A 12 year old boy who suffered life threatening injuries after a fall whilst walking on the West Highland Way has lost a damages claim for £250,000 against the Loch Lomond and the Trossachs National Park.
Lawyers acting for Michael Leonard – who is now aged 20 – had claimed that the park authority had not done enough to make the path safe to walk on – including by failing to provide a handrail. The claim was that ‘where the path turned sharply to its left on its final descent to the road he had tripped or lost his footing and fell from the path down a steep bank onto the road due to the hazards present and a lack of preventative measures; that as he descended the hill he used the steps provided by the defenders which were very uneven, inconsistent in shape and sloping downwards at various different angles and that there were also exposed roots and other tripping hazards such as man-made drainage gullies on the steps. There was no barrier preventing him falling onto the road and no handrail provided for the path, which was part of the West Highland Way, adjoining the Balmaha Millenium Footpath.’
Mr Leonard was found unconscious on the road by his parents who had been following just behind, and was given first aid by a passing Dutch tourist who was an anaesthetist and helped by putting a finger in his mouth and clearing his airways. On being airlifted to hospital Mr Leonard was found to have suffered serious injuries including to the brain.
However, in a judgment issued on Tuesday, Lord Uist said that Mr Leonard’s lawyers had not proven their case, writing ‘There is no evidence to prove the crucial averment that at the point where the path turned sharply to its left on its final descent to the road Michael tripped or lost his footing and fell down a steep bank onto the road. There is no evidence about precisely where any trip or fall occurred on the hill (even whether it occurred on the path), or what caused any such trip or fall. There are several possibilities which come to mind as well as tripping to account for Michael ending up lying on the road: he could have been running down the hill so fast that he could not stop running, he could have jumped from the hill onto the road, or something could have happened to him on the road itself to cause him to end up in the position on which he was found. What caused him to end up in that position must remain a mystery. That being so, his action must fail.’
Lord Uist also questioned whether the park authority had a duty to protect the public in such a case, writing ‘Of course, by its very nature, the path in this case presented a danger in the form of the risk of tripping or slipping, but that is a risk which those venturing upon the hill must be taken to have accepted…. it would be contrary to common sense, and therefore not sound law, to expect the defenders to provide protection to members of the public (by means of a handrail or barrier or anything else) against such an obvious danger. The fact that Michael was aged only 12 at the time is of no relevance to the issue of the existence of a duty on the defenders…. in any event the defenders were under no legal duty to protect Michael against the risk of injury from walking on the downhill path…’