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Thread: Stupid question....

  1. #1
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    Default Stupid question....

    Are landowners liable if a canoeist happens to get injured on a weir or similar while legally navigating across his land?

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    Not a stupid question at all...

    I could be liable if a burglar drowns in my pool. It would serve him right of course

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    Possibly - it would all depend whether the injured party could show that the landowner had done or not done something that contributed to the incident in which the injury occured.

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    You should refer yourself to the Occupiers Liability Act (original seems to be missing an apostrophe). But you are assuming the land is 'his'.

    http://www.legislation.gov.uk/ukpga/1984/3

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    The Environment Agency produce a booklet that helps riparian landowners (and you) understand their (rights and) responsibilities. If any injury happens as a result of a failure to observe these responsibilities, you may have a case. But you also have a responsibility to act sensibly and to take all reasonable precautions for your own safety so I would suggest that their responsibility would not extend to anything that you could reasonably predict and avoid by your own actions.
    Keith

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    I rather agree with the above posters. "It all depends on the circumstances" and of course on what duties & responsibilities you'd expect from the owner of the weir. These will differ from owner to owner according to their resources. So if for example it was the EA you'd expect a greater degree of care than from some small scale farmer.

    But if you want to put landowners off canoeists for ever, then sue and be damned and we'll all suffer.
    http://www.davidwperry.blogspot.co.uk/

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    A weir is a structure that one would reasonably expect to encounter on a navigation in the same way as one might expect to find rapids and straiiners.

    Injury resulting from an encounter with any of these would I suggest be the responsibility of the canoeist.

    However if a landowner had for example stretched a rope across the river for some purpose in such a way that a potential danger was created for canoeists and had not placed warnings for paddlers of the now unexpected hazard they would most probably be liable for any injury resulting.

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    How about the deliberate and staked introduction of "Large Woody Debris" - as advocated by the E.A.????

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    Quote Originally Posted by DougR View Post
    How about the deliberate and staked introduction of "Large Woody Debris" - as advocated by the E.A.????
    I think that it depends exactly where the woody debris is located, if it is likely to be a risk I think there would be a duty on the landowner or the person who placed the wood there to put up signs warning of the risk, if however the woody debris is clearly visible on a wide slow flowing section of river then I think KeithD's above statement about an individuals "responsibility to act sensibly and to take all reasonable precautions" would have an effect.

    The original question was about a potential incident on a weir, most weirs are installed and maintained by either the Environment Agency or the Navigation Authority so are not the responsibility of the landowner (unless they have tampered with them). Also the majority of weirs have signs warning of the potential dangers, choosing to ignore such a sign would massively weaken any potential case for compensation an individual may have.

    Barney

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    From the Act posted above:

    No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person

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    Before you can form any serious solution to any problem, its usually a good Idea to know what each party needs, doesnt need and fears.

    Landowners seem to be prepared to spend money on water bailiffs, signs, possible court action, risk bailiffs threatening people on their behalf, etc.

    I wont spend money unless I think it will get me something I perceive a need for, or if I think it can buy me a solution to something I fear.

    I was wondering what the landowners need or fear.

    I was wondering if landowners fear they are at risk of being sued if canoeists use rivers adjacent to, over, or on their land.

    I mentioned weirs as they were the first obsticle that came to mind.

    Can a canoeist sue a landowner if they cut a finger, or scratch a boat?

    Is it different if they are tresspassing?

    Is it different if they have permission?

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    I doubt landowners are really that fearful about being sued though they may use "liability" as an argument to avoid allowing access.

    I think their main concern is maintaining control over their property.

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    A similar duty of care is owed whether you are a trespasser or have permission generally. You'll not get anywhere trying to sue a landowner if you cut your self or if you smash your canoe, unless the landowner does something to cause this and he could have foreseen the consequences of his actions/omissions.

    So if the landowner for example puts a barbed wire across a river to prevent cattle straying where he has never seen a canoeist and you come along and cut yourself you haven't the faintest chance of succeeding.
    However if the landowner did the same across his river which was canoed regularily he would be expected to put notices up to such an effect to warn folk. If you came along and cut yourself or your canoe you'd still fail in your action because he gave warning and you new the risk. However if he failed to put a warning sign up you'd have a better chance of succeeding - provided the wire was not easily seen.
    http://www.davidwperry.blogspot.co.uk/

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    Quote Originally Posted by KeithD View Post
    The Environment Agency produce a booklet that helps riparian landowners (and you) understand their (rights and) responsibilities. If any injury happens as a result of a failure to observe these responsibilities, you may have a case. But you also have a responsibility to act sensibly and to take all reasonable precautions for your own safety so I would suggest that their responsibility would not extend to anything that you could reasonably predict and avoid by your own actions.
    A very interesting booklet, nowhere does it refer to the land owner having control of the navigation rights?

