The High Court has dismissed a Tralee man’s damages claim over injuries caused entirely by his decision to take an “unacceptable risk” in climbing over a 2m-high security gate as a shortcut to collect his child from school.
Ms Justice Emily Egan said it was regrettable that Christopher O’Driscoll (42) suffered a significant injury to his right leg but the responsibility could not lawfully be laid at the door of the Irish Province of the Bon Secours Sisters.
The father of three, who sued seeking at least €60,000 damages, should have identified the “obvious risk in attempting the climb over the gate” and turned around when it was “entirely clear” the route was inaccessible, she said. Rather than falling from the gate, the judge said CCTV footage appeared to show him jumping.
The manoeuvre was “extremely hazardous” and a reasonable person would have declined to take the risk Mr O’Driscoll did on September 21st, 2016, she said. A person must accept responsibility for the consequences of making such a choice, she added.
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Mr O’Driscoll was taking a shortcut through the Bon Secours hospital grounds near his home on his way to collect his child from school. He told the court he often took this shortcut and on September 21st, 2016, found the gate for his exit from the grounds closed and locked. He said he heard the school bell and became concerned he would be late for pick-up if he turned back.
He climbed up the gate, jumped from it and landed heavily, resulting in him fracturing bones in his lower leg, the judge said. He remains in pain and is functionally limited with reduced range of movement in his ankle.
The judge said Mr O’Driscoll accepted he was guilty of significant contributory negligence in attempting the climb but he maintained that his fall was caused by the gate being damaged, defective and unstable. He alleged the gate was a danger and the Bon Secours organisation was liable to him under the Occupiers Liability Act of 1995.
Ms Justice Egan did not, on balance, find it plausible that the route was a well-worn shortcut and accepted the hospital’s contention that the gate was generally shut. She found that the defendant could not reasonably have known Mr O’Driscoll would attempt to climb the gate.
The Bon Secours organisation, represented by Murray Johnson SC, Sandra Barnwell and RDJ solicitors, was entitled to assume trespassers would take all reasonable care for their own safety, that adults can normally look after their own welfare and that an adult exercising reasonable care would have avoided the manoeuvre attempted by Mr O’Driscoll, the judge said.
His injuries were “caused entirely” by his decision to take an “unacceptable risk and by his failure to take any reasonable care for his own safety”, she found.
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