Q I am a farmer in Mayo with most of my land located in hill and upland areas. After the recent case in the High Court - where the judge overturned the award of compensation to a hillwalker - I am now confused as to what my duty is to hillwalkers and trespassers. Do I no longer owe a duty of care as a result of the court case?
A. The recent High Court ruling in the case of a hillwalker who brought a legal case against Wicklow County Council has generated a lot of interest among farmers with hill land particularly in scenic areas.
The hillwalker was injured in a trip and fall as a result of her foot snagging in one of the railway sleepers that makes up the boardwalk on the Sally Gap to Djouce trail near Roundwood,
Prior to the High Court decision the injured person had been awarded €40,000 in damages.
Duty of Care
The law in this area created a category of persons called the "recreational user". This defined as an entrant who - with or without the occupiers' permission - is present on a premises without having paid a charge, for the purpose of engaging in a recreational activity. Persons such as hillwalkers would fall into this category. These persons are treated in the same manner as trespassers.
All that is required of the landowner in respect of these persons is that the landowner does not injure them intentionally or act with reckless disregard for them.
The question that causes most confusion for landowners is - What is 'reckless disregard'?
In determining whether a landowner showed reckless disregard to the "recreational user" or "trespasser" the circumstances have to be considered. The court will consider whether the landowner knew or believed that the person was or was likely to be on the land and near the danger and whether it was reasonable to expect the landowner to protect the person from danger.
The court will also look at whether the land was of a nature that it was likely that people would use the property for recreational use - for example, if the property was traditionally open for public use.
This would apply in particular to farmers who own land in scenic areas.
The court also considers the care which the trespasser should be expected to take of themselves, while on the land, and also the supervision which the injured person is under while on the premises,.
Another factor which the court must consider in deciding whether or not a landowner showed reckless disregard for the safety of the persons on his/her land is the nature of any warning given by the occupier of the land, of the danger.
Many people display 'Trespassers will be prosecuted' signs at the entrance to their land. However, this type of sign would not be considered adequate indication of a hidden hazard for example, a dangerous concealed hole.
For example, if there is a dangerous bull in a field a sign warning of the presence of dangerous bull should be displayed.
Duty to visitors
An invited person or visitor to a premises is owed a duty of care which is slightly greater than the trespasser or recreational user in so far as the landowner must take reasonable care for the visitor's safety.
The court will of course consider whether the visitor was taking reasonable care of him/herself on the premises, but the landowner should take steps to warn him/her of any dangers.
Who is responsible, owner or occupier?
In many cases the landowner will also be the occupier of the land, however, there are also many examples of this type of land being rented around the country. It is usually the occupier that is deemed to be responsible in this scenario, that would be the lessee/tenant.
Landowners should still bear in mind that they may well be sued in the case of an injury so it is no harm to check that your tenant is taking reasonable care in relation to known hazards on the land.
While there is undoubted confusion for landowners and occupiers in relation to their duty of care to visitors, hillwalkers and trespassers the general rule of thumb is, if in doubt do something about it before an unfortunate incident occurs.
This article is intended as a general guide only. You should seek professional advice in relation to individual circumstances.
Theresa Murphy is a barrister based in Ardrahan, Co Galway