Welcome to MountainViews
If you want to use the website often please enrol (quick and free) at top right.

General Whatever you want to say that doesn't fit under the comments about mountains or another forum.
Sort by >

More controls

<< Prev page 1 .. 3 4 5 6 7 8 .. 368 Next page >>
Post details Post   (Expand pics)
The Emerald Island.. by Pazapas   (Show all posts)
I remember climbin.. by wicklore   (Show all posts)
SCAVENGER WALK 12 .. by Peter Walker   (Show all posts)
In 1977, just afte.. by Colin Murphy   (Show all posts)
Now that weather i.. by brenno   (Show all posts)
Congratulations to.. by mcrtchly   (Show all posts)
Subscribers to the.. by Peter Walker   (Show all posts)
There is a proposa.. by mcrtchly   (Show all posts)
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.


RECENT CONTRIBUTIONS 1 2 3 .. 17 Next page >>
Track
Pic du Midi d'Ossau
David-Guenot 4 hours ago.
The idea came from my 60-year-old, freshly retired neighbour, as we and some other members of the local badminton club m walk, Len: 16.2km, Climb: 1353m, Area: France, Nouvelle-Aquitaine ()

  
Summit Summary
Seefin Mountain E Top: Up the old bog road.
Collaborative entry Last edit by: melohara a day ago.
Car park space at R66276 16811. Over or around the gate and head uphill on a good track that crosses the hill near the summit.On the crest of the hill the summit cairn is over a wall to your right...

  
Summit Summary
Seefin Mountain W Top: Bog and rough ground.
Collaborative entry Last edit by: melohara a day ago.
Car park space at R66276 16811. Over or around the gate and head uphill on a good track that crosses the hill near the summit of Seefin Mountain East top.Follow the track on downhill from the cres...

Track
Central Dingle Quartet from Anascual
Bunsen7 13 hours ago.
Follow the track from Anascaul lake car park northwards up onto the mountain plateau.Track leads northwards from lake... walk, Len: 15.8km, Climb: 949m, Area: Stradbally Mountain, Central Dingle (Ire

  
Summit Summary
Seefin South-East Top: Seefin South East Top is easily visited
Collaborative entry Last edit by: melohara a day ago.
Seefin South East Top is easily visited from the track leading to Seefin Mountain East Top and Seefin Mountain West Top which starts st R66276 16811. Just follow the track to R65202 17892 from whe...

  
Summit Comment
Carnaween: The visitors book box near the summit
Aidy 5 days ago.
Just wanted to show the brilliantly constructed little box which contains the visitors book. It was too wet and windy on my visit to take it out and risk ruining it. A few shafts of light breaking...

Summit Comment
Carnaween: Bad Weather Adding Drama To Great Views
Aidy 5 days ago.
I used the commonly taken route from Disert Graveyard (worth a visit in its own right) over ground that was alternatively boggy or pretty steep. It was freezing cold in these parts, with a strong ...

  
Forum: General
MV Mountain Gathering 2017
Onzy 3 days ago.
Always a great night ... all welcome.

  
Track
Pic Rouge de Bassiès
David-Guenot a day ago.
This was the first of the two big hikes I did in the Pyrenees in summer 2016. Hiking in the summer often means a sunny d walk, Len: 16.3km, Climb: 1342m, Area: France, Midi-Pyr?n?es ()

Summit Comment
Corrin: A family stroll.
David-Guenot a week ago.
Climbed this hill in November 2014, with a friend who used to live in the area. Starting at the Coillte car park, we did a nice loop on the forest paths, circling around the hill in an anticlockwi...

  
Summit Comment
Luggala: Fancy View from White Hill
davsheen 2 weeks ago.
Autumn's evening view across to Luggala/Fancy from White Hill on route down from Djouce using the Wicklow Way boardwalk section.

  
Summit Comment
Binn Charrach: The peat-hag capital of Connemara
markwallace 2 weeks ago.
The descent from Benbaun to the R344 via Knockpasheemore/Binn Charrach is hard going after a day in the Bens. The Knockpasheemore ridge looks nice and flat from below, but is boggy, undulating and...


RECENT CONTRIBUTIONS 1 2 3 .. 17 Next page >>