Resolving Rural Disputes Webinar: Open Water And Occupiers' Liability

• Published date: 18 December 2020
• Subject Matter: Real Estate and Construction, Landlord & Tenant - Leases
• Law Firm: Shepherd and Wedderburn LLP
• Author: Mr Stephanie Hepburn and Elaine Brailsford

Shepherd and Wedderburn's rural disputes team has shared key insights into resolving common problems through a series of coffee break-style webinars. These 15-minute sessions with our rural experts discuss topical issues such as car parking, wildlife crime, access rights and open water swimming.

Open water and occupiers' liability

As wild swimming continues to enjoy a surge in popularity, our rural disputes experts Stephanie Hepburn and Elaine Brailsford look at the duties owed by land owners and occupiers to members of the public accessing their open water on their land.

Please see below for a written article by Stephanie on this topic, and please note that you can access a pdf version of this article here.

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With more people than ever participating in open water, or wild, swimming, careful thought has to be given as to any duties owed by owners or occupiers towards those using water on their land for open water swimming, and we will consider these duties in this short article.

Under the Occupiers Liability (Scotland) Act 1960, those occupying land owe a duty of care towards people coming on to that land. The occupier is the person having control of the land - often the landowner, but it may be the tenant or a contractor. The level of the duty owed is the level which it is reasonable to foresee will be needed so that people do not suffer injury or damage, and what is reasonable depends on the circumstances of each case.

Occupiers of land posing a greater-than-usual risk to third parties need to take extra care, and this often includes rural land which is subject to the right to roam provisions in the Land Reform (Scotland) Act 2003. The case of Craig Anderson v John Imrie and Antoinette Imrie in 2007 reinforced this. Mr and Mrs Imrie were sued for breach of their duty of care as occupiers of their farm when a young boy was seriously injured on the property after being crushed by a heavy gate. Mrs Imrie was found to be in loco parentis; she was aware that the farm was a dangerous place for children and she should have foreseen that the boy could get injured if he interfered in some way with the gate and was not adequately supervised. Mrs Imrie was found to have failed her duty of care. Our full article on the case can be found here.

This case highlights how important it is in the rural sector generally to take steps to keep property or land adequately secured, maintained and repaired. Measures that can be taken may include putting relevant warnings or...