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Welcome clarification on the duty of care owed to a recreational user by an occupier

  |   General Indemnity Scheme (GIS)

Teresa Wall, an experienced hill walker, initiated a claim against the National Parks and Wildlife Service in respect of an accident which befell her while hiking on the Wicklow Way on 6th August 2013.  Her claim alleged the NPWS was negligent in failing to maintain a boardwalk such that depressions formed on the surface with one of these causing her trip and fall accident.  She sustained a laceration injury to her right knee which required stitches.

The Plaintiff’s claim was comprehensively investigated by the State Claims Agency and her Circuit Court action for damages fully contested.  The Circuit Court trial Judge found in her favour, holding the NPWS had not taken reasonable care to maintain the boardwalk.  The Circuit Court Judge also found no contributory negligence on the part of Ms. Wall.

The Judge holding that a trip hazard is not the same no matter what the location and that the standard of care owed by an occupier has to be adapted to the location, the conditions, and the vigilance expected from the recreational user together with the social utility of the provision of the structure.

Both on the facts of the case and having regard to the detrimental precedent effect of the Circuit Court Judgment, the SCA appealed this decision to the High Court.  The Appeal lasted five days, with a reserved Judgment delivered on 17th February 2017.

The Judge found the Plaintiff’s accident was most likely caused when her boot caught on the vertical lip of a hole on the boardwalk, one of a number of indentations on the boardwalk surface caused by erosion and weathering.

The Plaintiff accepted she was a ‘recreational user’, pursuant to section 1 of the Occupiers Liability Act 1995, but noted section 4(4)  provides that where an occupier places a structure on land for use by recreational users, this creates a positive duty on the occupier to maintain the structure in a safe condition.

The Court noted there was an onus on the Plaintiff to establish the boardwalk was in an unsafe condition, and that its unsafe condition was attributable to a failure to exercise reasonable care to maintain it. The Defendant proffered evidence that reasonable care was taken to maintain the boardwalk but also submitted that in applying the common law duty of care four factors were relevant

  1. the probability of an accident
  2. the gravity of the threatened injury;
  3. the social utility of the Defendant’s conduct and
  4. the cost of eliminating the risk.

The High Court Judge held the appropriate duty of care imposed on an occupier, such as the NPWS, is not an absolute or strict duty, the duty of reasonable care to maintain a structure such as a boardwalk in a safe condition has to be interpreted by applying the law of negligence.  The Judge held a trip hazard is not the same no matter what the location, the standard of care has to be adapted to the conditions and found that the vigilance expected from hillwalkers  together with the social utility of the provision of the boardwalk and its isolated location were relevant factors.

The Judge concluded by holding the NPWS was not negligent in not filling in the holes/indentations or replacing damaged sections of the boardwalk and, accordingly, he allowed the Appeal in full.  This High Court Judgment will be of significant assistance and comfort to State bodies and private landowners whose land is used by recreational users such as hillwalkers.

Article by:
Simon Watchorn, Executive Head of General Claims, SCA and
Pamela Potterton, Litigation Solicitor, SCA

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