The Supreme Court has upheld a finding that Ann Thomas was two-thirds responsible for injuries she suffered after leaving a path at Glencar Waterfall in Co Leitrim to get around a fallen tree.
Ms Thomas, then aged 62, had travelled from England with her husband and others for a ballooning event in Sligo. When weather prevented the event on 1 May 1995, the group went sightseeing and visited Glencar Waterfall after reading about it in a guidebook.
Leitrim County Council had bought the waterfall area in 1986 and developed a car park, toilets and renewed paths. While descending a looped stone path, Ms Thomas’s group encountered a fallen tree blocking the route.
The right side was impassable. On the left was a steep bank with two worn tracks through the grass. Members of the group stepped off the path and moved sideways down the bank. Ms Thomas slipped almost immediately and suffered a serious ankle injury.
The High Court had found her to be an invitee and apportioned liability two-thirds against her and one-third against the Council. On appeal, the Supreme Court disagreed with her legal status. Mr Justice Hardiman held that free recreational access to a public amenity did not confer the material benefit needed to make a visitor an invitee. She was instead a licencee.
That did not remove all Council liability. The court held that the worn tracks could have altered Ms Thomas’s perception of the risk and misled her into thinking the route was negotiable. The Council could therefore be found partly at fault for not preventing that misleading condition.
However, the court said the steep bank was obviously risky and Ms Thomas could have retraced her steps along the path. Her decision to leave the path was the immediate and greater cause of the accident.
The Supreme Court therefore kept the original apportionment: two-thirds fault to Ms Thomas and one-third to Leitrim County Council. Damages had not yet been assessed.