Wicklow Way Case

knucklehead6

Is the appeal for this case due today?

I seem to remember reading somewhere that it is.

Alun

I don't recall seeing an exact date, just "some time in the New Year", but I could be wrong. Fingers crossed it's the 'right' result either way.

knucklehead6

Alun wrote: »

Fingers crossed it's the 'right' result either way.

Exactly.

CardinalJ

This day next week.

unkel

That woman who claimed a big compo payout because she fell on the railway sleeper, or are we talking something completely different here?

knucklehead6

unkel wrote: »

That woman who claimed a big compo payout because she fell on the railway sleeper, or are we talking something completely different here?

Yep, that's the on Unkel.

I know we're not allowed discuss active court cases here, i was just wondering when the appeal is up

groovyg

High Court overturns hillwalker's €40k award for Wicklow Way fall

Alun

Great news!

unkel

Hopefully she'll stick to beach walks near Swords from now on. And not claim should she trip over a banana skin :rolleyes:

Red Kev

I'd reserve judgement on this one for a while (no pun intended). It says she was negligent, but it doesn't totally exonerate somebody like the NPWS from being sued sometime in the future. Legislation is still badly needed to sort this out for once and for all and to fully protect landowners who provide access to land, be they state or private landowners.

We badly need a law dealing with personal responsibility for things like this.

However, he said when considering "the mechanism of her fall" the judge found there was "high degree of negligence” on her part in that “she was not looking at the surface of the boardwalk when she fell."........................

Mr Justice White added the case raised a number of complex legal issues.

After considering all the points raised he was satisfied that the NWPS was not negligent and said he was allowing the NPWS's appeal.

Tigerandahalf

It is an interesting case.

I wouldn't be surprised if she succeeded with a supreme court case.

The fact that she was walking on a man made structure (that should then have been maintained) seems to me to be different to natural terrain that a walker might cross on a farmer's land.

The tourism authorities were promoting this as an attraction to visitors from home and abroad.

I wonder if a young German kid had fell would the outcome be different?

Of course it is great that land is free to walk after the judgement.

Is there any onus on authorities now to maintain greenways etc?

Has the cost of this case for the NPWS been greater than the money required to maintain the boardwalk?

Quackster

An appeal would be to the Court of Appeal. She has no automatic right of appeal to the Supreme Court.

Be she's already facing a potentially significant legal bill. If she doesn't appeal though, she may be let off having to pay NPWS's legal fees.

unkel

Tigerandahalf wrote: »

I wonder if a young German kid had fell would the outcome be different?

Yes it would. It wouldn't even have occurred to the young German to blame anyone but himself. Never mind sue somebody over it :rolleyes:

Red Kev

Red Kev wrote: »

I'd reserve judgement on this one for a while (no pun intended). It says she was negligent, but it doesn't totally exonerate somebody like the NPWS from being sued sometime in the future. Legislation is still badly needed to sort this out for once and for all and to fully protect landowners who provide access to land, be they state or private landowners.

We badly need a law dealing with personal responsibility for things like this.

And that is the nail on the head, from what is reported it says there was no finding of negligence on the facts, not that she had no cause of action. So while it's a good decision, it's not going to allay the fears of landowners, and it's not going to stop solicitors giving the same advice, if someone has access to your land you may be placed in an invidious position. Perhaps a change in the law to limit cases to those where the recreational user has paid to use the facility.

loobylou

unkel wrote: »

Yes it would. It wouldn't even have occurred to the young German to blame anyone but himself. Never mind sue somebody over it :rolleyes:

Came across a Dutch walker one evening a few years back at almost that exact place ie near JB Malone plaque. He tripped and fell, breaking a finger. I had to drive him to Loughlinstown hospital for treatment. Doubt he sued anyone though.

ford2600

The grey area that continues to exist comes at a huge cost to the nation and it's visitors.

For an example, as an island nation we have a paltry amount of cliff/shore walks; Kilkee (a couple of km), Ballycotton, bits and pieces on Slea Head, Crosshaven, maybe Ardmore (that I can think of in Munster). The rugged wild mountainous nature of our west coast, in particular, is our greatest natural resource yet it has limited access by foot.

