The post "The effect of changes in liability for Landowners under CRoW" at http://ukcaving.com/board/index.php?topic=17182.0 was locked and made "sticky" so that it would remain in a place where it would be avilable more easliy to refer to, and not get buried under pages and pages of unhelpful replies.

If you wish to discuss the points raised, please use this Topic for replies. If you wish to make it easy to refer to the original Topic, you can add the link below in your reply:

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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!

Many cave entrances have been dug and engineered by cavers in order to gain access to the natural cave below. They are therefore not natural features.
Does the CROW legislation remove the landowners liability for these entrances?

All landowners or occupiers with a public right of way on their land are advised by the NFU and the CLBA to take up third party liability insurance to cover them in case someone falls down a rabbit hole adjacent to a footpath, all of our land is excluded from CRoW, but we do have two footpaths, so have the insurance.

The question of 'natural or not' would depend upon the specific location, was it an enlargement of a natural feature or intense rock removal (i.e. mining?), only a test case could verify this, and I hope the caving world does not include people inclined to the "litigation creed" that would take the matter that far, as has already been mentioned, cavers, by the very nature of their sport, should accept that the onus of risk is on themselves.

Aubrey said:

Many cave entrances have been dug and engineered by cavers in order to gain access to the natural cave below. They are therefore not natural features.
Does the CROW legislation remove the landowners liability for these entrances?

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Aubery I take your point and I don't know. However what the act actually says (section 13) is:

Regarding the reduced/removed duty of care "a risk resulting from the existence of any natural feature of the landscape, or any river, stream, ditch or pond whether or not a natural feature, or a risk of that person suffering injury when passing over, under or through any wall, fence or gate, except by proper use of the gate or of a stile." it also goes on to say "any plant, shrub or tree, of whatever origin, is to be regarded as a natural feature of the landscape"

So "natural feature" is far wider than might be at first thought - but a dug cave entrance?

Bograt I think it is fair to say, caving aside, that CRoW gives greater protection to landowners. It is one reason cited for dedication of access land.

JJ said:

Aubrey said:

Many cave entrances have been dug and engineered by cavers in order to gain access to the natural cave below. They are therefore not natural features.
Does the CROW legislation remove the landowners liability for these entrances?

Click to expand...

Aubery I take your point and I don't know. However what the act actually says (section 13) is:

Regarding the reduced/removed duty of care "a risk resulting from the existence of any natural feature of the landscape, or any river, stream, ditch or pond whether or not a natural feature, or a risk of that person suffering injury when passing over, under or through any wall, fence or gate, except by proper use of the gate or of a stile." it also goes on to say "any plant, shrub or tree, of whatever origin, is to be regarded as a natural feature of the landscape"

So "natural feature" is far wider than might be at first thought - but a dug cave entrance?

Bograt I think it is fair to say, caving aside, that CRoW gives greater protection to landowners. It is one reason cited for dedication of access land.

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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!

Click to expand...

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

Unfortunately there will always be potential for confusion and doubt in these areas. A dug entrance to a feature, i.e. A cave system, that is covered by CRoW is a means of access. In the case of CRoW land, a track giving access could collapse and cause injury, so who would be liable, if the track was maintained by the landowner?

Even if the BCA paid for legal advice they'd still end up with an opinion and nothing more.

tony from suffolk said:

Unfortunately there will always be potential for confusion and doubt in these areas. A dug entrance to a feature, i.e. A cave system, that is covered by CRoW is a means of access. In the case of CRoW land, a track giving access could collapse and cause injury, so who would be liable, if the track was maintained by the landowner?

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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. Harder one with a track of course, but if he'd dug a new track and undermined a building in the process for example, and the building collapsed, again he could be liable.

You're right, it's not the black and white situations we should be concerned with though, it's the grey ones!

tony from suffolk said:

Even if the BCA paid for legal advice they'd still end up with an opinion and nothing more.

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True

Bottlebank said:

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.

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Quite frankly this is B*llSH*T, I have ferried many DoE failures to their rondezvous(sp) points And I am sufficiently experienced to say that you do not know what you are talking about!!!!!

bograt said:

Bottlebank said:

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.

Click to expand...

Quite frankly this is B*llSH*T, I have ferried many DoE failures to their rondezvous(sp) points And I am sufficiently experienced to say that you do not know what you are talking about!!!!!

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And I've spotted enough sheltering from bad weather over the years, including some in cave entrances?

If you prefer think walkers instead, the point stands.

All I'm trying to get across is that landowners have duty of care for digs they permit on their land.

Bograt,

Maybe I'm doing the wrong thing imagining potential scenarios but let's try a different one anyway.

Imagine how the Jib Tunnel case could have turned out had the lad been standing in a dug entrance on a rotten scaffold plank that gave way, instead of being in a purely natural entrance? No warning signs or barriers in place.

You don't need to answer that, neither of use can ever know for sure can we unless it happens? And that's the point.

Tony

Bottlebank said:

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

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I agree. If we must have this ballot, then the BCA should be getting proper advice on what the ramifications might be. If that has to be paid for then so be it.

While we are 'thinking outside the box', If the diggers put an appropriate security fence around the open dig or installed a suitably secured lid, e.g. with a Derbyshire key, then the diggers and the landowner would be seen to be taking reasonable precautions to protect walkers who may otherwise fall into the dig and therefore no liability if someone is stupid enough to climb over a fence, open a gate and then fall down the shaft. From my experience in an industrial environment, I'm confident taking such steps would remove the need for the landowner to hold specific  Insurance cover for this eventuality. It may well be in the landowners own interests to have such a fence in place dependent on the type of farming they carry out and I'm sure local cavers will work with the farmers and landowners to ensure everybody, well nearly everybody, is happy. This is how most of the access arrangements work in Derbyshire and on the whole they work very well. 

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. 

Mark

Mark Wright said:

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. 

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

graham said:

Mark Wright said:

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. 

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

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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).

I think Mark was alluding to this fund.

graham said:

I think Mark was alluding to this fund.

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Surely, this is related to maintaining access to existing systems??

Mark Wright said:

While we are 'thinking outside the box', If the diggers put an appropriate security fence around the open dig or installed a suitably secured lid, e.g. with a Derbyshire key, then the diggers and the landowner would be seen to be taking reasonable precautions to protect walkers who may otherwise fall into the dig and therefore no liability if someone is stupid enough to climb over a fence, open a gate and then fall down the shaft. From my experience in an industrial environment, I'm confident taking such steps would remove the need for the landowner to hold specific  Insurance cover for this eventuality. It may well be in the landowners own interests to have such a fence in place dependent on the type of farming they carry out and I'm sure local cavers will work with the farmers and landowners to ensure everybody, well nearly everybody, is happy. This is how most of the access arrangements work in Derbyshire and on the whole they work very well. 

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That and other posts do not answer the question of what the landowners liability for dug entrances would be under CROW.
If CROW does not absolve the landowner of liability then I do not believe free access will be available under the legislation, perhaps someone can show otherwise?

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