Householders whose homes are surrounded by decorative steel spiked railings are liable for injury even to trespassers under the 1995 Occupiers Liability Act, it was revealed in court yesterday.
Judge Desmond Hogan in the Circuit Civil Court awarded a six-year-old boy, who injured his hand on a spike while trespassing on private property to retrieve a football, almost €6,500 damages against houseowner Ms Jean Bacon.
Judge Hogan said he had the utmost sympathy with Ms Bacon, of Lissadel Road, Drimnagh, Dublin, who endured hardship and intimidation on a daily basis from children kicking footballs into her garden from an adjacent play area.
He said footballs were regularly kicked over her wall, limiting and curtailing to a not inconsiderable extent the enjoyment of her property. The court was told that while Ms Bacon was absent from her home on March 25th, 2000, Dwayne Hall, of Benmadigan Road, Drimnagh, Dublin, injured his hand while climbing on the railings in a bid to recover a football.
Ms Bacon said the spiked fence on top of a three-foot wall had been in place without incident for 29 years. She was tormented by demands for the return of footballs. Eighty per cent of the time she would throw them back and if not she was called a "F'ing B" and stones were thrown into her garden. She said she was not told of the injury until a solicitor's letter arrived.
Mr Michael Byrne, counsel for Ms Bacon, told the court a civil engineer had indicated, fairly, that such spiked railings were to be seen all over Dublin and he was unaware of anyone ever having the spikes removed or filed blunt.
"To expect this lady to call in workmen to file down ornamental railings similar to those all over the city is to put a ridiculously high onus on her," he said.
He said unsupervised children would do dangerous things and that could not be helped. Judge Hogan said the Occupiers Liability Act had imposed the lowest duty of care on an occupier, minimalist in the extreme with regard to a trespasser but it was a duty nonetheless.
That duty was not to act with reckless disregard to the safety of a trespasser and reckless disregard had been held by the superior courts to mean "consciously disregarding a substantial and unjustifiable risk". The judge said Ms Bacon was well aware that her property a'djoined a play area used by children for recreational purposes and that it was not uncommon for them to attempt to retrieve balls from her garden. He said Ms Bacon's house was surrounded by a railing with five-inch spikes. It would not be unreasonable for her to have anticipated that injury could occur at some stage or another to one of the children gaining access to her garden.
"The law requires that I deal with this case in an objective rather than a subjective way and to that end I must have regard to the definition of recklessness from an objective point of view," Judge Hogan said. "I accept that the higher the probability of trespassers being present the greater the likelihood that the conduct of the occupier was reckless."