The High Court has dismissed a personal injury claim against South Dublin County Council over a child’s fall on broken glass in a housing estate open space, finding the council was not negligent and had not acted with reckless disregard.
The plaintiff was nine when he fell while retrieving a football during a game with friends on a common green area beside his home at 34 Cloonmore Crescent, Jobstown, Tallaght, on 11 June 2006. He struck broken glass and suffered a deep cut to his upper back, leaving a permanent 10-centimetre scar. The court found he had fallen onto glass, most likely from a broken beer bottle.
The council accepted it owned and maintained the open spaces, including cutting the grass. The plaintiff’s mother had complained to the council about anti-social behaviour and litter in the area. The judge accepted that she had made complaints, including about litter, but found the council had a reasonable system for recording and responding to them. He also accepted the council witnesses’ evidence about inspections and maintenance.
The council had pleaded that the boy was a recreational user under the Occupiers’ Liability Act 1995. The plaintiff argued that he was instead a visitor owed the statutory duty of care under section 3. The judge ruled that the informal football game was a recreational activity and that the plaintiff was a recreational user. Section 3 did not apply.
Under section 4, the council’s duty to a recreational user was not to act with reckless disregard for that person’s safety. The judge found the broken glass was a danger and that the council knew broken glass and other debris were recurrent problems. But he concluded the council’s management and grass-cutting system was reasonable and appropriate for a public recreational area. The photographs and evidence about the grass-cutting machinery supported his finding that the litter and glass shown had most likely been deposited after the most recent cut.
The judge said more frequent inspections of the council’s extensive open spaces would be unrealistic and unreasonable, and that warning signs or bins would not necessarily prevent anti-social behaviour. He found no credible evidence of common law negligence and no reckless disregard under the Act.
The proceedings had also faced a defence of inordinate and inexcusable delay. The judge found the delay excusable in the circumstances and concluded it had not prejudiced the council. The council had accepted at trial that the plaintiff was too young to be contributorily negligent if liability were established.
The claim was dismissed. The court made no award of damages because it found no liability.