Court allows damages for recreational user injured by defective boardwalk under Occupiers' Liability Act 1995 s.4(4).

[2016] IECC 1

THE CIRCUIT COURT

RECORD NO: 2014/004610

DUBLIN CIRCUIT

COUNTY OF THE CITY OF DUBLIN

BETWEEN

TERESA WALL

PLAINTIFF

AND

NATIONAL PARKS AND WILDLIFE SERVICE

DEFENDANT

Judgment delivered this the 15th day of April, 2016 by Her Honour Judge Jacqueline Linnane

1. The plaintiff brings these proceedings for damages for personal injuries sustained due to the negligence, breach of duty and breach

of statutory duty on the part of the defendant. With regard to the latter reliance is made on the Occupiers’ Liability Act, 1995 and in

particular section 4(4) thereof- a failure on the part of the defendant to take reasonable care to maintain a boardwalk in a safe

condition. A full defence has been delivered with a plea of contributory negligence. A plea of volenti non fit injuria is also included

although that does not appear to have been pursued. In any event counsel for the plaintiff submits that it has no application as no

prior agreement was made by the plaintiff to waive her legal rights. The personal injuries summons issued on 25th June, 2014.

2. Certain matters are not in dispute- On 6th August, 2013 the plaintiff went hill walking with her husband on the Wicklow Way. She

was 56 years of age at the time and they were both very experienced and keen hill walkers. In addition the plaintiff was very fit- they

travelled abroad on many occasions to do various walks, including the Himalayas and the plaintiff regularly ran marathons. They had

prepared all their gear the night before and they were both wearing appropriate clothes, walking boots and using walking sticks. There

was specific signage directing walkers to use the wooden boardwalk where provided in order to protect the mountain habitat. It is

part of the national park and is a special area of conservation. In accordance with the signage they were on the boardwalk and

walking back towards Roundwood when the plaintiff’s foot got caught in a depression or hole on the boardwalk causing her to fall and

injure her right knee.

3. It is accepted that the plaintiff was a “recreational user” as defined by section 1(i) of the 1995 Act. The boardwalk is made up of

second hand wooden railway sleepers which were installed between 1997 and 2000. In some areas there is a chicken wire stapled or

nailed on to the sleepers. It would appear the sleepers were placed there to protect the habitat from being eroded by walkers. Within

approximately a week of the incident the plaintiff phoned the defendant to report her accident and complained about the bad

condition of the boardwalk where she fell. The District Conservation officer confirmed taking this call on 14th August, 2013 and that

the plaintiff was upset. The evidence from witnesses on behalf of the defendant is that there is an audit inspection every two years

and it relies on such an inspection to rectify any problems and also on hill walkers to report anything which needs attention. One of

these two yearly inspections took place on 23rd September, 2013 but unfortunately the report received from the plaintiff some weeks

earlier was not conveyed on to the inspector or that particular attention should be given to the boardwalk in the course of the

inspection.

4. Mr. Culliton, the plaintiff’s engineer, carried out an inspection in April 2014 of the locus in the presence of the plaintiff. Where there

was chicken wire in place in certain areas, the staples were loose. The locus of the fall showed a depression 22 inches long, 1 inch

deep and 4 inches wide. The photographs taken at the time and indeed on the day of the fall clearly show rotted timber and a lack of

maintenance. In Mr. Culliton’s view this was a hazard, pressure treated timber had not been used and at the time of the joint

inspection with the defendant’s engineer, Mr. Romeril, in September 2015, the locus had deteriorated further, which would indicate no

remedial work or maintenance had been carried out to rectify the problem. Mr. Culliton gave evidence, which was not challenged, that

the boardwalk was a structure. However in written submissions counsel for the defendant disputes the boardwalk is a structure and

claims it is part of the land itself. Photographs taken at the time of the joint inspection confirm the timber sleepers were badly rotted

in places. In Mr. Culliton’s view an audit inspection every two years is insufficient and he questioned the standard of the audit,

particularly taking into account the audit inspection which took place some weeks after the plaintiff complained about the bad

condition of the boardwalk.

5. The defence basically put forward on behalf of the defendant in the course of the hearing was that the plaintiff was tired, was not

looking where she was going, that in order to carry out works of repair and maintenance of the sleepers a crew would have to be air

lifted in at a cost and the crew would cause erosion of the habitat. It is also argued that section 4(1) of the Act applies and in that

regard the plaintiff has failed to establish that the boardwalk was a danger or that the defendant intentionally injured or acted in

reckless disregard toward the plaintiff. Mr. Atkinson, who is a regional manager of the defendant gave evidence that this year,

depending on funding being available, it is intended to replace the boardwalk.

6. Section 4(1) of the Occupiers’ Liability Act, 1995 provides as follows:

“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 …..”

7. Section 4(2) then sets out various criteria to which regard should be had in determining whether an occupier has acted with

reckless disregard.

