To all CNCC member clubs - a suggested way forward for the CNCC.

[Bob Mehew]

- Make BCA membership and PL insurance a requirement for any club requesting a permit.

Why if they don't need to? To go down this route would set a serious precedence for all other regions where 'caver' insurance is not required though 'landowner ' insurance is required. (As I am confident is the case for many of the access agreements for CNCC.)  Or is it not clear as to what the difference is between 'caver' and 'landowner ' insurance?

 

[Bob Mehew]

mountainpenguin asked on the old thread
If the BCA were a club member would they be eligible for one of the 3 clubs per day permits ?
and if so could they not just be given one permanently for all the BCA affiliated members ?

Yes to first question.  But bear in mind we are now talking about BCA DIM club, not BCA.

Permits are issued as I understand it to specific clubs for specific caves on a specific day.  And there is a limit to the number of clubs allowed up on the fell.  So the problem with your second suggestion is that in the circumstances you suggest, only 3 clubs are allowed up on the given fell to descend only 3 caves on that day.  So if BCA DIM club did not want to use it's permit for that day and two other clubs had taken out permits to other caves (since they could not take out a permit for the cave already given to BCA DIM club),  then no one else could go down any of the other caves on that fell for that day.  Nor could BCA DIM club hand it on since the any other BCA associate club is not BCA DIM club.  (I hope that is clear - sorry it does seem a bit convoluted.)

 

[bograt]

IIRC no-one actually knows what a Novice is, but everyone kinda has an idea of what they think one is.

Why not buy a dictionary?  I find mine incredibly useful!  The meanings of all words explained in a clear and concise fashion!


And, whats more, listed in alphabetical order!

- Make BCA membership and PL insurance a requirement for any club requesting a permit.

'caver' insurance is not required though 'landowner ' insurance is required. (As I am confident is the case for many of the access agreements for CNCC.)  Or is it not clear as to what the difference is between 'caver' and 'landowner ' insurance?

As a landowner, it seems to me that the distinction is not clear in cavers minds, "landowner insurance" is taken out by the landowner and covers that landowner against lapses on his part causing injury to those the are on his land legitimately, i.e. footpaths and other rights of way, "caver insurance" is taken out by the caver and ensures that the landowner is not responsible for lapses by the caver.
Maybe the confusion arises from the fact that the notices issued by DCA clarify to the landowner that cavers on (or under) his land carry their own (BCA) insurance which indemnifies them from claims against them.

- Make BCA membership and PL insurance a requirement for any club requesting a permit.

Why if they don't need to? To go down this route would set a serious precedence for all other regions where 'caver' insurance is not required though 'landowner ' insurance is required. (As I am confident is the case for many of the access agreements for CNCC.)  Or is it not clear as to what the difference is between 'caver' and 'landowner ' insurance?

This statement worries me Bob, it appears to me that the majority of access issues are related to landowners being worried about claims made against them by folks who are doing thigs on (or under) their land that they have no comprehension of, surely a knowledge that they will not be held responsible could only help our case?

 

[Bob Mehew]

This statement worries me Bob, it appears to me that the majority of access issues are related to landowners being worried about claims made against them by folks who are doing thigs on (or under) their land that they have no comprehension of, surely a knowledge that they will not be held responsible could only help our case?

Not sure why it worries you.  Say you are a land owner and someone wants to go down a cave on your ground.  Now whilst you don't know nothing about caving, you do know if you let them, you might be creating a situation where they could sue you for money to recompense some injury.  Being given free insurance cover by the access controlling body takes away that concern.  So now you have no real concerns and let them go down.  Some land owners take it a bit further and say well one caver might want to sue another caver but because they don't have insurance or money, then they might sue me as I own the land and must have some money.  So I also want each caver insured.  Whilst the likelyhood of this is even more remote, some landowners ask for it.  So that is why some access agreements require cavers to be insured as well.  (I should add I speak fairly loosely to try and get over basic concepts.  A more accurate picture would take a lot more explanation.)

