North Atlantic Skyline - - Photographs from the west of Ireland (Galway, Mayo, Clare, Limerick, Roscommon and even Leitrim)

A hand out, not a hand up

The path from Kylemore Abbey to the top of the hill behind - no longer accessible

A few months ago, I was exploring an old ruined church in Co. Clare. Standing on a wall, I jumped down to a flat stone platform about four feet below. Alas, I wasn't really paying attention to what I was doing, so rather than land on the ground with both feet together, one foot only caught the corner of a stone block with the tip of my boot. My foot was bent upwards violently and a vicious streak of pain shot through my ankle. I hopped around in pain for a few minutes swearing before collapsing in a heap.

As it turned out, I only suffered some bruising, the pain subsided after a little while, and I only had about a mile to hobble back to the car. So what, you say ? Stupid is as stupid does. Unfortunately, lots of people slip and fall over, bump their heads or injure themselves while out walking - whether it is walking down the street, across fields or even while on a night out. I say unfortunately, not because most of them do any lasting injury to themselves - in fact, they all seem to recover fully eventually - but because their first instinct is to sue. It is amazing the amount of psychological damage as well as physical discomfort that such injuries cause. It's equally amazing how much money each of those injuries cost. Strangely enough, these injuries don't require that much hospital treatment ( which obviously would cost money) - no, these injuries just require time off work (on sick pay). And the main source of the cost is not treatment but compensation. And for what? Well, as often as not, it's not for fractures, or scarring or 'visible' injuries. No - it's often for back pain, aches, whiplash and other "I'll have to take your word for it" -type injuries.

Every week, the national papers carry accounts of cases and settlements. The papers are very careful to report these cases as neutrally as possible, but some of them are unbelievable. People falling into holes in the road (holes that are big enough to cause injury but not big enough to see), slipping on footpaths, etc. and in each case, a pay-out. And not just for the 'injured' party.

The lawsuit industry is a big one. The biggest beneficiary is, by far, the legal profession. Many lawsuits never make it to court, simply because the cost of defending a lawsuit, however frivolous, is prohibitive. The Irish legal system requires barristers to argue cases in court before a judge, instructed by solicitors. They all need to be paid. There are plenty of solicitors who will take a case on the basis that they will take a percentage of the award if they win. So, with weary resignation, businesses often pay up straight away to avoid incurring an even bigger bill later on. [Supermacs, the Galway-based fast food chain installed dozens of hidden cameras in their outlets - an RTE documentary showed some of the footage used by Supermacs to defend lawsuits - footage of litigants pretending to be injured after falling. Those guys got nothing].

It's not just the lawyers. To make an injury claim, you need expert witnesses. There is a thriving business for doctors certifying injuries. Hey, if somebody comes into the surgery claiming to suffer from back pain and nightmares after slipping in the supermarket, it might be true. Who can tell otherwise? The doctor writes up the cert, claims his wad of 100s, and prescribes some painkillers. Likewise, there are plenty of engineers that have gone over to the dark side, providing expertise to certify that a council was indeed negligent for not ensuring that every square inch of footpath was a smooth as a billiard table, that the youngster that injured himself vandalising council property was really a victim because the fence he broke through was not secure enough, and so on.

Personal injury judgements are a source of constant amazement for me. Maybe it's just after a while, legal folk get so used ot the concept of "getting money for old rope" and therefore have concluded that everyone else should get in on the act. (If you've ever bought or sold a house, and paid a solicitor one or two thousand euro to spend about ten minutes rubber-stamping a standard set of deeds, you'll know what I mean.)

And the effect? Well, insurance costs are huge in Ireland, to the point where running a business or organizing public events have become prohibitively expensive practice. It also means that landowners are not encourage to allow walkers onto their land. In fact, more and more of them are posting "Keep Out" signs in order to head off potential lawsuits.

