Farmer needn’t guard against every conceivable danger
In a significant judgement for all land owners, the court decided that a “recreational user” was not a “visitor” within the meaning of the Act, and therefore did not qualify for the same duty of care by the land owner as that extended to the invited visitor.
In her dismissal of a claim for damages for personal injury to a recreational walker, Judge Mary Flaherty said that no property owner was obliged in law to guard against “every conceivable danger” that might exist on his or her land or property.
She held that, under the Occupiers Liability Act, there was a reduced duty of care by the land owner to a recreational user. Under the Act, the duty owed by the occupier of a property to recreational users and trespassers was that they would not injure them or damage their property “intentionally”, and not act with reckless disregard towards them.
It was an informative experience for the defendant in the case, Minister for Arts, Heritage Gaeltacht and the Islands Eamonn O Cuiv (the claimant was injured in Wicklow National Park). The Minister is currently trying to resolve legal difficulties in public access to the countryside.
The judgement has strengthened the argument that land owners should not be held responsible for injuries to trespassers who came onto their property without their knowledge or consent, unless there is an element of reckless disregard shown to them by the land owner.
It clearly differentiated between the duty of care required by the land owner towards the uninvited person as compared to the invited visitor, a distinction which has been sought by farmers. This judgement should lessen the risk of frivolous actions for damages being brought against farmers, and provide more peace of mind for the land owner.
While costs were not awarded against the plaintiff in this particular case, it does not hold that costs will not be awarded against plaintiffs in future actions.
