€75k award to woman who slipped is overturned in significant ruling on occupiers’ liability

A €75,000 damages award to a woman who slipped and broke her ankle when walking down a wet grassy slope to leave a Dublin shopping centre car park has been overturned by the Court of Appeal.

In a significant decision concerning the extent of occupiers’ liability, Ms Justice Mary Irvine ruled the companies that own and operate Mountview Shopping Centre, Blanchardstown, had not breached their statutory duty to take reasonable care for the safety of the woman.

A visitor is expected to take reasonable care for their own safety and if they decide to go down a wet grassy slope in unsuitable footwear instead of using a nearby safe tarmacadam surfaced entrance, "they will take responsibility for the consequences of that decision", she said.

If an occupier had to provide the type of preventative measures suggested by the complainant's  engineer to meet "reasonable care" obligations under the Occupiers Liability Act, such as installing a step with barriers either side of the slope, that would have "potentially significant adverse repercussions" for all who occupy land open to visitors, such as local authorities responsible for many "wonderful open spaces and parks" here.

Judges should be careful, when interpreting the relevant law, to ensure they do not inadvertently, contrary to the intention of the legislature, end up "denying children the joy of running down a grassy slope in a public park on a dry summer day or the golfer the pleasure of playing to an elevated green surorunded by a grassy bank".

Ardenheath Company and Ardenheath Management Company appealed over the €75,000 award made to the Dublin woman over her fall on December 20th, 2012. It happened after she had parked her car and was crossing the slope which she claimed was slippery and dangerous. The defendants denied liabilty.

In his High Court judgment, Mr Justice Hanna found the defendants had a duty of care and could have taken certain steps to have the embankment made safe or ensure people did not use it.

He awarded €125,000 but reduced that to €75,000 after finding 40 per cent contributory negligence on the woman’s part. He granted a stay pending appeal on condition of payment out of €30,000.

Giving the three judge COA’s unanimous judgment, Mr Justice Irvine said an occupier is entitled, when deciding what steps it should take to meet its obligations, to assume visitors will take reasonable care for thir own safety and an adult can normally look after their own welfare.

The company was entited to expect an adult exercising reasonable care would avoid the wet grassy slope, particularly because of a six inch kerbstone, wearing shoes providing little grip and there being a safe entrance nearby with a tarmacadam surface, she said.

There was nothing to stop a visitor deciding to take a short cut down such a slope but, if they did, they cannot be said to have taken reasonable care for their own safety and, if injured, cannot seek to blame the occupier.

In providing visitors to its smaller car park with a safe and proximate entrance, which the woman could have used, the company had complied with its duty of care to the woman.

It was "preposterous" to find, as the High Court had, the company was required to install a barrier along the area of grass frontage to the side of the smaller car park to stop people going down the grassy slope when there was a safe exit just a short distance away, she said. Such a finding would be tantamount to constituting the company as the insurer of the safety of its customers.


 

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