Walkers and Risk

While it may not have made the news an interesting and important legal precedence was set last week. About 8 years ago a walker, then aged about 12 took a fairly nasty fall down the West Highland Way, which resulted (as a consequence of breathing difficulties he had after the fall) in him suffering brain injuries and disability.

Now while one is sympathetic to his plight, his family then went and tried to claim compensation from the National Trust (the section of path crosses through the Trossach’s National Park), claiming that they should have “anticipated the risk” and installed a handrail, evenly cut steps, put signs up warning of a slippery surface, etc…again we’re talking about a remote mountain trail here, not a London high street.

Anyway the judge in the case has now ruled against the plaintiff’s arguing that it is unproven whether it wasn’t just the walker’s own fault he fell. And perhaps more crucially, he ruled that there is an element of risk associated with an activity such as hillwalking and one must accept such risks whenever you go out in the countryside.

This is something of a landmark ruling. While again sympathetic to this individual’s plight, the mountaineering organisations have generally heaved a sigh of relief at the news. The consequences had the ruling gone the other way would have been to open a huge can of worms, where much of the UK’s hillsides, national parks, and crag’s fenced off and rendered essentially no go areas.

And it would have had implications for other sporting activates too. A day at the beach, going surfing or kayaking, visiting many national monuments, or even a kick about in the park on a Sunday would have all been wrapped up in so much red tape and “elf n safety” madness so to make them effectively illegal. Had this case gone the plaintiff’s way, no doubt next time someone goes cheese rolling in Gloucester they’re be police marksmen on stand by! And what would happen next time it snows? (i.e. the ground covered in slippery stuff, when was the last time you saw a hand rail down the middle of a UK pavement?) presumably the whole country would be legally required to stay indoors until it all melted!

Indeed a similar case has just kicked off where a woman is seeking compensation from her employer because she was attacked by seagulls outside the office :no:. Again her argument is that the employer should have “anticpated the risk”…and no doubt had a word with the seagulls ;D.

Returning to the matter in hand however, I would also add that in this specific case the issue of age (again he was 12 at the time) must be considered. It is sort of a parent’s responsibility to look after their kids safety. As a parent you can’t absolve yourself of that responsibility and hope some magical force will swoop in and rescue your wee’in from danger like David Prowse in those Green cross code videos. I’m not saying parents should go around with the kids on a leash….in fact I’d argue part of the problem with kids these days is there’s too much helicopter parenting and the kids don’t know how to look out for themselves. But clearly a parent should not be letting a kid wander off by himself in the middle of a wilderness and then try and blame someone else (who wasn’t even there!) if an accident happens.

And while the Judge ruled the right way this time, what if he’d hadn’t? As I mentioned a whole host of activity we all engage in and enjoy would have been effectively thrown into chaos, just because of one judge’s opinion. Indeed its worth remembering that much of the elf n safety madness in this country (e.g. banning conkers or cake sales) is based on not on what the law actually says but what a judge might decide it means. This is the problem with UK law, were judges get to basically make up the law as they go along. This is largely why the UK is getting itself tied up in knots with the EU’s human rights act, while other EU states don’t have such problems. The UK needs a proper constitution, just like virtually every other civilised state in the world.

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5 thoughts on “Walkers and Risk

  1. How ridiculous! What’s the point of walking if there is no danger and no adventure? More than half the problem today with youngsters is that they need challenges, and as you suggest, their parents keep wrapping them up in cottonwool instead of teaching them how to take responsibility.

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    • As a lecturer I see this all the time, a lot of the students aren’t terribly sensible, they seem to be wedded to their smart phones and used to having the world revolve around them.

      e.g. I had a student the other day who had a coursework/presentation due in the next few days and he wanted me to show him how to do something. I pointed out that we covered that very thing last week. He hadn’t attended. I suggested that he goes thro the lecture notes online, then if he’s still unsure we can sit down, but no he felt I should stop the class just so that he could learn something he should have learnt last week but was too lazy to get out of bed to learn!

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  2. it’s beyond ridiculous to take that to court!I assume the objective was money or publicity. Do you remember recently there was the tragic case of school kid being attacked by polar bear on trip to svalbaard – the parents / people involved were very mature about risks undertaken. People realise there is an everyday risk in crossing roads;overeating etc and they happily take those risks also…
    i think the lunatics are running the asylum these days.

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    • A lot of these cases are lawyers chancing their arm. They know the law isn’t set in stone and there is a slim chance they might win some compo. mostly they are hoping the defendant’s don’t want to face a messy legal battle and will pay up to end the case.

      You’re mentioning of driving is a good analogy. You sit behind the wheel of car, you’re accepting a certain level of risk, particularly if you go out driving in bad weather.

      And the law backs this up. If you skid off the road, unless it was the fault of another driver or a known defect within the car, the law says its nobody’s fault but yours. If you crack you’re axle on a pothole, then unless you can prove the council knew about it, you can’t sue. If someone bashes into you’re car in a supermarket carpark, unless you get their number plate before they drive off, you’re stuffed. Cos you can’t sue the landowner & your insurance probably won’t pay out either!

      But again this is the problem, we’ve had enough cases to establish where the law stands with motoring, but not as to who’s responsible if crows attack. Logic would say its the crows, but the courts have yet to establish that!

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      • I’ve been on the west highland way and it is a nightware of a path by the loch lomond.. the undulating tree roots are menacing – you need dancing feet to negotiate them – deceptive really as it looks flat along loch as in not high on hills or in bleak bog and moor but i think NT have guides that say moderate to difficult – easy is when you could use a wheel chair.

        personally the risk is why people usually do these things – i got lost in cardona forest and ended up ankle deep in mud tracks left by caterpillar tank tracks -took ages to find path and i dipped and slipped into crevices for a mile before a safe surface arose.I never thought of suing the borders council…even if i injured myself – although i frequently take calculted risks on hills – it’s like being one with nature and the elements really

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