Hillwalkers, mountain bikers, and outdoor adventurers must take responsibility for their own injuries, as contact sports players do, says John G O’Dwyer.
Recently, I headed off for a ramble to Knockshegowna Hill, in north Tipperary, where the enterprising Kenny family run a mountain-biking park and also welcome ramblers.
Alas, a sign outside proclaimed that, due to “unforeseen circumstances”, the bike park was closed until further notice.
The bike park website stated that the closure was due to the “national insurance crisis” that is affecting activity-based businesses this year. The park remains closed.
The Promenade Festival, in Tramore, Co Waterford, and the Ballina Salmon Festival in Co Mayo have also been cancelled this year, due mainly to rising insurance costs.
Rathbeggan Lakes Family Adventure Park in Meath will close for good this year due to an annual insurance cost of €40,000. Killary Adventure Company in Galway has also been impacted by insurance concerns. Manager Shane Young, is quoted as saying:
“We do an obstacle course challenge for kids and we had to take a lot of obstacles out of that. If there was a chance of a kid scraping their knee, then you can’t have it.”
For landowners on the MacGillycuddy’s Reeks in Kerry, insurance costs are also rising, because of the increased litigation risk from recreation seekers.
These farmers have now taken defensive action: Groups of 10 or more accessing the Reeks are required to provide, in advance, a copy of public liability insurance.
I see their point. As a mountain leader in the Irish uplands, I long ago concluded that if I were ever sued, I would just come out with my hands up.
As the law stands, a clever lawyer would have easily driven a coach-and-four through my actions, no matter how safety-conscious I had been.
Across Ireland, small rural businesses are being gobbled up by a voracious insurance monster, at a time when the employment they create is direly needed.
The blame for these escalating costs has been conveniently laid by the Government upon profiteering insurance companies and fraudulent claims. While there is some truth in this, particularly with those who fake injury from staged accidents, such allegations fail to interrogate the kernel of the issue.
The real problem is the claims culture: People sue following any accident, even when it is they who have been negligent.
This begs the question: Are Irish people by nature litigious? Probably not. It simply makes more sense to initiate an insurance claim in Ireland, compared with other, less generous jurisdictions. This arises from the justifiable belief that the probability of success is high and that an elevated award will follow.
What would be a vexatious, if not fraudulent, claim in other jurisdictions will be accepted as genuine here. The balance now disproportionately favours the plaintiff.
As one small business owner sardonically put it to me: “Those lucky enough to have a minor accident on my property can now expect a substantial pay-out.”
There is, of course, no such thing as a free lunch — somebody, somewhere, pays. Participation in outdoor activities undoubtedly elevates the risk of injury, but when such occurs, who meets the bill? For small businesses and outdoor events, it is almost invariably the proprietor or organiser, no matter how negligent the plaintiff.
The present application of negligence law has effectively transferred the cost of personal insurance from individuals to businesses and event organisers.
Consequently, insurance claims and pay-outs are escalating, while legal practitioners benefit from a nice little earner.
So difficult and expensive has it become to defend actions that most are now settled out of court, thus perpetuating the claims culture.
This is not the case with contact sports. Lawsuits are rare, because it is assumed that participants accept the risk when agreeing to compete — the cost of injury is borne by the individual or by their personal accident insurer.
In Gaelic games, there is an injury benefit fund, but, the GAA says, “it only provides cover for unrecoverable losses up to the limits specified.
The responsibility to ensure adequate cover is in place lies with the individual member.”
Events in the outdoors and adventure activities are, like contact sports, difficult to control.
To ensure the survival of micro-businesses and community events across Ireland, we must now move towards the contact sports model, in which participants and attendees take personal responsibility for their actions and the principals behind these ventures are only considered liable if demonstrating a reckless disregard for safety.
Accepting that accidents happen, prudent individuals will then seek insurance, particularly if they participate in adventure sports or other outdoor activities.
For recreationalists using private land, insurance should be seen as their own responsibility, not that of the landowner.
If the legal system is unable or unwilling to accommodate the required changes, legislative action by the Dáil must follow to ensure the continuation of activity sports and outdoor recreation in rural Ireland.
John G O’Dwyer is chairman of Pilgrim Paths Ireland.