A decision to award a hillwalker €40,000 for injuries she sustained after she tripped and fell on a boardwalk on the Wicklow Way has been overturned by the High Court.
In a significant judgement concerning the duty of care landowners have in respect of hillwalkers, Mr Justice Michael White said Teresa Wall had contributed to her injuries.
Ms Wall, from Rathingle Cottages, Swords, Co Dublin, claimed she tripped and fell after her foot had snagged in a hole in one of the old railway sleepers that made up a boardwalk just below the JB Malone memorial on the Sally Gap to Djouce trail near Roundwood on August 6, 2013.
As a result, she sued the National Parks and Wildlife Service (NPWS), who placed the boardwalk on the lands. Last year a Dublin Circuit Court judge found the NPWS was negligent and awarded Ms Wall €40,000 damages.
The NPWS, who denied negligence, appealed that ruling to the High Court.
In his judgement yesterday, Mr Justice White said Ms Wall was “a genuine person” who had suffered injuries in the fall that had greatly affected her “active lifestyle”.
He said the case raised a number of complex legal issues including if the NPWS could allow the sleepers deteriorate before being replaced.
Ms Wall had claimed that under a provision of the 1995 Occupiers Liability Act, when a land occupier places a structure on the land for recreational use, there was a duty of care to maintain that structure in a safe condition.
The NWPS argued that visible and obvious depressions on the boardwalk were not dangerous to an experienced hillwalker like Ms Wall nor was it under any obligation to repair them.
Unless a sleeper was at risk of falling apart, the holes in the sleepers were not considered to be an unacceptable hazard to walkers.
Mr Justice White said he did not accept the duty of care imposed on an occupier under the 1995 Act was an absolute or strict duty.
Due to the 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.
The NPWS was not negligent by not filling in the indentations in the boardwalk or replacing the sleepers with new ones, he said.
The court did not accept Ms Wall’s argument that a trip hazard is the same no matter what the location.
Considering “the mechanism of her fall” the judge found there was “high degree of negligence on Ms Wall’s part in that she was not looking at the surface of the boardwalk when she fell”.
In adjourning the matter for two weeks to allow the parties consider his decision the judge asked lawyers for the NPWS to consider Ms Wall’s situation before making any application for their legal costs.
The decision has significant implications for Ireland’s national parks.
Had the Circuit Court’s decision been upheld, fears were expressed during the appeal that the popular walking route would disintegrate because private landowners would withdraw their consent allowing walkers on their property.
Ms Wall said she suffered a gash to her right knee which required seven stitches and was in significant pain for some time afterwards.
She claimed the NPWS was negligent and in breach of its duty of care because it had permitted a defect in the boardwalk where the timber had rotted away, created a tripping hazard, left the boardwalk in an unsafe condition and created a public nuisance.
The NPWS said Ms Wall contributed to her injuries by not looking where she was going while partaking in an activity known to have risks.
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