The High Court dismissed a personal injuries claim against Tipperary County Council over a girl’s fall from a boundary wall in a local authority housing estate, finding no negligence or breach of duty by the Council.
The girl, identified in the judgment as L.W., was five when the accident allegedly happened on 23 June 2007. She sued through her mother, H.W. The judgment says she had climbed onto the wall and fallen, suffering a ruptured spleen. Her spleen was saved after surgery, but she was left with substantial abdominal scarring. The Council denied liability.
The girl recalled stepping onto an ESB metal box and then being on the footpath with an ambulance present. Her mother said she saw her on the wall, called to her to get down and then saw her fall. No other witnesses to the accident gave evidence.
The plaintiff argued that the wall was too high, lacked capping that could have made it harder to climb, and presented a foreseeable risk to children. Her engineering evidence also addressed sight lines at the estate entrance and guidance on road visibility. The Council’s engineers described the wall’s height as standard and said capping was primarily for weather protection. The Council’s engineer said its complaint-record search found no complaints about the wall between March 2006 and September 2007.
The judge found that residents’ concerns before the accident related to traffic and visibility at the entrance. The mother said she had made one verbal complaint before the fall, but the Council had no record of it. A residents’ petition seeking a lower wall was sent after the accident. The court heard no evidence of other accidents involving the wall and found no established history of complaints since 1983.
The court concluded that sight lines at the entrance had no bearing on the fall, the wall was of standard height and had no inherent defect, and capping did not determine whether children would walk or run along it. It also found that the ESB pillar and its position were not the Council’s responsibility.
Applying the foreseeability test in Glencar, the judge found the Council could not reasonably have foreseen the accident on the evidence. The court did not decide whether the girl was a visitor, recreational user or trespasser under the Occupiers’ Liability Act 1995. It said that even if the Council’s obligations were assessed at the highest level argued for by the plaintiff, there had been no breach of the statutory duty of care. The claim was dismissed.