You are right, the provision of insurance to land owners is good news  .  You may not recall but in October 2003 the then BCRA insurance scheme came to an end.  In the 2 months it took us to get new cover, a hell of a lot of caving ceased.  That is the thing to be worried about, loosing insurance cover.  I still have the occasional nightmare about that scenario 

 

[Jon]

This statement worries me Bob, it appears to me that the majority of access issues are related to landowners being worried about claims made against them by folks who are doing thigs on (or under) their land that they have no comprehension of, surely a knowledge that they will not be held responsible could only help our case?

Not sure why it worries you.  Say you are a land owner and someone wants to go down a cave on your ground.  Now whilst you don't know nothing about caving, you do know if you let them, you might be creating a situation where they could sue you for money to recompense some injury.  Being given free insurance cover by the access controlling body takes away that concern.  So now you have no real concerns and let them go down.  Some land owners take it a bit further and say well one caver might want to sue another caver but because they don't have insurance or money, then they might sue me as I own the land and must have some money.  So I also want each caver insured.  Whilst the likelyhood of this is even more remote, some landowners ask for it.  So that is why some access agreements require cavers to be insured as well.  (I should add I speak fairly loosely to try and get over basic concepts.  A more accurate picture would take a lot more explanation.)

You are right, the provision of insurance to land owners is good news  .  You may not recall but in October 2003 the then BCRA insurance scheme came to an end.  In the 2 months it took us to get new cover, a hell of a lot of caving ceased.  That is the thing to be worried about, loosing insurance cover.  I still have the occasional nightmare about that scenario 

So I go caving and "something" happens that makes me think I can sue the landowner. What is this "something" that could possibly get to court?

 

[Peter Burgess]

One of his sheep falls down a shaft and injures you? To the extent that you cannot work and lose income? How many dead sheep have you seen at the bottom of shafts? How did they get there?

 

[Stu]

Peter, is that not the same for climbers, plenty of sheep at the bottom of crags? What about walkers chased/hurt by cattle?

Genuine question for someone as I don't see why cavers are unique. Is it that landowners who have land that is used by the public by right will have insurance, and those landowners that find themselves with a cave on otherwise private land, don't have insurance because they are generously letting us on their land?

 

[graham]

This statement worries me Bob, it appears to me that the majority of access issues are related to landowners being worried about claims made against them by folks who are doing thigs on (or under) their land that they have no comprehension of, surely a knowledge that they will not be held responsible could only help our case?

Not sure why it worries you.  Say you are a land owner and someone wants to go down a cave on your ground.  Now whilst you don't know nothing about caving, you do know if you let them, you might be creating a situation where they could sue you for money to recompense some injury.  Being given free insurance cover by the access controlling body takes away that concern.  So now you have no real concerns and let them go down.  Some land owners take it a bit further and say well one caver might want to sue another caver but because they don't have insurance or money, then they might sue me as I own the land and must have some money.  So I also want each caver insured.  Whilst the likelyhood of this is even more remote, some landowners ask for it.  So that is why some access agreements require cavers to be insured as well.  (I should add I speak fairly loosely to try and get over basic concepts.  A more accurate picture would take a lot more explanation.)

You are right, the provision of insurance to land owners is good news  .  You may not recall but in October 2003 the then BCRA insurance scheme came to an end.  In the 2 months it took us to get new cover, a hell of a lot of caving ceased.  That is the thing to be worried about, loosing insurance cover.  I still have the occasional nightmare about that scenario 

So I go caving and "something" happens that makes me think I can sue the landowner. What is this "something" that could possibly get to court?

You don't recall Dr Farrer being joined in the Jib Tunnel case then? it wasn't that long ago. Here is a link. Yes Dr Farrer was, rightly, exonerated, but that doesn't mean he didn't have to pay up front for a defense.

 

[Ed W]

You don't recall Dr Farrer being joined in the Jib Tunnel case then? it wasn't that long ago. Here is a link. Yes Dr Farrer was, rightly, exonerated, but that doesn't mean he didn't have to pay up front for a defense.