I have the perfect land for a cyclocross race; that won't be happening irrespective of how water tight the indemnity appears to be. Can't see any legal representative leaving the landowner of the Civil Bill.

I have a really lovely ash wood. Recently a university asked me to use it for a forestry walk for students; no problem just drop me a line saying I wouldn't be in any way exposed in event of an accident. Never heard another thing, despite sending a few reminders.

This type of thing is replicated across the country

This grey area is one the primary reason why our woods, a state resource are underused.

Orion

groovyg wrote: »

High Court overturns hillwalker's €40k award for Wicklow Way fall

Was just reading that myself. Absolutely delighted. If she'd won the implications for hiking all over the country could have been disastrous.

CardinalJ

Its to be celebrated but its a bullet dodged.

exaisle

I would have thought that this was good news to those of us who enjoy a ramble in the countryside.....


http://www.rte.ie/news/2017/0217/853394-teresa-wall-hillwalker-appeal/

longshanks

Common sense from a judge, there's hope for the country yet.

yosser hughes

longshanks wrote: »

Common sense from a judge, there's hope for the country yet.

It is great news. Had in not been overturned, the consequences could've been disastrous.

thebiglad

Already being discussed

http://www.boards.ie/vbulletin/showthread.php?t=2057556191&page=6

Pat Mustard

The problem that remains is the landowner's duty of care in respect of structures on land, for recreational users.

http://www.irishstatutebook.ie/eli/1995/act/10/section/4/enacted/en/html#sec4

(4) 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:
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.

If the legislation is not amended, what will happen is that stiles, footbridges, paths and other amenities which have been previously been constructed for the benefit of walkers, will become a source of potential liability to bodies such as NPWS.

If nothing is done about this, the logical conclusion would appear to be the removal of those amenities and removal of access to walkers, as self preservation exercises.

Tigerandahalf

Pat Mustard wrote: »

The problem that remains is the landowner's duty of care in respect of structures on land, for recreational users.

http://www.irishstatutebook.ie/eli/1995/act/10/section/4/enacted/en/html#sec4


If the legislation is not amended, what will happen is that stiles, footbridges, paths and other amenities which have been previously been constructed for the benefit of walkers, will become a source of potential liability to bodies such as NPWS.

If nothing is done about this, the logical conclusion would appear to be the removal of those amenities and removal of access to walkers, as self preservation exercises.

To be honest these things need to be maintained.

If you want to draw tourists and provide recreational facilities for people within Ireland you need to put money into these structures and maintain them properly.

The big issue that should get legal clarity is where people pass over land that hasn't been provided for the walker, where it is working land. The owner there should face no liability. You should enter whether child or adult at your own liability.

The bigger issue is why the NPWS isn't adequately funded so basic structures like board walks are maintained. Employing a couple of carpenters wouldn't go amiss.

Pat Mustard

Tigerandahalf wrote: »

The big issue that should get legal clarity is where people pass over land that hasn't been provided for the walker, where it is working land. The owner there should face no liability. You should enter whether child or adult at your own liability.

The bigger issue is why the NPWS isn't adequately funded so basic structures like board walks are maintained. Employing a couple of carpenters wouldn't go amiss.

I don't think that lack of clarity of the law is the problem.

The problem is the existence of the duty of care in relation to structures provided for recreational users.

The duty of care needs to be amended or removed, to take account of voluntary assumption of risk on behalf of the walker. Hillwalking is associated with risks and people should take responsibility for accepting those risks.

It should be borne in mind that it is open to walkers to take out their insurance to cover these risks but very few walkers bother with it.

If you want to ensure that these structures are maintained, a duty of care is not an efficient way to ensure such maintenence, from an economic perspective.

Orion

Pat Mustard wrote: »

The duty of care needs to be amended or removed, to take account of voluntary assumption of risk on behalf of the walker. Hillwalking is associated with risks and people should take responsibility for accepting those risks.

