Whether it is inspired by lockdown, fine summer weather, reluctance of foreign travel or a prolonged Olympic year lasting from 2020-2021 there is no disputing that people are flocking to the Scottish Countryside to enjoy all that it offers. Wild camping, motor-homing, caravanning and outdoor pursuits such as paddle boarding are all seeing massive surge in popularity.
In the context of the right to roam, Landowners, while looking to make the most of the commercial opportunities, may be unsure about their duties and there are two important pieces of Legislation to remember.
Occupiers Liability (Scotland) Act 1960
This requires Landowners (or Occupiers) to consider what reasonable and foreseeable dangers exist to third parties. Landowners should consider regular inspections focusing on anything considered to be unusual, unseen and unfamiliar and risk assessed these carefully. Steps such as placing signage near and fencing off any hazards ought also to be considered and everything documented.
A natural or obvious feature of land is not considered to be a hazard in itself so if e.g. land has naturally steep contours, is a cliff edge or there is a loch or reservoir present there is no need to take any measures. However a man-made concealed feature such as a quarry edge surrounded by bushes, or a ha-ha, may need some warning, depending upon the circumstances.
Landowners should be relieved that the Scottish Courts have repeatedly refused to contemplate a duty to fence off permanent, obvious and familiar features of the environment even where there is danger and even where children may foreseeably be present. Where a fence has been installed to protect against a hazard the Landowner/Occupier has a duty to maintain it. Courts have however held that a dilapidated fence still presents an obvious barrier.
Even where the Courts place responsibility on the Landowner/occupier, they often consider e.g. ignoring signs or instructions, climbing over fences or failing to keep a proper look out as contributory negligence by anyone who is injured, and deduct from any damages awarded accordingly.
Landowners may be concerned about the necessity of putting up signs at e.g. lochs or reservoirs, particularly with the rise in popularity of water sports and following some tragic recent drownings. Those using the water will be considered to have willingly accepted the risks associated with their activities so notices are not normally required.
Health & Safety at Work Act 1974
At first glance you might assume that protection under this legislation only applies to employees but for anyone who is an employer or self employed, Section 3 extends to cover “persons other than employees”. This includes the public and those accessing the Land. The standard required here is that of “reasonable practicability” to ensure that these individuals are not exposed to risks to their health and safety.
Landowners who have employees must also heed the Management of Health & Safety at Work Regulations 1999 which require risk assessment for health and safety of persons not in their employment arising out of or in connection with the conducts by them of their undertakings.
Failure to comply with Section 3 or the regulations is a criminal offence. Prosecutions under Section 3 do not require to prove that the risk was actually present, only that there was a risk of exposure.
In assessing reasonable practicability of safety precautions, as in many cases these days, Landowners ought to consult any relevant Code of Practice for their particular Land use and also keep detailed written records of risk assessments, inspections and actions taken. Doing so may be very useful if an accident happens.
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