Wicklow Way Boardwalk Fall

Wicklow Way Case

Background

This important Appeal Court judgement involved several VSCG members (National Parks & Wildlife Service, Sport Ireland’s National Trails Office, State Claims Agency and Mountaineering Ireland, the latter presenting evidence at the appeal).

Accident

Theresa Wall, aged 56 at the time, suffered a nasty injury to her right knee on 6th August, 2013, when hill walking on the Wicklow Way near the J.B. Malone Memorial in Co. Wicklow.

Location

The Wicklow Way is a national way-marked path of approximately 127km stretching from Marley Park, Dublin to Clonegal in Co. Carlow. A substantial portion of the route goes through the Wicklow National Park which is controlled and managed by the National Parks & Wildlife Service (NPWS). The route is inspected by the National Trails Office.

The location of the accident, near White Hill (which at 630 metres is the highest point on the trail), is ecologically sensitive and under pressure from erosion. Around 1997, used railway sleepers were laid to help preserve the habitat, leading walkers to use them as a boardwalk.

Mrs Wall was walking down the sleepers which had a gradient of 11.4%. She tripped and gashed her knee, requiring stitches. She subsequently had to cancel plans for a walking holiday and running a marathon.

In the original Circuit Court case the National Parks & Wildlife Service were judged not to have taken reasonable care to maintain the boardwalk. Mrs Wall was deemed not to have been negligent and she was awarded damages of 40,000 euros.

Grounds for appeal

The State Claims Agency (SCA) manages personal injury claims against Irish State agencies like NPWS. A VSCG member, the SCA were concerned that the original judgement flew in the face of an important VSCG principle:
The State Claims Agency (SCA) manages personal injury claims against Irish State agencies like NPWS. A VSCG member, the SCA were concerned that the original judgement flew in the face of an important VSCG principle:

• It is important to strike a balance between visitor self-reliance and management intervention

The general premise is that as the environment becomes less developed the visitors’ self-reliance, knowledge and understanding of the surroundings should increase, and with it their personal responsibility. At the same time less management action is required and/or fewer physical safety measures are needed.

VSCG therefore strongly supported the appeal, citing English and Scottish case law (featured in our publications and on this website). These included:

• Tomlinson v Congleton
• Mills Davies v RSPB, (particularly the impracticality of requiring occupiers of open terrain to avoid all risks associated with recreational activity)
• Leonard v Loch Lomond and the Trossachs National Park Authority (particularly that liability could not be imposed in respect of a danger of which the person was aware)

In the appeal NPWS/SCA asserted that the location and circumstances of the accident had to be taken into account when assessing the standard of care to be expected. This had long been part of Irish Law (Purtill v Athlone Town Council and Donaldson v Irish Motor racing Club).

Other factors were relevant to the standard of care, including the:
• probability of the accident
• gravity of the threatened injury
• social utility of the defendants conduct
• cost of eliminating the risk

High Court Appeal Judgement

Pleasingly in the appeal the judge stated that in the context of an outdoor pathway being used by an experienced hill-walker on a moderate mountain trail, visible and obvious depressions or indentations on the boardwalk were not dangerous or unsafe.

The Court did not agree that a trip hazard is the same no matter what the location. It approved the passages from the English and Scottish authorities cited in respect of outdoor pursuits and the extracts from judgments quoted on the social utility of the activity being carried out.

The Judge concluded:

‘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.’

He also stated that there was a high degree of negligence on the plaintiff’s part in that she was not looking at the surface of the boardwalk when she fell.

Wall v National Parks and Wildlife Service [2016 No. 95 C.A.] [2017] IEHC 85

There are additional downloadable files associated with this article

This case law entry was written by Ken Dodd VSCG Chairman and was published in April 2017

This website entry was last updated on 23 November, 2017

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