100% agree with this. Personal responsibility is rapidly becoming a thing of the past. Cases like this one are a perfect example. The law does need to be changed to put the onus back on the hillwalker for their own actions.

unkel

Orion wrote: »

Personal responsibility is rapidly becoming a thing of the past.

But why the hell is this the case? In most EU countries you wouldn't have a leg to stand on (pardon the pun ) in these cases

Perhaps if judges just started collectively throwing out "compo claims" based on accidents, the issue would just disappear. Accidents happen, if no one in particular "caused" the accident (i.e. like drove into you with their car), then it's your own risk and if you want cover, you need to insure yourself.

Pat Mustard

unkel wrote: »

Perhaps if judges just started collectively throwing out "compo claims" based on accidents, the issue would just disappear. Accidents happen, if no one in particular "caused" the accident (i.e. like drove into you with their car), then it's your own risk and if you want cover, you need to insure yourself.

The Occupiers Liability Act 1995 is an act of the Oireachtas. This is an issue to be resolved by the Government rather than the courts.

Pat Mustard

Pat Mustard wrote: »

The Occupiers Liability Act 1995 is an act of the Oireachtas. This is an issue to be resolved by the Government rather than the courts.

That's precisely the problem. The Act allows for such claims. In this instance, there was no finding of negligence. But a case involving, for example, a child might have a wholly different outcome. The advice to landowners will not change because of this case, it'll still be "yes, you may be liable if your land contains some structure used by recreational users".

Tigerandahalf

When ye say 'structures for recreational use' I presume ye are talking about stiles, boardwalks, etc.

But who would have put these in place?
Would the landowner have put in stiles so people wouldn't open gates or trample boundary fences?

If that is the case the government should be offering some indemnity. Otherwise as a landowner you would be crazy to leave people onto your land.

I can see why people would want to overturn that.

unkel

Pat Mustard wrote: »

The Occupiers Liability Act 1995 is an act of the Oireachtas. This is an issue to be resolved by the Government rather than the courts.

Well that piece of legislation should be thrown out then. Who came up with this nonsense in the first place? If I go onto someone's private land and get hurt, how is it just / right to blame the owner for it?

I'd say most people sue (for ridiculous sums) because they can. And they want a new kitchen / car :rolleyes:

Tigerandahalf

I suppose the occupier's liability act covers a very broad area including ordinary homeowners.

As a home owner it wouldn't be a good idea to dig a big hole in your garden, leave it uncovered, the postman comes in and falls into it and breaks his leg. Not the postman's fault.

The same applies to farmers. If a guard had to enter onto land and fell into a hole or pit the farmer would have a liabilty. Thus the need for public liability insurance. And also a duty of care to prevent possible injuries. Many farmers are forced to fence off quarries etc in order to get public liabiity insurance.

You will see in many areas around fowling season where farmers erect signs denying access in fear of some guy claiming. I presume that removes their liability in the event of trespass and an accident.

Pat Mustard

unkel wrote: »

Well that piece of legislation should be thrown out then. Who came up with this nonsense in the first place? If I go onto someone's private land and get hurt, how is it just / right to blame the owner for it?

I'd say most people sue (for ridiculous sums) because they can. And they want a new kitchen / car :rolleyes:

I might attempt to clarify that this duty of care only applies in respect of structures for recreational users.

That duty of care does not apply if there are no structures. If you go (uninvited) on to the bare side of a mountain and injure yourself on it, the Act does not impose a duty of care, as such.

The general duty to trespassers and recreational users is not to intentionally injure or to act with reckless disregard.

If that hiker in the WW case had been walking across bare bog and if she tripped in a boghole and had broken her ankle, she would not have had an arguable case.

Her case centred around an argument that the boardwalk was a structure and that because of this, she was owed a duty of care.

Tigerandahalf

Pat Mustard wrote: »

Her case was that the boardwalk was a structure and that it had been negligently maintained, which was the cause of her injury.

Which is why I am surprised with the result of this appeal.

How can a poorly maintained 'structure' be deemed to not be negligent or contributory to her receiving injury.

Put it another way. If a person tripped on a poorly maintained footpath would the judge have told the lady she should have been watching where she was going on the footpath?

