Background
Inner House case in which Mr Leonard sought damages from the Loch Lomond and the Trossachs National Park Authority after falling and injuring himself while descending a path forming part of the West Highland Way at Balmaha. Mr Leonard (who had been 12 at the time of the accident) argued that the park authority had breached its duty under the Occupier’s Liability (Scotland) Act 1960 due to the presence of hazards and lack of preventative measures on the path.

Outer House decision
In the Outer House, Lord Uist found that the circumstances leading to the fall had not been proved but, even if they had been, there would have been no duty on the park authority under the 1960 Act. After considering the authorities (which suggest that, whilst an occupier will have a duty to fence off special or unfamiliar hazards, an occupier will not be liable for obvious dangers including natural features), Lord Uist found that the path under consideration in this case was “a long-standing artificial feature which was neither concealed nor unusual and did not involve exposure to any special or unfamiliar hazard. It had become a permanent, ordinary and familiar feature of the landscape”.

As a result, the park authority owed no duty to Mr Leonard (or anyone else) under the 1960 Act in respect of the path. Lord Uist also went further and found that, in addition to being inapplicable to long standing features, the occupier’s duty would not apply to other obvious artificial features (even though recently constructed) which have become part of the landscape and which do not involve exposure to special or unfamiliar hazards.

Appeal to the Inner House
On appeal, Mr Leonard argued that, in coming to his conclusion that the circumstances leading to the fall had not been proved, Lord Uist had overlooked or misstated some of the evidence.

Decision
The Inner House rejected that argument finding that Lord Uist had properly addressed himself as to what was relevant and material and had not omitted evidence.

Having come to that conclusion, the appeal had to be refused and it was not necessary for the court to consider the outcome in the event that Mr Leonard had been able to prove that he had tripped or lost his footing on the path. However, the court was nevertheless satisfied that Lord Uist had not been in error in that respect and noted:

“…the Lord Ordinary reviewed the authorities and correctly concluded that the law is to the effect that there is no duty on an occupier of land to warn or fence against obvious dangers.  In so far as a stone pitched path – as in the case of any rural path- inherently presents some risk of tripping or slipping, the Lord Ordinary was in our view well entitled to regard such as an obvious danger to which those using such a path required to be alert and to exercise appropriate care.”

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.