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Cite as: [2001] IEHC 176

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Sheehy v. The Devil's Glen Tours Equestrian Centre Ltd. [2001] IEHC 176 (10th December, 2001)

THE HIGH COURT

Record No. 1998/8779P

BETWEEN

ANGELA SHEEHY

PLAINTIFF

AND

THE DEVIL’S GLEN TOURS EQUESTRIAN CENTRE LIMITED

DEFENDANT

JUDGEMENT of Mr. Justice Vivian Lavan delivered the 10th day of December, 2001

1. The Plaintiff resides at Knocklong, Bothar Nore, Co. Limerick. The Defendant is a limited liability company having its registered office at 35 Molesworth Street, Dublin 2 and was at all material times the owner and occupier of and operated and ran an equestrian centre know as The Devil’s Glen Equestrian Village located at or near Ashford, Co. Wicklow.

2. The Plaintiff claims that on or about the 16th July, 1997 she was lawfully present at the said equestrian centre and was entering a building containing the reception area therein when she was caused or permitted to trip and fall on a strip of wood with a metal strip projecting upwards along the top located at the door to the said buildings in consequence whereof the Plaintiff suffered and sustained severe personal injury loss damage expense and inconvenience.

3. I heard evidence from the Plaintiff and Mr. Watson, engineer. For the Defendants I heard evidence from Mr. O’Neill, engineer and Mr. Stephen Miley. The quantum of the case was agreed, subject to liability. The medical reports prepared on behalf of both parties were agreed. The Plaintiff’s submissions on the law were to the following effect. The Occupiers Liability Act, 1995 came into force on the 17th July, 1995. This Act created three categories of entrant:

(1) Recreational user;

Pursuant to section 1(1) recreational user means an entrant who with or without the occupiers permission or at the occupiers employed invitation is present on premises without a charge (other than a reasonable charge in respect of the cost of providing vehicle parking facilities) being opposed for the purpose of engaging in a recreational activity.

(2) A trespasser

(3) A visitor;

Pursuant to section 1(1) “visitor” means;

(a) an entrant other than a recreational user who is present on premises at the invitation or with the permission of the occupier or any other entrant specified in paragraph (a) (b) or (c) of the definition of recreational user,

(b) an entrant other that a recreational user who is present on premises by virtue of an express or employed term in a contract; and

4. While he or she is so present as the case may be for the purpose for which he or she is invited or permitted to be there, for the purpose of the performance of the contract or for the purpose of the exercise of the right, and includes any such entrant who is present on premises has become unlawful after entry thereon and who is taking reasonable steps to leave.

5. In the case the Plaintiff along with her husband and two daughters were present on the Defendant’s premises to avail of the horse riding facilities provided on a commercial basis by the Defendant. It is submitted that in those circumstances the Plaintiff was clearly on the premises at the invitation or “with the permission” of the Defendant and was at all material times a visitor within the meaning of the Act of 1995 aforesaid.

6. The Defendant’s duties in respect of dangerous existing on their premises are therefore governed by the above Act of 1995.

7. Duty owed to a visitor:

“Section 3 of the above Act specifies the duty owed to a visitor;

(1) an occupier of premises owes a duty of care (“the common duty of care”) towards a visitor thereto accepting so far as the occupier extends, restricts, modifies or excludes that duty in accordance with Section 5.

(2) in this section “the common duty of care” means a duty to take such care as is reasonable in all the circumstances (having regard to the care which a visitor may reasonably be expected to take for his or her own safety and, if the visitor is on the premises in the company of another person, the extent of the supervision and control the later person may reasonably be expected to exercise over the visitors activities) to ensure that a visitor to the premises does not suffer injury of damage by reason of any danger existing thereof.

It is submitted therefore that the Defendants duty was to take reasonable care to ensure that the Plaintiff did not suffer injury or damage from any danger on their premises and further that there is no suggestion that the Defendant by express agreement or notice under Section 5 aforesaid attempting to restrict, modify or exclude the duty towards the visitors.

The evidence:

Mr. Watson, engineer for the Plaintiff, gave evidence that a normal door saddle is somewhere of the order of half an inch to three quarters of an inch above the ground, that is the standard saddle one sees on most doors. The top of the metal strip, in the instant case, was approximately two inches above ground level. The “saddle” had not been laid flush with the ground, it was above ground level. The saddle on the other door (which one enters from the car park) is not off the ground, it is on the ground or inserted slightly into the ground. The overall height of this is one inch above ground level. It is the same piece of equipment but installed higher at the location of which the Plaintiff complains.

Mr. Watson also gave evidence that he had only ever seen these strips in a domestic situation. He had never seen them in a commercial situation and further that in a domestic situation they would be used on back doors or front doors but not commonly. He was of the view that the two inch protrusion was not what people would expect to find. In his view people step over door saddles as a matter of course because everyone knows from habit what height a door saddle is. He was also of the view that the door saddle, where the accident accrued, was not correctly installed.

