Managing the risks of open water swimming

This article was first published in Scottish Farming Leader.

Wild swimming is no longer a niche activity. Tens of thousands of people now frequently head to Scotland’s lochs, rivers and reservoirs – especially in summer, when the water is at a more comfortable temperature. While this has many benefits for both physical and mental health, it also has risks: according to the National Water Safety Forum’s annual report, there were 39 accidental water-related fatalities in Scotland last year alone. Rural landowners and occupiers should carefully consider whether they owe any legal duties to people who enter their land to swim in open water.

In Scotland, the starting point is the Occupiers’ Liability (Scotland) Act 1960. Its provisions apply to people who have been invited onto the land to swim, such as those who are participating in organised sporting events like triathlons, and to those exercising their rights of responsible access under the Land Reform (Scotland) Act 2003.

An ‘occupier’ is the person with control of the land – which may be the owner, an agricultural tenant, or another party in occupation such as a contractor. The duty owed is to take such care as is reasonable in the circumstances so that someone entering the land does not suffer injury or damage. What is ‘reasonable’, though? The answer will always depend on the particular facts, but occupiers of land that poses a greater than usual risk to third parties may need to take extra care.

That does not mean an occupier must remove every danger associated with open water, however. The 1960 Act explicitly excludes any obligation on an occupier in relation to risks willingly accepted by the visitor, which may apply to inherent risks of pursuits such as wild swimming. And the courts have long recognised that certain risks are obvious, and that adults engaging in activities such as swimming or diving may be taken to accept the dangers. Two cases illustrate this point.

A Scottish case, Graham v East of Scotland Water in 2002, concerned a reservoir that was separated from a main road by a wall as low as 30cm at some points. The court held that the occupier did not have a duty to fence it off, even though the wall was easily low enough for somebody to jump off or trip over, and noted that the reservoir and the wall were “well established, permanent and familiar features” of the landscape, even though they were man-made.

In the English case of Tomlinson v Congleton Borough Council in 2004, a young man was seriously injured after diving into a lake in a country park. The court held that the danger arose from his decision to dive into shallow water, and that there was no duty to warn or take steps to prevent the claimant from diving as the dangers were perfectly obvious. The case is often cited in Scottish cases as authority that occupiers are not expected to protect people from risks that are plain to see, but every case will turn on its own facts and circumstances.

Of course, not every risk associated with water is obvious. A loch, river or reservoir may be an ordinary feature of the landscape, but particular hazards around it may not be: concealed drops, unstable banks, underwater obstructions, damaged structures, or misleading signage or access points, for example. Many disputes turn on this question – was the danger an ordinary and obvious feature of open water, or was it something unusual, hidden or reasonably foreseeable that the occupier should have addressed or drawn attention to?

This is where practical rural land management becomes important. The Scottish Outdoor Access Code encourages responsible management, including helping people to identify appropriate points of access to water. For estates, farms and other rural businesses with open water, the prudent approach is not to make any assumptions. If a particular spot has the potential to be used for wild swimming, it is sensible to consider how people are getting there, whether there are any hidden or unusual hazards, and whether signage, maintenance or other proportionate steps are needed.

Risk assessments will enable occupiers to assess what obligations they may owe, and they should also keep a clear record of management decisions, as this may be valuable if an incident later gives rise to a complaint or claim.

Open water swimming is likely to remain part of modern rural life, particularly during periods of hot weather. The law does not require occupiers to eliminate every risk that comes with open water swimming. But owners and occupiers should think carefully about whether previously unidentified hazards could turn an accident into a dispute. A proportionate, documented approach to risk management will often place them in the strongest position if something goes wrong.

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