Derbyshire
Caving
Association

Introductory Note

This document is intended as a guide to cavers and land managers alike (see Definitions below explaining these terms) on the extent of their liabilities in the matter of access underground. It is not a definitive statement of the law on the subject and, as individual cases inevitably vary, the information are referred to Appendix One for a list of relevant pieces of legislation. The guide in no way seeks to deny or minimise the responsibility cavers bear for respecting other people’s land and their obligation to have the land manager’s permission to enter caves, potholes or old mines, even where these are located on Open Access land. Under current legislation cavers enjoy no right of access underground; they are entirely dependent on the goodwill of those who manage the land. All references in the guide to “land manager” and, by association, to “he”, “him” and “his”, should be taken as references to either gender and not as discrimination in favour of one.

Definitions

Caving
the exploration of caves, potholes and old mine workings for the purpose of scientific study or as a recreational pursuit, or both.
Caver
a person who engages in caving. Land manager: a person or organisation that owns, occupies, farms or otherwise manages land of interest to cavers and with the legal right to grant or deny them access. Visitor: a person who is invited or permitted on to land by the land manager.
Digging
exploration for buried cave or mine passages by excavating natural blockages below ground or removing soil and rock on the surface.
Open Access land
land designated for public right of access under the Countryside & Rights of Way Act. A number of caves and old mines in the Peak District are located on such land.
SSSI
a protected Site of Special Scientific Interest. A large number of sites visited by cavers in the Peak District are so designated and land managers will have been notified of any on their land.
SM
a Scheduled Monument. A few sites visited by cavers fall into this category.

The Derbyshire Caving Association

The Derbyshire Caving Association (DCA) was formed in 1960 and membership consists of clubs and individuals who base their caving largely in the Peak District and adjoining areas. DCA’s main functions are to maintain access to the region’s caving sites, promote their conservation, and provide a representative body to liaise with others who share an interest in the Peak District’s underground sites. DCA is affiliated to the British Caving Association (BCA) and its members subscribe to the national liability insurance scheme administered by BCA for the benefit of cavers throughout the country.

Participation Statement

DCA recognises that caving is an activity with a risk of personal injury or death, and advises its members to accept and take due account of this risk and to understand that as cavers they are personally responsible for their actions.

The Land Manager’s Liabilities

  • As the law stands, a duty of care is owed to all visitors. This applies especially where land constitutes a place of work. In the case of visiting cavers, this duty is simply to ensure their safe passage across the land – safe, that is, from work-related hazards that visitors would not normally expect to encounter but which the land manager is aware of. On Open Access land cavers (unlike walkers or climbers, for example) remain classed as visitors because caving is not currently accepted in law as “open air recreation” and cavers must continue to have the land manager’s permission to descend caves, potholes and mines on such land.
  • A duty of care is owed to persons crossing the land on a public right of way that passes close to old mine workings. This duty is normally discharged by keeping the entrance to such workings secure against casual entry (by means of a fence, a gate or a lid, for example and/or by posting warning notices). Cavers may share a responsibility in this regard (see under Cavers’ Liabilities).
  • The law requires a land manager to protect SSSIs and SMs from damaging operations and to obtain consent from the appropriate statutory body before putting sites or monuments at risk. Digging on or under the land by cavers may require such consent.
  • A land manager who makes a regular charge for access may be regarded in law as running a business. Any business liability arising from charging for access could make it difficult for a land manager to be free of all responsibility for the safety of cavers under his land. Alternatively a regular charge made for parking or changing facilities, whilst it may likewise in law amount to running a business, would be unlikely to incur the same liability if the reason for the charge was made clear.

