Discussion on the post "The effect of changes in liability for Landowners under"

[martinm]

I believe there is a national digging fund (which could probably be better administered) that could help ensure scaffolded digs are safe with no need for substandard tubes, clips and boards. 

if memory serves, that fund a) isn't that wealthy and b) gives loans, not grants.

I am not aware of a 'national digging fund', I think Mark may be thinking about the DCA's 'cave discovery fund' which recompenses expenditure for finders of 'significant cave passage' (in the Peak District).

That is correct Terry. I have claimed from it in the past when we opened up the top entrance to Darfar Pot. The rest of the funding for my entrance works has for several years come from BCA via DCA.

If you find a dig in an unsafe condition there is funding available to make it safe. (Receipts required for materials and necessary equipment like gloves, etc.) If it is a natural collapse, then it is the landowners responsibility to at least fence it off to safeguard livestock and members of the public if on access land or near a public road or footpath.

With regards to liability, 'taking reasonable precautions', is the key phrase here. That is why the National Trust had gates fitted on all the caves & mines around Wetton Mill close to public footpaths or roads. No padlocks, just bolted shut as usual. I have dealt (or am dealing with) the other 18 entrances in river beds of the Manifold & Hamps valleys! Only 3 on NT property. I don't want to be liable for someone having an accident, but I do want the sites kept open. It is a SSSI after all.

 

[martinm]

Graham,

I have been led to believe it is relatively wealthy and it does give grants. As far as I know those who administer the scheme require receipts for digging equipment, e.g. tubes, boards and clips. From my experience of our dig in Rowter Hole, getting a receipt for any of the digging equipment is not usually practicable unless you want to pay at least another 20%.

I have only heard 2nd or possibly 3rd hand about this so don't quote me. Does it have something to do with the Hidden Earth bar? It is definitely neither of the funds posted by Graham and Bograt. Maybe I'm just dreaming this but if I am maybe it would a good idea.

Maybe someone in the know could enlighten us.

Mark

Mark, I think you might be thinking of the UK Cave Conservation Emergency Fund, it does loans and grants. Go to the grants & awards page of the wildplaces web site. There's a whole raft of funding opportunities for different purposes.

 

[Mark Wright]

Mel, That was the link Graham provided. As I said it is neither of those. Maybe I am just dreaming it. I bet Les would know about this.

Mark

 

[TheBitterEnd]

If the landowner had done something really stupid, for example allowed diggers to install sub standard scaffolding, perhaps old scrap scaffold salvaged from sites, old scaffold planks, not secured sufficiently well etc etc - he could quite possibly be liable.

What does "sub standard" really mean? I mean REALLY as in COURT of LAW reality. I know you gave an attempt at your view of what you think would be "sub standard" but in reality a suitably qualified structural engineer and/or geotechincal engineer would have to assess what was done. My somewhat informed opinion is that pretty much nothing that diggers install would come anywhere close to what an Engineer would regard as safe. Bolts, mesh, shotcrete, etc. would be required.

So my point is that you need to be really careful when making statements like the above because it could be very easily construed that allowing digging WHAT SO EVER is "doing something really stupid".

 

[TheBitterEnd]

No one has discussed the liability of diggers here. Why would the digger not be part of any claim?

The land owner could argue that all but what was visible from the surface was down to the diggers as the landowner was never informed of the extent or nature of the dig.

 

[jasonbirder]

Whilst this is all very interesting...

Could someone please explain (in simple terms) how a landowners liability for works he allows to be carried out on his land will differ between now and if CRoW is interpreted to cover caving?

Presumably, currently there is a hypothetical but extremely unlikely scenario that exists where a landowner may be considered liable if someone falls down a shaft on his land that is isn't fenced off/marked with warning signs...and similarly there is a potential but unlikely scenario where he could be held to account if a capped entrance/lidded shaft/dig he allowed to be constructed on his land fails causing injury or death...

How will that scenario be any different if CRoW is interpreted to include caving?

Surely it will be EXACTLY the same?

 

[paul]

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?

[gmod]
In short: no.

The posts of the vast majority of UKCaving.com members appear as soon as they press the "Post" button. A few, because of "misdemeanours" in the past, have been placed on "Moderated" status and their posts go to a "holding area" and are only then seen by everyone once a Moderator has approved the post.

I don't think it would be popular with everyone of their posts didn't appear until they have been approved. We Moderators have other things to do in our lives (including caving - I have just returned from a weekend in the Dales and am on the Forum inbetween sorting out dirty caving gear and getting something to eat...) rather than spend hours reading every single post within a reasonable time and then approve them.

We just expect users to abide by the Forum Acceptable Use Policy and to keep on topic and not to have slanging matches and petty personal bickering. If this were to be the case, ther would be no need for Moderation... [/gmod]

 

[Bottlebank]

No one has discussed the liability of diggers here. Why would the digger not be part of any claim?

The land owner could argue that all but what was visible from the surface was down to the diggers as the landowner was never informed of the extent or nature of the dig.

Read the post I made earlier - "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 [sorry Bograt - walkers], 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."

 

[martinm]

No one has discussed the liability of diggers here. Why would the digger not be part of any claim?

The land owner could argue that all but what was visible from the surface was down to the diggers as the landowner was never informed of the extent or nature of the dig.

Read the post I made earlier - "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 [sorry Bograt - walkers], 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."

No the diggers would be liable. The landowner probably wouldn't know exactly what the situation was. If you are digging a 20m shaft YOU are responsible for making it safe and that means secure fencing/walling and hazard warning signs around the dig. This is  standard H&S stuff. (And common sense!)

 

[Mark Wright]

Using a bit of common health and safety sense, as Mel suggests, and installing and maintaining a suitable fence around the open dig would remove the hazard completely and so there should be no worries about liability as the accident would never happen.

