The Cliff Path, the Paying Walker and the Fisherman Who Climbed the Fence
Ardnagree Farm has for twenty years allowed walkers free access to a marked cliff path across its land, and the local authority's walking-trails website lists the route. In 2024 the farm begins charging EUR 8 per head for a guided loop, using a new gate and a stile over a gully. On 3 May, tourist Marta pays the EUR 8 and, crossing the stile, puts her weight on a plank that is rotten and gives way; she fractures her wrist. On the same day local man Declan, who has fished off the rocks for years without ever asking permission, climbs a locked fence bearing a 'Private - keep out' sign and later falls through a soft, corroded timber platform that the farm uses for storing nets and never inspects. The farm's insurer says both entrants took the premises as they found them and that the signage was clear. The farm did not create the rotten plank and knew nothing about it. It had, however, known for three years that the platform was soft underfoot.
1. Classify Marta's entry and assess whether the farm is liable to her for the broken plank.
Read the worked answer
Classification. Payment of the EUR 8 fee is consideration, and a person who pays to enter is not a recreational user under the Occupiers' Liability Act 1995; the statutory definition is designed to exclude those who pay or who enter for business purposes. Marta is therefore a visitor under section 3.
Duty. The occupier owes a visitor the duty to take reasonable care that the visitor does not suffer injury or damage by reason of a danger existing on the premises. The rotten plank is exactly such a danger, and the duty does not depend on the occupier having created it. Once the farm begins running a paid guided loop, the standard of care rises: it must inspect and maintain the route it is selling, and a periodic inspection would have found a plank rotten enough to give way under a walker's weight.
Warnings. 'Private - keep out' is directed at a different audience and is irrelevant to Marta. A general 'at your own risk' notice does not discharge the duty. A risk warning only helps if it is specific enough to enable the entrant to be reasonably safe, and nothing warned of rotten timber. Any attempt to exclude liability must be clearly incorporated and brought home to the entrant; in a paid leisure context it is also vulnerable to consumer-protection and unfair-terms arguments.
Marta's own conduct. If the plank was obviously decayed and she stepped on it without looking, contributory negligence is in play, but a modest one on these facts.
Conclusion. The farm is likely liable to Marta under section 3.
2. How does Declan's position differ, and can he show the farm acted with reckless disregard for his safety?
Read the worked answer
Classification. Declan entered without permission and over a locked fence. Under the 1995 Act a person on premises for recreation without payment is a recreational user whether or not the occupier permitted the entry, and the duty owed to a recreational user is the same reduced duty owed to a trespasser: not to create a danger with intent to injure, and not to act with reckless disregard for the entrant's safety. So whether he is labelled recreational user or trespasser, he cannot rely on the visitor's reasonable-care standard. The farm's knowledge that fishermen use the rocks does not convert him into a visitor.
Reckless disregard. This is a higher threshold than ordinary negligence. Relevant factors: knowledge for three years that the platform was soft; no inspection at all; continuing to use the structure for nets; the presence of the platform in an area known to be used by entrants. A deliberate decision to do nothing about a known defect on a structure people may stand on can cross the line from carelessness into reckless disregard. Against that, if the platform was well away from the cliff path and there was no reason to think anyone would walk on it, the claim fails.
Warning. 'Private - keep out' signals exclusion rather than danger; it does not warn of rottenness, though it may bear on his own responsibility.
Conclusion. Arguable but materially harder than Marta's claim; the outcome turns on how close the platform was to the route entrants actually used.
3. What difference would it have made if Marta had walked the loop without paying?
Read the worked answer
She would have been a recreational user rather than a visitor, and the entire standard of care would shift.
Consequence. The farm would owe only the reduced duty: not to create a danger with intent to harm, and not to act with reckless disregard. A rotten plank it did not create and knew nothing about would almost certainly not breach that duty, and her claim would fail at the first hurdle regardless of the injury.
Why the facts were drafted this way. The EUR 8 fee is the hinge of the whole problem. The same path, the same plank, the same injury produce opposite results depending on whether consideration was paid. The 1995 Act deliberately channels occupiers' liability along the visitor/recreational-user/trespasser axis rather than a single reasonable-care standard.
Practical point. Advise the client that introducing a charge converts every entrant on the paid route into a visitor and brings inspection, maintenance and record-keeping obligations with it - which is precisely why insurers ask about charging structures.