Open water swimming: landowners’ risks and duties

A wave of warmer weather last summer, coupled with the easing of Covid restrictions, led to a rise in the number of people swimming in open water – rivers, lochs or the sea – rather than in purpose-built swimming pools, with many people also participating in open water swimming all year round. However, this activity is not without risks and its increased popularity has unfortunately given rise to a number of fatal accidents.

For that reason, it is important for landowners and occupiers of land to be aware of the risks posed by open water swimming and to understand the duties they owe towards people who come onto their land to swim in open water.

What are the risks?

There are a number of risks associated with bodies of open water. The risks include, but are not limited to, hypothermia, drowning, sickness from polluted water, and injury from wildlife. The safety of locations can vary with the weather, and the abilities and knowledge of the swimmer, and rainfall can dramatically change the safety profile of a swim spot.

Deaths and injuries associated with bodies of open water are not uncommon in Scotland and the UK. Figures produced by the National Water Safety Forum, in its Water Incident Database Annual Fatal Incident Report, show that there were 277 accidental water related fatalities in the United Kingdom, with 58 of those occurring in Scotland, in 2021 alone – the highest figure for Scotland in the last five years.

Although a lot of the warnings are provided in the lead up to the summer with increased access to open water in the warmer weather, accidents can happen at any time of year and sadly, there was a widely reported incident in December 2022 when four boys drowned after falling through ice on a frozen lake.

The law in Scotland

The Land Reform (Scotland) Act 2003 gives every person in Scotland a statutory right to access land for recreational purposes; this includes the right to access bodies of water. Landowners are obliged to manage their land in a way which respects this right, but the access must be enjoyed responsibly. The Scottish Outdoor Access Code provides useful guidance to both occupiers and those taking access.

In light of the increased popularity of open water swimming and the recent media coverage of accidental water-related deaths in the UK, the Scottish Outdoor Access Code updated its website in January 2023 to include guidance for swimming. The guidance recognises that access rights extend to swimming and acknowledges that open water can be dangerous. In relation to responsible behaviour by land managers, the Scottish Outdoor Access Code suggests that indicating where people can best access a river or a loch may minimise problems. This approach could create its own risks for occupiers, as they may assume responsibility for ensuring that the recommended entry point is, and remains, safe. If an occupier is worried about the risks of people accessing bodies of open water on their land it may be beneficial to discuss those risks with the local access officer. Any guidance about points of access can then be communicated by the officer, which would avoid the occupier being seen to authorise the activity.

Occupiers also have obligations under the Occupiers’ Liability (Scotland) Act 1960. The Act places a duty on occupiers to exercise reasonable care to avoid injuries due to hazards on the land. An occupier is often the landowner, but it is important to note that others with control over the land or premises in question may be deemed to be occupiers.

The law as applied in the English case of Tomlinson v Congleton BC [2003] UKHL 47 has often been applied in the Scottish courts. The case was brought by a man who broke his neck when he dived into a quarry pool which was too shallow. There were signs which warned “Dangerous water: no swimming”. The court found that there was no duty to prevent diving, or even to warn against the activity, because the hazard of diving into shallow water should have been obvious, and occupiers have no duty to take steps against dangers which are obvious. In Scottish courts, this principle is accepted and it is well established that there is no duty on an occupier of land to protect against "obvious and natural dangers".

What do I need to do to manage the risk of injury?

Restricting access to water, even if to reduce risk, may place occupiers in breach of the Land Reform (Scotland) Act 2003 on the basis that it restricts access to the land.

In terms of the Occupiers’ Liability (Scotland) Act 1960, occupiers should flag any unusual or unexpected features which might make swimming or entering the water more dangerous than expected: for example, strong currents, underwater hazards, contamination or sudden changes in depth. It might also be sensible to include a general warning that swimming in open water can be dangerous.

If there is activity on the land which increases the risk to those in the water, the occupier should consider whether steps can be taken to remove or reduce that increased risk. To fail to do so could be viewed as breaching the occupier's duty to manage the land in a way which respects access rights. Occupiers should also make sure they have adequate liability insurance in place, should an incident arise.

The Scottish Government's commitments to improve water safety

Given the dangers inherent in open water swimming, there is a focus on educating those taking part on the risks involved and how to reduce them. The Scottish Government's Water Safety Action Plan aims to provide greater education, guidance and training to the public for engaging in water activities in or around Scotland.

The plan includes: (i) training people on how to use rescue equipment, and reviewing 999 procedure; (ii) lesson plans on water safety for children with a continued development of the National Learn to Swim Framework; (iii) additional funding of £60,000 for Water Safety Scotland to develop its co-ordination role for all organisations with an interest in water safety; and (iv) greater signage in and around high risk, popular, open water spots. Furthermore, the Government will develop Scotland's Water Safety Code to deliver to the public a uniform message on key issues such as hidden hazards and cold-water shock.

In summary

With the weather warming up and the nights getting lighter, it is likely that more and more people will be participating in open water swimming. Occupiers should be alert to the risks associated with bodies of open water on their land or land they have control over, and take health and safety advice on whether they should take steps to reduce those risks.