Posted By peter gotch
Hi Mike
The Visitor Safety in the Countryside Group [www.vscg.co.uk] advocate that risk controls be based on an assessment of the risks. Their website includes a risk control matrix, and examples of where additional controls may or may not be appropriate.
In their publication, “Safety at Inland Water Sites” RoSPA also recommend a risk based approach be taken to consideration of what should or should not be done where there is risk of e.g. drowning.
RoSPA comment on variables including the volume and nature of those at risk, together with features of the watercourse [e.g. depth, flow and nature of any drop into water].
This leads to recommendations as to possible precautions including in some cases fencing and/or signage.
In his opinion in the case of Lynne Patricia Graham v East of Scotland Water Authority [www.scotcourts.gov.uk/opinions/ems2801.html], Lord Emslie commented
“[6] In developing her submission that the action was irrelevant and should be dismissed, counsel for the defenders advanced two principal arguments. In the first place she maintained, by reference to a number of well-known authorities, that occupiers of land owed no duty to erect fences for the protection of visitors against permanent and obvious features of the environment. This rule applied to natural features such as cliffs, rivers and lochs, but it also applied to man-made or artificial features like railway embankments, ornamental ponds and canals. The rationale here was that individuals could be expected to look after their own safety in relation to permanent and familiar features of the landscape, and it was only where dangers were unusual, unfamiliar or concealed that different considerations applied.
[7] In Hastie v Magistrates of Edinburgh 1907 S.C. 1102, the Inner House affirmed this rule, and dismissed as irrelevant the pursuer's claim for damages in respect of the drowning of his child in an artificial pond in a city park. Stevenson v Glasgow Corporation 1908 S.C. 1034 was a similar case where the defenders were held to be under no duty to fence the River Kelvin into which the pursuer's young child had fallen and been drowned. Thereafter, the same approach was strongly endorsed by the House of Lords in Taylor v Glasgow Corporation 1922 S.C. (H.L.) 1, and by the Inner House in Dumbreck v Robert Addie & Sons (Collieries) Ltd 1928 S.C. 547. More recently, in Duff v East Dunbartonshire Council and Others 1999 G.W.D. 22-1077, Lady Cosgrove again applied the established general rule, holding that a pursuer who fell down a steep embankment on to a rocky river-bank adjacent to a car park had no relevant claim. That decision was later followed by the Sheriff Principal of Grampian Highland and Islands in Strachan v Highland Council 1999 G.W.D. 38-1863, where the pursuer fell over a cliff after passing through a gap in a fence.
[8] What was important about these decisions, in counsel's submission, was that they limited an occupier's duty of care to dangers which were unfamiliar, unseen or unknown, and at the same time positively affirmed that the imposition of a duty to fence off permanent, obvious and familiar features of the environment, whatever degree of danger they might present, could not be contemplated. In some of the cases, moreover, the Court's observations concerned locations where the presence of children was foreseeable, and could therefore be said to apply with even greater force in relation to adults.”
The House of Lords case of Tomlinson v Congleton Borough Council reaffirmed such principles.
However, in the Tomlinson case, Lord Hutton added that
“ there might be exceptional cases where the principle stated in Stevenson and Taylor should not apply and where a claimant might be able to establish that the risk arising from some natural feature on the land was such that the occupier might reasonably be expected to offer him some protection against it, for example, where there was a very narrow and slippery path with a camber beside the edge of a cliff from which a number of persons had fallen. “
Good luck.
Regards, Peter