South Dublin County Council, which has 1,500 acres of parks and open space, could not be expected to collect illegally dumped rubbish on a daily basis, the Circuit Civil Court has been told.
Barrister John Doherty, counsel for the local authority, told Judge Terence O’Sullivan that rubbish was collected on a regular basis, sometimes within days, and there was little more the council could do apart from keeping children off recreational areas by fencing around them.
“That would defeat the very purpose of having them in the first place,” he said in a case in which the father of a nine-year-old girl unsuccessfully sued the council in a €60,000 damages case after the child injured her foot four years ago on broken glass.
Mr Doherty, who appeared with Canal Quarter Solicitors for the council, told Judge O’Sullivan the law in such cases imposed a duty of care on local authorities insofar as not to injure a person intentionally and not to act with reckless disregard for the safety of users.
Counsel for Brooke Davis, suing by her father Carl Davis, of Kilmartin Avenue, Tallaght, Dublin, told the court the local authority was responsible for the upkeep and maintenance of communal greens including the clean-up and collection of waste from such areas.
He said the council had been negligent in its duty towards members of the public.
Paula Davis, Brooke’s mother, told the court her child had been playing with neighbouring children on a large green literally outside her home at Kilmartin Avenue and lacerated her foot on a broken glass bottle.
After claiming that the council, despite frequent complaints, had failed in its duty to regularly clean up the area she told Mr Doherty in cross examination that she was aware, before Brooke had started playing with her friends, that there was illegally dumped rubbish on the green.
The court heard that illegal dumping happened at night and was a problem as well as drinks parties on the green.
Judge Terence O’Sullivan, dismissing the child’s claim, agreed with a submission by Mr Doherty that the council by law had a duty that did not stretch beyond not injuring a person intentionally and not to act with reckless disregard towards a person’s safety.
The judge said the child’s mother had told him she knew there was rubbish there before allowing her child out to play and while it was very wrong for people dumping rubbish illegally the council could not be expected on all occasions to remove it immediately.
“I am sorry for the little girl who suffered a bad and unfortunate accident but I have to dismiss the case as there wasn’t any intention on the part of the council to injure anyone or act with reckless disregard towards anyone,” Judge O’Sullivan said.
Refusing to make any order for costs against the plaintiff, Judge O’Sullivan said he accepted both that Brooke had been injured and the honesty of the witnesses who gave evidence. The law was not in their favour and he had to dismiss the case.