In the past two weeks recreational water users in the North East of Scotland have hit the headlines following a series of potentially high risk incidents. In Fraserburgh two teenage sisters saved a holiday maker and his child using an airbed when he and his child got into difficulties off the coast. At Gourdon harbour, two RNLI crews were scrambled along with the Inverness coastguard helicopter when a young boy was hurt whilst 'tombstoning' with friends. In Peterhead last week ten people from a local sailing club required assistance from the RNLI and other emergency services due to capsizing.
This blog considers some legal and practical considerations for occupiers of shore side or harbour premises, their exposure to claims and potential claim defence.
The Law of the land
In the case of recreational activity it is the Occupiers' Liability (Scotland) Act 1960 which applies. This act sets out the "reasonable duties" owed by an "Occupier" to persons entering their property in relation to dangers there or anything done or omitted to be done there. Occupiers may be owners of the property or others who have control of the land/property.
Location, location, location
In the event of any claim being raised against an occupier one of the primary defences may be:-
- Where did the incident occur - was it on the occupied premises?
- Was the incident due to anything done or omitted to be done on the premises?
Alongside these considerations two further points of potential defence would arise under this act :-
- The legal maxim - volenti non fit injuria - 'to a willing person no harm is done'. This means if you knowingly choose to take on a risk yourself then you will have no recourse against others for harm you suffer. Under section 2(3) of the 1960 Act an occupier will not have a duty imposed in respect of risks which the person entering has willingly accepted as his (or hers).
- An occupier is not subject to an absolute or strict liability duty but is to exercise care as in all the circumstances of the case is reasonable - as per section 2(1).
When considering the level of care in all the circumstances per section 2(1) the following practical steps may assist an occupier in avoiding incidents and in defence of any claims:-
- Risk assessment - What are the risks on your property and does this change e.g. at different times of day, in different tidal or weather states or during different port/seaside activities?
- Influencing behaviour of those on the premises- Consider appropriate restriction to access, guidance and supervision or signage as well as ways to draw attention to the dangers to those on the property.
- Raise awareness - Some dangers are seasonal and might require increased awareness at different times of the year or with different users or age groups.
- Monitoring - The property and the activities undertaken on it could be monitored by staff e.g. harbourmaster or using electronic surveillance.
- Inspection regime - If there is damage to your property which creates a dangerous situation how would you become aware? Have you made the public aware of how and when to contact you?
- Mitigation - Ability to call for help, access to emergency equipment, etc.
Of course, those entering premises e.g. individuals and clubs should plan, prepare and exercise reasonable care for their (their children) and their members own safety.
If you would like to discuss any of the above further please call or email me or your usual Brodies contact.