Supreme Court dismisses occupier liability claim for cliff fall, ruling inherent risks assumed by recreational users.

THE SUPREME COURT

Murray C.J.

Denham J.

Geoghegan J.

80 & 109/03

BETWEEN/

GERALDINE WEIR-RODGERS

Plaintiff/Respondent

and

THE S.F. TRUST LIMITED

Defendant/Appellant

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

1. 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.

2. 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

3. 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.”

3. 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’?”

4. The answer given was:

“Yes, I would.”

5. 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.

6. 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 view for a start and the slope looked gradual

enough. It did not look like a steep slope that you would find yourself falling if you fell. It was deceptive.”

7. I have highlighted that answer because it would seem to me to represent the high point in the respondent’s case. In due course, I

will give my opinion as to how it affects liability if at all.

8. Only one expert was called, a Mr. Laurence McMullan, an engineer called on behalf of the respondent. The thrust of his evidence

was that there should have been a barrier to prevent the public entering on to this bit of ground, a suggestion rejected by the trial

judge. That finding has not been appealed. He also thought that there should have been a warning notice and that found favour with

the trial judge. There was a good deal of discussion about the stretch of broken-down fence. It was at all material times part of the

appellant’s case that that fence was never there to prevent pedestrians walking in. Even if the fence had been in perfect order it was

merely a section of fence and the public could still have gone in at the end of it. It may have been to do with the traffic on the road.

Though there was no specific finding by the trial judge, it does seem to be highly unlikely that it was in any way designed to prevent

pedestrians entering. Mr. McMullan was asked, was it obvious that the incline went down to a sheer drop and, therefore, straight

down on to the beach and he said it would be obvious to some people but not necessarily to everyone and he said that there would

be a danger there. At one point in the cross-examination of Mr. McMullan, Mr. Whelehan asked him if you were to put up a notice

every place that there was a ridge or a cliff how many notices would have to be erected. His answer was that the place would be

littered with notices. One does not have to be an engineer to agree with that answer and one does not have to be blessed with a

high degree of common sense to opine that it is highly unlikely that the Oireachtas ever intended any such thing. Mr. McMullan’s

evidence was extreme but, in my view, it logically had to be given to support the case of the respondent. For instance, in re-

examination Mr. Finlay referred to a question Mr. Whelehan has asked Mr. McMullan as to whether he was suggesting that every

stretch of the coast line should be fenced. I rather suspect that Mr. Finlay was hoping for a different kind of answer than he got. Mr.

McMullan said that any area that is heavily pedestrianised should certainly have some warning signs and that there should also be a

fence there as well. I must confess that this conjures up in my mind huge areas of coastline right around Ireland fenced against the

public and littered with warning notices. An Oireachtas intention to that effect would seem unlikely but if a statute required it, the

courts would be bound to uphold it. That is the question which I have to address when I deal with the law.

The law

9. As I have already indicated the respondent in order to succeed in this action had to establish a breach of duty towards her under

s. 4 of the Occupiers Liability Act, 1995. Under that section the same duty is owed to recreational users within the meaning of the

Act and to trespassers. For this reason and for shorthand convenience, I will be referring from now on to the duty owed to

trespassers but this does not mean that I am expressing any view as to whether the respondent was a recreational user within the

meaning of the Act or not. I will begin my treatment of the law by quoting paragraph 12.16 of McMahon and Binchy Law of Torts 3rd

edition under the heading of “Occupiers Liability to Trespassers”. The learned authors say the following:

“This branch of the law was drastically overhauled twenty five years ago in Ireland. After McNamara v. ESB was handed down

by the Supreme Court in 1975, the duty owed to trespassers in Ireland was the duty to take reasonable care. The Occupiers

Liability Act, 1995, however, has reversed this and has restored the old pre-McNamara common law standard, that is, that

the duty owed to trespassers is not to injure them intentionally and not to act with reckless disregard (for) their person or

property. All the common law case law on this branch of the law, which had become largely redundant during the period 1975

to 1995, is once more very relevant in determining what recklessness means in this context. Furthermore, the judicial

techniques which were developed to mitigate this harsh common law rule must all be revisited as they represent real options

for a judiciary wishing to avoid a draconian rule in particular situations.”

