High Court: €40,000 damages paid to hillwalker overturned

About this case:

• Judgment:
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In the judgment published yesterday, Mr Justice Michael White found that the service had not been negligent, and emphasised that the social utility of the provision of the boardwalk had to be taken into account. In addition, the woman has since been found to be liable for her own costs.

Background

In April 2016, the Circuit Court found the National Parks and Wildlife Service negligent arising from injuries suffered by Ms Teresa Wall while hiking on the Wicklow Way in August 2013, when she tripped and fell on a boardwalk made up of railway sleepers joined together. She was awarded €40,000 in general damages.

The Honourable Judge of the Circuit Court found that:

“The plaintiff was a recreational user, she was directed to use the boardwalk which was made up of second hand wooden railway sleepers, a structure placed on the land by the defendant. It is clear from the photographs that the timbers were badly rotten with staples protruding and chicken wire loose and reasonable care was not taken to maintain same in a safe condition resulting in the injuries suffered by the plaintiff. There was not contributory negligence on her part.”

The High Court

Before considering the National Parks and Wildlife Service’s legal liability, Justice White considered the disputed evidence concerning the location and mechanism of the fall. Justice White stated that on the facts of the mechanism of the fall, “there was a high degree of negligence” on Ms Wall’s part in that she was not looking at the surface of the boardwalk when she fell.

Justice White considered the legal issue to be whether it was permissible for the National Parks and Wildlife Service “to allow the deterioration of the sleepers before replacement”. The position taken by the National Parks and Wildlife Service in relation to maintenance was that unless the holes were in locations as such that the sleeper was at risk of falling apart, they were not considered to be an unacceptable hazard to walkers on a trail of this nature classified as moderate.

Ms Wall accepted she was a “recreational user” under section 1 of the Occupiers’ Liability Act 1995 Act, but submits that section 4(4) of the Act provided 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”, and that the duty of care under section 4(4) was similar to the common law duty of care.

Justice White was satisfied that the boardwalk was “a structure within the meaning of the Act”, and that it was “provided for use primarily for recreational users”.

Standard of Care dependant on the context and social value of the activity

The National Parks and Wildlife Service referred to Purtill v. Athlone UDC I.R. 205 and Donaldson v. Irish Motor Racing Club (Unreported, Supreme Court, 1st February, 1957) in asserting that “the circumstances of an accident have to be taken into account in assessing the standard of care, and that this has long been part of Irish law”

Justice White considered Mills-Davies v. Royal Society for the Protection of Birds (Unreported, English High Court, 21st May, 2004), in which the plaintiff suffered a significant eye injury on a woodland trail and the Court refused to impose liability pursuant to the English Occupiers Liability Act 1957.

Mr Justice White stated that this case was significant to the present proceedings in that it emphasised “the impracticability of requiring occupiers of open terrain to avoid all risks associated with recreational activity”.

Justice White also cited the Scottish case Leonard v. The Loch Lomond and Trossachs National Park Authority CSOH 38 which reached a similar conclusion.

The social utility of the defendant’s conduct

Justice White emphasised that it was “well-established that conduct which is of high social utility will not be assessed as onerously as that of low social utility”. In Whooley v. Dublin Corporation I.R. 60, the plaintiff injured her foot after stepping on a fire hydrant box whose lid had been removed. The evidence was that the lid was designed to be easy to remove in order to be easily accessible to the emergency services.

In addition, Cole v. Davis-Gilbert EWCA Civ 396 discussed the chilling effect which can result to socially valuable activities if too high a standard is imposed.

Discussion

Ms Wall submitted that the National Parks and Wildlife Services system of inspection was inadequate, and relied on Doherty v Bowaters Irish Wallboard Mills Ltd I.R. at p. 277 in which the Supreme Court held that Section 34,1(a) of the Factories Act 1955 imposed a distinct and absolute duty on the Employer to ensure equipment was free from defect.

Justice White rejected this argument, stating that the duty imposed on an occupier by Section 4(4) of the Act was not “an absolute or strict duty”, and that it had to be construed in its ordinary meaning.

The duty of reasonable care to maintain a structure in a safe condition, has to be interpreted by applying the law of negligence, in particular the standard of care applicable.

Justice White stated that he could not agree that a trip hazard was the same no matter what the location.

Emphasising the social utility of the activity in dispute, Justice White concluded that due to the “vigilance expected from hill walkers, walking on moderate mountain trails, and the application of the legal principle that the standard of care has to be adapted to the conditions, the social utility of the provision of the boardwalk, and the isolated location of same”, the National Parks and Wildlife Service was not negligent in not filling in the indentations or replacing the sleepers with new sleepers and allowed the appeal in full.

Ms Wall has since been informed that she is liable for her own costs in the matter.