Author Topic: Loss of cave access, CROW and other things  (Read 123298 times)

Offline graham

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Re: Loss of cave access, CROW and other things
« Reply #225 on: March 21, 2013, 07:58:40 pm »
*pedant mode ON*

Wasn't it Leviathon that was the mine shaft? I thought the main Titan pitch was natural.


*pedant mode OFF*

Not necessarily pedantic. After all the top entrance to Titan was dug out. Was it a wholly natural feature artificially cleared or a wholly or partially artificial shaft that was artificially cleared?

What this demonstrates is quite how difficult it can be to write clear legal documents that don't leave loopholes for somebody who really wants to sue someone else.
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Offline TheBitterEnd

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Re: Loss of cave access, CROW and other things
« Reply #226 on: March 21, 2013, 08:36:26 pm »
  • The insurance company of a fit and active caver who was killed falling down a pitch in an open non-permit cave on CRoW land sues the landowner to recover costs of a life insurance pay out. The landowner's defense is that the cave is a natural feature and the caver was exercising his CRoW rights
  • Two children are drowned by flooding in a gated cave on CRoW land where the gate had been left unlocked. The children's parents sue the landowner.  The landowner's defense is that the cave is a natural feature and the children were exercising their CRoW rights

Which of these case came first may affect the outcome of a decision.

The problem is that you cannot prevent anybody taking a case to court. With this sort of scenario, whatever the outcome, the fact may be that the landowner has the hassle and expense of being sued, even if he wins in the end. Now, if a proper access agreement is in place and the landowner is aware of the scheme, he would have the security of knowing that his costs should be covered under the BCA scheme. Well-constituted access agreements can give this confidence.

 :-\ :-\ :-\ :-\

ONLY IF, in those examples, the caver had BCA insurance and let's assume that the children don't.

The act does not reduce landowners liability for people they invite or permit to use their land. I have a hunch that the presence of an agreement, or gate or anything else (e.g. permission to dig, renting a farm to a caving club) could be counted against the land owner in terms of claims that a person was exercising their CRoW rights.

I think it is fairly clearly the intent of the act, with respect to natural features and people exercising their CRoW rights - i.e. if a walker falls down an open pot, the landowner's liability is reduced. What would be interesting is to know what a lawyer thought about a walker falling down a pot for which there was a caving access agreement?
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Offline peterk

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Re: Loss of cave access, CROW and other things
« Reply #227 on: March 21, 2013, 08:42:36 pm »
what a lawyer thought about a walker falling down a pot for which there was a caving access agreement?

Here's what the courts think http://www.dailyecho.co.uk/news/politics/8048916.print/

Offline graham

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Re: Loss of cave access, CROW and other things
« Reply #228 on: March 21, 2013, 08:45:56 pm »
What would be interesting is to know what a lawyer thought about a walker falling down a pot for which there was a caving access agreement?
I have helped put grills on some quite scrotty little holes for exactly this reason. One of these was right next to a footpath.
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Offline Ian Adams

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Re: Loss of cave access, CROW and other things
« Reply #229 on: March 21, 2013, 08:56:58 pm »
Just catching up .....

"Mines" are covered by the quarries act and the landowner has some legal obligations which, if are not followed and someone "falls in", they would be liable for. There are no such legal obligations for caves that I am aware of.

I believed (and it seems to be correct) that a landowner is protected (I don't know if CROW covers both civil courts and criminal) from an incident on their land if the injured party was exercising their right under CROW and it was a "natural feature" (ie. not the landowners tractor running them down) that was central to the incident.

If CROW covered caves, it appears the landowner would still be exempt. (Digging aside - I am trying to establish the basis, not embrace all the nuances).

In a like manner, people walking to a cave on CROW land who have an "incident" but are there on a "permit" basis would prima facie have a case against the landowner. Would the landowner not prefer the protection CROW gives to them ?

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Offline graham

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Re: Loss of cave access, CROW and other things
« Reply #230 on: March 21, 2013, 09:29:50 pm »
If CROW covered caves, it appears the landowner would still be exempt. (Digging aside - I am trying to establish the basis, not embrace all the nuances).

The devil is, always, in the detail.

In a like manner, people walking to a cave on CROW land who have an "incident" but are there on a "permit" basis would prima facie have a case against the landowner. Would the landowner not prefer the protection CROW gives to them ?

The point is about proving negligence. CRoW seems to be saying that having a natural feature on your land is not per se a negligent act. Now, if that applies to CRoW land, I rather suspect that the same principle would be applied by the courts to other land. There are, of course, a myriad of other ways in which one might be negligent. I might suggest that some landowners might prefer an agreement that brings with it known insurance cover.
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Offline TheBitterEnd

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Re: Loss of cave access, CROW and other things
« Reply #231 on: March 21, 2013, 09:48:20 pm »
Now, if that applies to CRoW land, I rather suspect that the same principle would be applied by the courts to other land.

