Wicklow Way Case

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.