High Court of Ireland Decisions

1. It has been agreed between the parties that I should determine the issue of liability in this case as a preliminary issue. This seems to me to be a very sensible approach, as I understand that the issue of damages would involve considerable expert evidence, including the bringing of accountants from the United Kingdom.

2. The facts in these proceedings are not really in dispute. The Plaintiff, her husband and three friends, all of whom were involved in the hobby of ballooning, were attending a hot air balloon festival in Sligo. The Plaintiff and her husband live near Weston in Devonshire and travelled over by car bringing their own balloon equipment with them. Certain events in the festival were due to take place on 1st May, 1995, but because of strong winds they had to be cancelled, and the Plaintiff, her husband and friends took the opportunity to go sightseeing. They read about Glencar Waterfall in Co. Leitrim in the Michelin Guide, and decided to visit it

3. The area around Glencar Waterfall was purchased by the Defendants in 1986 for development as a tourist amenity. They erected a car park and toilet block at the main road adjacent to the waterfall, and they renewed pathways leading up to the top of the waterfall. The pathway consisted of stone slabs 4ft. in width. It led from the road up the side of the waterfall to a viewing platform at the top of the waterfall. The pathway then continued at a sharp angle to the left and rose to its highest point at what is called the summit. From there the pathway descended again quite steeply by way of steps, turned to the left and rejoined the original pathway thus creating a loop, which was in the shape of a triangle. It was, of course, possible for visitors simply to go straight up the path as far as the viewing platform and return the same way, in other words it was not a one way system.

4. The Defendants employed a local lady as a part-time caretaker, but her functions were limited to ensuring that the toilet block was properly kept and that there were no problems in the car parking area. She had no responsibility for the pathway up to the top of the waterfall. There was also no system of regular inspections of this area by the Defendants, and evidence was given by Mr. Jarlath Conroy, the engineer responsible for roads and amenities, that he had visited the site on 6th April, 1995, but there was no evidence of any visits on behalf of the Defendants between that date and the accident.

5. When the Plaintiff and her friends visited the site on 1st May, 1995 they walked up the path to the top of the waterfall and then continued around the loop to the summit and descended back down again on the loop pathway. Towards the bottom of the steep part of that pathway they encountered a tree fallen across the path, completely blocking it. To the right of the path where the tree had fallen was a row of trees, and it would have been quite impossible to pass on that side. To the left hand side of the path there was a very steep bank leading downwards towards the bottom of the path on the road. This bank had been grassed, but it is quite clear both from the evidence given and the photographs furnished that it had been used as a shortcut to some considerable degree, and in fact there were two distinct bare tracks on it, one on each side of a tree stump. These tracks showed a considerable amount of bare earth where the grass had been worn away.

6. The Plaintiff's party were walking in single file down the pathway when they came to the fallen tree. There does not appear to have been any discussion about what ought to be done before the various members of the party stepped off the path on to the bank at slightly different places. The Plaintiff appears to have been the last in the file of people. The people at the front of the group, including Mr. Lucien Williams, one of the party, stepped off the path onto the bank and started to pick their way down. They all agreed that the bank was very steep, and that it was necessary to side step down the bank to keep one's balance.

7. Mr. Williams in fact slipped shortly after stepping off the path, although he did not hurt himself, and just as he was getting up the Plaintiff stepped off the path higher up, and she slipped and unfortunately suffered serious injuries to her ankle.

8. The first issue which I have to determine is whether the Defendants had any liability in respect of this accident. The Defendants submit that the Plaintiff was a mere licensee, and the only duty owed to her was not to set a trap and to warn her of concealed dangers of which the Defendants were aware. The Plaintiff, on the other hand, argues that the old distinction between duties owed to a licensee and an invitee have largely disappeared and that the Courts have moved away from the principles formerly applicable to licensees. In this regard they refer to Rooney -v- Connolly (1987) IRLM 768, and particularly to the judgment of McCarthy J. at page 786. The distinction has, in any event, now been abolished under the Occupiers Liability Act, 1995, but that Act did not come into force until some months after the accident in the present case.

9. The judgment of McCarthy J. in Rooney -v- Connolly is quite clearly obiter and in fact the other members of the Supreme Court specifically declined to consider the point, which was not argued before them, and the case was in fact decided on the question of whether there had been a concealed danger of which the Defendant was aware.

