Supreme Court upheld High Court's finding of two-thirds contributory negligence by plaintiff against county council in accident case.

[2001] IESC 28

THE SUPREME COURT

36 & 37 /98

Keane C.J

McGuinness J.

Hardiman J.

Between:

ANN THOMAS

Plaintiff

and

LEITRIM COUNTY COUNCIL

Defendant

JUDGMENTof Mr. Justice Hardiman delivered the 7th day of March, 2001.

1. This is the Plaintiff’s appeal against the finding of the High Court (McCracken J.) which apportioned liability for an accident in which

the Plaintiff had suffered personal injuries on the 1st May, 1995 in the proportions of two thirds against the Plaintiff and one third

against the Defendant. The Plaintiff maintains that there was no contributory negligence on her part or, if there was, it was in a much

smaller degree than the learned High Court Judge found.

2. The Defendant has cross appealed against the finding that the Plaintiff was an invitee as opposed to a licencee, on its lands at the

relevant time.

Background.

3. The facts of this matter have been comprehensively set out in the judgment of the learned High Court Judge, which is now

reported at [1998] 2 ILRM 74.

4. The Plaintiff, together with her husband and three other people had travelled from England to take part in a ballooning event in

Sligo. However, weather conditions prevented the event from going on on the 1st May, 1995 and the party went sight seeing instead.

They had read about Glencar Waterfall in Co. Leitrim in the Michelin Guide and decided to go there.

5. The area around Glencar Waterfall had been purchased by the Defendant in 1986. It is a well known place of resort and an area of

considerable natural beauty. Whilst in private ownership a concrete footpath was laid some thirty or forty years ago. The local

authority developed a car park with toilet facilities across the road from the area of the waterfall. They also renewed all the

footpaths. They made the area accessible, up to a point, to disabled persons. This occurred in 1991/92. The local authority also had

the trees on the site inspected by Coillte Teoranta as a result of which four trees were removed. The premises were visited by or on

behalf of the area Engineer “on a reasonably regular basis” and had been last visited on the 6th April, 1995. A lady was employed on a

part time basis who looked after the toilet facilities. There was no full time maintenance staff because, according to the Engineer “It

is the type of area that doesn’t need maintenance. It is left wild”.

6. On the evidence, the site was acquired by the County Council and developed in the way described “in order to provide an amenity

within their administrative area”.

The accident.

7. The Plaintiff and her party arrived at the area and went up a footpath which led from the road up the side of the waterfall to a

viewing platform. It then continued at a sharp angle to the left and rose to its highest point. From there it descended again quite

steeply by way of steps, turned to the left and rejoined an original pathway thus creating a roughly triangular loop. The pathway

consisted of stone slabs 4ft. wide.

8. The Plaintiff and her party, having proceeded to the top of the path, began to descend again on the looped pathway. Towards the

bottom of a steep part of that pathway, they came upon a tree which had fallen across the path completely blocking it. A row of

trees made it impossible to pass the obstruction on the right hand side. To the left hand side there was a very steep bank leading

downwards towards the bottom. This had been grassed but it had been used as a short cut to some extent and there were two

distinct bare tracks on it, one on either side of a tree stump. There was a considerable amount of bare earth where the grass had

been worn away.

9. When the Plaintiff’s party came upon the obstruction they were walking in single file, with the Plaintiff at the back. There was no

discussion about what was to be done but the various members of the parties stepped off the path and on to the bank. It was

necessary to go sideways down the bank and to hold on to whatever supports offered in order to keep one’s balance. The Plaintiff’s

husband in fact slipped shortly after leaving the path but was not injured. It appears that just as he was getting up, the Plaintiff

stepped off the path higher up and immediately or almost immediately slipped.

Issues.

10. There is no doubt that the Plaintiff unfortunately sustained a serious injury to her ankle. Furthermore, having regard to her age,

which was 62 years at the time of the accident, her occupation, her weight and build and her previously active lifestyle, the injury

and its consequences have been serious for her. However this appeal is not concerned with the question of damages, which have yet

to be assessed. The question is whether she can make the Defendant liable in whole or in part for her injuries.