Absolutely not! Other land is covered by the Occupiers Liability Acts of 1957 and 1984. The CRoW reduction in liability covers only natural features on CRoW land for people exercising their CRoW rights, i.e. NOT invited or permitted to use the land.
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Offline Ian Adams

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Re: Loss of cave access, CROW and other things
« Reply #232 on: March 21, 2013, 10:00:26 pm »
Another question I do not know the answer to;

If a caver with BCA insurance, with a permit (ie. the agreement of the landowner), suffers an incident on the landowners land where he would "normally" have a claim against the landowner (with a natural feature) - does the BCA insurance cough up on behalf the landowner to the injured party ? (The injured party being the BCA card holder)

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Offline graham

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Re: Loss of cave access, CROW and other things
« Reply #233 on: March 21, 2013, 10:04:39 pm »
Now, if that applies to CRoW land, I rather suspect that the same principle would be applied by the courts to other land.

Absolutely not! Other land is covered by the Occupiers Liability Acts of 1957 and 1984. The CRoW reduction in liability covers only natural features on CRoW land for people exercising their CRoW rights, i.e. NOT invited or permitted to use the land.

I understand that. Now, what defence did Dr Farrar use in the GG case cited above. it was that he had not been negligent not that CRoW absolved him of negligence. That is why I can be reasonably confident that the courts would treat other cases in a similar fashion. Don't forget, the Scout Association was found to have been negligent.
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Offline graham

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Re: Loss of cave access, CROW and other things
« Reply #234 on: March 21, 2013, 10:06:36 pm »
Another question I do not know the answer to;

If a caver with BCA insurance, with a permit (ie. the agreement of the landowner), suffers an incident on the landowners land where he would "normally" have a claim against the landowner (with a natural feature) - does the BCA insurance cough up on behalf the landowner to the injured party ? (The injured party being the BCA card holder)

Ian

I cannot give an absolute answer to this but do know that the BCA policy does cover member to member claims, so if the landowner is considered to be covered then presumably it would, yes.
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Offline Stuart Anderson

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Re: Loss of cave access, CROW and other things
« Reply #235 on: March 22, 2013, 10:30:44 am »
I understand that. Now, what defence did Dr Farrar use in the GG case cited above. it was that he had not been negligent not that CRoW absolved him of negligence.

This case pre-dates CRoW. Are you just applying the facts in a "what if" scenario as if CRoW had applied?
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Offline Les W

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Re: Loss of cave access, CROW and other things
« Reply #236 on: March 22, 2013, 11:02:27 am »
Pretty sure a land owner cannot be held negligent for natural features on their land, either before or since CROW. If they were then all the cliffs around the coast (and inland) would be fenced off, as would all rivers and lakes.  :unsure:
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Offline langcliffe

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Re: Loss of cave access, CROW and other things
« Reply #237 on: March 22, 2013, 11:13:45 am »
Pretty sure a land owner cannot be held negligent for natural features on their land, either before or since CROW. If they were then all the cliffs around the coast (and inland) would be fenced off, as would all rivers and lakes.  :unsure:

One would have thought so, but in the GG case "the judge ... decided Dr Farrer was not to blame as in the car park there was a warning about dangerous pot holes.", and Section 13 of the CROW is quite specific, presumably because it was changing the status quo.

Offline Pitlamp

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Re: Loss of cave access, CROW and other things
« Reply #238 on: March 22, 2013, 11:23:58 am »
As I remember the judge found in favour of the principle that warning signs at the point of access are adequate and that expecting warning signs at every hazard actually on the land is unrealistic. Everyone breathed a huge sigh of relief at the time because if the decision had gone otherwise it would have spawned a proliferation of such signs all over the place and conservation issues would have been severely compromised.

Offline graham

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Re: Loss of cave access, CROW and other things
« Reply #239 on: March 22, 2013, 11:24:44 am »
The problem with continual what if scenarios is that we simply do not know, as the facts of each case will be different. However, over the last few years there has been a move by the courts away from placing liability on landowners and more on placing responsibility on visitors.

To quote Mr Justice Burnton in the Hampstead Ponds case

Quote
“If an adult swimmer, with knowledge of the risks of swimming, chooses to swim unsupervised, the risks he incurs are the result of his decision and not of the permission to swim.”

I'm pretty damn sure that Hampstead Ponds are not on CRoW land.
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Offline Ed W

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Re: Loss of cave access, CROW and other things
« Reply #240 on: March 22, 2013, 11:49:24 am »
I have watched this thread with a mixture of interest and bemusement!  As usual the arguments (I think that at times this thread has crossed the line from discussion) have become polarised and absolutist.  To me it does seem a little bizarre that there are now huge tracts of countryside over which we have a right to wander as we see fit, but that for many of these bits of land we need a bit of paper to say that we can venture underground.

At the same time to me it is vital that our underground heritage is protected (this includes archaeology, sediments and biology just as much as stal).  There are many caves on what is now open access land that are either not gated, or have had gates fitted for reasons other than conservation of the cave, yet still require cavers to follow a formal procedure to descend.  I honestly cannot see what the issue is with a presumption that cave entrances located on open access land should be open for access to cavers without some form of prior formal permission.  I equally do not see any reason why such a presumption should not allow for sensitive cave sites to have appropriate access controls where necessary to protect them (or possibly the public).