10. I propose to consider at this stage whether the Plaintiff was in fact a licensee, or whether, under the law prior to the 1995 Act, she was an invitee. At page 216 of McMahon and Binchy's Second Edition of the Irish Law of Torts it is stated as follows:-

11. Just as the test to determine who is a licensee largely depends on there being a material benefit to the occupier of the lands, equally the test as to whether a person is an invitee also depends on material benefit. The test is again portrayed clearly in McMahon and Binchy's work at page 213 as follow:-

12. There have been many cases in which the distinction between a licensee and an invitee has been at issue. There certainly are authorities that persons entering a property to which in a sense they are invited to enter are only licensees, and indeed in Rooney -v- Connolly it was decided that the Plaintiff entering a church open for worship by members of the public was in fact a licensee. There also have been decisions such as Sutton -v- Bootle Corporation (1947) 1 K.B. 359 that a person entering a public park enters as a licensee. In such a case, the local authority is providing a public park for the benefit of the occupants of the area within the jurisdiction of the local authority, and is gaining no material benefit from persons entering the park.

13. In the present case, therefore, what I have to consider is whether there is any material benefit to the Defendants in having Glencar Waterfall open to the public. This is not a park being provided as an open space in an urban area by a local authority, this is a scenic attraction in a rural area. I very much doubt if the Defendant County Council spent considerable sums of money on building a car park and toilet block and on building a path of some length simply for the residents of Co. Leitrim. This is clearly a tourist amenity, and is designed to attract tourists into Co. Leitrim. The Plaintiff and her party in fact went to the area because they read of it in a book dealing with tourist attractions.

14. The question remains whether attracting tourists is a sufficient material interest to bring entrants into the area under the heading of licensees. On balance, I think it is. One of the main purposes, if not the principal purpose, of attracting tourists into an area is that they bring financial benefits to the area. While these benefits may initially put money in the pockets of local shopkeepers, nevertheless there is, at least indirectly, a benefit to the local authority as well. Accordingly, in my view, the Plaintiff entered the area of Glencar Waterfall as an invitee.

15. The duty owed to an invitee was discussed by the Supreme Court in the unreported case of Foley -v- Musgrave Cash and Carry Limited in which judgment was delivered on 20th December, 1985. In his judgment Griffin J. said at page 5 of the unreported judgment:-

16. This is restating the test laid down in the middle of the last century in Indermaur -v- Dames L.R. 1 C.P. 274 at page 287 where it was stated by Willes J. as follows:-

17. In the present case a tree had fallen across the pathway which was specially provided for the safety of invitees. I think I am entitled to infer, particularly from the photographs and the video which was shown to me, that the tree had fallen some time before the accident happened, as there appears to be clear evidence of a number of other persons having gone around the tree by going down the steep bank, to such an extent that the grass had been worn off a track and at the time of the accident it was bare earth or mud. There was no system of inspection of this public area, and the best evidence that the Defendants could produce was that it had been inspected some four weeks earlier. In those circumstances, I think there was a clear lack of reasonable care in not ensuring that the pathway was kept clear and passable, particularly in an area where there was a steep and possibly dangerous bank at the side of the path. Accordingly, I find that there is a liability to the Plaintiff.

18. The next question I have to consider is whether the Plaintiff herself was negligent. All the persons in the Plaintiff's party gave evidence before me, and they all accept that this was a steep bank, and that it was not possible simply to walk straight down it. It was necessary to go down very carefully sideways, and take advantage of anything available to hold on to. This must have been perfectly obvious to the Plaintiff. While I accept that neither the Plaintiff nor the other persons in her party discussed what they would do when faced with the fallen tree, they all, including the Plaintiff, decided that they would take the risk of going down what must have appeared to them to be a somewhat dangerous bank. They could just as easily have turned around and retraced their steps back to the top of the waterfall and down the other path. It is suggested that the pathway was so narrow that it might have been very difficult to pass people going the other way. However, the path was

19. The final question that I have to determine is the degree of liability of each of the parties. I consider there was a greater liability on the Plaintiff, as she took the decision to take the risk, which must have been an obvious one as she had another way of avoiding the accident. Her negligence was the immediate cause of her injury, although not the sole cause. Accordingly, I would assess the contributory negligence of the Plaintiff at 2/3, and she will be entitled to a decree of 1/3 of the damages ultimately determined.