11. As the case was argued on appeal, this general question involves several issues. Firstly, was the Plaintiff’s status on the lands

around Glencar Waterfall that of an invitee or a licencee? Secondly, was the Defendant in breach of its duty to her as an invitee or a

licencee? Thirdly, if they were in breach of their duty to her, was the damage suffered by her caused partly by her own negligence or

want of care, and if so in what proportion?

The findings of the learned trial judge.

12. The learned trial judge held that the Plaintiff was an invitee on the premises, on the basis that there was a material benefit to the

Defendants in having Glencar Waterfall opened to the public. He held that the Defendants had been in breach of their duty of care to

the Plaintiff in not ensuring that the pathway was kept clear and passable, particularly in an area where there was a steep and

possibly dangerous bank at the side of the path. He went on to hold that the Plaintiff had decided to take the risk of going down

what must have appeared to be a somewhat dangerous bank. He held that “she took a calculated risk in the knowledge that there

was a danger of falling”. He held that this risk could have been avoided by simply retracing her steps, a distance of 178yds. He

assessed the contributory negligence of the Plaintiff at two thirds.

Invitee or licencee.

13. This case was argued with great economy and precision on both sides. It was agreed that the question of whether the Plaintiff

was an invitee or a licencee turned on whether the Plaintiff’s presence on the lands conferred a “material benefit” on the Defendants.

Neither side took issue with the statement of the law contained in the second edition of McMahon and Binchy, Irish Law of Tort, page

213:-

“The benefit which the occupier must enjoy before the entrant becomes an invitee is a material interest (frequently,

although not invariably, a financial interest) - a social benefit is not enough. But it must be noted that, in looking for the

occupier’s benefit, the test is not one of absolute material interest in all cases, but rather where the visit, under normal

circumstances, would usually involve a material benefit for the occupier. ‘What is to be looked at is the nature of the

purpose for which the visitor comes, and whether the party in occupation would normally have a material interest in visits

made for that purpose’. So a person who comes into a shop with the intention of purchasing and does not buy because

the shop does not at present stock the commodity, is nevertheless an invitee.....”.

14. This passage draws heavily on the judgments of the former Supreme Court in Boylan v. Dublin Corporation [1949] IR 60. In that

case the Plaintiff had attended a social event promoted by a charitable society who had hired part of the Mansion House from Dublin

Corporation for the purpose. It was held that his presence on the premises constituted a material benefit to the Corporation so as to

make him an invitee, on the basis that the presence of persons in that capacity “helps to bring about continued profitable hirings as a

natural probable and intended result and therefore the owners interest in it is the very reverse of remote”.

15. The facts of this case do not reveal any such commercial interest on the part of the Defendant. However, the learned trial judge

held that the presence of the Plaintiff and people like her conferred a material benefit on the Defendants on the following basis:-

“This is not a park provided as an open space in an urban area by a local authority, this is a scenic attraction in a rural

area. I doubt very much if the Defendant County Council spent considerable sums of money on building a car park and

toilet block and on building a path of some length simply for the residents of Co. Leitrim. This is clearly a tourist amenity

and is designed to attract tourists into Co. Leitrim. The Plaintiff and her party in fact went to the area because they read

of it in a book dealing with tourist attractions.

The question remains whether attracting tourists is of sufficient material interest to bring entrants into the area under the

heading of Invitees. On balance, I think it is. One of the main purposes, if not the principal purpose, of attracting tourists

into an area is that they bring financial benefits to the area. While these benefits may initially put money in the pocket of

local shopkeepers, nevertheless there is, at least indirectly, a benefit to the local authority as well. Accordingly in my

view the Plaintiff entered the area of Glencar Waterfall as an invitee”.