Of course there is the issue of who gets to decide which sites are sensitive and precisely what access cotrols are suitable.  However this approach might force some level of transparency, consistency, fairness and understanding of why access to certain sites is restricted, not something that is to my mind apparent at present across the many access agreements in place across the UK.

I know that there are many cavers who give up valuable time to the issue of access to our caves, and I am incredibly grateful that their efforts have allowed me to visit some very special places indeed.  However it does strike me that now may be a good time for us (as cavers) to reflect on the changing environment we find ourselves in and think a little more proactively about the future of cave access rather than just continuing as we have done for many years.

Offline Pitlamp

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Re: Loss of cave access, CROW and other things
« Reply #241 on: March 22, 2013, 12:44:32 pm »
I understand you Ed - but perhaps there is something to be said for not nailing everything down absolutely in tablets of stone, so that cavers can exploit grey areas to their own advantage sometimes? (in an entirely responsible way of course!) Just a thought.

Before anyone jumps down my throat - just ponder on the deeper meaning of this comment - and perhaps also about what I might have chosen not to type here.

Offline jasonbirder

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Re: Loss of cave access, CROW and other things
« Reply #242 on: March 22, 2013, 01:48:57 pm »
I think the issue with Caves on CROW land that still require an exclusionist (is that even a word) and convoluted access process is that...

LOADS of people Pirate them...I know no-one will admit it on UKCaving for fear of being exiled to the ninth circle of hell...but they do...don't they?

If it were a cliff/crag on CROW land...you'd be able to walk across and climb it without restriction...

There is absolutely nothing to stop you parking up...kitting up in oversuit and srt kit...walking to the cave entrance....dancing a jig in the cave entrance...then walking back to your car....

Do we really believe that the land owners are passionate about restricitng traffic to minimise wear and tear on the cave....rather than...didn't really want to allow access to walkers under CROW...don't see why I should change cave access to increase accessibility unless confronted?

As a final thought...surely they should be grateful we're going underground...rather than checking up on them poisoning buzzards/hen harriers/peregrines and grassing them up!

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Offline Pitlamp

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Re: Loss of cave access, CROW and other things
« Reply #243 on: March 22, 2013, 01:54:05 pm »
Actually Jason, a very large number of cavers respect (and are very grateful for) the access agreements, whether local or from further afield.

Offline NigR

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Re: Loss of cave access, CROW and other things
« Reply #244 on: March 22, 2013, 01:56:43 pm »
Very sensible post from Ed.

Yes, Pitlamp - I do realise what you are saying (and choosing not to say). If everyone thought and acted this way I agree it would be a reasonable state of affairs and need not necessarily have to change. Unfortunately, this is not the case. Some cavers exploit the grey areas for themselves and go to great lengths to ensure that others should not be able to. Even worse, some cavers take advantage of the grey areas and turn them around on others purely to further their own aims and objectives. This is wrong and now is as good a time as any to put an end to it.

Offline Pitlamp

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Re: Loss of cave access, CROW and other things
« Reply #245 on: March 22, 2013, 02:02:14 pm »
H'm, I live and frequently cave in the Dales and I've not come across what you're describing Nig.

Offline Pitlamp

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Re: Loss of cave access, CROW and other things
« Reply #246 on: March 22, 2013, 02:05:59 pm »
Just thinking a bit further - maybe this sort of thing Nig described is more common in other UK caving areas?  :shrug:

Offline ian.p

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Re: Loss of cave access, CROW and other things
« Reply #247 on: March 22, 2013, 02:31:19 pm »
Quote
ONLY IF, in those examples, the caver had BCA insurance and let's assume that the children don't
would be compleatly irelevent:
1) BCA insurance is 3rd party only so the landowners insurance is not affected by wether or not the children themselves are insured.
2) Children who are members of BCA clubs have to be insured as well as adults given that its a third party insurance i think this absurd but thats way of things at the moment.

I think there is every reason to push for cave access on CROW land there is nothing to lose and potentialy a lot to gain i certainly dont think land owner liability is likley to increase after all walkers will go onto CROW land wether or not there is also CROW access to caves so falling into entrances is not a hazard that will be increased.
Those venturing into caves are clearly making a concios decision to do so and espcialy if there is a warning signe at a car park or on the cover of the cave entrance i realy dont see how a judge is ever going to see an accident arising from a caving trip as the farmers fault and either way that farmer will be coverd by BCA 3rd party insurance whether or not the injured/dead person is insured so wether or not the acess the acces is based on CROW or regional council negotiated terms matters not a toss in terms of insurance cover.

Offline ian.p

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Re: Loss of cave access, CROW and other things
« Reply #248 on: March 22, 2013, 02:35:50 pm »
the only reason councils such as CNCC have negotiated terms that require BCA insurance to access caves is to protect revenue that pays for the insuring of the landowner your own individual 3rd party insurance only protects you from claims against you nothing else.

Offline graham

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Re: Loss of cave access, CROW and other things
« Reply #249 on: March 22, 2013, 02:42:30 pm »
Just thinking a bit further - maybe this sort of thing Nig described is more common in other UK caving areas?  :shrug:

No, it's not common at all Pitlamp, anywhere.

And you can read into that whatever you wish.
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