In this recent case, a young boy suffered the loss of an eye when a firework went off in a bonfire which had not been cleared away by the local council due to intimidation and anti social behaviour. Murphy & O'Rawe were instructed to act on behalf of Newry & Mourne District Council. The plaintiff claimed against the council as owners and occupiers of the playing field where the illegal bonfire had been placed.The plaintiff also alleged that one of the councils' purpose in providing the playing fields was to attract children, that the council knew or ought to have known of the risk of unexploded fireworks at the playing fields as a result of the activities of those who had attended the bonfire the previous night, and despite that knowledge the council failed to inspect the playing fields and also failed to take precautions such as removing fireworks and other dangers including broken glass before permitting the plaintiff and his friends to be on their premises.
The council's case was that the bonfire was organised by others and that it was powerless to prevent its land from being used given the level of anti-social behaviour, threats and intimidation and the short period of time, some two to three hours, within which a bonfire could be erected. That because of the level of anti-social behaviour council employees could not be present or do anything whilst the bonfire was taking place. That after the bonfire occurred that it was not reasonable in the circumstances to carry out a detailed inspection of the playing fields or to commence a clean-up operation given the hostility of gangs of youths in the area towards council employees, contractors engaged by the council, members of the Police Service of Northern Ireland, and members of the Fire Brigade and Ambulance Service. Rather that the council could only wait until the hostility had diminished before having a detailed inspection of the playing fields and commencing its clear up operation.
The case against the council was dismissed. Mr Justice Stephens accepted that the debris generated by the bonfire at the playing fields presented a danger to the public and in particular to children. He concluded that although the Council knew that it was likely that there would be such a danger, it had been overwhelmed by the tradition of this bonfire and anti-social behaviour associated with it.. On the facts, it was accepted that for a period of time the playing fields were out of the control of the council and that there was no feasible assistance available to the council from the police. Ultimately as the sensible precautions which ought to have been taken were not achievable then the plaintiff could not establish a breach of duty by the Council. Mr Justice Stephens accepted that those precautions were not achievable in two senses. The first being that it was reasonable for the council to anticipate that its staff and the staff of contractors would be threatened, intimidated and assaulted and thereby at risk and prevented from carrying out any work at any time prior to the time at which the plaintiff was injured (that being the relevant time). The second being that is what would have occurred if the council staff or the staff of contractors had actually attempted to do anything prior to the time at which the plaintiff was injured and accordingly the staff would have had to retreat and this firework would not have been made safe.
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