So what is to be done? Well, it was thought that the 1995 Owners Liability Act would solve the problem. This law was passed into law after a number of cases involving trespassers suing farmers and other landowners, and also received input from the Mountaineers Council of Ireland (MCI) (http://www.mountaineering.ie/)- the principle representative body of walkers and climbers in this country. In their words

The MCI worked with farming organisations to achieve the 1995 Occupiers Liability Act. Since then everyone has understood that to be liable under the 1995 Act, a landowner would have to harm someone deliberately or show them “reckless disregard”. Our legal advice since then is that that means “no throwing grenades, and don’t plant landmines”*.

However, in 2003, a woman who crossed a broken fence onto a cliff walk on private land to view a sunset in Donegal, slipped, slid down the cliff and injured herself. She was awarded over 80 thousand euro on the basis that, though she was found to be 25% negligent, the landowner should have taken more care to protect trespassers, given that the walk in question was a well-known beauty spot. Though the judgement is being appealed to the Supreme Court, it had a chilling and immediate effect. There are 2000 miles of coastline alone in Ireland - should there be warning signs every 200 yards? What about hills and bogs ? Does a landowner need to put a sign on every slope, warning that it is slippery? That if you fall into a bog hole, drain or river, you'll might be drowned?

The Donegal judgement would bankrupt most farmers or businesses (or least render them uninsurable). To be fair to the legislators and the organizations that contributed to the 1995 Act, it was an unforeseen interpretation of the Act, and, should the ruling be upheld, the Act must be amended.

Other good work is being done, and though sometimes it seems like the only relationship between walkers and farmers is an adversarial one, it is not always so. The Minister for Rural Affairs, Eamonn O'Cuiv has expanded the Waymarked Ways of Ireland system throughout the country - these are agreed walks that stretch across both public and private land. Coillte, the state forestry organisation, has also done good work in creating a system of public all-accessible walks through their managed forests. And the REPS scheme has encouraged farmers to make their land accessible, providing an allowance in return for, among other things, the building of stiles and pathways [Farmers in Co. Galway alone received nearly 200 million euro since REPS began]. So yes, there are still large stretches of the country, at least in the West, open to the public.

From my own experience, any time I've asked, I've never been denied access to someone's land. But I do come across a lot of Keep Out signs, so there are plenty of spots that I cannot visit. There are times of the year when animals are particularly vulnerable and/or aggressive - the lambing season has just about started, for example - and you can understand why a farmer would prefer not to have people wandering through the fields.

But it all comes back to the lawyers in the end. As an MCI member, I have my own insurance - it covers me if I do damage to someone's property or injure some one in the course of a walk or climb. But if I injured myself on a farmer's land, and was so inclined, I could sue him, irrespective of whether I was a trespasser or not. One could make a good argument that most of the West of Ireland is beautiful (it's beautiful to me, anyway) and therefore, it was incumbent on the landowner to expect trespassers.

I'm not sure how this situation will ultimately be resolved. I'd like to think that a large measure of goodwill or good sense is the solution. But this is Ireland - far too many people see a lawsuit as easy money. Actually, it's worse than that - there is a perception that someone - anyone - must pay for their misfortune. Nobody can just be a victim of bad luck anymore, or accept responsibility for their actions, however unfortunate or unpleasant. Perhaps a mandatory insurance scheme will be required, or the onus of care will fall entirely with the visitor. Whatever happens, the current situation means that more and more "No Trespassing" signs will go up, and more and more barbed wire will be strung around fields - all the more ironic since, due to the European Union's agricultural reforms, there will be far less animals in those fields. And slowly but surely, less and less people will get a chance to enjoy their own countryside, at a time when the opportunities for hill-walking, rambling and other country pursuits are never greater. And, more than the financial cost, would be the greatest impoverishment of all.

[* The law specifically excludes the case where a landowner takes action against an intruder to defend his/her property. We'll take that issue on another day.]
[**I'm not suggesting that the Donegal case was frivolous or flawed- only that it proved that the 1995 Act did not provide the level of protection to landowners that was originally envisaged ]

Posted by Monasette at December 11, 2004 11:04 PM