Occupiers Liability- A Shift in Favour of Occupiers?
5 November, 2017
The recent Court of Appeal decision in the case of Louise Byrne –v- Ardenheath Company and Ardenheath Management Company, is one which perhaps affirms a move by the Courts to a more “reasonable” duty of care owed by owners of land to third parties under the provisions of the Occupiers Liability Act 1995.
This matter concerned a Plaintiff who had slipped and broken her ankle when crossing a grassy embankment rather than following the designated pathway to leave the Mount View shopping centre car park in Blanchardstown, Dublin.
In the High Court, Mr. Justice Michael Hanna found the Defendants owed a duty of care to the Plaintiff and could have taken steps to have the embankment made safe or ensure people did not use it. The Plaintiff alleged that she simply followed others who were using the embankment rather than the designated pathway. She alleged that the Defendants failed to ensure there was a safe pathway with steps and guardrail from the car park down to the embankment. She alleged that other people were using the embankment and there was failure to put up warning signs that it was an unsafe route. The Defendants argued that the Plaintiff had failed to follow the entry and exit routes and failed to have adequate caution for her own safety.
In the High Court, she was awarded €125,000.00 but this was reduced to €75,000.00 after 40% contributory negligence was found on her part.
This matter has now been heard in the Court of Appeal and Ms. Justice Mary Irvine has overturned the decision of the High Court. She stated in her Judgment that the owners of the shopping centre had not breached their statutory duty to take reasonable care of the Plaintiff’s safety. The basis for this decision was in the eyes of the Judge, that a visitor is expected to take reasonable care for their own safety and if they decide to travel down a wet grassy slope instead of using the designated safe tarmacadam path then “they will take responsibility for the consequences of that decision”.
Ms. Justice Mary Irvine specifically gave her views on the safety measures that had been proposed by the Plaintiffs Engineer, and she stated that installing a step with barriers either side of the slope would have had “potentially significant adverse repercussions for all who occupy land open to visitors such as Local Authorities responsible for many wonderful open spaces and parks.”
Clearly this decision has an element of public policy wrapped up in it as Ms. Justice Irvine went on to state that we “do not want to inadvertently deny children the joy of running down a grassy slope in a public park on a dry summer day or the golfer the pleasure of playing to an elevated green surrounded by a grassy bank.” Therefore, this decision appears to affirm a slight narrowing of the reasonableness required to meet the duty of care owed by occupiers than we have seen in this jurisdiction in recent years, while emphasising that the actions of the visitor will also be viewed when considering the facts of any case brought under the Act.
Perhaps the most famous example of the expansion of the duty of care owed by landowners in recent times was the Circuit Court case of Teresa Wall –v- National Park Services, where the Plaintiff had injured herself while out walking in the Wicklow Mountains and secured judgement as against the Park Services in the sum of €40,000. This case would have imposed what some might call an unrealistic duty of care on landowners in relation to safeguarding against incidents on their land. This Judgment was subsequently overturned on appeal in the High Court.
However, the decision of the Ms. Justice Mary Irvine in the Court of Appeal case of Louise Byrne –v- Ardenheath Company and Ardenheath Management Company, appears to affirm the decisions from the High Court of Mr.Justice Fulham delivered on 6th May 2016 in the matter of Herbie Van Dalsen –v- David Hickey Properties Limited and BT Communications Ireland Limited and Mr.Justice Barr delivered on the 29th June 2016 in the matter of “Jean Chambers –v- Powerscourt Estates Limited”.
In the Van Dalsen Case, Mr.Justice Fulham found against the Plaintiff who had accessed the Defendants premises by walking over a mown landscape embankment between the public footpath and the Defendant’s carpark and thereafter slipped on the dewy grass in making his descent and suffered a fracture to his right tibia, on the basis that he was a visitor coming into the City West Campus and that an Employer has no obligation to provide separate entrances for drivers and pedestrians. Mr.Justice Fulham stated that the Plaintiff took a risk in attempting to descend the slope with a much steeper gradient than the designated pedestrian ramp.
In the Jean Chambers Case , the Plaintiff was pushing her mother in a wheelchair along a path in the gardens of Powerscourt House, when, owing to a very steep slope on the path, she was caused to lose control of the wheelchair and fall to the ground, causing an injury to her wrist. The Plaintiff’s case was that the defendant failed to take any reasonable steps to designate the path which was safe for use by wheelchair users from other paths, which were not safe for such use, due to the presence of a large slope. Mr.Justice Barr in his Judgment found that the plaintiff had been given a map which clearly depicted a blue travel route along the path, which was suitable for wheelchair users. He stated that “the occupier has to take reasonable care for the safety of the visitor” and that the provision of this marked path was reasonable in the circumstances.
While it seemed that the Duty of Care owed under the Act was becoming more onerous on occupiers over the recent years, the Court of Appeal has now appeared to endorse a more “reasonable” Duty on Occupiers.
However, it should be stressed that most of these cases involved deviation by Plaintiffs from designated pathways, but that in itself shows that where an occupier has been reasonable in its attempt to provide safe passage through their land then the courts will likely find in their favour as per the Court of Appeal decision.