The Courts have held in a number of recent decisions that occupiers are entitled to presume that visitors to their property will take reasonable care for their own safety, as Section 3 of the Occupiers Liability Act, 1995 envisages.
Most recently, in May 2018, the High Court re-affirmed the application of common sense principles in determining what amounts to reasonable care and has extended its application to an employee in a similar, although not necessarily identical, way to how it applies to a visitor.
In 2017, the Court of Appeal in the case of Byrne -v- Ardenheath  1 IECA 293 delivered an important judgment in relation to Occupiers' Liability, and negligence generally.
The Plaintiff in this action was delivering leaflets in the course of her employment. She parked her car, stepped over the kerbstone in front of the car, and headed down a grassy bank to the footpath which was no more than 10 feet away. She slipped while descending the steep slope and suffered a serious fracture to her ankle. She succeeded in her claim before the High Court on grounds including that the grassy bank was steep, and railings should have been put in place for pedestrians to ensure their safety or measures should have been taken to ensure people did not use the said grassy bank.
The decision was overturned on appeal. Ms Justice Irvine held in her judgment that the owners of the shopping centre had not breached their statutory duty to take reasonable care of the Plaintiff’s safety on the following grounds:
‘First of all, as s.3 (2) of the Act makes clear, the occupier is entitled, when deciding what steps it should take to comply with its obligation, to assume that its visitors will take all reasonable care for their own safety and that an adult normally can look after his or her welfare. That begs the question as to what Ardenheath, as occupier, was entitled to expect of a visitor such as Ms. Byrne who wanted to leave the smaller car park on foot to go to the housing estate across the road from the car park.
In this regard the, Court of Appeal held that it was satisfied that Ardenheath was entitled to assume that an adult exercising reasonable care would avoid the wet grassy slope, particularly having regard to the presence of the 6-inch kerbstone, the fact that they were wearing shoes that provided little grip, and that they needed to go no further than the modest distance required to leave the car park through an entrance using a tarmacadam surface. This is not a case where, in order to have avoided the wet grassy slope, Ms. Byrne would have been required to walk any substantial distance in order to find a dedicated surfaced exit.
Ms Justice Irvine summed up her decision by stating, “All that is not to say that there is anything to stop a visitor such as Ms. Byrne deciding to take a short cut down such a slope to get more quickly or directly to their desired destination. However, if they do they cannot be said to have used reasonable care for their own safety and if they are injured as a result they cannot seek to blame the occupier. I am accordingly satisfied as a matter of law that, in providing visitors to its smaller car park with a safe and proximate entrance … Ardenheath complied with its duty to take reasonable care for Ms. Byrne…
I am satisfied that to hold Ardenheath liable for breach of its statutory obligations for failing to install a barrier along the area of grass frontage to the north side of the smaller car park in order to stop pedestrians such as Ms. Byrne exiting the centre by going down a short but steep grassy slope, when there was a safe exit only a short distance away, would be preposterous and would be tantamount to constituting Ardenheath the insurer of the safety of its customers. Further, to conclude that Ardenheath was obliged to deploy preventative measures of the type proposed by Mr. Tennyson in order to meet its "reasonable care" obligations under s. 3(2) of the Act would potentially have significant adverse repercussions for all of those who occupy land open to visitors which is not entirely flat such as the local authorities responsible for many of the wonderful open spaces and parks in this country”.
In May 2018, the High Court in O'Connor v. Wexford County Council  IEHC 232 applied the reasoning of the Court of Appeal in Ardenheath when it dismissed a personal injuries claim arising from a slip and fall at work, on grounds that the Plaintiff, who was a water inspector, did not exercise common sense, and failed to take reasonable care for his own safety by using the steep incline to access the manhole when there was a flat route a modest distance away.
Mr Justice Twomey held that ‘just as in the Ardenheath case, where the plaintiff took a short cut down a wet grassy slope of 31°, even though there was a safe route a modest distance away and the Court of Appeal held that she did not take reasonable care for her own safety, so too in this case, this Court concludes that the plaintiff did not take reasonable care for his own safety by using the steep incline to access the manhole when there was a flat route a modest distance away.’
The High Court, in noting that while Ardenheath was an occupier’s liability case and the case before it was an employer’s liability case, held that the application of common sense principles to determining what amounts to reasonable care applies to an employee such as Mr. O’Connor in a similar, although not necessarily identical, way to how it applies to a customer in a shopping centre, as was the situation in Ardenheath.
