The weather is improving, and COVID-19 restrictions are easing. It's fair to assume that the public is keen to get into the countryside, and the Land Reform (Scotland) Act 2003 means that much of the countryside is open for walkers and others who come to enjoy the outdoors. But that freedom to roam can bring worry for landowners.
What if people come to take part in risky activities like tombstoning or downhill mountain biking; can a landowner or tenant stop the activities and, if not, can they be liable if someone is injured?
Preventing access
The 2003 Act gives the right to access land for recreational, educational and limited commercial purposes. This is not an unlimited right; you will almost never be allowed to light fires, hunt, shoot, fish or drive motorised vehicles. And it is a right which comes with responsibilities, so those accessing land must do so responsibly and the Scottish Outdoor Access Code provides guidance about what that means. What is less clear, is whether people are entitled to come onto land to do things which pose a risk only to themselves.
There is probably scope to argue that some of those risky activities do not represent responsible access of the land, in particular those which are causing damage or interfering with other responsible uses. But even if a landowner could show that something is irresponsible, the means of preventing access are limited. A landowner cannot restrict all access to the land on the basis of the activities of one person or one group of people. In circumstances where an individual is exercising their access rights irresponsibly, it is possible to obtain an interdict to prevent them from accessing the land but enforcing that in practice would be very difficult. Where land is commonly used by many people for the same purpose, then identifying them, obtaining interdicts and preventing access would be almost impossible.
As with many land access issues, engagement and education can be a powerful tool. However, for some, tombstoning and other adrenalin activities provide benefits which they are not willing to forgo. If the activities are not damaging the land or creating a danger for others, there may be little which can be done to prevent them.
Liability for injury
The worry then is what happens if someone is hurt? Despite introducing quite radical rights to access land, the 2003 Act didn't change the operation of the Occupiers' Liability (Scotland) Act 1960. In Scotland, unlike in England and Wales, the law does not differentiate between people who are invited onto the land and trespassers.
For an occupier in Scotland to be liable, three things must be shown: control; a hazard or danger on the land; and a failure to take reasonable steps to prevent foreseeable harm.
Control
You don't need to be an owner to be an occupier; and equally, just because you are an owner doesn't automatically make you an occupier. Who is an occupier is determined by control; there can be more than one occupier of the same land. If someone is injured by a danger on the land, the occupier or occupiers who can be liable will be those who had the requisite control to create or remove the danger. In this context it will often be important to consider the terms of leases to determine who had control to do what.
Danger or hazard
There must be a danger or a hazard on the land which has caused the injury. What is a danger is not always straightforward but in general:
- a longstanding, natural and obvious feature; or
- something which is man-made, but obvious,
is unlikely to be a danger for this purpose.
Conversely, where something is difficult to spot, unusual or unexpected, it may be considered a danger. Finally, what is not considered a danger to an adult, could be considered a danger to a child and so a different level of care may be required where children can be expected. This extends to the dangers created by teenagers coming onto land and acting irresponsibly.
Failure to take steps to prevent harm
If an injured person can show that there was control and that there was a hazard on the land, they must then show that there were steps available to the occupier which would have avoided injury and that it was reasonable for the occupier to have taken them. This duty is less onerous than the duty on employers under Health & Safety legislation. Considerations such as no previous accidents arising from longstanding practices or features, or high costs versus low likelihood will be relevant. What others in similar circumstances do is also relevant. Again, what is reasonable will be decided with reference to the people involved and so, where a sign might be sufficient to warn adults, something more might be required to prevent harm to children.
Dangerous sports
Where someone comes onto land to take part in a dangerous activity, the danger posed by the activity should be apparent to that person. However, if there are particular features of the land, or work carried out there, which are unusual or difficult to spot, then there may be a duty to warn. Telling visitors of the risk can often be enough to prevent it being considered a danger and so prevent liability arising.
Contributor
Legal Director