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    Quote Originally Posted by cloudman View Post
    A very interesting booklet, nowhere does it refer to the land owner having control of the navigation rights?
    I don't think many riparian land owners would claim that they have control of navigation rights, they and others just claim that the rights don't exist, while ignoring large amounts of evidence to the contrary.

    It does unfortunately state that "There is no public right of navigation on most non-tidal watercourses", while I understand that the EA either can't or don't want to get involved in the access debate, if they want to stay out of the debate they should not be making statements like this.

    Barney

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    The more I learn about the access issue the more confused it gets, if riparian owners don't claim to own the navigation rights why are we negotiating with them for access? I was under the impression that if one owner refused to negotiate and agree to us paddling it could block the river, are they claiming that owning the fishing rights entitles them to uninterrupted fishing and that our presence is interrupting their fishing so is a trespass?

    My head is beginning to hurt

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    Quote Originally Posted by DougR View Post
    How about the deliberate and staked introduction of "Large Woody Debris" - as advocated by the E.A.????
    The woody debris is a hazard but it might eventually rot and disappear ... or be ripped out and hurled downstream to block or cause damage elsewhere if placed in a spate river (it has been done). It's the remaining metal anchor stakes that we might then encounter ... anyone up for paddling through deliberately introduced spears?
    DCUK
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    Quote Originally Posted by cloudman View Post
    The more I learn about the access issue the more confused it gets, if riparian owners don't claim to own the navigation rights why are we negotiating with them for access? I was under the impression that if one owner refused to negotiate and agree to us paddling it could block the river, are they claiming that owning the fishing rights entitles them to uninterrupted fishing and that our presence is interrupting their fishing so is a trespass?

    My head is beginning to hurt
    The situation is confusing and there are many different views and arguments used by both sides, some are valid, some are complete nonsense or wishful thinking and many fall in between the previous two.

    There are some riparian owners who claim that anyone canoeing on their section of the river is trespassing, which is in affect saying they have the right to control navigation. It was this that led to the BCU and others trying to negotiate access agreements and failing if only one landowner on a river objected.

    The most up to date research on the access situation has been done by Rev Caffyn, and shows that the right to use a river as a navigation goes back to pre roman times and was confirmed in the Magna Carter and subsequent legal documents and acts of parliment. ( sorry this is a very abbreviated version of Caffyn's very detailed work)

    Many on the other side of the access debate say Caffyn's research is wrong, but don't seem to have evidence to prove this. The biggest difficulty in proving Caffyn's work and using it as a basis for navigating rivers, is that it would cost millions of pounds and the legal case(s) could last for years.

    Hope this helps and sorry if my earlier post was not clear.

    Barney

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    Thanks Barney, every bit of info helps. I think I'll go for a couple of pints to dull the pain.

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    Quote Originally Posted by Barney View Post
    I don't think many riparian land owners would claim that they have control of navigation rights, they and others just claim that the rights don't exist, while ignoring large amounts of evidence to the contrary.
    Have a look at this "factsheet". It says

    "Thus an owner has the right to use its stretch of water for navigational purposes, and to exercise the right of fishing.

    At the same time the owner of rights is also able to prevent others from exercising riparian rights over their land including the use of the water for navigation. Unauthorised use is trespass and can form the basis for legal action (see below)."


    And this seems to be the nub of the issue since canoeists do not claim to have rights of navigation arising from riparian rights - we claim much older public rights, which as public rights can not be over-ridden by private (riparian) rights. The problem is that although these rights have been exercised for hundreds (or thousands) of years, no court has yet ruled that "in general" they exist. No court has ruled that they don't either - all court cases (so far) have only been about navigation rights on particular rivers.
    Keith

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    Thanks Keith that is an interesting "factsheet" you have highlighted there, at first I was inclined to distrust it as it is published on an angling website, but then I read through until the last section where I found this quote:

    "If you are faced with unlawful use of your waters for boating purposes, the first step is to try and establish whether the users have acquired any private or public right to use the waters, applying the principles set out above. It is of course for the person claiming the right to prove that they have the right."

    So it seems that even the anglers are prepared to accept that it is possible that we could have the right to use the rivers, unfortunatly they are to biased to consider the evidence. But this does highlight the lack of logic and common sense in their case.

    Barney

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    An excellent book covering much angling law - which by definition covers such subjects as the ownership and protection of fisheries, riparian rights, conflicts with other water users is "Angling & the law" by Peter Carty & Simon Payne,Merlin Unwin Books, 1998. I'm sure you can order it from a library as it is a comprehensive legal text and gives many examples of case laws.

    Claiming we canoeists have a right to canoe under untested legal entitlement dating back to Magna Carta won't get you anywhere unless you can prove it!!. From personal experience you may not get far. I knew the last professional, full time poacher on a stretch of tidal water here, who claimed that "Magna Carta had given him, and everyone else, a right to fish on tidal rivers without hinderance". This case came up in the late 1970's when the old river authority introduced bye laws prohibiting fishing for salmon and sea trout on the tidal section. He lost his case. Not on the fact of whether Magna Carta did or din't give us rights but simply that time had moved on and new laws had replaced old ones. The bye laws stood - he was fined. And of course being professional -carried on poaching.

