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.