Apart from Ardenheath and O’Connor, similar reasoning has also been adopted by the Courts in a number of other relatively recent decisions as considered below:
In Comerford -v- Carlow County Council  1 IEHC 720 the Plaintiff suffered injuries when he slipped and fell on a hole in pedestrianised cobble lock very close to his home. His claim for damages was dismissed by Mr. Justice Twomey, who held as follows:
‘‘The most significant factor in this case however is that the section of missing and defective cobble lock is very significant in size, since it is at least 30 inches in length and approximately 25 inches wide. In this regard, this Court held that it was obliged to follow the law on personal injuries as laid down by the Court of Appeal and in doing so, reiterated the principle expressed by the Court of Appeal in Byrne v. Ardenheath, that it is obliged to bring ordinary common sense to bear on their assessment of what should amount to reasonable care.”
In applying this principle, the Court held that it was difficult to see how the Plaintiff did not see the hole of this size and simply avoid it, particularly as it is directly under a lamppost and there was no suggestion that the lamppost was not working at the time of the accident.
In October 2021, Ms Justice Máire Whelan, on behalf of the three judge Court of Appeal found the High Court trial was unfair and ordered a re-trial. She found that the High Court judge identified no explanation for his decision not to comply with an evidential rule laid down by the Supreme Court relating to the cross-examination of the doctor on her notes of her examination of Mr. Comerford. Simply refraining from referencing the notes in the judgement delivered did not engage with or address the unfairness visited upon Mr Comerford, she said. This accompanied by council’s not calling any witnesses, resulted in the evidence not being fairly dealt with or appraised, she continued.
This culminated in an unfair trial. “A judgement emanating from an unfair trial is writ upon water” she said.
In Van Dalsen v. Davy Hickey Properties Ltd  IEHC 717 Ms Justice Fulham dismissed a claim for personal injuries that arose when an employee slipped and fell on a mown landscaped slope between the public footpath and the Defendant’s property when attempting to gain access to a building, on the grounds that there was a safe means of access that the employee had previously used but had chosen to use a different route resulting in the accident.
In the Court’s view, the Defendant had provided a safe means of access to its workplace and the accident occurred because the Plaintiff chose not to use the designated access. There was no evidence that the Defendant was aware that people were using the embankment as a means of access. In the circumstances, the Court held that the Defendant could not be faulted for not carrying out a risk assessment.
In Chambers v Powerscourt Estates Ltd  IEHC 717 the High Court dismissed proceedings seeking damages for injuries caused to the Plaintiff's wrist arising from a fall on a steeply sloped garden path whilst visiting the Defendant's estate with her mother, who was in a wheelchair. The Plaintiff was pushing her mother in a wheelchair along a path in the gardens of Powerscourt House and alleged that owing to a very steep slope on the path she was caused to lose control of the wheelchair and fall to the ground, resulting in an injury to her wrist.
Mr Justice Barr dismissed the Plaintiff’s claim on the grounds that she failed to consult a map provided by the Defendant detailing various "safe" routes available and that the existence of such a steep slope would have been readily observable by the Plaintiff prior to the fall. The Court went on to hold:
“Under the Occupiers Liability Act 1995, an occupier owes what is called “the common duty of care” towards a visitor such as the plaintiff. This is a duty to take such care as is reasonable in all the circumstances to ensure that a visitor does not suffer injury or damage by reason of any danger existing on the property. In essence, the occupier has to take reasonable care for the safety of the visitor.”
On the basis of the facts before it, the Court was satisfied that, where clear instructions had been given and where the Plaintiff had been supplied with a clear and easily understood map of the gardens, the Defendant had not failed in the common duty of care it owed to the Plaintiff. While the Court noted that the provision of a sign at the top of the path which had the slope on it, may have prevented the accident, the fact that there was a slope on that path, was something which should have been readily observable to the Plaintiff.
The recent decisions of the Courts in dealing with claims alleging negligence where ordinary common sense has been brought to bear on what amounts to reasonable care by a Plaintiff in both occupiers and employer’s liability cases is a welcome development for owners and occupiers. The 2018 High Court decision in O’Connor v Wexford County Council (cited above) serves as useful confirmation of the statutory position that employees are also under a clear duty to take reasonable care for their own safety.
For further information please contact Brian Connolly (Solicitor), or your usual AMOSS contact.