a position that she could end up sliding on it and falling over the edge. Mr. Whelehan, S.C., counsel for the appellant put the following question to the respondent:

"If you had been there with two of your children and they went over and sat down in the position you took up, would you have been fretful for them or told them to come back from the edge and say “mind you don't fall over the edge”?"

6 The answer given was:

7 "Yes, I would."

8 In re-examination Mr. John Finlay, S.C., counsel for the respondent asked his client what would have been her reaction if there had been a warning notice. She answered that she would never have gone into the area. For reasons which I will elaborate upon when dealing with the law I think that that answer was of minimal evidential value.

9 Two of the companions gave evidence but I do not find it necessary to go into that in any detail. It was largely a repetition of what the respondent herself said. In fairness to the respondent, however, I think that I should specifically refer to one question and answer in the evidence of Mr. Dara O'Donnell. He was asked about the gravelly area that she had described and in particular as to how it struck him. He gave his answer as follows:

"I did not sense any danger at the time because the sheer drop was hidden from...