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SCAVENGER WALK 12 .. by Peter Walker   (Show all posts)
CaptainVertigo
2016-04-18 19:50:47
The Wall Decision: Let There be No Panic
The legal duty of occupiers of land to “recreational users” is set out in Section 4 of the Occupiers' Liability Act of 1995. It is the same duty that is owed to trespassers:
(a) not to injure the person or damage the property of the person intentionally, and
(b) not to act with reckless disregard for the person or the property of the person.
I would encourage any of you who take an interest in these matters to read Section 4 of the Act below. It will take no more than a few minutes.
The Supreme Court, whose decisions bind the lower courts, interpreted Section 4 in the case of Geraldine Weir-Rodgers v SF Trust Ltd in 2005. I have summarised that case below. You may wish to read the full judgment at: http://www.environ.ie/sites/default/files/migrated-files/en/Publications/Community/RuralDevelopment/FileDownLoad,38227,en.pdf
And there is a detailed commentary by Professor William Binchy at: http://www.claruspress.ie/TORT1.pdf
I am not aware if the Circuit Court Judge in the Wall case handed down a written judgment. If she did, I have not seen it. Although the Irish Times and other papers have summarised the judgment, one would prefer to have the benefit of the detailed legal reasoning.
Already the IFA is expressing concerns. According to Journal.ie
“In a statement this morning, IFA Hill Commitee Chairman Pat Dunne has said that although the judgement refers to property owned by the National Parks and Wildlife Service, “farmers will be very wary of the consequences where hill walkers ramble off designated routes”.
He said that the issue was being discussed by the Comhairle na Tuaithe, an organisation within the Department of the Environment made up of farming organisations and other parties with an interest in the countryside.
The aims of these discussions are to give reassurance to farmers that they will not be held culpable if a similar incident were to happen on their land.”

Distinguishing the Wall Judgment
It is far too early to conclude that the Wall judgment represents a new legal threat to the occupiers of land. Crucially, the NPWS constructed a boardwalk with old sleepers which were found by the court to have been in a dangerous state. Walkers were positively encouraged to walk on that boardwalk. Section 4 (4) of the Act says:
“ Notwithstanding subsection (1), where a structure on premises is or has been provided for use primarily by recreational users, the occupier shall owe a duty towards such users in respect of such a structure to take reasonable care to maintain the structure in a safe condition”
And that appears to be what happened in the Wall case. A structure was put in place for use by recreational users and therefore it ought to have been maintained. A completely different regime applies where structures are NOT primarily for the use of recreational users. As the Act says:

“Provided that, where a stile, gate, footbridge or other similar structure on premises is or has been provided not for use primarily by recreational users, the occupier's duty towards a recreational user thereof in respect of such structure shall not be extended by virtue of this subsection”

My current preliminary view is that the Wall decision is not in any sense a dilution of the hillwakers’ principle that you take the mountain as you find it, and accept all the risks involved in a potentially hazardous activity. The Wall decision is about a body creating a structure, directing people to use the structure, and then failing to maintain it. No more than that.

The concerns of the farming community are real, and need to be assuaged. There is NOTHING in the Wall judgment that exposes farm families to extra risk. Farm families are not building special structures for hillwalkers unless they are participating in special schemes where they are fully indemnified. Where hillwalkers cross farm land with or without permission they proceed at their peril. Hillwalkers are generally happy with that arrangement. As a group we take responsibility for our actions. We cannot walk on the land of another citizen and expect compensation if we injure ourselves. That is our "way". Counsel for the NPWS confirmed that this was the first claim against the service. That in itself speaks volumes. The mere fact that the claim has succeeded need not cause dismay. The decision was based on the particular facts of the case. Close scrutiny of those facts, and the reasoning behind the decision, reveals no escalation of liability for landowners/occupiers. Therefore we ought to be indifferent to the outcome of the Appeal. The award may be upheld. So be it. To date there is nothing to suggest that any new principle has been established. Section 4 of the Occupiers' Liability Act continues to protect farmers as it always did. The Supreme Court judgment in Weir-Rodgers v SF Trust Ltd remains fully intact and will bind all lower courts. Nothing has changed.
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