€40,000 damages award to hill walker following Wicklow Way fall to be challenged
The €40,000 award of damages to hill walker Teresa Wall, following a fall on the Wicklow Way, will definitely be challenged in the High court and appeal papers are to be lodged within a matter of days, it was confirmed today.
Legal argument will apply mainly to Section 4 of the Occupiers’ Liability Act, 1995 and in particular whether, under the Section, there was a failure on the part of the National Parks and Wildlife Service to take reasonable care to maintain a boardwalk in a safe condition.
Ms Wall, a 59-year-old from Rathingle Cottages, Swords, Co Dublin, injured her knee when she fell on a boardwalk of partially rotten railway sleepers on August 6, 2013. She claimed she had been directed by signs to walk on the sleepers.
Wall’s barrister David McParland argued that the boardwalk constituted “a structure” under the 1995 Act which imposed a much higher duty of care in the maintenance and management of it.
The Act provided that in respect of a danger existing on a premises the occupier owed a recreational user or trespasser a duty not to intentionally injure them or damage their property and not act with reckless disregard for the person or their property.
The Act stipulated that where “a structure” had been provided for use by a recreational user, the occupier “shall” take reasonable care to maintain it in a safe condition” therefore, Mr McParland argued, his client did not even have to establish that the Parks Service was in breach of its duty not to injure intentionally and not to act with reckless disregard.
Judge Jacqueline Linnane said Mr Kevin D’Arcy, counsel for the defendant, submitted that Ms Wall had failed to establish that the boardwalk was a danger or that the Parks Service had intentionally injured her or acted in reckless disregard towards her.
She said the evidence from witnesses for the defence had been that there was an audit inspection every two years on which it relied to rectify any problems and on hill walkers to report anything which needed attention.
The judge said Mr D’Arcy in written submissions had disputed that the boardwalk was a “structure” and claimed it was part of the land itself.
She said the defence basically put forward by the Parks Service was that Ms Wall was tired and not looking where she was going and that works of repair and maintenance would require the airlifting in of a crew at a cost both to the habitat and financially.
Judge Linnane decided that Ms Wall was directed to use the boardwalk of second hand wooden railway sleepers – a structure it had placed on the land.