JJ said:
Please refer to this thread which is locked and stickied at the top. In many ways I wish the topic was not locked so I could post as serious reply, is it not possible for the moderators to "moderate" all posts to a particular thread before they publish them?
I think Tony and possibly also Bob have missed the point regarding landowner liability, now I am no lawyer as Tony definitely knows although I know a bit which may be dangerous.
The relevant act is the Occupiers Liability Act 1957 which basically states that the occupier (landowner/tenant) owes a duty of care towards people who are invited or permitted to be on his/her land. The Occupiers' Liability Act 1984 extends the duty of care to people who are not visitors, including trespassers eg caving pirates - but only if:
The owner or occupier knows, or ought to know, of the dangers on his or her premises:
He or she knows or suspects that people might come near that danger:
The risk is one against which he or she might reasonably be expected to offer protection.
Importantly however this duty of care does not extend to people who willingly accept risk, eg us cavers!
CRoW Act 2000 changed this law so that that occupiers had no duty of care relating to natural features on access land eg caves. Unless the occupier deliberately created a risk or allowed it to arise. (mines are excluded and far more complex)
In other words reduced occupier liability is a red hearing in the pro/anti debate as the reduced liability already exists as caves are natural features and cavers willingly accept risk!
I disagree, and we did consider it, or at least I did and I'm sure Bob did.
In allowing digging the landowner accepts a duty of care in respect of the dig to anyone else, agreed probably not to the diggers, and possibly not to sport cavers - see below - subsequently exploring that cave, but for walkers and employees etc.
You need to think outside the box. Imagine for example the position if a group of D of E award kids who got lost in bad weather, spotted a dig, decided to shelter and one fell down a twenty metre shaft? The landowner would almost certainly be covered if it were an entirely natural entrance, but if he had allowed the entrance to be dug he would potentially be liable, as would the diggers.
When I say "possibly not to sport cavers" imagine the situation where a sport caver was entering a cave via a dug, scaffolded entrance and was seriously injured by a scaffolding collapse. We're starting to get into grey areas, and grey areas can result in legal action which may go either way.
It's not a red herring, in fact if you were correct there would be no benefit to the reduction in liability offered by CRoW to landowners.
I do agree neither JJ or I are lawyers though, but perhaps the BCA would be representing us a little better if they invested in some legal advice, prior to a ballot, in relation to issues that have arisen since Dinah Rose's opinion