A National Indemnity Scheme, currently being considered, would protect landowners from being overly exposed to claims made by hill walkers and other recreational users of their land, according to solicitor Karen Walsh.
However, farmers would still need to put in place reasonable measures to ensure that they are in compliance with the Occupiers’ Liability act 1995, said Walsh, author of ‘Farming and the Law’ (Clarus Press).
“This requires landowners to take reasonable care where there is an obvious danger on their land.
“This is to protect the recreational user as the landowner will have a duty of care not to allow obvious or hidden dangers to remain on the land which would cause injury to that person,” she said.
A recreational user is defined as “an entrant who, with or without the occupier’s permission or at the occupier’s implied invitation, is present on premises without a charge (other than a reasonable charge in respect of the cost of providing vehicle parking facilities) being imposed for the purpose of engaging in a recreational activity”.
“This is why a potential indemnity scheme would go some way to relieving the pressures felt by Irish farmers when hill walkers are present on their property.
Introducing a national fund to indemnify farmers may lead to a compensation culture being developed throughout the recreational activities sector, said Walsh.
“It is strongly advised that all landholding farmers have public liability insurance, whether or not there is recreational activity on their land.
“Such an insurance policy should be of a type that covers all major risks to third parties coming on to the land, whether they be visitors, recreational users or trespassers.
“A farmer who has no policy of insurance in place leaves himself or herself open to a claim by a third party.”
It is clearly the case, Walsh said, that farmers do not feel completely protected by the Occupier’s Liability Act in this jurisdiction.
Legislative intervention will be required by the government in order to properly facilitate ramblers within the scope of private property rights in the Irish constitution, she said.
Without doubt, there is a serious need for change in Ireland, a type of change that compromises between the competing interests of lovers of Ireland’s natural landscape, and the property rights of landowners, which we must remember are sacrosanct under the constitution.
Other countries have taken different approaches as they are experiencing similar problems, Walsh said.
“For example, the approach in New Zealand is quite refreshing, in that it could very well satisfy the needs of walkers and the concerns of farmers and landowners in Ireland.
“The legislative intervention in New Zealand allows for unimpeded access to walking tracks throughout the countryside of New Zealand.
“The acquisition of these pathways is interesting, in that the government in New Zealand does not utilise statutory powers to acquire the land, but instead purchases rights of way or leases the relevant pathways,” Walsh said.