I certainly remember this, and the ugly sign that appeared at Jib Tunnel.  However, it is worth pointing out that this event occurred well before the CROW act, and my understanding is that this act specifically "indemnifies" the landowner from any claim arising from natural features on any open access land they own - unless payment is received or specific permission is given to be on that land.  True, not all caves are on CROW land, but a good proportion are.  Therefore does the current system have the potential to actually increase liability to landowners who require permits to visit caves on their open access land?

 

[TheBitterEnd]

unless ... specific permission is given to be on that land

It doesn't get more specific than issuing you with a permit!

 

[Jon]

One of his sheep falls down a shaft and injures you? To the extent that you cannot work and lose income? How many dead sheep have you seen at the bottom of shafts? How did they get there?

Are you seriously suggesting that a sheep falling on the head of an adult caver, who is not part of an instructor led group, could actually get to court with that case?

 

[Jon]

This statement worries me Bob, it appears to me that the majority of access issues are related to landowners being worried about claims made against them by folks who are doing thigs on (or under) their land that they have no comprehension of, surely a knowledge that they will not be held responsible could only help our case?

Not sure why it worries you.  Say you are a land owner and someone wants to go down a cave on your ground.  Now whilst you don't know nothing about caving, you do know if you let them, you might be creating a situation where they could sue you for money to recompense some injury.  Being given free insurance cover by the access controlling body takes away that concern.  So now you have no real concerns and let them go down.  Some land owners take it a bit further and say well one caver might want to sue another caver but because they don't have insurance or money, then they might sue me as I own the land and must have some money.  So I also want each caver insured.  Whilst the likelyhood of this is even more remote, some landowners ask for it.  So that is why some access agreements require cavers to be insured as well.  (I should add I speak fairly loosely to try and get over basic concepts.  A more accurate picture would take a lot more explanation.)

You are right, the provision of insurance to land owners is good news  .  You may not recall but in October 2003 the then BCRA insurance scheme came to an end.  In the 2 months it took us to get new cover, a hell of a lot of caving ceased.  That is the thing to be worried about, loosing insurance cover.  I still have the occasional nightmare about that scenario 

So I go caving and "something" happens that makes me think I can sue the landowner. What is this "something" that could possibly get to court?

You don't recall Dr Farrer being joined in the Jib Tunnel case then? it wasn't that long ago. Here is a link. Yes Dr Farrer was, rightly, exonerated, but that doesn't mean he didn't have to pay up front for a defense.

But that was in the case of a child being incorrectly supervised. If I fell down Gaping Gill it would be because I was an idiot, not the landowners fault.

 

[Peter Burgess]

One of his sheep falls down a shaft and injures you? To the extent that you cannot work and lose income? How many dead sheep have you seen at the bottom of shafts? How did they get there?

Are you seriously suggesting that a sheep falling on the head of an adult caver, who is not part of an instructor led group, could actually get to court with that case?

Why not? The scenario I was thinking of is not so impossible. A shaft is not adequately fenced against livestock. You suffer loss of earnings. A lawyer might try to win compensation for you as your injuries were not your fault and you and your family are suffering financially due to someone else's negligence - that's how they might present the situation.

 

[Simon Wilson]

......... not all caves are on CROW land, but a good proportion are.  Therefore does the current system have the potential to actually increase liability to landowners who require permits to visit caves on their open access land?

The whole of Leck and Casterton Fells are CRoW access land. I had an email exchange with the CNCC Access Officer last year in which he made it clear that he had not the remotest interest in discussing the CRoW Act. He is resolutely of the opinion that the CRoW act does not give access to caves and I guess he will not have discussed it with the landowner. Access under the CRoW Act would reduce the control that the CNCC think they have so maybe that is a reason why they do not want it.

If issuing permits makes the landowner liable which he would not be if he accepted access under the CRoW Act then surely this makes it more likely that the landowner will accept that the CRoW act allows access to caves and will tear up the access agreement. Cavers do not need the CNCC to negotiate with the landowners. If the CNCC are not prepared to talk about the CRoW Act then perhaps it is better to do it outside the CNCC.

