Description
This is Outer 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.
Arguments
Mr Leonard (who had been 12 at the time of the accident) argued that the park authority had breached its duties both at common law and under the Occupier's Liability (Scotland) Act 1960 due to the presence of hazards and lack of preventative measures on the path. He contended that the steps provided by the park authority were very uneven, inconsistent in shape and sloping downwards at various different angles and also that there were exposed roots and other tripping hazards such as man-made drainage gullies on the steps. There was also a steep unfenced drop from the path to the public road. Mr Leonard argued that a risk assessment of the type that was standard practice in the design and planning process for any public right of way in open areas would have revealed the need for (amongst other things) a hand rail which would have slowed Mr Leonard's descent and prevented his fall to the road.
The park authority argued that a hand rail was not required at the relevant part of the path as the gradient was not severe and the drop was less than two metres. They also said that it was likely that a hand rail would be vandalised and would have placed a maintenance risk on them. Further they contended that, given the gradient of the slope and width of the area before the drop, Mr Leonard would not have fallen to the road if he had been descending the path at walking pace.
Decision
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), Lord Uist adopted the approach of Lord Emslie in Graham v East of Scotland Water Authority . In Graham, Lord Emslie found that the test of ‘obviousness' was not per se satisfactory. He noted that the early authorities have used the term ‘obvious' to denote features of the environment which are “permanent, ordinary and familiar” and went on to say that, whilst natural landscape features plainly fall into that category, so too do long standing artificial features.
Lord Uist then concluded 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 1960 Act in respect of the path.
However, Lord Uist also went further and indicated 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 special or unfamiliar hazards:
“it is not a requirement that the artificial feature be well established or long standing before the principle of Stevenson and Taylor applies: it is sufficient that it is obvious, part of the landscape and does not involve exposure to any special or unfamiliar hazard. If, for example, an accident happened a week after an obvious artificial feature which became part of the landscape (such as a pond, swimming pool or path) had been constructed I see no reason why the principle in Stevenson and Taylor should not apply. Of course, by its very nature, the path in this case presented a danger in the form of the risk of tripping or slipping, but that is a risk which those venturing upon the hill must be taken to have accepted. Adapting the words of Lord Hutton in Tomlinson , it would be contrary to common sense, and therefore not sound law, to expect the defenders to provide protection to members of the public (by means of a handrail or barrier or anything else) against such an obvious danger. The fact that [Mr Leonard] was aged only 12 at the time is of no relevance to the issue of the existence of a duty on the [park authority].”