10. With the greatest respect to the learned trial judge there is nothing to indicate that he addressed himself to this much higher

threshold now enacted for a plaintiff trespasser. In fairness to him he undoubtedly referred to the expression “reckless disregard” and

he said that he had been told by Mr. Whelehan that the expression had not been discussed in the courts or determined in any written

judgment. Unfortunately, he did not then go on to consider what it meant but rather moved to certain matters which under the

section, a judge should have regard to. To understand this point, I think it necessary to cite in full the first two subsections of s. 4.

“4(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 the 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 impracticality, having regard to the danger of the premises

and the degree of the 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.”

11. At paragraph 12.109 of the third edition of McMahon and Binchy the following is stated:

“It is clear from consideration of the several factors prescribed in the legislation that recklessness connotes objective default

rather than necessarily requiring any subjective advertence on the part of the occupier to the risk of injury.”

12. I do not intend to express any view on the subjective/objective question. Such consideration should be left for a case where it

properly arises. My concern in this regard arises from the fact that notwithstanding the recommendations contained in both the

Consultation Paper and the ultimate report of the Law Reform Commission that the liability towards trespassers and recreational users

should be one of “gross negligence”, the Oireachtas appears to have rejected this recommendation and adopted the phrase arising

from the old case law namely “reckless disregard”. It may well be, therefore, that the liability is something more than what might be

described as “gross negligence”. However, this is a case of a lady falling down the edge of a cliff. It is suggested that there was an

inherent danger in the nature of the actual ground and portion of cliff where she fell. This, of course, is so but only in the sense that

wherever there is a cliff edge it is to be reasonably expected that there may be parts of it more dangerous than others. At any rate,

it would be reasonable to assume that the occupiers in this case would have had some awareness of the danger. For the purposes of

this case and without deciding the issue, I am prepared to accept that the test of recklessness is an objective one as suggested by

the authors of McMahon and Binchy. In the same paragraph of that work the authors make a very astute and prescient remark. They

state the following:

“One can only speculate about the extent to which the courts are in practice going to set the standard at a lower level than

the (equally objective) standard of reasonable care. The 1995 Act gives no guidance as to how much lower the level should

be. The nine factors specified in section 4(2) contain no such yardstick; indeed, they might constitute a trap to an unwary

judge who could easily seek to apply them without adverting to the fact that, although they are similar to criteria applicable

for determining the issue of negligence, they have to be pitched at a level more indulgent to the defendant.”

13. It would seem to me that that is exactly what happened in this case and that the learned trial judge unconsciously fell into this

trap.

14. As it happens, I take the view that even if the duty on the occupier in this case was the ordinary Donoghue v. Stevenson

neighbourly duty of care the respondent would not be entitled to succeed. Interestingly in Donovan v. Landy’s Limited [1963] I.R. 441

a case in which, as the Law Reform Commission noted, Kingsmill Moore J. reviewed all the Irish and English authorities, Lavery J. gave

a judgment agreeing with the judgment of Kingsmill Moore J. but making the following apposite comment:

“I agree with his conclusions and in the main with the reasons which he has given. I am, however, in some doubt as to

whether the distinction between negligence and reckless disregard is necessary to be drawn and I fear that such a distinction

may well lead to difficulty in a trial before a jury in explaining a case of this kind. There are already so many distinctions which

have been elaborately explained in enumerable judgments.”

15. More or less the same view was taken by Judge McMahon one of the authors of McMahon and Binchy in his submission to the Law

Reform Commission between the time of the Consultation Paper and the ultimate report. He was strongly of the view that the duty

should be an ordinary duty of reasonable care.

