I was cycling on a bike trail a few months ago. Next to the bike trail, there was a burn. I could see a trail on the other side of the burn and decided to ride my mountain bike across the burn to get to that part of the trail. The burn looked pretty shallow but, about half way across, the bed of the burn dipped quite a bit and the water turned deeper. I lost my balance and fell on to rocks. I hurt myself badly. I have complained to the owners of the bike trail. I think they should put a fence up or at least warn people about the depth of the burn to prevent an accident like this happening again. The owners have told me that they do not have to put anything up. So, I have told them I am going to sue them. They told me to go ahead because, in their view, I don’t have a leg to stand on. Should the owners have fenced off that part of the burn or put warning signs up?


The Occupiers’ Liability (Scotland) Act 1960 places a duty on owners and those who have control over land to show reasonable care for persons entering on to their land. The duty of care to be shown to a person entering onto the land or premises is to take reasonable care to see that the person does not suffer injury. What is reasonable will depend on the circumstances of each case. The burn is likely to be considered a ‘natural hazard’. There is fairly consistent authority from the Scottish courts that a land owner need not take steps to fence off natural hazards such as river banks or cliffs. In a Scottish case in 2007, the court confirmed that the general law remained as stated in back in 1908 – that an occupier of land containing natural phenomena such as rivers and cliffs which present obvious dangers are not required to take precautions against persons becoming injured by reasons of those dangers unless there are special risks such as unusual sources of danger. I do expect that a court would consider the river to be a permanent, ordinary and familiar feature of the landscape which does not need to be fenced off. The depth of burns and rivers change and the change in depth would be seen to be a normal feature which one would expect to find when attempting to cross the water.