27 Jan 2022

Judge decides on claim for damages after girl's fall from bollard in Offaly

Judge decides on claim for damages after girl's fall from bollard in Offaly

Judge decides on claim for damages after girl's fall from bollard in Offaly

A CLAIM for damages by a girl who fell when she was playing on a concrete bollard placed at a halting site by Offaly County Council was dismissed at the Circuit Court.

Tullamore Circuit Court heard that Taylor Doyle McInerney, suing the council by her mother Sylvia McInerney, was six years old when she was involved in an accident at Scurragh, Birr on December 10, 2016.

In her judgment, Judge Karen Fergus said the girl was playing outside with her brother and friends in an area opposite her house which had been cordoned off by the council in a bid to prevent unwanted vehicles parking there.

The area was blocked off by large cement bollards 1.5m long placed on their sides which resembled “large cement Lego blocks”.

It was not known why they were not placed upright.

Judge Fergus said an engineer for the plaintiff had argued the bollards created an allurement for children and the area where they were placed should have been cordoned off.

It was a frosty day when the accident happened and as the girl attempted to climb up a bollard she slipped and hit her mouth off the concrete block.

Judge Fergus said the council pleaded that it had discharged the common duty of care owed to the plaintiff under the Occupiers Liability Act, 1995 and the girl was a visitor within the meaning of that act.

Judge Fergus said there was no evidence to indicate that children were not allowed to be in the area or that they had been told not to play there, nor was there any evidence of complaints to the council about the bollards.

She referred to a previous case involving Cork City Council where the facts were very similar and an eight-year-old had falled off a boulder and broken her arm.

In that case, the boulders were placed there to prevent unauthorised access and dumping and children were known to play on them.

Judge Fergus said that interestingly, in that case, an engineer said they should have been replaced by cement bollards.

The judge in that case also decided the plaintiff was a visitor rather than a recreational user and therefore had a higher duty of care.

The judge in that case further said an occupier should not have to remove all dangers on a premises as to do so would lead to a bland, featureless landscape.

“Children will inevitably be drawn to open spaces. They will climb and jump on walls and concrete bollards and boulders and trees,” said Judge Fergus.

The bollards being on their sides rather than upright did not represent any more of an allurement than had they been upright.

“They were large, stable concrete blocks and children will do what they do, they will play.”

While they may be an allurement, there were not enticing anyone into any hidden or unusual danger.

Though the accident was unfortunate and was an unpleasant experience, leading to numerous trips to the dentist, she dismissed it because it did not succeed under the Occupiers Liability Act.

Judge Fergus made no order as to costs after being told the girl's mother was a separated woman with two children who lived in rented accommodation.

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