Loch Lomond and the Trossachs National Park

In July 2006 Michael Leonard, then aged 12, was descending from a viewpoint called Craigie Fort near Balmaha, on the east shore of Loch Lomond . He fell on the track, which was part of the West Highland Way constructed in the late 1990s, sustaining a serious head injury.

It was argued that the steps provided by the park authority were very uneven with exposed roots and other trip hazards such as man-made drainage gullies. There was also a steep unfenced drop from the path to a public road. Mr Leonard argued that a risk assessment would have revealed the need for (amongst other things) a hand rail.

The park authority argued that the track had been constructed to an accepted standard and method for rural paths and that a hand rail was not required as the gradient was not severe and the drop was less than two metres. Lord Uist, in his judgement, accepted this was the case. He referred to Stevenson v Glasgow Corporation 1908 SC 1034 and Taylor v Magistrates of Saltcoats 1912 SC 880 as cases that established that you do not need to protect people against obvious dangers arising from the natural environment, such as rivers and cliffs, unless there are unusual or unseen sources of danger.

Graham v East of Scotland Water Authority 2002 Rep LR 58, which concerned a man who fell over a low wall next to a reservoir, extended that principle to man-made structures which were well-established and permanent features of the landscape with no history of accidents or complaints.

Lord Uist went further, judging that it was not necessary for the man-made structure to be well-established. It was sufficient for the artificial feature to be an obvious part of the landscape that did not expose people to any special or unfamiliar hazard. He judged that, 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. The danger was obvious. He concluded: ‘The path 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 in respect of which the defenders owed no duty to Michael or anyone else under section 2(1) of the Occupiers’ Liability (Scotland) Act 1960.’

The full judgement can be seen here.

Mr Leonard made an appeal to the Inner House (in June 2015), arguing that Lord Uist had not properly addressed evidence relating to the circumstances of the fall. The Inner House rejected this and therefore the appeal was refused.

Although it was not then necessary to consider the outcome had Mr Leonard been able to show he had tripped on the path, the Court went on to confirm that Lord Uist’s original judgement was correct:

“…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.

Michael Leonard v. The Loch Lomond and the Trossachs National Park Authority [2014] CSOH 38
Michael Leonard v Loch Lomond & Trossachs National Park Authority [2015] CSIH 44

This case law entry was written by Ken Dodd and was published in April 2014

This website entry was last updated on 5 November, 2015

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