Landowners must escape liability trap - Access to the countryside

There is a long tradition of pretty much unhindered access to the Irish countryside for anyone who enjoys the great, soul-soothing outdoors. Landowners are, in the great majority of cases, welcoming, though there are occasional exceptions to this generous live-and-let-live culture.

This open-gate practice stands in stark contrast to the situation across the Irish Sea, where landowners sometimes stridently assert what they describe as their right to prohibit access and their absolute right to privacy. This trespassers-prosecuted policy is one of the many issues driving the land reforms — if that’s the right term — under consideration by the Scottish parliament. This Scottish Nationalist Party agenda seems likely to go ahead, despite claims that it is little different from a Mugabe-like land grab. It may go ahead too, despite the compromises reached in many areas — that the right to ramble comes with certain obligations. These responsibilities include very reasonable expectations like not causing damage to farming activities like, say, allowing an unleashed dog harass sheep, leaving litter or not closing gates. Many agreements include clauses that confine hill walkers to defined paths to minimise the intrusion or the potential to damage their legitimate farm, forestry or sporting activities. They seem a good compromise and work.

That freedom to wander, to enjoy the uplands that can be so very magnificently uplifting at this time if the year, is under threat in Ireland because of a court award made last week. That award, which is to be appealed, also jeopardises a growing segment of the tourism market, one epitomised by the hugely successful Wild Atlantic Way. Teresa Wall, a 59-year-old from Swords, Co Dublin, fell on a boardwalk of partially rotten railway sleepers on the Wicklow Way in August, 2013. She cut her knee and needed seven stitches. The Circuit Civil Court awarded her €40,000 — €5,714 a stitch. The award was made against the National Parks and Wildlife Service because, the court concluded, it failed to take reasonable care to maintain a boardwalk in a safe condition.

Whatever the legal realities are, and what seems the courts’ open chequebook policy, the award flies in the face of the long-held, and long-honoured, principle that anyone entering lands they do not own is responsible for their own safety. This simple failsafe is recognised by the insurance schemes mandatory in most walking, mountaineering, angling, shooting, and hunting clubs. These sports recognise the privilege they are afforded by landowners and reciprocate by accepting responsibility, and liability, for their own actions.

Kerry politicians have warned the ruling has “disastrous” consequences. The county is home to the country’s oldest national park and its highest mountains. There are many built infrastructures on walkways opening the door to similar actions, councillors warned. Other councils may feel the same and the country’s foremost mountaineering body has expressed its dismay at the ruling. This is an old chestnut and it is past time that legislation was changed to keep our countryside open and take landowners out of a liability trap.


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