Usual Danger v Unusual Danger – Occupiers’ Liability Update

Daniel McLoughlin, Partner CKT reviews the recent decision of Mr Justice Coffey in Noreen Scanlan v McDonnell T/A The Woodlands Caravan & Camping Park [2024] IEHC 324 which provides clarification as to the duty of care under the Occupiers’ Liability Act 1995.

Section 3 provides that an occupier of a premises owes a duty of care towards a visitor.    Section 3(2) sets out that the common duty of care is a duty to take such care as is reasonable in all the circumstances to ensure a visitor does not suffer an injury by reason of a danger on the premises. It also sets out that regard should be had to the care which a visitor may reasonably be expected to take for his or her own safety. Mr Justice Coffey noted that the case fell to be decided pursuant to this provision.

Background

The Plaintiff brought a claim for damages arising from an accident that occurred in the Defendant’s caravan park. The Plaintiff and her husband, who were regular visitors to the caravan park, were assigned a longer than normal pitch which exceeded the length of their caravan electricity cable. The Defendant provided an extension lead to help connect the caravan to the service post. The Plaintiff alleged that the Defendant wrongfully caused or permitted her to trip and fall over the electricity cable, which ran from a power source provided by the Defendant to her caravan. The Plaintiff’s engineer gave evidence that the power cable poses a tripping hazard when there is an excessive distance between the caravan and services post. The engineer argued this imposed a duty on the Defendant to minimise this risk by locating its service outlets in a manner, which reduced the distance between service posts and pitches.

Application

In order to recover damages for her injuries, the Plaintiff was required to establish wrongdoing and therefore liability on the part of the Defendant. Mr Justice Coffey noted that the case fell to be decided pursuant to the provisions of s.3 of the Occupiers’ Liability Act 1995, which sets out the duty of care required to ensure a visitor does not suffer injury by reason of a danger existing on the premises.

The Court emphasised the distinction between ‘usual danger’ and ‘unusual dangers’ and stated this distinction is important in assessing whether a risk which exists on a premises will constitute a danger for the purposes of the 1995 Act. The decision in Lavin v Dublin Airport Authority plc [2016] IECA 268 helpfully makes this distinction. Peart J. referred to a fixed staircase as being a ‘usual danger’ because the risk of injury to a person descending it exists by reason of the nature of the staircase itself, without there being any defect. It appears to follow from this judgment that where a Court finds that a risk of injury arises from a ‘usual danger’ which can be avoided by the visitor taking reasonable care for their safety, then there will be no breach of the duty of care on the part of the occupier and no liability will arise under s.3 of the 1995 Act.

White v William Doherty & S&K Kerry Limited [2019] IECA 295 further developed the precedent on occupiers’ liability. In this case, the Plaintiff lost her footing and fell on loose or embedded stone in the Defendant’s caravan park. No evidence was submitted that the ground consisted of an ‘unusual’ danger. The Court held that the surface was in keeping with the “naturalistic setting” which one expects to find in a caravan park and that “a certain unevenness of the surface is to be expected.” The Court went on consider that every individual using the caravan park would be expected to take care as regard any tripping hazard that might exist by virtue of lose or embedded stones. The Court held that in the absence of a finding that the stones had constituted an ‘unusual danger’ it cannot be said as a matter of law that there had been a breach of the duty of care.

These decisions, relied upon by Mr Justice Coffey in his judgment, carefully highlight the difference between ‘usual’ and ‘unusual’ dangers.

Decision  

Mr Justice Coffey held that the electricity cable, whether hanging from the service post or lying on the ground, was not an ‘unusual’ danger and was a feature which one would expect to find at any caravan park. It was made clear that the Plaintiff was aware of the presence of the electricity cable, and she had previously stepped over it when walking to the service post to fill her kettle with water. The Court concluded that the danger could have been avoided by the Plaintiff taking reasonable care for her own safety as would be expected under Section 3(2) of the 1995 Act and stepping over the cable.

Conclusion

The recent High Court decision in Noreen Scanlan v McDonnell T/A The Woodlands Caravan & Camping Park [2024] IEHC 324 confirms the position that has been set out in Lavin and the White cases. Where the risk of injury constitutes a ‘usual’ danger, and the risk created can be avoided by the person taking reasonable care for their own safety, then no liability arises for the occupier under Section 3 of the Occupiers’ Liability Act 1995.

The case illustrates the approach of the Court when it comes to a Plaintiff who does not take care of their own safety.