8. Section 4(4) provides as follows:

“Notwithstanding subsection (1), where a structure on premises is or has been provided for use primarily by recreational

users, the occupier shall owe a duty towards such users in respect of such a structure to take reasonable care to

maintain the structure in a safe condition: provided that, where a stile, gate, footbridge or other similar structure on

premises is or has been provided not for use primarily by recreational users, the occupier’s duty towards a recreational

user thereof in respect of such structure shall not be extended by virtue of this subsection.”

9. Counsel for the plaintiff relies on section 4(4) and submits that it should be read independently and not in conjunction with section

4(1) and accordingly the plaintiff does not have to establish that the defendant was in breach of its duty not to injure the person

intentionally and not to act with reckless disregard because of the danger existing on the premises. In essence therefore counsel for

the plaintiff submits that the defendant was in breach of its duty to take reasonable care to maintain the boardwalk, a structure

placed there for use by the plaintiff, a recreational user, in a safe condition.

10. Section 4 (4) was considered by the Supreme Court in the case of Ahmed (a minor) v. Longford Town Council [2014] IESC 46 – in

that case the plaintiff claimed he was caused to fall from a playground swing as the seat was too low. It was accepted that s. 4(4)

applied. In the course of his judgment Clarke J. states as follows:

“Under that provision the general effect of subsection (1), which is indeed to significantly increase the threshold by

reference to which an occupier can be found liable, does not apply “where a structure on premises … for use primarily by

recreational users” is present. In such a case the occupier owes a duty to recreational users “to take reasonable care to

maintain a structure in a safe condition.”

11. Again, section 4(4) of the 1995 Act was considered by the High Court in the case of Ryan v. The Office of Public Works [2015]

IEHC. That case involved a trip by the plaintiff over a bar in a playground when he ran to help his child on a play unit. In the course

of the judgment Murphy J. states as follows:

“Counsel for the defendant argued that the duty of care created by this subsection is a duty to maintain the structure

once installed in a safe condition, so that it does not in effect become “a danger existing on the premises” within the

meaning of s. 4(1), through lack of maintenance. The Court considers that the latter construction is more internally

consistent with the overall provisions of s. 4. If an inherently dangerous playground is provided for recreational users then

the occupier risks being found liable for an injury sustained by a recreational user as a result of “a danger existing on the

premises” pursuant to s. 4(1). To succeed in his claim, the recreational user must prove the existence of the danger and

reckless disregard on the part of the occupier. Once installed however, a properly constructed playground must be

maintained in a safe condition by the occupier. Injury resulting from a failure to do so can render the occupier liable under

ordinary negligence principles, which apply pursuant to s. 4(4). This if a play unit collapses, injuring a user, because of

erosion or missing bolts or other maintenance failure the injured recreational user can sue for breach of the duty of care

and does not have to establish recklessness on the part of the occupier.”

12. It would appear therefore that a higher duty is imposed on occupiers under section 4(4) than under section 4(1) where a

structure on the premises is provided for use primarily by recreational users. McMahon & Binchy’s Law of Torts (4th edition) at para.

16.86 p. 658 states:

“Recreational users are in a very disadvantaged position under the 1995 Act. The occupier of the premises does not owe

them any duty of care in negligence in respect of dangers existing on the premises. All that the occupier is required to do

is not injure them intentionally and not act with reckless disregard for them. The only instance when a higher duty is

imposed is where a structure on the premises is provided for use primarily by recreational users. The occupier, in such a

case, must take reasonable care to maintain it in a safe condition.”

13. Again in considering section 4(4) of the 1995 Act at para. 12.149 the authors state:

“An occupier owes a duty to take reasonable care to recreational users in one situation: this is where a structure on

premises is provided for use primarily by recreational users. The occupier must take reasonable care to maintain it in a

safe condition.”

14. It is clear to me taking everything into account that liability here rests with the defendant – the plaintiff was a recreational user,

she was directed to use the boardwalk which was made up of second hand wooden railway sleepers, a structure placed on the land

by the defendant. It is clear from the photographs that the timbers were badly rotten with staples protruding and chicken wire loose

and reasonable care was not taken to maintain same in a safe condition resulting in the injury suffered by the plaintiff. There was no

contributory negligence on her part.

15. With regard to damages, the plaintiff had to cancel plans for a walking holiday abroad and was unable to participate in the Dublin

City Marathon the following October. She attended at the VHI swiftcare clinic where she was treated with antibiotics, painkillers and

valium. She sustained bruising and a laceration to the front of her right knee which required seven stitches. While the wound to her

knee healed fairly quickly, her activities were curtailed and her knee was painful and stiff when climbing stairs. She became depressed

and has been left with a scar and discolouration on her knee. She was a very active person prior to this fall but now she is unable to

run in marathons or pursue the activity of hill walking which she enjoyed doing very regularly with her husband. In all the

circumstances I am awarding a sum of €40,000 in general damages.