Wall v National Parks and Wildlife Service
What’s it all about?
Back in April, Teresa Wall, an experienced and accomplished hillwalker, was awarded €40,000 by the Dublin Circuit Court for personal injuries she suffered when she fell on a boardwalk on the Wicklow Way. The award was made against the National Parks and Wildlife Service (NPWS) who had constructed the boardwalk. NPWS duly appealed the decision to the High Court. The appeal, which involves a complete rehearing of the case, has commenced before Mr. Justice Michael White in the High Court, and is ongoing.
Why the fuss?
For many years, a key issue for hillwalkers has been the question of free access to the mountains. Landowners (strictly speaking “occupiers”), usually farmers, are generally tolerant of hillwalkers but express concern that they may be sued if a hillwalker is injured while on their land. Hillwalkers generally hold themselves bound by the principle that they take on all risks associated with their endeavours and if they get injured they will suffer the loss. Suing, hillwalkers say, would be futile and they point to the powerful protections afforded to land occupiers by Occupiers' Liability Act, 1995 which greatly curtails opportunities for successful litigation by “recreational users”. When the Circuit Court made its award to Ms. Wall, the farming community seized on the decision as proof of its worst fears: here was a hillwalker who not only sued, but won her case!
Did the Circuit Court decison “open the floodgates”? No
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 low duty that is owed to trespassers: (a) not to injure the person intentionally, and (b) not to act with reckless disregard towards that person. The Supreme Court interpreted this legislation in the case of Geraldine Weir-Rodgers v SF Trust Ltd in 2005. A young lady fell off a cliff in Donegal. She was a recreational walker. She lost her case because the landowner had not injured her intentionally and had not been guilty of reckless disregard for her. The Supreme Court effectively decided that the young lady went walking by a cliff and fell off because she went too close to the edge, and that was nobody’s fault but her own. The lady’s lawyers argued that there should have been signs erected to warn her of the danger that she might fall over the edge but the Supreme Court said that the lawmakers could never have intended to litter the countryside with warning signs. Such signs would be legally required (in open countryside) only in the most exceptional circumstances. The lower courts must follow the Supreme Court. In my respectful opinion, the Circuit Court judgment in favour of Teresa Wall was not an attempt to overturn these well-established legal principles. In fact the award was based on a very narrow ground, having nothing to do with the open mountain and everything to do with the creation by the NPWS of a “structure” on the mountain which it failed to maintain.
The Problem was the Boardwalk- not the Mountain
Teresa Wall never claimed that there was a problem with the mountain. Her claim was that there was a problem with the boardwalk, a structure that was put there primarily for the use of recreational users (hillwalkers). The 1995 Act specifically says that if you put a structure in place primarily for recreational users then you must maintain it. The Circuit Court judge decided on the evidence that the boardwalk had been put there for recreational users and had not been maintained, and Ms. Wall was hurt as a result, and that’s why she won. The case most certainly did NOT decide that anyone getting injured on a mountain must be compensated by the occupier. But needless to say that perception has gone abroad.