16. The only evidence in relation to the purpose for which the Defendant acquired the relevant lands and improved them to the

extent as they did, was that already quoted from the evidence of the area engineer that it was with a view to providing an amenity

within their administrative area. In the course of cross examination, the same witness said that he would normally visit before bank

holidays. He agreed that the time of his visit of the 6th April was when “You are just getting into the high use, the tourist season as

such”. He was asked “You are just coming out of the winter and early spring and coming to Easter, so you are anticipating that the

number of visitors is going to increase. Is that the idea?”, and agreed, though adding that there were visitors all year round.

17. He also agreed when it was put to him that “With Easter coming up and the tourist season about to start you would anticipate

that there would be a big increase in the number of visitors coming along”.

18. In my opinion, this evidence does not establish on the balance of probabilities that the presence of the Plaintiff or similar persons

conferred a material benefit on the local authority nor that the local authority viewed the amenity in that light. The predictable fact

that the number of visitors to the site is likely to increase as the weather improves does not seem to me to provide any evidence of

anticipated material benefit. More fundamentally, I do not accept that, when an amenity is developed, a local person visiting it would

do so in the capacity of a licencee and a foreign visitor as an invitee. The evidence establishes only that the local authority has

provided some amenities at a long standing place of public resort to which anyone, tourist or local, can have free access. No doubt it

is for the public benefit, and is certainly within the powers of the local authority, that such access is guaranteed by the public

ownership of a conspicuous site but I do not accept that it has been shown on the evidence that the local authority has a material

interest in the access of an individual to the site, anymore than the previous private owners would have had.

19. I can find no support in the cases for the proposition that gratuitous entry for recreational or amenity purposes to lands confers a

material benefit on the owner. In Sutton v. Bootle Corporation [1947] 1 KB 359 a public park had been developed and maintained by a

local authority, which had installed a playground. A child who came into the playground was held to be a licencee only. The Plaintiff

contended that this decision merely assumed the status of the child as a licencee but the report does not support this contention.

Indeed Counsel for the Plaintiff had contended “The position of a person entering the public recreation ground as of right is different

from that of a licencee...... The Defendants owed a higher duty than that of a licensor because what they were providing was an

allurement to any child”. All three of the Lord Justices of Appeal held that the child was a licencee only and one, Asquith L.J.,

surveyed a number of authorities to the same effect.

20. I do not regard the evidence in this case as establishing that the local authority did not develop the amenity for any person who

cared to visit, no matter where they were from, but developed it for the purpose of attracting tourists to Co. Leitrim. I agree with the

submission of the Defendant that “The evidence is more, or at least as, consistent with the policy of bringing areas of natural beauty

into the common ownership or enjoyment of everyone, than a policy of obtaining tourist money”. I consider that the act of developing

an amenity by a local authority cannot be regarded as simply a means of “putting money into the pockets of local shopkeepers”. And,

as noted above, I do not accept that a person’s status on a publicly owned amenity varies with whether he or she is a local or a

foreign visitor. What is to be said, on that analysis, of the status of a person who comes from another part of Ireland?

21. The law relating to occupiers liability has been radically reformed by The Occupiers Liability Act, 1995. Had this law been in force

at the time of the Plaintiff’s accident her position would have been a less favourable one than under the old law, which applies to this

case.

22. The essence of the applicable law was a distinction between those whose presence on lands or premises was in pursuance of an

interest common to them and the occupier, and all others, the position of trespasser does not arise here. Since this concept of

interest or benefit is at the heart of the distinction, it cannot be ignored or unrealistically glossed without destroying the whole basis

of the common law approach.

23. At an abstract level it is possible to gloss almost any permissive presence of a person on another’s lands with an element of

benefit. The private house guest was the classic licencee. But even the relationship of host and guest might be analysed in terms of

benefit: social amenity, relief of loneliness, or hope of reciprocation. An occupier might not himself fully analyse his reasons for

offering hospitality.

