What duty does an occupier owe to a recreational user of their premises?

The recent High Court decision in Fitzgerald v South Dublin County Council [2015] IEHC 343 (Barton J, 21 May 2015) considered the duty of care owed to a “recreational user” as defined by the Occupiers' Liability Act 1995 (“the Act”) and the meaning of the phrase “reckless disregard”.

Facts

The plaintiff, aged nine at the time of the accident, sustained a laceration to his back after falling on a piece of broken glass while playing football on a common area of a housing estate. The defendant, South Dublin County Council, was the owner and occupier of the common area in question and had responsibility for maintaining it. The plaintiff brought a claim in negligence and for breach of statutory duty against the local authority.

The Occupiers’ Liability Act 1995

Section 1 of the Act defines an “occupier” as meaning “a person exercising such control over the state of the premises that it is reasonable to impose upon that person a duty towards an entrant in respect of a particular danger thereon…”.

The 1995 Act provides for three classes of entrant – visitors, recreational users and trespassers.

A “recreational user”’ is defined as:

“an entrant who, with or without the occupier’s permission or at the occupier’s implied invitation, is present on premises without a charge (other than a reasonable charge in respect of the cost of providing vehicle parking facilities) being imposed for the purpose of engaging in a recreational activity, including an entrant admitted without charge to a national monument pursuant to section 16 (1) of the National Monuments Act, 1930, but not including an entrant who is so present and is —

(a) a member of the occupier’s family who is ordinarily resident on the premises,

(b) an entrant who is present at the express invitation of the occupier or such a member, or

(c) an entrant who is present with the permission of the occupier or such a member for social reasons connected with the occupier or such a member.”

Section 4 of the Act sets out the duty of care owed to a recreational user as requiring the occupier not to “intentionally injure” or act with “reckless disregard” for the person.  The phrase “reckless disregard” is not defined in the Act but section 4(2) does refer to 9 factors to be given consideration when determining whether or not an occupier has acted with reckless disregard, together with the circumstances of each case:

“(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 impracticability, having regard to the character 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 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.”  

Issues between parties & decision of Mr Justice Barton

The plaintiff sought to put forward the argument that he was a “visitor” as defined by the Act and not a recreational user and as such the local authority owed him a higher duty of care i.e. a straightforward negligence test. The Court viewed this differently and came to the conclusion that the plaintiff, being involved in a kick-about with friends, was a recreational user as defined under the Act.   

The defendant gave evidence that it regularly cut the grass of the common area and the Court accepted that the defendant picked up litter in the common area a day or two before each cutting in order to ensure that the grass cutting machines were not damaged in the process.

The Court gave consideration to the duty of care owed to a recreational user under the Act and in particular to the meaning of the phrase “reckless disregard”. While Mr Justice Barton initially indicated a view that the liability in respect of a “reckless disregard” was one to be equated with that arising from an “intention to injure” by an occupier, he went on to say that the phrase had long since been adopted in pre-existing case law and said that it “must be considered as being so understood by the Oireachtas in choosing that terminology when enacting S4 of the Act.”

It should be noted that the test for liability in those earlier decisions was along the lines of whether the occupier had knowledge of a trespasser on the premises and knowledge of a danger that would expose that trespasser to a high risk of injury but willingly continued with the danger i.e. a near intention to injure. 

The Court found that the system of management and the maintenance of open green spaces employed by the defendant prior to and at the time of the accident were reasonable and entirely appropriate for what was a general recreational area. The Court placed much emphasis on whether it would be reasonable to expect the defendant to completely remove dangers caused by litter in common areas taking into account the resources available and the vast amounts of land it was responsible for checking and maintaining.

In finding that the accident was not attributable to either negligence or reckless disregard on the part of the defendant , the Court said that to expect the defendant to check and remove litter and hazardous objects more than once or twice a week was “neither realistic nor reasonable”’ and that expecting the defendant to fully protect individuals from the dangers and discarded debris of anti-social behaviour “would be nothing short of immense not to mention impracticable and, in my view, intolerable”.

The Court determined that “a balance has to be struck between what is reasonable and practicable in terms of maintenance and safety of open green spaces and the desirability of making such spaces available for the enjoyment of the public”.

Conclusion

This decision of the High Court provides some clarification as to the meaning of the phrase “reckless disregard” as used in the Act and shows the steep test a recreational user must get over in order to prove liability against an occupier. The decision is also a reminder that if an occupier, as defined by the Act, has a reasonable and appropriate system of management and maintenance of an area frequented by visitors, recreational users or trespassers then there is a good chance of defeating a claim for personal injuries arising from an accident sustained on this area of their premises. 

For more information please contact Louise Holmes or a member of our Commercial Litigation department.