Weir-Rodgers v S F Trust Ltd

• Jurisdiction: Ireland
• Judgment Date: 21 January 2005
• Date: 21 January 2005
• Docket Number: [S.C. Nos. 80 and 109 of 2003]
• Court: High Court

Weir-Rodgers v. S.F. Trust Ltd.

Geraldine Weir-Rodgers

Plaintiff

and

The S.F. Trust Limited

Defendant

[2005] IESC 2

[S.C. Nos. 80 and 109 of 2003]

Supreme Court

Negligence - Occupiers' 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.

Section 4 of the Occupiers Liability Act 1995 provides inter alia:-

"(1) In respect of a danger existing on premises, an occupier owes towards a recreational user of the premises or a trespasser thereon ('the person') a duty-

• (a) not to injure the person or damage the property of the person intentionally, and

• (b) not to act with reckless disregard for the person or the property of the person, except in so far as the occupier extends the duty in accordance with section 5.

  • (2) In determining whether or not an occupier has so acted with reckless disregard, regard shall be had to all the circumstances of the case, including -

    • (a) whether the occupier knew or had reasonable grounds for believing that a danger existed on the premises;

    • (b) whether the occupier knew or had reasonable grounds for believing that the person and, in the case of damage, property of the person was or was likely to be on the premises;

    • (c) whether the occupier knew or had reasonable grounds for believing that the person or property of the person was in, or was likely to be in, the vicinity of the place where the danger existed;

    • (d) whether the danger was one against which, in all circumstances, the occupier might reasonably be expected to provide protection for the person and property of the person;

    • (e) the burden on the occupier of eliminating the danger or of protecting the person and property of the person from the danger, taking into account the difficulty, expense or impracticability, having regard to the danger of the premises and the degree of danger of so doing;

    • (f) the character of the premises including, in relation to premises of such a character as to be likely to be used for recreational activity, the desirability of maintaining the tradition of open access to premises of such a character for such an activity;

    • (g) the conduct of the person, and the care which he or she may reasonably be expected to take for his or her own safety, while on the premises, having regard to the extent of his or her knowledge thereof;

    • (h) the nature of any warning given by the occupier or another person of the danger; and

    • (i) whether or not the person was on the premises in the company of another person and, if so, the extent of the supervision and control the latter person might reasonably be expected to exercise over the other's activities."

The defendant was the owner and occupier of an area of coastal land. The plaintiff entered onto the land in question and walked along a steep embankment of ground adjacent to the sea and at one point sat down along the embankment edge. On standing up, the plaintiff lost her footing and slid down the face of the embankment towards the sea below. The plaintiff suffered injuries and instituted proceedings against the defendant as the owner and occupier of the land in question alleging, inter alia, negligence and breach of the statutory duty owed to her as a recreational user of the land pursuant to s. 4 of the Occupiers Liability Act 1995. The plaintiff maintained that she was not aware that the embankment or cliff edge was so dangerously steep and argued that a barrier to prevent entry to the area should have been erected and/or signage erected along the sea front alerting the public to possible danger. The High Court (Butler J.) held in favour of the plaintiff finding the defendant in breach of the statutory duty owed to the plaintiff and assessed damages at €113,000 with, however, the plaintiff guilty of contributory negligence to the extent of 25%.

The defendant appealed against the finding of liability against it and also against the apportionment of contributory negligence of the defendant being limited to 25%. The plaintiff cross-appealed against the finding of contributory negligence and the assessment of damages as being too low.

Held by Supreme Court (Murray C.J., Denham and Geoghegan JJ.), in allowing the appeal of the defendant, 1, that the plaintiff failed to establish a breach of the statutory duty owed to her by the defendant under s. 4 of the Occupiers Liability Act 1995 and even if the defendant owed the plaintiff a common law duty to take reasonable care, the plaintiff would still not have succeeded.

2. That, as a consequence of the enactment of the Occupiers Liability Act 1995, trespassers or recreational users had to surmount a much more difficult hurdle to establish a duty owed to them than the previously applicable common law duty of occupiers to take reasonable care and that the trial judge had failed to address himself to this more onerous statutory duty.

3. That, in assessing whether the defendant acted with reckless disregard towards the plaintiff, the statutory criteria set out in s. 4(2) of the Occupiers Liability Act 1995 should be applied, mindful that the common law duty of care was no longer the applicable measure of negligence.

4. That there were certain risks in outdoor activities which a trespasser or recreational user must be taken to assume when engaging in such activities and in the circumstances, the plaintiff should have appreciated the dangers inherent in sitting along the edge of a steep embankment adjacent to the sea-front.

Tomlinson v. Congleton Borough Council [2003] UKHL 47, [2004] A.C. 46 approved.

5. That there may be exceptional, unusual or dangerous qualities to certain lands which would require an occupier thereof to erect warning notices, however, the danger inherent in the act of the plaintiff must have been obvious to her and, as such, the defendant could not be held to have acted with reckless disregard towards the plaintiff in not putting up warning notices.

Quaere - Since the Oireachtas very deliberately chose the wording of s. 4 of the Occupiers Liability Act 1995, rejecting other suggested alternatives, it might be that the current statutory threshold enacted by it was even more onerous for plaintiffs to overcome than "gross negligence".

Cases mentioned in this report:-

Donoghue v. Stevenson [1932] A.C. 562; 1932, S.C. (H.L.) 31.

Donovan v. Landy's Ltd. [1963] I.R. 441.

Glasgow Corporation v. Taylor [1922] 1 A.C. 44; [1921] All. E.R 1; (1922) 38 T.L.R. 102; (1922) S.C. (H.L.) 1; 1922 2 S.L.T 254.

Hastie v. Magistrates of Glasgow 1907, S.C. 1102; (1907) 44 Sc L.R. 829; (1907) 15 S.L.T. 194.

McNamara v. Electricity Supply Board [1975] I.R. 1.

Stevenson v. Corporation of Glasgow 1908 S.C. 1034; (1908) 45 Sc. L.R...