24. But these putative benefits are simply too remote to amount to the material benefit which alone grounds the status of invitee. In

cases governed by the common law, the distinction which lies at the heart of it must be given substance by realistic application. The

provision of a public benefit to all comers is not less worthy of protection, by the attribution of a social or altruistic motive, than

private hospitality. The provision of access to a naturally wild area should not require its being manicured to the degree required of

commercial or industrial lands or premises. I would hold that the Plaintiff, and anyone else in her position, was a licencee on the

Defendant’s lands.

Liability to licencees.

25. Historically, the liability to licencees was restricted by the proposition that an adult licencee, in any event, must take the

premises as he found them. The only duty of the occupier was not to set a trap: “subject to this, which involves, as has been

decided, conduct bordering upon deceit or fraud, the licencee must take the premises as they are with all their imperfections

whatever they might be”: Bohane v. Driscoll [1929] IR 428.

26. This formulation was however criticised by Finlay C.J. in Rooney v. Connolly [1987] ILRM 768. Commenting on the passage just

quoted the learned Chief Justice said:-

“That is a view which in my opinion has not survived the later development in this country of the law affecting the duty

of an occupier to a licencee, and is too favourably expressed from the Defendant’s point of view”.

27. I propose to approach the issue in this case on the basis of the statement most favourable to a licencee which can be found in

the authorities. This appears to me to be that of Lord Sumner in Mersey Docks and Harbour Board v. Proctor [1923] AC 253 where it

was said that licensor “must act with reasonable diligence to prevent his premises from misleading or entrapping the licencee......”.

Similarly, in Aherne v. Roth and Ors. [1945] Ir Jur Rep 45, the duty to a licencee was being described as being a duty “to protect

licencees against concealed dangers which he (the licensor) actually knows to exist”.

28. I do not consider that a formulation involving the concepts of deceit or fraud, even as those terms are used in a civil rather than

criminal context, is helpful to the elucidation of duties to a licencee.

29. In this case, the Defendant has not sought to argue that it is entitled to be exempted from such duty as it may owe to the

Plaintiff on the basis that it did not actually know of the danger represented by the fallen tree or the slope below the path. This was

probably a wise concession having regard to the presence of a part time employee whose house, on the evidence, appears to

overlook the site of the accident.

Decision on liability.

30. In applying the duty of an occupier, as stated above, to the facts of the present case, it does not appear to me that the fallen

tree can be regarded as a concealed danger or a trap. While there was some dispute in evidence as to the point at which it would

have become obvious, it was beyond dispute that it was actually observed prior to the Plaintiffs stepping off the path and was in fact

the cause of that action. If, therefore, there was any misleading or entrapping of the licencee it must be found other than in the

obvious fact of the tree’s collapse and presence as an obstacle on the path. Once the path was observed to be blocked by the

members of the Plaintiff’s party it was necessary for them to take some alternative route in order to get back to their car. It was

certainly open to them to retrace their steps and I do not accept the contention that the path was too narrow to allow them to do

so safely having regard to the actual or possible presence of other people coming down the path. Firstly, the path was in my view

wide enough to allow such persons to pass. Secondly, if the Plaintiff and her party had met such persons they would no doubt have

informed them that the path ahead was impassable.

31. However, having read the transcript and considered the photographs I am of the opinion that the presence of two tracks across

the slope was a significant factor in the decision of the leaders of the Plaintiff’s party to step off the path. When it was put to the

Plaintiff in evidence that this was a foolhardy thing to do when she could have retraced her steps she said “not at that time, no. It

seemed a natural thing to follow everybody down over the bank, which is what people had obviously been doing over the weeks,

months, however long the tree had been there”.

32. I agree with the learned trial judge in his assessment of this decision. He said:-

“All the persons in the Plaintiff’s party gave evidence before me, and they all accept that this was a steep bank, and that

it was not possible to simply walk straight down it. It was necessary to go down very carefully sideways, and take

advantage of anything available to hold on to. This must be perfectly obvious to the Plaintiff...... they all, including the

Plaintiff decided that they would take the risk of going down what must have appeared to them to be a somewhat

dangerous bank”.

