The High Court has overturned a €40,000 damages award to a hillwalker over injuries suffered when she fell on a boardwalk on the Wicklow Way.
In a significant judgment concerning the nature of the duty of care of landowners to hillwalkers, Mr Justice Michael White found contributory negligence by Teresa Wall in relation to her fall. He rejected her arguments that a trip hazard is the same whatever the location.
Ms Wall, Rathingle Cottages, Swords, Co Dublin, claimed that she tripped and fell after her foot snagged in a hole in one of the old railway sleepers. The incident was at a boardwalk just below the JB Malone memorial on the Sally Gap to Djouce trail near Roundwood on August 6th 2013.
She sued the National Parks and Wildlife Service (NWPS), which placed the boardwalk on the lands.
After a Dublin Circuit Court judge found the NPWS negligent and awarded Mrs Wall €40,000 damages, the parks service appealed to the High Court.
In his judgment on Friday, Mr Justice White said Ms Wall was a “genuine” person who had suffered injuries that had greatly affected her “active lifestyle”.
The case raised complex legal issues, including if the parks service could allow the sleepers deteriorate before being replaced, he said.
Ms Wall had claimed the 1995 Occupiers Liability Act imposed, when a land occupier places a structure on the land for recreational use, a duty of care to maintain that structure in a safe condition.
The parks service argued that visible and obvious depressions on the boardwalk were not dangerous to an experienced hillwalker like Ms Wall and it was not under any obligation to repair them. Unless a sleeper was at risk of falling apart, the holes in the sleepers were not considered an unacceptable hazard to walkers. it said.
The judge did not accept the duty of care imposed on an occupier was an “absolute or strict” duty.
Due to vigilance expected from hillwalkers on moderate mountain trails, the standard of care has to be adapted to the conditions, including the isolated location of the boardwalk and the social utility it provides, he held.
The parks service was not negligent by not filling in the indentations in the boardwalk or replacing the sleepers with new ones, he found.
He also rejected Ms Wall’s argument that a trip hazard is the same no matter what the location. When considering the “mechanism of her fall”, the judge found a “high degree of negligence” on Ms Wall’s part due to not looking at the surface of the boardwalk when she fell.
Adjourning the matter for two weeks to allow the parties consider his decision, he asked the NPWS to consider Ms Wall’s situation before seeking its legal costs.
The decision has significant implications for national parks and the Wicklow Way’s future. If the Circuit Court decision was upheld, fears were expressed that the walking route would disintegrate because private landowners would withdraw their consent to allow walkers .
Ms Wall said the accident occurred when she and her husband had been coming down the mountain. She suffered a gash to her right knee which needed seven stitches and was in significant pain for some time afterwards.
She claimed the NPWS was negligent and in breach of its duty of care towards her for reasons including permitting a defect to be present in the boardwalk .
The NPWS argued Ms Wall contributed to her injuries by not looking where she was going while participating in an activity known to have risks.
Reaction
The ruling was welcomed in a statement from Minister for Arts, Heritage, Regional, Rural and Gaeltacht Affairs Heather Humphreys and Minister of State for Regional Development, Michael Ring.
The Minister and officials said they would now take time to consider the details of the ruling “and its future implications for our National Parks and their recreational remit”.
Mountaineering Ireland said the judgment would provide " reassurance to hillwalkers and to many landowners, public and private who permit access to their land."
“It reinforces the long established principle that people engaging in outdoor recreational activities must take responsibility for their own safety”.
The Irish Farmers’ Association hill committee chairman Pat Dunne said the finding that an onus exists on the walker to have a duty of care was important and would help ease the concern of farmers.
Keep Ireland Open, a campaign group for better public access to the countryside said it was “relieved” at the judgment. However it said the case had exposed a big gap in the law which needed to be amended urgently in order to extend the voluntary assumption of risk to unnatural structures.