16. The Commission rejected his advice and again recommended a threshold of “gross negligence”. The Oireachtas, however, did not

adopt that expression in the legislation and instead went back to the old expression “reckless disregard”. It may well be reasonable to

argue therefore that the threshold is even higher than “gross negligence”. I do not find it necessary to express any definitive view on

any of this because as I have already indicated I believe that even if the duty was merely a duty of reasonable care and not the

obviously higher duty not to act with reckless disregard for the personal property of the person the result in this case would be the

same. It is perfectly obvious to all users of land higher than sea level but adjoining the sea that there may well be a dangerous cliff

edge and in those circumstances the occupier of the lands cannot be held to be unreasonable in not putting up a warning notice. Still

less has he reckless disregard for the safety of the person using the land. The whole area of reasonableness in an outdoor land

situation has been quite recently considered by the House of Lords in Tomlinson v. Congleton Borough Council [2003] 3 All E.R. 1122.

That case involved potential liability under the English Occupiers Liability Act, 1957 and there were some views expressed in the

speeches of the Law Lords relating also to the Occupiers Liability Act, 1984 which was the Act dealing with duty to trespassers. While

there is some overlap, the wording of the English Acts is sufficiently different to render it of limited assistance in interpreting the Irish

legislation. But at least one aspect of that case is relevant to this case. The Law Lords in their speeches referred to the common

sense expectations of persons engaged in outdoor activities such as, for instance, mountain climbing or walking or swimming in

dangerous areas. The other side of that coin is that the occupier is entitled to assume that knowledge of such dangers and risks

would exist and safety measures would be taken. For this purpose, I find it sufficient to refer only to some passages from the speech

of Lord Hutton. At p. 1155 of the report he cited with approval a Scottish case Stevenson v. Corporation of Glasgow [1908] SC 1034

at 1039 where Lord M’Laren stated:

“…in a town, as well as in the country, there are physical features which may be productive of injury to careless persons or to

young children against which it is impossible to guard by protective measures. The situation of a town on the banks of a river

is a familiar feature; and whether the stream be sluggish like the Clyde at Glasgow, or swift and variable like the Ness at

Inverness, or the Tay at Perth, there is always danger to the individual who may be so unfortunate as to fall into the stream.

But in none of these places has it been found necessary to fence the river to prevent children or careless persons from falling

into the water. Now, as the common law is just the formal statement of the results and conclusions of the common sense of

mankind, I come without difficulty to the conclusion that precautions which have been rejected by common sense as

unnecessary and inconvenient are not required by the law.”

17. That passage would seem to be apposite to this case also and would seem to apply to any suggestion that a warning notice

should have been put up. Lord Hutton also cites Corporation of the City of Glasgow v. Taylor [1922] 1 A.C. 44 where at 61 Lord Shaw

of Dunfermline stated:

“Grounds thrown open by a municipality to the public may contain objects of natural beauty, say precipitous cliffs or the banks

of streams, the dangers of the resort to which are plain.”

18. In support of these propositions, Lord Hutton cited yet another Scottish case Hastie v. Magistrates of Edinburgh [1907] SC 1102

where the Lord President (Lord Dunedin) at 1106 said that there are certain risks against which the law in accordance with the

dictates of common sense, does not give protection – such risks are “just one of the results of the world as we find it”.

19. I would heartily endorse the sentiments expressed in these passages. The person sitting down near a cliff must be prepared for

oddities in the cliff’s structure or in the structure of the ground adjacent to the cliff and he or she assumes the inherent risks

associated therewith. There could, of course, be something quite exceptionally unusual and dangerous in the state of a particular

piece of ground which would impose a duty on the occupier the effect of which would be that if he did not put up a warning notice he

would be treated as having reckless disregard. But this is certainly not such a case. While obviously sympathetic to the respondent in

her serious injuries, I am quite satisfied that there was no liability on the part of the appellant in this case and I would set aside the

judgment of the High Court and dismiss the action. The issues on the notice to vary do not, therefore, arise in any view.