Let the access taker beware

Part 1 of the Land Reform (Scotland) Act 2003 – the “right to roam” – came into effect on 9 February 2005. The issue of occupier’s liability in the context of a statutory right of access to land has exercised land managers, rather more so, I suggest, than is necessary.

If section 5(2) fulfils the intention of leaving the law unchanged, I can see no reason why land managers should be at risk of a greater number of successful claims for injury to persons entering their property, where the “access takers” do so in exercise of their statutory right, than before. Similarly, I can see no reason why the “access taker” should be given any higher right to compensation for injury sustained during the exercise of his access rights than he would have had on entering someone’s land before the Act came into operation.

The principle embodied in section 2(1) of the Occupiers’ Liability (Scotland) Act 1960 continues to apply. This is that the land manager owes a duty of care towards a person entering on his land such as, in all the circumstances of the case, is reasonable to ensure that that person will not suffer injury or damage by reason of dangers due to the state of the land or to anything done or omitted to be done on it. The underlying duty towards an “access taker” after 9 February will, therefore, be no different to that which applied before that date.

It follows that the courts will be bound to examine the circumstances of each case in order to establish what standard of care by the land manager is reasonable and to decide it on its merits. A review of case law shows that claims for compensation raised under the 1960 Act have rarely succeeded.

A passive duty

I would suggest that an analogy can be drawn between the statutory right of access and a right of way. Both are exercisable not by invitation of the landowner/manager, but as of right. The duty of a landowner to members of the public appears to be passive rather than active (Johnstone v Sweeney 1985 SLT (Sh Ct) 2). Indeed there may be no duty at all (McGeown v Northern Ireland Housing Executive [1995] 1 AC 233). Why not the same argument for access rights?

Some argue that the number of claims may increase if the statutory right of access encourages more people into the countryside. It may also be foreseeable that the duty of care will encompass a greater number of hazards if people wander further away from paths or tracks. But the underlying principles, in my view, remain unchanged. Natural physical features which should be obvious to access takers as being dangerous should still be excluded from the duty of care (McCluskey v Lord Advocate 1994 SLT 452 and Cotton v Derbyshire Dales District Council [1994] TLR 335), and the traditional defences (e.g. that the access taker accepted the risk of injury – 1960 Act, section 2(3) –, volenti non fit injuria, contributory negligence or that the land manager had validly excluded or restricted his liability (under section 2(2)) should remain available. After all, many activities carried on in the countryside are known to be dangerous.

Not responsible access

The Scottish Outdoor Access Code will provide valuable evidence as to the standard of care required by land managers, in particular circumstances. Indeed it may on occasions militate in favour of the land manager in that an “access taker” disregarding the Code will not be acting “responsibly”, forfeiting his statutory right and putting himself in a position analogous to a trespasser. If the approach of the House of Lords in McGlone v British Railways Board 1966 SC (HL) 1 (which recognised that different levels of care were appropriate for different types of “access taker”, despite the abolition of the former categories by the 1960 Act) is followed, the “access taker” will, arguably, have voluntarily reduced the level of care which the land manager is required to show to him.

Finally, land managers should not overlook that statutory provisions other than those contained in the 1960 Act will remain applicable to them following the introduction of the right to roam, including:

• The Health and Safety at Work Act 1974 – which at section 3(1) requires employers to conduct their undertakings in such a way as to ensure, so far as practicable, that persons not in their employment are not exposed to risks to their health and safety.
• The Animals (Scotland) Act 1987 – which imposes strict liability on the keeper of an animal belonging to a species which is known to be likely to injure or kill persons or other animals, or to materially damage property, for injury or damage caused by such an animal.

Alasdair G Fox, Anderson Strathern WS