Almost three decades ago I visited Kerry's unforgettable Skellig Michael for the first time. Leaping ashore after an exhilarating ocean crossing, I found it gloriously possible to wander as I fancied. Taking advantage, I ascended the island's South Peak to view the Hermitage – a startlingly inaccessible place of prayer clinging precariously to a ledge 200m above the ocean. Some risk was involved, of course, but I implicitly accepted – as we did in those days – that if I came to harm, there was no one to blame but myself.
I returned four years ago when researching a book on the pilgrim paths of Ireland. I found the island hugely altered. Safety chains and barriers, which were clearly an intrusion on historic integrity, appeared at intervals. The most noticeable alteration was, however, that much of the island had been fenced off.
The apparent reason for the exclusion zone was that the Office of Public Works had been forced to settle a legal action taken by the representatives of a visitor who was fatally injured on Skellig Michael. A sad case indeed, but certainly not one that should be allowed set a precedent when it comes to freely accessing Ireland’s wildest and most pristine landscapes.
Another legal action, albeit with less sombre consequence, has now created the type of national consensus we could only wish for in Irish political life. A decision to award €40,000 to a walker injured in a fall while traversing a boardwalk in the Wicklow mountains has united landowners, hillwalkers, community groups and politicians in expressing dismay.
Unanimity has emerged that this has created a major problem for countryside recreation and the expansion of rural tourism, with many landowners, who gladly allowed access to the Irish countryside, now likely to desist because of fears about litigation. Much of the good work achieved by rural recreation officers and other organisations such as Fáilte Ireland and the National Trails Office in expanding access to the Irish countryside, may have been undone in the stroke of a pen.
Fragile ecosystems
Legal decisions by their nature create ripple effects. If this judgment is upheld on appeal, there will likely be a detrimental effect on the upland environment. The primary reason for constructing boardwalks is to protect fragile ecosystems. Would any more be constructed in such circumstances? Our general ability to enjoy the uplands could also be affected if landowners abstained from improving trails in the belief new structures created to facilitate walking, such as stiles or footbridges, left them open to litigation.
What is really striking about the present controversy is that the landowner’s responsibility towards hillwalkers was supposedly clarified by the Occupiers’ Liability Act 1995. Here the test for occupier’s liability towards recreational users of land was advisedly set as a rigorous one and defined as acting with reckless disregard for the person or the property of the person. Most of us non-legal people are scratching our heads to understand how the National Parks and Wildlife Service acted with “reckless disregard” in this case.
If a positive is, however, to be taken from this controversy it is that all parties involved appear to agree that those visiting wild, unsanitised locations such as Skellig Michael or the Wicklow mountains must take personal responsibility for their actions. If they suffer loss they should have recourse to no one but themselves or their personal accident insurer. Normally this would create an incentive for a rational person to ameliorate the consequence of possible accidents by taking out appropriate first-party insurance.
If things are, however, allowed to remain unaltered after this judgment, there is little incentive to take such precautions, for it is the landowner and not the walker who carries the risk from personal accidents. Occupier’s liability now appears a backdoor method where landowners are obliged to provide insurance for many who should be quite capable of purchasing such cover themselves.
Insurance premiums
This is unfair to landowners and other custodians of the countryside, who seem to have become insurers of last resort. The OPW and the NPSW may have deep enough pockets to underwrite the inevitable increase in insurance premiums arising from a flood of injury claims but, in tough times for farming. the vast majority of landowners do not. Insurance is also an onerous and difficult-to-obtain imposition on new businesses based around outdoor education – increased premiums will act as a further disincentive when rural Ireland most needs such investment.
The final danger with elevating the duty of care that we impose on landowners is that the integrity of the environment, and indeed access to it, will be compromised by the understandable desire to avoid compensation claims like the one at Skellig Michael.
Clearly, we cannot impose the same duty of care on a landowner responsible for an expansive and difficult to access tract of mountainside as we do in a school playground. If the present legal situation does not allow account to be taken of this, then the time has come for legislative action.
We must return to the situation where walkers are expected to take the upland environment as they find it and accept responsibility for providing themselves with necessary insurance cover against possible misfortune.
John G O'Dwyer is author of Pilgrim Paths in Ireland – a Guide, published by the Collins Press