The Scotsman

Exercising rights and caution

Is the freedom afforded to roam the land a licence to take part in risky sporting activities with others paying the potential price if things go awry, asks Rosemary Gallagher

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As the weather improves, more people will be looking to enjoy the great outdoors in Scotland, with many planning to take part in potentiall­y risky sports, such as mountain biking or rock climbing.

With participat­ion increasing in adventurou­s activities, including tombstonin­g – jumping from a height into water in a vertical position – the issue may arise of who is responsibl­e if anything goes wrong.

According to legal experts, the question of liability is not always an easy one to answer, with many different factors to be taken into account. This situation can lead to confusion for both landowners and people participat­ing in dangerous sports, or even those simply walking or jogging.

Kate Donachie, managing associate at law firm Brodies, has dealt with a range of such cases.

She says that considerat­ions concerning responsibi­lity are centred around such issues as whether the right to roam in Scotland gives people the go-ahead to take risks on others’ property; whether people can go onto someone’s land to take part in dangerous activities and, if they get injured, is the owner liable; requiremen­ts of owners to safeguard against harm, and what happens if children are involved.

The Land Reform (Scotland) Act 2003 grants people the right to access land for recreation­al, educationa­l and limited commercial purposes. But, according to Donachie, the situation is complex, particular­ly when it comes to risky sports.

“The right is for responsibl­e use,” explains Donachie. “You’re not entitled to go onto land and do anything you want. Things you are almost never allowed to do include lighting fires, hunting, shooting, fishing and driving motorised vehicles.

“It’s less clear whether activities that are inherently dangerous, such as

downhill mountain biking or diving into a quarry pool or open water, would be irresponsi­ble, but there would certainly be a place to argue that.”

While it is possible for landowners to get an interdict to stop people coming on to their land, hard evidence, such as video, would be required by the court to show irresponsi­ble behaviour.

Even if an interdict was granted, Donachie says that it would be difficult to enforce, particular­ly on large estates.

If someone is injured taking part in an outdoor activity, the question turns to who is ultimately liable – the landowner, or tenant or contractor, or the individual.

Donachie explains that the right to roam under the Land Reform Act does not change the obligation­s under the Occupiers’ Liability (Scotland) Act 1960. In Scotland, unlike England, the law does not differenti­ate between trespasser­s and people invited on to land. The occupier owes a duty of care to everyone on their land in Scotland.

The three parts to this conundrum are control, whether the land presents a danger, and what reasonable steps could the landowner, or occupier, have taken to prevent harm.

“Quite often you’ll have a landowner with a huge estate where parts are tenanted or licensed to commercial operators, such as tree loggers,” says Donachie. “The question is who is in control of that bit of land at a particular time. Working out who has the duty is the first hurdle for someone looking to make a claim.”

The next step is deciding whether whatever featured in the incident was a natural and clear hazard, such as a cliff beside a large lake, which could easily have been spotted and avoided. If that is the case, Donachie says, the occupier has no obligation­s.

“The occupier would have a duty to take action if a cliff edge, for example, was hidden by foliage,” says Donachie. “It then comes down to what is reasonable action, which is more likely to be erecting a warning sign rather than fence off the whole cliff edge.”

However, Donachie points out that the situation changes if children are likely to be on the land.

She says that the law recognises the ways in which youngsters can get themselves into harm is quite unlimited. If occupiers know there are going to be children on their land, they need to think about what could be dangerous and take reasonable protective steps.

Donachie concludes: “It’s an amazing right we have to cross land, but everyone should exercise reasonable caution. Just because someone isn’t prevented from doing something, isn’t saying

it’s safe.”

 ??  ?? The law allows people to access the land in Scotland for all kinds of sporting fun, but safety must still be taken seriously – especially if children are along for the ride. Inset, Kate Donachie of Brodies. Main picture: Shuttersto­ck
The law allows people to access the land in Scotland for all kinds of sporting fun, but safety must still be taken seriously – especially if children are along for the ride. Inset, Kate Donachie of Brodies. Main picture: Shuttersto­ck
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