Limit of Land Manager’s Liabilities

  • Except where access is run as a business, no duty of care is owed to visitors who understand and willingly accept the risks they face in caving under another’s land. The scope for doubt here among land managers as to how well cavers understand the risks and how willing they are not to blame others when things go wrong, is the chief reason behind participation statements, disclaimers, demands for indemnity cover, formal access agreements and similar methods of reinforcing the point. The fact remains there is no proven case of vicarious liability for the safety of cavers whilst they are below ground, and the factor that militates strongly against successful claims on land managers is the inclusion in key legislation of the common law principle of volenti non fit injuria (i.e. knowingly putting oneself in harm’s way absolves others of blame for consequences).
  • There is no onus on land managers to assess the risks associated with caving. This lies outside the scope or experience of most land managers and, as things stand, the law is likely to identify cavers as the people best qualified to make the necessary assessments.
  • There is likewise no onus on land managers to vet visiting cavers as to their fitness, experience or qualifications. In the case of supervised groups of clearly very young or inexperienced cavers, liability rests firmly with the supervisors.
  • Caves and potholes are natural features in the landscape, and unless access to them forms part of his business, a land manager is not normally liable for the safety of trespassers who venture into them. At the same time, where such features attract children or are in a state of collapse, a gate or fence may be advisable.

Cavers’ Liabilities

  • Cavers are liable for loss or damage caused by their activities to the land manager’s property as well as for injury to his livestock, family or person. They are liable likewise for loss or injury suffered by members of the public. The national caving insurance scheme enables DCA and its members to meet claims that may arise in respect of this liability. An Indemnity of Principals provision extends the policy’s cover to land managers. The fact that cavers have this insurance should assure land managers that cavers have the financial means to meet claims that might otherwise, however wrongly, be made against land managers themselves.
  • Cavers may be liable for damage caused by their activities to the protected features of SSSIs or SMs. It is an offence to engage in digging at such designated sites without the permission of the appropriate statutory body (in addition to that of the land manager).
  • Cavers may be liable for death or injury arising from their failure, during and after visits, to secure gates or lids to old mine workings where these have been fitted.
  • Cavers have a duty to report archaeological finds. Some finds may legally be the property of the land manager. Others may have to be reported to the District Coroner or taken to a museum for identification.
  • Cavers have a duty not to disturb or harm badgers or bats or other protected species that may have taken up residence at a caving site.

Limit of Cavers’ Liabilities

  • In law no visitor may assume a land manager’s liability for negligence by reference to an agreement to that effect. The terms of formal access arrangements agreed between cavers and land managers cannot therefore, where liability is concerned, go beyond a statement of acceptance by cavers of the risks associated with their activities, plus an undertaking to indemnify the land manager in the event he may be vicariously sued for cavers’ own negligence.
  • Caves and potholes are natural features in the landscape (as against old mine workings, abandoned quarries, and surface excavations made by cavers to find buried caves) and cavers who visit them cannot be expected to bear liability for any harm befalling non-cavers who venture into them, except where cavers leave open a gate or grille that has been fitted at the entrance for safety reasons.

Concluding Note

The Derbyshire Caving Association hopes this guide will be welcomed as a helpful contribution to promoting and maintaining good relations between cavers and land managers across the Peak District and adjoining areas. Whilst many land managers are happy to grant access for caving, others worry about their liabilities, and the guide attempts to address some of the legal concerns they may share with cavers and to clear up possible misunderstandings. DCA may be contacted via its website at www.thedca.org.uk.

Appendix 1: Relevant Legislation

Mines & Quarries Act, 1954

Occupiers Liability Acts, 1957 & 1984

Health & Safety at Work Act, 1974

Unfair Contract Terms Act, 1977

Wildlife & Countryside Act, 1982

Countryside & Rights of Way Act, 2000

Appendix 2: Further reading

Leisure Use of Mines. Published by the National Association of Mining History Organisations, 2000.

Climbing and Occupiers’ Liability – A Guide for landowners, managers & users. Published by the British Mountaineering Council, 2012.

Cave Digging on SSSIs (in the Peak District). Leaflet produced jointly by the Derbyshire Caving Association & Natural England, 2009.

Caves and Archaeology. Leaflet produced jointly by English Heritage & the Universities of Sheffield & Bradford.

Charging for Access to the Countryside. A Paper produced by Sports Council for Wales, 1994.

Access Payment Schemes. A Paper on Schemes for Payment of Land Managers to improve Access. Published by the Countryside Commission, 1994.

Managing Public Access – A Guide for Farmers & Landowners. Published jointly by the CLA, NFU & the Countryside Commission, 1994.

 

Published by the Derbyshire Caving Association, 2014. Photographs courtesy of C J Wright