Friday 28 April 2017

Hiker who had €40k damages award overturned after tripping on Wicklow Way now faces 'substantial' legal costs

Teresa Wall pictured at the Four Courts at a previous hearing. Photo: Courts Collins
Teresa Wall pictured at the Four Courts at a previous hearing. Photo: Courts Collins

Tim Healy

A hill-walker whose €40,000 damages award over injuries suffered on a Wicklow Way boardwalk was overturned will have to pay her own costs of the case under an agreement reached with the National Parks and Wildlife Service.

The costs could be substantial as the case ran for a number of days in the High Court.

Mr Justice Michael White last month allowed the High Court appeal by the NPWS, who placed the boardwalk on the lands, against the award by the Circuit Court to Teresa Wall.

The decision has significant implications for Ireland's national parks and the future of the Wicklow Way.  The NPWS was concerned, if the Circuit Court decision stood, the popular walking route might disintegrate because private landowners might not permit walkers on their property.

In a significant judgment concerning the nature of the duty of care of landowners to hillwalkers, Mr Justice White rejected Ms Wall's arguments a trip hazard is the same whatever the location. He also found contributory negligence by Ms Wall in relation to her fall.

Ms Wall, Rathingle Cottages, Swords, Co Dublin, claimed she tripped and fell after her foot snagged in a hole in one of the old railway sleepers making up a boardwalk just below the JB Malone memorial on the Sally Gap to Djouce trail near Roundwood on August 6th 2013. She suffered a gash to her right knee which required seven stitches and was in significant pain for some time afterwards.

After a Dublin Circuit Court judge found the NPWS negligent and awarded Mrs Wall €40,000 damages, the NPWS successfully appealed to the High Court.

When the matter returned before the judge on Friday to deal with costs issues, he  was told agreement had been reached between the sides on costs.

Counsel for the NPWS said it had taken into account the judge’s suggestion the sides might come to an agreement on costs.

In light of that suggestion, and because of the benefit of the judgment to the NPWS, the sides had agreed the Circuit Court costs order made in favour of Ms Wall should be vacated and  both sides should pay their own costs of the High Court appeal.

The judge made those orders along with a formal order allowing the NPWS appeal.

In his judgment last month, Mr Justice White described Ms Wall as a “genuine” person who suffered injuries in the fall that greatly affected her "active lifestyle".  

Ms Wall had claimed the 1995 Occupiers Liability Act imposed, when a land occupier places a structure on the land for recreational use, a duty of care to maintain that structure in a safe condition.

The judge did not accept the duty of care imposed on an occupier under the 1995 Act was an “absolute or strict” duty.

Due to 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, he held.

The NPWS was not negligent by not filling in the indentations in the boardwalk or replacing the sleepers with new ones, he found.

Rejecting arguments a trip hazard is the same no matter what the location, he also found a "high degree of negligence” on Ms Wall's part due to not looking at the surface of the boardwalk when she fell.

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