I doubt it very much.

unkel

unkel wrote: »

Well that piece of legislation should be thrown out then. Who came up with this nonsense in the first place? If I go onto someone's private land and get hurt, how is it just / right to blame the owner for it?

I'd say most people sue (for ridiculous sums) because they can. And they want a new kitchen / car :rolleyes:

Because in many instances it may be wholly appropriate. If for example someone has an area into which people are explicitly invited, say a playground. Well then it would seem appropriate that they may be liable if, for example, a kid slices himself open on a rusty slide. The Act was seen as necessary at the time because it reduced liability in the area by all but excluding the old fear that even trespassers could sue, the often cited example of the burglar falling over the garden fence and suing for a broken leg.

Tigerandahalf

[Deleted User] wrote: »

Because in many instances it may be wholly appropriate. If for example someone has an area into which people are explicitly invited, say a playground. Well then it would seem appropriate that they may be liable if, for example, a kid slices himself open on a rusty slide. The Act was seen as necessary at the time because it reduced liability in the area by all but excluding the old fear that even trespassers could sue, the often cited example of the burglar falling over the garden fence and suing for a broken leg.

But haven't burglars successfully sued after falling through the roof windows of business premises?

I seem to vaguely remember cases.

Does a notice denying trespass absolve the owner of liability or is there still a duty of care even in circumstances like burglary?

Tigerandahalf

Tigerandahalf wrote: »

But haven't burglars successfully sued after falling through the roof windows of business premises?

I seem to vaguely remember cases.

Does a notice denying trespass absolve the owner of liability or is there still a duty of care even in circumstances like burglary?

Can't say I'm aware of a successful case since the Occupier's Liability Act.

Section 4 of the Act sets the bar high for both recreational users and trespassers, the owner is only responsible for injuries intentionally inflicted or where the owner acts with reckless disregard...but this is qualified in the case of the recreational user where the land is modified.

Orion

Merged another thread with this one so if posts from the 17th look a bit odd that's why

hmmm

Landowners will make the argument that if there is any debate about when they can be held responsible, their safest option is to close access. They will also say that the threat of a court case (even if they are likely to win it) is enough to make them nervous.

I've a lot of sympathy for these arguments.

I'm not a legal expert, but I'd hope it isn't beyond the ability of drafters to put legislation (or insurance) in place that absolves landowners of responsibility, other than reckless disregard e.g. planting landmines, where recreational users access their land.

Red Kev

Latest update: She will pay a fairly hefty bill. i wonder was she on some sort of no-win, no-fee agreement. Even if she has, she still has a lot to pay.

http://www.irishtimes.com/news/crime-and-law/courts/high-court/hill-walker-stripped-of-40-000-award-faces-hefty-legal-bill-1.3005300

A hill-walker who saw a €40,000 damages award for injuries suffered in a fall on a boardwalk on the Wicklow Way overturned has now been told she will have to pay her own costs for the case.
The costs are expected to be substantial given the matter ran for a number of days in the High Court after the National Parks and Wildlife Service (NPWS) appealed the Circuit Court award to Co Dublin resident Teresa Wall.
Mr Justice Michael White last month allowed the by NPWS, which placed the boardwalk on which Ms Wall fell. The decision has significant implications for Ireland’s national parks and the future of the Wicklow Way.
The NPWS was concerned that if the Circuit Court decision stood, the popular walking route might disintegrate due to private landowners not permitting walkers on their property.
In a significant judgment concerning the nature of the duty of care of landowners to hillwalkers, Mr Justice White rejected Ms Wall’s argument that a trip hazard is the same whatever the location. He also found contributory negligence by Ms Wall in relation to her fall.
Ms Wall, Rathingle Cottages, Swords, claimed she tripped and fell after her foot snagged in a hole in one of the old railway sleepers making up a boardwalk just below the JB Malone memorial on the Sally Gap to Djouce trail near Roundwood on August 6th, 2013.
Stitches
She suffered a gash to her right knee which required seven stitches and was in significant pain for some time afterwards.
After a Circuit Court judge found the NPWS negligent and awarded Ms Wall €40,000 damages, the service successfully appealed the matter to the High Court.
When the matter returned before the judge on Friday to deal with costs issues, the judge was told agreement had been reached between the sides on costs. Counsel for the NPWS said it had taken into account the judge’s suggestion the sides might come to an agreement on costs.

