Cork City Council avoids paying damages for injuries suffered by girl on boulders

Lawyers for the girl claimed the boulders constituted a trap or allurement which the council had failed to fence off or remove. File picture. 

A Cork girl has failed in her legal action against Cork City Council over injuries sustained while playing on boulders at the entrance to a green area near the estate where she lives in Mayfield.

The High Court dismissed an appeal against a ruling by Cork Circuit Civil Court that the council was not liable for the broken arm suffered by Leah Mulcahy (11), who sued through her mother, Krystle, after she jumped off a large boulder on council-owned land adjoining Glencree Crescent in Mayfield on July 22, 2017, when she was eight years old.

Lawyers for the girl claimed the boulders constituted a trap or allurement which the council had failed to fence off or remove.

Ms Mulcahy told the High Court that she had always told her daughter to come away from the rocks.

She admitted that Leah had originally told her she had fallen off a nearby wall as her daughter was afraid to admit ignoring her warning to avoid playing on the rocks.

No obstacle

Under cross-examination, Ms Mulcahy acknowledged that the boulders had been in their present location for around 25 years and had been installed to prevent dumping and unauthorised camping.

An engineer who gave evidence for the plaintiff, Kieran Spitere, said the rocks had not been performing any function for the past 20 years as a vehicle could still be driven around them to access the green area.

Mr Spitere told the court that he thought the rocks were an enticement to children and they acted like a “playground obstacle course”.

The engineer said he believed they were dangerous and unsuitable and they should have been replaced by bollards.

Council official, Emer O’Callaghan, said the boulders had been placed at the location in the late 1990s under a community employment scheme to stop unauthorised vehicles accessing the area.

Ms O’Callaghan said the council had not been asked to remove them and noted that children would “play on anything.” 

"Hidden danger"

Outlining his ruling, Mr Justice Richard Humphreys said the duty of landowners was not to remove all dangers.

The judge said the logic of the plaintiff’s position was to go from a situation where children were jumping on rocks on a regular basis and having fun doing it to “one where things that they can jump on have to be removed and we end up with a bland and featureless landscape.” 

“Large boulders do not represent a hidden danger or an unusual danger and there is nothing in particular about them against which an occupier should provide protection on the negligence standard,” the judge added.

Mr Justice Humphreys said the real question was whether all occupiers should have to remove anything that children would be capable of jumping on and falling from.

He said that would impose an unreasonable burden and would “go beyond a duty that the law should properly impose on occupiers”.

While the judge accepted the boulders represented an allurement and a danger in a “weak sense” and the council were aware that children played on them at a time when they no longer served any useful purpose, he said the situation did not add up to negligence.

Dismissing the legal action, Mr Justice Humphreys remarked: “I don’t think that the particular danger of injury from jumping from boulders of this nature is one that the law should properly impose a liability on an occupier to obviate”.