Common sense prevails in Wicklow Way judgment

The High Court ruling in February overturning a €40,000 award made last year to a woman injured in a fall on the Wicklow Way brought welcome relief for landowners, State agencies, community groups and recreational users.

The case was taken by a woman, Ms. Wall, from north county Dublin, following a fall on a boardwalk section of the Wicklow Way, close to the JB Malone memorial. The accident occurred in August 2013. The woman caught her foot in an indentation in the boardwalk which caused her to fall forwards, sustaining injuries to her knee. As the location is within Wicklow Mountains National Park she sued the National Parks & Wildlife Service for damages, claiming that the condition of the boardwalk had caused her injury.

It is pivotal to the case that the woman fell on a boardwalk. Section 4(4) of the Occupiers Liability Act imposes a higher duty of care on the occupier (typically the landowner) for structures ‘provided for use primarily by recreational users’. Had the woman’s injury resulted from a slip on a wet or rocky hillside, or from the collapse of a farm gate, the same judgment would likely not have resulted, as in both those situations the landowner’s duty of care would have been comparatively minimal. Following the Circuit Court award in April 2016 a decision was taken immediately to appeal to the High Court.

The High Court hearing took place over five days in November and December 2016. Witnesses were called on behalf of the National Parks & Wildlife Service, County Wicklow Partnership and Mountaineering Ireland; the National Trails Office also provided assistance.

The mechanism of the woman’s fall, the structure of the boardwalk and the maintenance procedures within Wicklow Mountains National Park were all examined in detail. The evidence provided on behalf of Mountaineering Ireland covered the ethos of personal responsibility which is at the heart of mountain activities, the condition of the boardwalk and its use by walkers. The Visitor Safety in the Countryside approach, which provides guidance on how to balance management intervention with personal responsibility, was also outlined.

On 17^th February 2017 Judge Michael White delivered a clear and strong judgment setting aside the Circuit Court award. In dealing with the mechanism of the fall the judge concluded there was a high degree of negligence on Ms Wall’s part as she was not looking at the surface of the boardwalk when she fell.

In addressing the National Parks & Wildlife Service’s legal liability the judge emphasised that the duty of reasonable care to maintain the boardwalk was not an absolute duty and that the standard of care had to be adapted taking into account the location of the boardwalk and the benefit to society from the provision of the boardwalk. The judge found that the National Parks & Wildlife Service was not negligent in not filling in the indentations in the boardwalk or replacing the sleepers and he overturned the Circuit Court judgment.

It is worth reiterating that this case related specifically to structures provided for recreational users (e.g. stiles, bridges and boardwalks) and that the majority of these structures are on managed trails where there is an insurance policy in place to indemnify landowners. This judgment clarifies case-law in a way that will be valuable if similar cases arise in the future.

It is important too that the responsibility of recreational users for their own actions continues to be emphasised by all those involved in developing and promoting outdoor recreation activities.

Helen Lawless, Mountaineering Ireland