Irish High Court decides against hill-walker injured in fall on boardwalk on mountain slope

The hill-walker fell on a dry day when one foot struck the lip of a hole in a wooden ex-railway sleeper laid as part of a boardwalk in a mountain area of scenic and habitat importance. This caused her to fall forward and her right knee hit raised u-nails hammered into the sleeper and deliberately proud of the surface to prevent slipping in wet conditions. The hole in the sleeper was not wider than her walking boot and resulted from exposure in the open and use over time.

The plaintiff needed a number of stitches and succeeded in her claim for damages based on negligence in the lower court , but lost on appeal.

The appeal decision turned on the standard of care required of the provider of the 2.7 km long mountain boardwalk [the state parks and wildlife service]. The plaintiff argued that the condition was a clear trip hazard and that it made no difference whether the hazard was in a carp ark or a mountain trail. The court disagreed – ‘The Court does not agree that a trip hazard is the same no matter what the location’. It identified the usual criteria for assessing if a defendant acted negligently – likelihood of injury, seriousness of injury, cost/practicablity of prevention and the social utility of the activity in question. It was on this latter criterion that the court laid most stress. The boardwalk served two useful purposes. It enhanced a protected habitat and it provided a social outlet for hill-walkers.

‘Because of 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, the isolated location of same, I do not hold that the defendant was negligent in not filling in the indentations or replacing the sleepers with new sleepers and will accordingly allow the appeal in full.’ [Para 66]

The court did not need to examine the issue of contributory negligence, though it noted that the plaintiff had already that day walked along that section of the boardwalk on her outward journey and on her return would have seen the trip hazard had she been looking.

Significance of Decision

This case was widely followed in Ireland. There is a long on-off public debate over recreational access to the countryside. Landowners deny/limit/reluctantly allow access to their land due to fears of compensation claims based on negligence/recklessness against them by injured recreational uses on the land. This has hindered the development of cross-country/hill walking trails and has slowed the evolution of walking tourism in Ireland.

While there has been no legislative activity on the parallel issue of enacting a modern statutory framework for identifying/creating access, the Occupiers Liability Act was passed in 1995 to assuage landowner fear’s of being held liable. It declared that the standard of care owed to recreational users of land is merely not to deliberately/recklessly injure them which is lower that the usual negligence standard.

The case above, however, concerned one exception to this lower standard of care. Where a structure is provided by the landowner specifically for recreation users then the duty is brought back up to the usual, taking reasonable care to maintain the structure.

Both hill-walkers and land owners breathed a sigh of relief when this decision was delivered. In emphasising the social utility of facilitating access to scenes and protected mountain areas the court highlighted an important element [perhaps easily overlooked by injured plaintiffs] in the balancing of interests which takes place when deciding the appropriate level of care which landowners/occupiers must observe when providing such structures on their land.

For cases not involving such structures, while the standard of care is lower, landowners continue to fear how the notion of reckless behaviour will be interpreted by the courts. When faced with serious injuries and with the benefit of hindsight, they fear a judge may find recklessness where in other circumstance negligence might be the more appropriate finding.

Case: Wall v National Parks and Wildlife Service, judgement delivered 02/17/2017

Irish Court of Appeal finds airport authority not liable in negligence for passenger fall on moving escalator.
The 64 year old woman who had never been on an escalator before fell on the moving escalator which was taking her up from the check-in area to the departure area. The escalator was installed and operating normally in compliance with recommended standards and there was no unusual danger in this. Video footage showed the woman turned to adjust the carry-on bag on the step below her and lift it up onto the step so that it was beside her. The video showed she was not holding onto the moving rail during this manoeuvre and lost her balance and fell. The case turned on whether the airport was negligent in relation to her fall. She alleged negligence in the failure of the airport to display adequate signage informing passengers of the avaiiability of lifts. The court on appeal by the airport held the signage was adequate, that airport staff were immediately available to assist, if asked, and that the video footage showed no sign of the apprehension the plaintiff claimed about using an escalator for the first time. It further held, as a matter of law and contrary to the lower court’s ruling, that the proximate cause of the injury was the plaintiff’s failure to hold onto the handrail while on the escalator, not anything to do with the signage.
The case illustrates the importance of identifying the proximate cause of an injury and the need to prove negligence in relation to that cause. It also illustrates a perhaps easy-to-overlook point that because a person falls and is injured, it does not mean that the occupier of the premises is negligent. Relevant negligence must still be established.

Case: Lavin v Dublin Airport Authority [2016] IECA 268

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