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The legal duty of .. by CaptainVertigo   (Show all posts)
The Irish Times Re.. by CaptainVertigo   (Show all posts)
CaptainVertigo
2016-04-18 18:46:25
Weir-Rodgers v SF Trust Ltd
Geraldine Weir-Rodgers sued SF Trust Ltd (a company formed by the Franciscan Order) claiming damages for personal injuries suffered when she fell down a cliff on the company’s seaside lands in County Donegal. Ms Weir-Rodgers claimed that after a social evening in April 1997 a group decided to go for a walk towards the beach at Coolmore, Rossnowlagh, to watch the sunset. There was an isolated section of fencing on a road to the beach , a piece of which had fallen down. She was sitting with friends close to the edge of a cliff. When she stood up she slipped, lost her footing and fell down the cliff which turned out to be much more sheer than she would have expected. Because of loose materials she was unable to stop and ended up in the water. She was rescued by a friend. She suffered extensive fractures and other injuries.
Mr. Justice Butler, in the High Court, found SF Trust to be in breach of its duty to the claimant under section 4 of the Occupiers Liability Act, 1995 and assessed damages at €113,000. However, he found the claimant to be guilty of contributory negligence to the extent of 25 per cent. The net judgment therefore was reduced to €84,666. The landowner appealed to the Supreme Court.
Mr Justice Hugh Geoghegan (with whom Mr Justice John Murray, the then Chief Justice, and Ms Justice Susan Denham, the current Chief Justice, agreed) said a 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 assumed the inherent associated risks. 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 was certainly not such a case. While obviously sympathetic to Ms Weir-Rodgers in her serious injuries he was satisfied there was no liability on the part of the landowner. He set aside the judgment of the High Court and dismissed the action. Costs were awarded against the claimant.
Commenting on the expert evidence given in the High Court, the Supreme Court judge stated:
Mr. McMullan (an engineer) 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 [claimant]. 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.
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