The High Court has overturned a €40,000 Circuit Court award to a hill walker injured on a Wicklow Way boardwalk, finding that the National Parks and Wildlife Service was not negligent in failing to fill an indentation or replace the sleeper.
The appeal concerned a fall on 6 August 2013 near the J.B. Malone Memorial in Co. Wicklow. Teresa Wall said she tripped on a hole in a timber sleeper while returning from Djouce Mountain and cut her right knee on a protruding nail. The Circuit Court had found the Service negligent and awarded her €40,000 in general damages, with no contributory negligence.
Delivering judgment on 17 February 2017, Mr Justice White accepted that the boardwalk was a structure provided primarily for recreational users. Under section 4(4) of the Occupiers’ Liability Act 1995, the Service had a duty to take reasonable care to maintain it in a safe condition. The judge said that duty was not absolute or strict; the standard of care had to be assessed under negligence principles and in the circumstances of the case.
The court found Wall tripped on the vertical lip of an indentation in the sleeper. It rejected her account that her boot became fully caught in the hole, and found she was not looking at the boardwalk surface when she fell. The indentation was visible, and she had already walked over that section on the outward journey. The judgment described her inattention as a high degree of negligence, but the court’s stated reason for allowing the appeal was its conclusion that the Service had not been negligent.
In reaching that conclusion, the judge considered the expected vigilance of hill walkers on a moderate mountain trail, the boardwalk’s isolated location and its purpose in protecting a sensitive habitat from erosion while providing access to the route. He held that the Service was not negligent for leaving the indentation unfilled or for not replacing the sleeper.
The High Court appeal was heard over five days in November and December 2016. The judgment allowed the Service’s appeal in full, overturning the Circuit Court finding and award. It did not make a separate order on contributory negligence in the concluding paragraph.