Onus on person in control of child plaintiff to avoid foreseeable risk

John William Meaney (a minor) (plaintiff) v South Dublin County Council (defendant).

Negligence - Personal injury - Plaintiff injured when he fell into a river - Duty of care - Whether breach of duty by the local authority - Onus of proof - Whether river a foreseeable risk on the part of the local authority - Duty of parent or guardian.

The High Court (before Mr Justice Kinlen), judgment delivered 2 November 1995 (ex tempore).

WHERE a plaintiff suffers an injury there is an onus on him to prove that there was a duty owed to him and that there was a breach of that duty. It would be absurd if a local authority, which provides amenities, had to shield every river - it is unfortunate that at the moment that because of many law actions, play areas and parks are now being closed down. The local authority provides the amenity for the citizens and all citizens must take reasonable care according to their capacity. A child aged 3 years 10 months would appreciate that it was arriver but might not appreciate all of the dangers implicit in that. If he or she is allowed to play there with the consent of the parent, guardian or person in control, it is that person who should really warn the child and ensure that the child does not endanger himself by exposing himself to a foreseeable risk.

The High Court so held in dismissing the plaintiffs claim.

Patrick Geraghty SC and Marc de Blacam BL for the plaintiff John Doherty BL for the defendant.

MR JUSTICE KINLEN said that the plaintiff in this case was a child suing through his mother and next friend and that the defendant was the owner of a public park, St Finian's, in Lucan in South Dublin. On 11 September 1990 the plaintiff was playing in the park. He was in the care of his aunt and her daughter, who was a child herself. One of the features of the park is that there is a river known as "The Griffin" running through it. The local authority instead of leaving it in its natural form put up a wall consisting of stone. There was no doubt that some of the surface on the path was irregular and sloped down towards the river and there seemed to be a certain amount of loose grit placed on it. However Mr Justice Kinlen did not think that these were factors which contributed to the accident.

According to the plaintiff's cousin, who was the only one who gave evidence about the actual accident, she saw the plaintiff throwing a stone into the river. He was near the bridge. He threw the stone, slipped and fell backwards into the river. Mr Justice Kinlen was quite satisfied on the evidence as a matter of probability that he was standing still at the time of the accident, he was not running, tripping, slipping or sliding as a result of the rough surface and in fact where he allegedly fell was one of the flattest parts of the entire path. He fell backwards into the river. Mr Flaming, the engineer, criticised the condition of the river bank and said that it was not the same as walking on Dun Laoghaire Pier. He said that if one fell off the pier, one would not be injured because one would fall into the water. However, in this case there were rocks underneath. Mr Justice Kinlen did not think that this stood up because the main suggestion was the condition of the riverbank not the river bed. The river bed was a normal river bed. He said that there may have been stones planted there for various reasons of controlling the water the bulk of them looked to be natural from the photographs. He said it was quite usual to find stones and rocks and irregular features in the bottom of any river, so he did not think that the condition of the bottom of the river contributed in any real sense to the accident. The presence of a rock may well have caused the injury but the fact that the rock was present was not in any way negligent on behalf of the local authority.

The plaintiff who was 3 years and 10 months old at the time of the accident, was throwing stones into the river, as is normal for children. He lost his balance. Mr Justice Kinlen said that probably because of his enthusiasm, he overbalanced and he was very close to the riverbank and he fell backwards and fell into the river and was injured, mercifully not seriously. He was admitted to hospital and had to undergo physiotherapy but he had to all intents and purposes come right, although there was some question of suffering Coldness in a finger.

Mr Justice Kinlen said that the onus is on the plaintiff to prove that there is a duty owed to him and that there was a breach of that duty. He said that it would be absurd if the local authority which provides amenities, had to shield every river, and it was unfortunate at the moment that because of many law actions, play areas and parks were now being closed down. They were amenities which were widely used by communities. He said it would be reprehensible in the extreme if rivers had to be culverted in order to hide them. He said that Children were naturally attracted to them. All children play where there is water.

Mr Justice Kinlen said that on the facts of this case, he was satisfied that the plaintiff was in the control of his cousin. She could possibly have held onto him. He was satisfied that as a matter of probability in this case the plaintiff overbalanced, that nobody was holding him or directing him not to be so close to the stream. Because he himself overbalanced, he tumbled into the river and sustained the injury. He did not think it was foreseeable from the point of view of the local authority and he did not think that the local authority could be faulted. They provided this amenity for the citizens and all citizens must take reasonable care according to their capacity. A child aged 3 years 10 months old child would appreciate that it was a river but might not appreciate all of the dangers implicit in that. If he or she is allowed to play there with the consent of the parent or guardian or person in control, it is that person who should really warn the child and ensure that he does not endanger himself by exposing himself to a foreseeable risk. He was satisfied on the evidence that the cousin and her mother, both of whom gave evidence, did not in fact appreciate that was a very serious risk. If they had not perceived it and allowed this child to play, it was hard to see how the local authority could be defaulted.

Accordingly, Mr Justice Kinlen dismissed the plaintiff's case.

Solicitors: Alphonsus Grogan & co (Dublin) for the plaintiff; Good & Murray Smith & Co (Dublin) for the defendant.