ANALYSIS

The point on the boardwalk COMMON SENSE identified as the PREVAILS IN location of the accident. WICKLOW WAY JUDGMENT

High Court judgment supports the well-established principle that people who go into the uplands for recreation should take responsibility for their own safety. Helen Lawless reports.

“There was a high degree of negligence on the plaintiff’s part in that she was not looking at the surface of the boardwalk when she fell.”

udge Michael White’s ruling Location of accident Circuit Court judgment th on February 17 , 2017, The case was taken by a woman, Ms The case was first heard in the Circuit Court, overturning the €40,000 Wall, from north County Dublin, following where the woman gave evidence that due award made last year to a a fall on a boardwalk section of the to the injury she was unable to pursue her woman who was injured in a Wicklow Way close to the JB Malone previously active lifestyle which included fall on the Wicklow Way, memorial and overlooking beautiful marathon running and regular walking. The sent a wave of relief across Lough Tay. On a dry and clear day in judge found that the National Parks and tJhe country. Mountaineering Ireland was August 2013, the woman walked with her Wildlife Service had not taken reasonable particularly pleased that the judgment husband from Roundwood to the top of care to maintain the boardwalk in a safe addressed two key concerns – the mountain, and they were condition, and she was awarded €40,000 in responsibility of walkers for their own returning along the same route when the general damages. In her written judgment, actions and the fact that structures on accident occurred. The woman caught the judge referenced two cases related to the side of a mountain should not be her foot in an indentation in the the maintenance of structures in treated the same as those in an urban boardwalk which caused her to fall playgrounds. park. forwards, sustaining injuries to her knee. Judge White went further than finding As the location is part of Wicklow Decision to appeal welcomed the woman negligent. His ruling that the Mountains National Park, she sued the The State Claims Agency, which had responsibility to maintain structures is National Parks and Wildlife Service for defended the case of behalf of the National not an absolute duty set down a clear damages, claiming that the condition of Parks and Wildlife Service, immediately marker for the assessment of future the boardwalk had caused her injury. took the decision to appeal the award to cases. the High Court. This decision was The relief the judgment provided for Structures for recreational landowners was evident in statements welcomed by Mountaineering Ireland, for users two main reasons: from the three main farmers’ It is pivotal to the case that the woman The Circuit Court judgment went against organisations. State agencies, community fell on a boardwalk section of the •the well-established principle that people groups and other recreational user groups Wicklow Way. Section 4(4) of the who go into mountains and other parts of echoed their comments. Occupiers Liability Act imposes a higher As this is a significant case for outdoor duty of care on the occupier (typically the countryside for recreational activities recreation in Ireland, and one which the landowner) for structures ‘provided are aware of the risk in what they’re doing Mountaineering Ireland assisted with, a for use primarily by recreational users.’ and take responsibility for their own safety; summary of the case is provided below. Both the Circuit Court and the High It was Mountaineering Ireland’s view •that there should be a distinction made

s Court judges considered the boardwalk

s e

l to be such a structure. Had the injury between the standard of maintenance for a w a structure located in the mountains for use L resulted from a slip on a wet or rocky

➤ Helen Lawless is n e hillside, or from the collapse of a farm by hillwalkers, and for example, a children’s

l Mountaineering Ireland’s e

H gate, the same judgment would likely swing in an urban playground.

: Hillwalking, Access & s

h Conservation Officer. not have resulted, as in both those

p a

r situations the landowner’s duty of care High Court hearing

g o

t would have been comparatively Due to the importance of this appeal, o

h minimal. Mountaineering Ireland offered its P 22 Irish Mountain Log Spring 2017 The Wicklow Way boardwalk below the JB Malone Memorial, overlooking beautiful Lough Tay in the .

assistance to the State Claims Agency care to maintain the boardwalk was not recreational activity. Some landowners and were pleased to be requested to an absolute duty. Drawing on judgments may be unaware that the Circuit Court provide a witness in the High Court. The from England and Scotland, the judge judgment has been overturned, or they High Court hearing took place over five concluded that the standard of care had may be unclear about the basis to the days in November and December 2016. to be adapted taking into account the judgment. By engaging positively with any Other witnesses were called on behalf of location of the boardwalk and the benefit landowners we come across, walkers and the National Parks and Wildlife Service to society from the provision of the climbers can help to allay the landowners’ and Partnership; the boardwalk. On that basis the judge found concerns, and also contribute to the National Trails Office also provided that the National Parks and Wildlife relationship we rely upon for continued assistance. Service was not negligent in not filling in access. The mechanism of the woman’s fall, the indentations in the boardwalk or in It is worth reiterating that this case the structure of the boardwalk and the not replacing the sleepers, and he related specifically to structures provided National Parks and Wildlife Service’s overturned the Circuit Court judgment. for recreational users (e.g. stiles, bridges maintenance procedures within Wicklow With regard to costs, which would be and boardwalks) and that the majority of Mountains National Park were all substantial given the duration of the these structures are on managed trails, examined in detail. The evidence High Court appeal, Judge White where there is an insurance policy in place provided on behalf of Mountaineering requested the State Claims Agency to to indemnify landowners. Ireland covered the ethos of personal consider the precedent value of the Mountaineering Ireland is currently responsibility, which is at the heart of judgment before seeking to pursue the engaging with other relevant organisations mountain activities, the condition of the injured woman for their costs. It was to examine the recent judgment and boardwalk and its use by hillwalkers. The subsequently agreed both sides would consider if there is need for amendment to Visitor Safety in the Countryside pay their own costs. the Occupiers Liability Act. approach, which provides guidance on It is also important that the how to balance management Welcome precedent responsibility of recreational users for their intervention with personal responsibility, This judgment clarifies case-law in a way own actions continues to be emphasised was outlined in Mountaineering Ireland’s that will be valuable if cases arise in the by Mountaineering Ireland and within its evidence. future related to structures provided for member clubs. recreational users (under Ireland’s It is fitting to conclude with the words of Common-sense judgment common-law legal system significant Edward Whymper, when reflecting on the On February 17 th , 2017, Judge Michael emphasis is placed on previous decisions appalling tragedy that befell his party White delivered a clear and strong in the higher courts). As section 4(4) of while descending after the first ascent of

s judgment setting aside the Circuit Court the Occupiers Liability Act does not refer the Matterhorn in 1865: s e l award. In dealing with the mechanism of to the responsibility of recreational users w a

L the fall, the judge concluded there was a or qualify the duty of reasonable care,

“Climb if you will, but remember that courage n e l high degree of negligence on Ms Wall’s this judgment is particularly important. and strength are nought without prudence, e H

part as she was not looking at the and that a momentary negligence may : s h surface of the boardwalk when she fell. Conclusions destroy the happiness of a lifetime. p a r In addressing the National Parks and This case had rekindled fears amongst Do nothing in haste; look well to each step; g o t Wildlife Service’s legal liability, the judge private landowners about people and from the beginning think what may o h

P emphasised that the duty of reasonable entering onto their property to engage in be the end” ■ Spring 2017 Irish Mountain Log 23