In light of that suggestion, and because of the benefit of the judgment to the NPWS, the sides had agreed the Circuit Court costs order made in favour of Ms Wall should be vacated and both sides should pay their own costs of the High Court appeal.
The judge made those orders along with a formal order allowing the NPWS appeal.
‘Genuine’ person
In his judgment last month, Mr Justice White described Ms Wall as a “genuine” person who suffered injuries in the fall that greatly affected her “active lifestyle”. She 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 judge did not accept the duty of care imposed on an occupier under the 1995 Act was an “absolute or strict” duty. Due to vigilance expected from hill walkers 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 NPWS was not negligent by not filling in the indentations in the boardwalk or replacing the sleepers with new ones, he found.
Rejecting arguments a trip hazard is the same no matter what the location, he also found a “high degree of negligence” on Ms Wall’s part due to not looking at the surface of the boardwalk when she fell.

unkel

Probably on a win only payment. That's the main reason claiming is so popular in Ireland and the payouts are out of all proportion to the injury / actual medical cost incurred. You lose? You lose nothing. You win? You get to keep half of your mega claim and the doctors / lawyers can share the rest :rolleyes:

Go for it, it's worth a punt! :rolleyes:

unkel

unkel wrote: »

Probably on a win only payment. That's the main reason claiming is so popular in Ireland and the payouts are out of all proportion to the injury / actual medical cost incurred. You lose? You lose nothing. You win? You get to keep half of your mega claim and the doctors / lawyers can share the rest :rolleyes:

Go for it, it's worth a punt! :rolleyes:

Few experienced Solicitors would take a claim like that on a no foal no fee basis. Too risky. I'd be surprised it's the main reason claims are popular. Solicitors cannot advertise no foal no fee, and the usual costs letter that Solicitors are obliged to write before litigation (unlike most other service providers) will in fact set out the opposite and clearly state that the client remains responsible for costs.

Plus can't say I've ever heard this idea of doctors and solicitors all but colluding to split costs, or deprive litigants of half of their awards. You have links, stats etc.?

Pat Mustard

Off topic post deleted.

Pat Mustard

unkel wrote: »

You lose? You lose nothing. You win?

If that were true, the courts could be swamped with vexatious claims because there would be nothing to lose, just like you have suggested. However, this is not the case.

However, there is a general rule that costs follow the event. This means that if you win, you would expect that the court would make an order for costs in your favour. The other side of this coin is that if you lose, you would expect the court the make an order for costs against you.

This means that if you lose, you would expect to pay your own legal costs in addition to the other side's costs.

These costs would include the costs of solicitors, junior counsel, senior counsel (if applicable), engineers and expert witnesses, expert reports and court fees, in addition to other costs.

The potential consequences can be severe and as costs increase on the way to the High Court, the costs can be ruinous.

Tigerandahalf

Realistically will she end up paying theses costs?

If she decides not to pay the only option may be to repossess a primary residence which won't happen.

So it could be a long drawn out process or she could plead poverty and end up paying a few pennies a week.

Pat Mustard

Why don't you ask your local TD to raise a Dáil question as to whether NPWS will pursue the woman for costs?

Tigerandahalf

Tigerandahalf wrote: »

Realistically will she end up paying theses costs?

If she decides not to pay the only option may be to repossess a primary residence which won't happen.

So it could be a long drawn out process or she could plead poverty and end up paying a few pennies a week.

That's the risk the legal team takes. They may well have looked for a significant retainer in a case like this.

Pat Mustard

Pat Mustard wrote: »

Why don't you ask your local TD to raise a Dáil question as to whether NPWS will pursue the woman for costs?

The costs issue is settled, the costs order made in her favour was vacated and each side will pay their own costs.