    The unfortunate position at the moment is that if an angling club or land owner takes action against a canoeist it is likely that the side with the most money to employ the best legal team will win. This is currently likely to be angling interests and/or landowners as there isn't an equivalent group of paddlers so far, willing to club together to, a) provoke a court action, and, b) fight the consequent legal action until they win and get the law changed.
    http://www.davidwperry.blogspot.co.uk/

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    I love the Third World!!!! It´s so....so...so common sense....... To sue a landowner for a canoeing accident while paddling along a river that crosses his land.... Boy, you must be really really crazy there in UK! Hope we never get close to this down here in hell.....
    Tony BR
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    Past 20 years teaching Biology!
    Next 20 building Canoes!!!

  24. #24
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    Quote Originally Posted by David Perry View Post
    He lost his case. Not on the fact of whether Magna Carta did or din't give us rights but simply that time had moved on and new laws had replaced old ones.
    I'm not aware of any statute that has replaced the historic public right of navigation - or any court case that has ruled that the ancient public right of navigation no longer exists. In the cases where angling interests "won" disputes with canoeists it was invariably because no right of navigation was claimed. With the benefit of the excellent (and unchallenged) research by Douglas Caffyn that's an omission that is unlikely to be repeated.

    Claiming we canoeists have a right to canoe under untested legal entitlement dating back to Magna Carta won't get you anywhere unless you can prove it!!.
    I may well be wrong but my understanding is that trespass is a civil tort rather than a crime and I think that means that the standard of proof is "on the balance of probabilities" rather than "beyond reasonable doubt" that applies to criminal law.
    Keith

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    Quote Originally Posted by David Perry View Post
    Claiming we canoeists have a right to canoe under untested legal entitlement dating back to Magna Carta won't get you anywhere unless you can prove it!!. From personal experience you may not get far. I knew the last professional, full time poacher on a stretch of tidal water here, who claimed that "Magna Carta had given him, and everyone else, a right to fish on tidal rivers without hinderance". This case came up in the late 1970's when the old river authority introduced bye laws prohibiting fishing for salmon and sea trout on the tidal section. He lost his case. Not on the fact of whether Magna Carta did or din't give us rights but simply that time had moved on and new laws had replaced old ones. The bye laws stood - he was fined. And of course being professional -carried on poaching.

    The unfortunate position at the moment is that if an angling club or land owner takes action against a canoeist it is likely that the side with the most money to employ the best legal team will win. This is currently likely to be angling interests and/or landowners as there isn't an equivalent group of paddlers so far, willing to club together to, a) provoke a court action, and, b) fight the consequent legal action until they win and get the law changed.
    I accept that the anti navigation side are currently better organised and funded, and agree this would probably give them an advantage in any court case or legal action, but there are examples of the financialy weaker side winning cases in this country.
    Claiming that we have a right to canoe without evidence won't get us anywhere without proof, but surely Caffyn's thesis would go a long way to providing the proof. Time moves on and new laws can replace old, but in the case of the right to navigate rivers in the UK, time has moved on but no new laws have been made which replace or overule the existing right to navigate.

    Barney

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    Quote Originally Posted by KeithD View Post
    Have a look at this "factsheet". It says

    "Thus an owner has the right to use its stretch of water for navigational purposes, and to exercise the right of fishing.

    At the same time the owner of rights is also able to prevent others from exercising riparian rights over their land including the use of the water for navigation. Unauthorised use is trespass and can form the basis for legal action (see below)."
    .

    This is described as a fact sheet, but isn't it a solicitors interpretation of the facts as he sees it. It's possible that another solicitor may have a different interpretation, or am I just being cynical after reading so many opinions on this problem.

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    If you are the current Riparian owner you have have the right to 'navigate'
    If you are on a public navigation then your riperian rights - if you have them - are secondary to the act of navigation. ie navigational rights outweigh fishing rights. But the case law underlying this proposition concerns damage to oyster beds by ships!!!
    But like all rights they must be exercised reasonably so if we are talking about paddlers then it is possible that you may be sued if cause unreasonable disturbance to a riparian owner.

    Incidently Keith - just to clarify my comment regarding the poacher and his claimed rights under the Magna Carta. This was related to fishing and NOT canoeing.
    http://www.davidwperry.blogspot.co.uk/

  28. #28

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    David
    May I ask respectfully if you are a lawyer with a specialised knowledge of the law related to river use, and therefore have the professional qualifications and expertise to provide legal advice?

    Can you indicate the statute and case law which supports this advice?
    Last edited by dougdew99; 3rd-June-2012 at 05:18 PM.
    Doug Dew
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