Duty of Care of landowners towards those who come onto their property

Question: Could you tell me generally what is the duty owed by a landowner to somebody who comes in uninvited to your land and then sustains an injury there?

Answer: The Occupier’s Liability Act 1995 was introduced at least in part from concerns amongst the farming community about potential exposure to claims from persons who suffered injuries on their lands.

Answer: This Act covers the law with regard to the occupier/owner’s duty of care to those who enter the occupier/owner’s premises with or without permission and suffer an injury as a result of a danger existing on the premises.

In brief summary, the Act divides entrants into three categories, visitors, recreational users, and trespassers. Towards visitors, the occupier owes “the common duty of care”. Towards the other categories a far lower duty of care is owed than had previously been the case. The Act created a new category called a recreational user, and examples of this category would be hill walkers, fishing groups or indeed even those who enter to visit sites and buildings of historical, architectural, traditional importance etc. Under the Act, the recreational user and the trespasser are treated the same. All that is required of the occupier/owner is that in respect of a danger existing on the premises the occupier/owner must not injure the person intentionally or act with a reckless disregard for the entrant.

The Act was considered for the first time by the High Court in the case of Geraldine Weir-Rodgers v. S.F. Trust Limited. It may be as well to tell the facts of the case so as to understand the approach taken by the Supreme Court in that case towards the duty of care of owners of land to those who come on it:

Geraldine Weir-Rodger was out for what she described to the Court as a “social evening” with a few friends in Coolmore, Rosnowlagh, Co.Donegal in April 1997. She and a few of her companions had dinner in a restaurant called “The Smuggler’s Creek”. It was a nice warm sunny evening. At about 8.00p.m. herself and one other friend decided to go for a walk. Later they were joined by two others.

The restaurant had a beach nearby. She told the court it was the sunset that attracted her and her friends to the beach to watch the sun set. As they travelled down the road towards the beach, there was a short stretch of broken down fencing in the area as well as some trodden grass which Ms.Weir-Rodgers regarded as a path to the beach. This led her to believe that people had used it a good deal to get to the beach. She followed the path and then sat with her companions on a grassy area at the edge of the cliff overlooking the beach enjoying the sunset.

At some stage, they decided to return to the restaurant. Ms Weir-Rodgers stood up and as she did so, her foot slipped, she started to gather speed and fell down the edge of a cliff. She could not stop herself from falling, and kept picking up speed, and remembered being rescued from the water.

It transpired that the grassy area that Ms. Weir-Rodgers had been sitting on, as she watched the sun set going down that tranquil April evening, belonged to a Company called S.F. Trust and this had been formed by the Franciscan Order.

In the High Court Geraldine Weir-Rodgers sued the Franciscan Order for negligence and breach of duty under The Occupier’s Liability Act 1995.

Her case came for hearing first before Butler J. in the High Court. He felt that the S.F. Trust should have had warning signs around the area in question. For this reason he felt they were 75% responsible for the accident and awarded her the sum of €84,666.

The Franciscan Order was very disappointed with this judgement not least because although they had bought the land in 1945, they didn’t even know that this particular unused section belonged to them.

Accordingly, the Franciscan Order appealed the case to the Supreme Court in 2005.

In the Supreme Court the case came before three judges and having considered all the evidence they unanimously overturned the decision of the High Court judge and made an Order that she was not entitled to any compensation. They held that there had not been negligence on the part of the Franciscan Order in not having erected warning signs around the area.

A commonsense approach was taken by the Supreme Court Judges as can be seen in passages of Geoghegan J’s judgement as for instance when he says……“It is perfectly obvious to all users of land higher than sea level but adjoining the sea that there may well be a dangerous cliff edge and in those circumstances the occupier of the lands cannot be held to be unreasonable in not putting up a warning notice. Still less has he a reckless regard for the safety of the person using the land.”

In conclusion, I think it is worth referring to the quotation used by Justice Geoghegan which was taken by him from a similar House of Lords case:

“…..in a town, as well as in the country, there are physical features which may be productive of injury to careless persons or to young children against which it is impossible to guard by protective measures. The situation of a town on the banks of a river is a familiar feature; and whether the stream be sluggish like the Clyde at Glasgow, or swift and variable like the Ness at Inverness, or the Tay at Perth, there is always danger to the individual who may be so unfortunate as to fall into the stream. But in none of these places has it been found necessary to fence the river to prevent children or careless persons from falling into the water. Now, as the common law is just the formal statement of the results and conclusions of the common sense of mankind, I come without difficulty to the conclusion that precautions which have been rejected by common sense as unnecessary and inconvenient are not required by the law.”

Myra Dinneen
Published: West Cork People May 2010