 

[Bob Mehew]

As Peter says, the job of the lawyer is to best present the circumstances to his client's benefit.  I recall a successful case being made from one caver falling onto another caver.  I also heard that one insurance company thought it simpler (and cheaper) to concede a case out of court for a broken finger nail than fight it.  I fear that real cases could be even more incredulous than we can think of. 

Even if the case is poor, the land owner still has a need to defend himself which costs money.  (And the way the law is set up that almost certainly means hiring a lawyer.)  I am not sure if no win no fee claims do pay the costs of the person being sued when unsuccessful, but usually awarded costs are not sufficient to cover the true costs. 

Issuing permits do add to the small risk for the land owner, which is why many land owners off loads some of the risk to an Access Controlling Body.  Plus one major reason for having an access agreement is that you control the number of cavers on your land, which may be the main objective of the land owner worth taking on the small increment in risk. 

Lastly (and I hesitate to raise this point) but the BCA insurance is based on a premise that there are two risks to a land owner, one associated with a person walking over their land, the other associated with being under ground.  The premise BCA works on is that CROW only covers the 'walking over their land' part, not the underground part.  Now I know there is a growing and vocal opinion that this view is wrong; so can I ask if people do wish to debate that point we shift to a separate thread.  (I see I am behind Simon who takes this view.)  I would like to keep this thread focused on what can be done to improve CNCC and its current basis; not debate a major change to CNCC basis for operation which frankly IMO will only get settled in a court of law.

 

[Simon Wilson]

This thread is about a way forwards for the CNCC and so the CRoW Act is very relevant indeed. It does not require a court case to answer the question of whether the CRoW Act allows access to caves. It simply requires the landowner to accept it in good faith.

 

[Bottlebank]

Not sure how we got onto the CRoW act but my understanding is it doesn't cover cave access for cavers, and is largely irrelevant.

As a digger I don't like the idea of using CRoW as a blunt weapon to try and gain access to caves as I feel there's a real risk it will alienate farmers and potentially make it very difficult for us to get digging permission even in areas where we currently have good relations. Given that we currently have access to the overwhelming majority of Dales caves it's hard to see what would be achieved by CRoW.

I agree with Bob, it should be a separate thread.

 

[graham]

But that was in the case of a child being incorrectly supervised. If I fell down Gaping Gill it would be because I was an idiot, not the landowners fault.

You make my point for me. You are right in every particular, but that still didn't stop Dr Farrer from having to mount a defense in court.

 

[Badlad]

If landowners are so worried about being sued, why is there not a fence around Rowten Pot?

Rowten is a large open shaft frequented by many potholers but is also next to a green lane frequented by thousands of walkers a year, a number of 4x4 enthusiasts and quite a lot of sheep.  Any of these could easily fall down it - even one onto another.  So why hasn't the landowner protected himself?

I'm not talking about fencing off all open potholes in the Dales.  I'm talking about those which receive a high number of visitors, where there is a known risk of people falling down and suing the landowner, and yet the landowner still hasn't taken the simplest of precaution against this perceived risk of being sued.  There's not even much of a fence at GG, where someone has fallen down it and sued the landowner.

One conclusion is that the landowner doesn't actually consider that the risks spoken about in the recent part of this thread are of any great concern to him at all - or certainly not if he has to go to the expense of a bit of fencing!

 

[Simon Wilson]

Not sure how we got onto the CRoW act but my understanding is it doesn't cover cave access for cavers, and is largely irrelevant.

As a digger I don't like the idea of using CRoW as a blunt weapon to try and gain access to caves as I feel there's a real risk it will alienate farmers and potentially make it very difficult for us to get digging permission even in areas where we currently have good relations. Given that we currently have access to the overwhelming majority of Dales caves it's hard to see what would be achieved by CRoW.

Bottlebank is assuming that farmers and landowners are opposed to access under the CRoW Act and there is no evidence for this. It is not a blunt weapon; it is legislation which has been graciously accepted by most landowners. Accepting access under the CRoW Act will make all this talk of insurance and permits irrelevant and will be a good thing for everybody.