The High Court dismissed a girl’s personal injury claim against Cork City Council after she broke her arm jumping between boulders on public open space in Cork. The judge accepted her account of the accident but concluded that the Occupiers’ Liability Act 1995 did not require the council to remove the boulders.
The girl was eight when she was injured on 22 July 2017. She told the court she jumped from a larger boulder onto a smaller one, lost her balance and landed on her arm. She underwent an operation, wore a cast for four weeks and later had physiotherapy. The judgment records that she continued to experience occasional shooting pains.
Her claim alleged that the boulders were a trap or allurement and that the council should have fenced them off or removed them. The judge heard that children regularly played on the boulders. An engineer called for the girl said they attracted children, were dangerous and no longer served their original purpose of restricting vehicle access. Council evidence was that the boulders had been installed to deter unauthorised vehicle access and dumping, and that children played on public open spaces generally.
The judge assumed, for the purpose of deciding the case, that the girl was a visitor to the land and that the council owed her the higher common duty of care. He did not decide whether she was legally a visitor or a recreational user. He said the boulders could be an attraction to children and accepted they served no useful purpose at that particular site, where vehicles could drive around them.
However, he found that they did not present a hidden or unusual danger. He concluded that requiring occupiers to remove features children might climb on would create an unreasonable burden and reduce opportunities for unstructured play. On that basis, the danger was not one the law required the council to eliminate.
The judge dismissed the claim under the 1995 Act, while expressly stating that this was not because he rejected the plaintiff’s factual evidence. After announcing the decision, he was told the formal order would affirm an earlier order made by Judge James O’Donohoe on 10 July 2020. The judgment does not specify the terms of that earlier order.