Mr. Stephen Miley proprietor of the equestrian centre gave evidence that thousands of people use the centre and that there had never been a problem with the door. The Plaintiff’s submitted that whether there had been a previous trip on the saddle in question is irrelevant. That if the saddle was a hazard it remained a hazard irrespective of whether or not there had been previous accidents. Mr. O’Neill, engineer for the Defendant, suggested the threshold complied with British standard ‘CP511’ part 1 of 1957.

Finally the Plaintiff submitted that there ought not to be a finding of contributory negligence in this case.

It was submitted on behalf of the Defendants as to the law that it is common case that the Plaintiff came into the premises as “a visitor” with the demeaning of the Act of 1995 aforesaid so that the duty owed to her was the common duty of care provided for by section three of that Act. The common duty of care provided for by Section 3 (1) of the Act is defined by subsection (2) to mean;

“A duty to take such care as is reasonable in all the circumstance..... I have already referred to the foregoing.”

8. The Defendants further submit that the “common duty of care” which is owed to “visitors” is higher than the duty owed to trespassers and recreational users under the Act. That the common duty of care is defined in classic negligence terms so that the occupier is only liable if such is “reasonable”. That there is no judicial guidance from the decided cases as to the meaning and effect of subsection 3 of the Act but it is submitted that what constitutes reasonableness in all the circumstances of a given case is a mixed question of law-in and fact.

9. The Defendants in their submission comment on the facts as outlined in the evidence and submitted that a “weather bar” of the type complained of in these proceedings does not constitute a danger as it is an integral part of the saddle of an external door.

10. They further submit that the Plaintiff approached the door with an unobstructed view of same and that she excepts that she did not see the threshold at all and that she was not looking down but significantly, from their point of view, that she was watching her daughter and talking to her. In the result that she was not looking where she was going and that this was the proximate cause of the accident.

11. Essentially the Defendants submit that the threshold was not a hazard or danger to the visitor. That in so far as there is a conflict between the engineers this is academic as the Plaintiff accepts that she did not see the threshold at all and the Plaintiff’s engineer accepts that one inch is sufficient to cause a trip of the kind that occurred. That I should take account of the fact that thousands of visitors have stepped over this saddle without injury or complaint.

12. Turning to the facts - I accept the Plaintiff’s evidence and where there is a conflict on the engineering evidence I prefer that of Mr. Watson who gave evidence on behalf of the Plaintiff.

13. In the result I therefore find as a fact that the danger here complained of was a danger and hazard due to the state of the premises.

14. In the result I hold the Defendants liable in negligence to the Plaintiff’s.

15. Turning to the issue of contributory negligence in the particular circumstances of this case I am guided by the following view of the law. There is an essential difference between contributory negligence arising out of a breach of statutory duty and contributory negligence arising out of a breach of a common law duty of care. In the later case

“An act of inadvertence if it is an act which a reasonably careful workman (person) would not do will constitute contributory negligence”

See Higgins -v- Siac ‘101 ILTR at 168’

16. In that same case I also noticed the opinion of O’Dalaigh C.J. at page 171 to the following effect

“There may be act of momentary inadvertence which a jury will properly excuse as being the acts which a reasonably careful (person) will do”

17. These principals have been implemented in practice by Barron J. in Dunne -v- Honeywell Control Systems Limited and Virginia Milk Products Limited [1991] IRLM at 595; by Budd J. in Kelly -v- McNamara (unreported, The High Court 5th June, 1996) and by myself in a number of cases including Connell -v- McGing (unreported, The High Court 8th December, 2000).

18. I also note that the Supreme Court have pointed out in a number of cases the view that a Plaintiff, whilst walking is not required to look down at the ground.

19. In the case before me I’m satisfied that the Plaintiff and her family were visiting what, on any view of the case, was an interesting equestrian centre all of which were new to the Plaintiff on her first visit thereto.

20. I have seriously considered whether the actions of the Plaintiff constituted an act of inadvertence which a reasonably careful person would not do and likewise have considered the matter from the point of view as to whether I should deem the Plaintiff’s actions in talking to her family and walking through the door as such an act of momentary inadvertence which a jury (and in this care which I) would properly excuse of being an act which a reasonably careful person will do. Taking all these matters into account I have concluded that it would be unreasonable to find the Plaintiff guilty of contributory negligence in the particular circumstances as pleaded in this case.

21. In the circumstances I find the Defendant liable in negligence. I find the Plaintiff not guilty of contributory negligence.

22. The Parties very sensibly had agreed the medical reports at outset of this case. Upon my invitation they agreed the general damages and the special damages. In the circumstances there will be judgment in the sum of £41,200; being as to £40,000 agreed general damages and £1,200 for special damages. For the purpose of completeness I note that the Plaintiff suffered a very serious injury with continuing sequale and continues to carry a very sever scar.

23. There will be judgment for the Plaintiff.