Andrew McKeown BL

About this case:

• Citation:
  [2020] IEHC 547
• Judgment:
  External link
• Court:
  High Court

She had been jumping on boulders. Mr Justice Richard Humphreys found that large boulders do not represent a hidden danger or an unusual danger.

Background

Leah Mulcahy, through her mother, took proceedings against Cork City Council, who owns a green area beside her estate, in which there are boulders which have been there for 25 years. Children are known to play on the boulders.

In July 2017, she broke her arm after jumping between boulders. The PI summons did not refer to the Occupiers’ Liability Act 1995 but was framed in terms of negligence. However, the 1995 Act s.2(1) displaces the general law of negligence in relation to the tort liability of occupiers for the static condition of premises.

Leah’s mother Krystle Mulcahy said that she warned her daughter to stay off the rocks, but that children tended to play on them. Leah had a displaced fracture above the elbow. Her bones were manipulated and wired together, which were removed around four weeks later. She was referred for physiotherapy, but did not tolerate it very well.

High Court

Under cross-examination by John F. Lynch SC, with James Duggan BL, Krystle Mulcahy accepted that the boulders had been there for 25 years. She accepted their purpose was to prevent dumping or unauthorised visitors camping there, but she didn’t think that they were stopping people.

Leah Mulcahy’s evidence was received under the Children Act 1997 s.28(1). The judge said that 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.”

The court heard evidence from Kieran Spitere, engineer, that he understood the Council had put boulders around the city 30 to 40 years ago to prevent access to green areas. He thought that they were an enticement to children in that children were going to play on them. He said their removal would not be onerous.

Emer O’Callaghan of the council’s Parks Department said the boulders were placed in the late 1990s under a community employment scheme, where areas were cleaned up, and were placed to prevent dumping and unauthorised access. When counsel for Ms Mulcahy suggested that they were irregular dangerous objects and that children were likely to fall off, she said children would fall off anything and that the council had never been asked to remove them.

There was a disagreement as to whether Ms Mulcahy should be considered a visitor or a recreational user under the 1995 Act. The judge assumed that she should be regarded as a visitor on the basis that the land was provided by the local authority as part of the amenities of the housing estate, the logic being that to that extent there was an implied permission to residents to use the lands, thereby rendering the residents visitors rather than recreational users.

That imposes the higher common duty of care akin to the negligence standard, whereas the duty towards recreational users is not to injure them intentionally or to act with reckless disregard. Section 4(2) sets out the factors to be considered. The Supreme Court emphasised in Weir-Rodgers v The S.F. Trust Ltd. [2005] IESC 2 that the court should not fall into the trap of considering the s.4(2) factors without taking into account that they “have to be pitched at a level more indulgent to the defendant”.

McMahon and Binchy Law of Torts points out that all of the s.4(2) factors are also relevant to negligence, which makes all the more important the Supreme Court’s emphasis that that mustn’t distract from the fundamental question that reckless disregard involves a degree of carelessness worse than negligence.

The judge said that while McMahon & Binchy question whether what they call aimless “mooching” by children really amounts to recreational use, the court saw no distinction: “Children’s recreational use is recreational use, and aimless mooching is recreation par excellence.” While the authors suggest that the concept of recreational use should be construed narrowly, the judge saw no valid statutory basis for that. However, that did not arise as the court assumed that the Council’s duty was not merely not to intentionally injure or act with reckless disregard, but to give effect to the common duty of care.

The judge said the common duty of care does not require an occupier to remove all dangers. He accepted that children would climb on anything, and said that this was a case which showed the possible hidden cost of over-expansion of tort law. He said that the logic of the plaintiff’s case was to go from a situation where children are “jumping on rocks on a regular basis, all day every day… and presumably having fun doing it (otherwise why do it), to one where things that they can jump on have to be removed and we end up with a bland and featureless landscape”.

As regards the evidence that removing the two boulders is not particularly onerous, the real question is not whether it is feasible to remove the boulders, but the burden of broadening that and extrapolating the logic across the whole city or country, for all occupiers to remove anything that children would be capable of jumping on and falling from. That would impose an unreasonable burden.

The judge said that “danger plus allurement plus knowledge plus lack of legitimate purpose do not in themselves add up to negligence in the absence of a final legal policy factor, which is that the danger is one that it is reasonable for the law to require a defendant to obviate”.

Conclusion

The judge dismissed the claim purely because action did not succeed under the 1995 Act and not because of any lack of acceptance of the factual evidence. The court affirmed the Order of the Circuit Court.