33. He then concluded:-

“I consider that there was a greater liability on the Plaintiff as she took the decision to take the risk, which must have

been an obvious one as she had another way of avoiding the accident. Her negligence was the immediate cause of her

injury, although not the sole cause”.

34. It seems clear from another passage in the learned trial Judge’s decision that he would not have found the Defendant liable to the

Plaintiff if he had considered her to be a licencee. He said:-

“She took a calculated risk in the knowledge that there was a danger of falling. This is the type of risk taken frequently

by persons who go hill walking or walking on unsurfaced areas in forestry plantations, and of course are entirely

responsible for any injury they may suffer. However, in such cases they would clearly be licencees”.

35. I agree that the nature of the risk was analogous to that undertaken to that undertaken by hill walkers. It is also clear from the

evidence of Mr. Legg, one of the Plaintiff’s companions, that the party were in fact prepared to walk across unsurfaced terrain and

were dressed to do so. However, their actual decision to do so at the point where the accident took place, which was taken quickly,

was significantly influenced by the presence of the tracks which had been permitted to be made, and to remain on the ground, by the

Defendants. They may, in my opinion, have misled the Plaintiff in altering her perception of the risk, though the course she embarked

on was still obviously risky.

36. Applying the formulation already quoted of Lord Sumner in Mersey Docks and Harbour Board v. Proctor, it is clear that on the

evidence the trial Judge would have been entitled to arrive to the conclusion that the Defendant in his capacity as licensor had not

acted with reasonable diligence to prevent the particular area from misleading the licensee, a failure which contributed, although in

part only, to the accident.

37. Accordingly I find that each party was at fault in this accident.

Degrees of fault.

38. Counsel for the Plaintiff, very realistically, confined his argument to the proposition that the apportionment was grossly

disproportionate. He did not press the submission that there was no scope for any finding of contributory negligence. He relied on the

well known case of O’Sullivan v. Dwyer [1971] IR 275 to the effect that “degrees of fault between the parties are not to be

apportioned on the basis of the relative causative potency of their respective causative contributions to the damage, but rather on

the basis of the moral blame worthiness of their respective causative contributions. However, there are limits to this since fault is not

to be measured by purely subjective standards but by objective standards”.

39. This formulation was significantly qualified in a later case, Carroll v. Clare County Council [1975] IR 221, at 227. Commenting on

the passage just cited, Kenny J. said:-

“I think that ‘fault’ in section 34 of the Act of 1961 means a departure from a norm by a person who, as a result of such

departure, has been found to have been negligent and that ‘degrees of fault’ expresses the extent of his departure from

the standard behaviour to be expected from a reasonable man or woman in the circumstances. The extent of that

departure is not to be measured by moral considerations, for to do so would introduce a subjective element while the true

view is that the test is objective only. It is the blame worthiness, by reference to what a reasonable man or woman would

have done in the circumstances, of the contributions of the Plaintiff and Defendant to the happening of the accident

which is to be the basis of the apportionment”.

40. Kenny J. also remarks, in an unconnected portion of the judgment of some relevance to this case that “it is not a principle of law

that a person who maintains or permits an unusual danger must bear a higher share of fault than that attributed to a person guilty of

a casual act of negligence”.

41. I agree with the learned trial judge that the Plaintiff must bear the larger share of fault in this accident. If the Defendant had

simply provided access to the site, without developing any paths, I do not believe they would have been negligent at all. The

Plaintiff’s action in stepping off the path when she could have retraced her steps was both the immediate and the greater fault

leading to the accident. The fault committed by the Defendant was limited to that of somewhat misleading the Plaintiff as to the

negotiability of the terrain. But the terrains main features continued to be obviously dangerous.

42. I would therefore attribute two thirds of the fault involved in this accident to the Plaintiff and one third to the Defendant.