If the diggers didn't secure the open dig and somebody did fall down and subsequently make a claim then the diggers will deserve everything that comes their way. I think it would be more likely though that the landowner would be held responsible. Not knowing what was going on on his land would certainly be no defence in court. The landowner would likely also be a lot richer than the diggers so the landowner would be the best person to try and claim from. The landowners insurers may well come knocking on the diggers door.

A test case would be the only way of knowing for sure so best put a fence up and cover everyones arses.

Mark

 

[martinm]

Yep, Mark is probably spot on!

 

[Bottlebank]

Yep, Mark is probably spot on!

Mel,

Mark is pretty much spot on, when digs on SSSI's are consented it's the landowners that receive consent to carry out work - at least according to the one's we have permission for - which makes the liability his as well as the diggers - who effectively act as "contracters" for the work carried out.

Tony

 

[grahams]

Regarding SSSIs, the landowner often receives not inconsiderable sums of money from DEFRA to maintain the land to their requirements. The maintenance is periodically inspected by DEFRA. The owner of the SSSI behind our house for example, has to ensure that glade runs are maintained for rare butterflies and that the land is not over or under grazed. It's possible that our digging activities might be at odds with those requirements. DEFRA's MAGIC map provides a wealth of information regarding SSSIs, rights of way and CRoW amongst a mass of other information.

In addition, some limestone areas are protected by Limestone Pavement Orders. This could affect digs on places such as Scales Moor where shakeholes occur adjacent to pavement. See http://www.limestone-pavements.org.uk/legal.html.

 

[martinm]

Hmmm. Interesting points made above. Thanx. So on SSSIs diggers are effectively non paid contractors doing work for the landowner cos they consented to it...  :-\ Never thought of it like that...  :-\

Actually, that would explain why the National Trust require us to have BCA insurance before doing any work on their land...

 

[Bottlebank]

Hmmm. Interesting points made above. Thanx. So on SSSIs diggers are effectively non paid contractors doing work for the landowner cos they consented to it...  :-\ Never thought of it like that...  :-\

Actually, that would explain why the National Trust require us to have BCA insurance before doing any work on their land...

Mel,

That's my understanding, but other may be able to shed more light on it.

The wording of the applications and consents I have is in the following format:

"To:
Landowner
Of:
Landowners Address
Natural England gives you consent to carry out, cause or permit to be carried out the operations as specified in the notice dated ../../...., on the land as specified in the notice :-"

I assume this is a fairly standard wording that would also be used for works carried out by a paid contracter.

 

[Bottlebank]

Whilst this is all very interesting...

Could someone please explain (in simple terms) how a landowners liability for works he allows to be carried out on his land will differ between now and if CRoW is interpreted to cover caving?

Presumably, currently there is a hypothetical but extremely unlikely scenario that exists where a landowner may be considered liable if someone falls down a shaft on his land that is isn't fenced off/marked with warning signs...and similarly there is a potential but unlikely scenario where he could be held to account if a capped entrance/lidded shaft/dig he allowed to be constructed on his land fails causing injury or death...

How will that scenario be any different if CRoW is interpreted to include caving?

Surely it will be EXACTLY the same?

Sorry Jasonbirder, only just spotted this.

You are right the landowners liability for digging will be the same as now.

If you have a read of the statement at http://ukcaving.com/board/index.php?topic=17182.0 you'll see both sides accept that.

It's the implications of the reduction in liability for caving that cause concern.  Both sides also accept that the potential problems identified are real and that we could lose digging access and instructors could lose access, Bob doesn't feel this is a problem, I do (in a nutshell) be please read the statement in full - it explains it better than I am here.

 

[martinm]

I assume this is a fairly standard wording that would also be used for works carried out by a paid contracter.

Yep, I reckon u r probably right... Except then there would also be stuff about payment, H&S, etc. I guess.

I need to investigate this further with NE and Pete Mellors. Not on a national basis, just in my local area. It's all SSSI but no-one seems to know who 'owns' the river beds....

Oh, and I've just found out there are signed copies of DCAs access agreements, but they are not on the web site or in our access handbook. Will investigate further later this week...

 

[Aubrey]

There has not been a satisfactory reply to my question of potential landowner liability under CROW where the cave entrance has been dug,  i.e. it is not a natural feature.
If the cave entrance is not a natural feature then it seems likely that the cave cannot be considered to be covered by the CROW legislation, if that legislation does apply to caves.
Furthermore if the cave has been extended by digging then theoretically the extensions will not be accessible by right under CROW.

 

[Mark Wright]

Aubrey,

I would imagine most digs are natural features that have been enlarged. The same goes for any extensions within the cave that have been dug. Its not vey often that tunnels or shafts are driven through solid rock, except to get to the top of Titan!

Are you assuming a natural feature that has been enlarged is no longer a natural feature?

Mark

 

[graham]

Aubrey,

I would imagine most digs are natural features that have been enlarged. The same goes for any extensions within the cave that have been dug. Its not vey often that tunnels or shafts are driven through solid rock, except to get to the top of Titan!

Are you assuming a natural feature that has been enlarged is no longer a natural feature?

Mark

Mark

Firstly, any dig where naturally occurring sediment has been removed is clearly no longer a wholly natural feature. That will cover a significant proportion of British cave entrances.

Secondly, yes, a natural feature that has been enlarged is no longer a wholly natural feature. That will cover quite a few of the rest.

Oh, and Titan is by no means the only completely mined cave entrance. Manor Farm Swallet is another. The most recently used entrance to Lamb Leer is a third. I am sure there are quite a few examples around.

And here's a natural sink being enlarged and turned into a less than natural feature.