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MICHAEL LEONARD v. THE LOCH LOMOND AND THE TROSSACHS NATIONAL PARK AUTHORITY


Submitted: 25 February 2014

OUTER HOUSE, COURT OF SESSION

[2014] CSOH 38

PD2458/11

OPINION OF LORD UIST

in the cause

MICHAEL LEONARD

Pursuer;

against

THE LOCH LOMOND AND THE TROSSACHS NATIONAL PARK AUTHORITY

Defenders:

________________

Pursuer: Cherry QC, Miss L J Milligan; Bonnar & Co

Defenders: Milligan QC, Pugh; Harper Macleod LLP

25 February 2014

Introduction

[1] Monday 3 July 2006 was, unusually, a lovely sunny day in west central Scotland. Mr and Mrs Leonard, who lived in Renfrew, decided to go for a day's outing to Balmaha on the east shore of Loch Lomond along with their 16 year old daughter Amy and 12 year old son Michael. They arrived there in the early afternoon and parked their car in the car park. The area in question is depicted on the map 7/1 of process. They went for a walk along the main road to the pier. On their way back they went up a hill to their left to the viewpoint known as Craigie Fort. On their way down they encountered a fork in the path and took the fork to their left. At one point Michael walked ahead of the other three in the group and out of their view. About two or three minutes later he was found unconscious lying on his back on the far side of the single track road at the foot of the hill with his head at a 90 degree angle to the fence on the far side and his feet pointing to the middle of the road. He had his right leg under his left leg and his arms out to his sides, with the back of one hand on the road and the palm upwards, with the fingers slightly elevated. He had a large swelling in his right eye and dirt and gravel on his hair, clothing and hand. A passing doctor, a Dutch tourist who was an anaesthetist, rendered first aid to Michael by putting a finger in his mouth and clearing his airways of dirt, gravel, blood and clear fluid. Mr Leonard called an ambulance on his mobile phone. It arrived a few minutes later and transported Michael to the nearby car park, where he was airlifted by air ambulance and taken to the Southern General Hospital in Glasgow. He was found to have sustained a left acute subdural haematoma with associated small left contusion and minimal shift, a fracture of the right anterior cranial fossa, abrasions to his right arm, elbow, pelvic area, hip, knee and heel and left knee and heel, a swollen right eye, contusions, abrasions and cuts to his nose and right forehead and contusions on his right shoulder.

The case against the defenders

[2] In this action at the instance of Michael, who is now aged 20, the case pleaded against the defenders is based on breach of their common law duty to take reasonable care for him and breach of the statutory duty imposed on them under section 2(1) of the Occupiers' Liability (Scotland) Act 1960. It is averred that where the path turned sharply to its left on its final descent to the road he tripped or lost his footing and fell from the path down a steep bank onto the road due to the hazards present and a lack of preventative measures; that as he descended the hill he used the steps provided by the defenders which were very uneven, inconsistent in shape and sloping downwards at various different angles and that there were also exposed roots and other tripping hazards such as man-made drainage gullies on the steps. There was no barrier preventing him falling onto the road and no handrail provided for the path, which was part of the West Highland Way (WHW), adjoining the Balmaha Millenium Footpath (BMFP). There were a number of hazards on the path used by him for his descent. For about 50 metres above road level both paths were on a steep gradient of between 18 and 22 degrees. On that gradient the BMFP consisted of a stone stairway with steps which were reasonably consistent in width, riser heights and depth of goings, which were generally level. The steps provided good purchase for the traveller going up or down and were cut into the hillside with natural banks on either side so that at no point was there a slope immediately off the path and anyone losing his footing would fall into the side of the steps rather than over the edge. By contrast on the same gradient on the WHW path such steps as were provided were uneven and flush with the sides of the footpath. There was nothing to alert path users to any difference between the two paths and to prevent them from using the WHW as a path of descent. The BMFP and the part of the WHW adjoining it were located in an area where it was foreseeable that large numbers of new visitors who were often inexperienced hillwalkers would venture, including families with children and elderly and infirm members. The sharp degree turn in the WHW path and the steep unfenced drop occurred proximate to a public road. The bank descended steeply approximately 2.6 metres to the road. There were no features such as trees or bushes immediately below the path to break or arrest a fall. The width of the road was 3.4 metres and the total width from the bank to the fence at the other side of the road adjacent to the loch on which the pursuer was found was 5.3 metres. The WHW path was not built to recognised civil engineering standards and failed to comply with guidance issued by the Woodland Trust and Scottish Natural Heritage. The risers on such steps as were provided were small and inconsistent and the goings extremely narrow, thus often preventing good foot placement. The steps were also uneven and generally sloping at a substantial angle. Walking down the path was not easy even for an experienced walker and it was difficult for anyone descending the path to control the speed of his descent and relatively easy to misplace a foot. Just above the steep drop were various hazards including a series of inconsistent steps and man-placed stones, a raised boulder, tree roots and man-made drainage gullies. Such hazards plainly presented serious tripping risks to inexperienced walkers. Viewed from above it was difficult for the descending walker to observe these hazards. As part of due diligence, design and planning process for any public right of way in open areas it was standard practice for a detailed risk assessment to be undertaken. Had such a risk assessment been properly undertaken the risks posed by the fact that the BMFP adjoined the WHW and by the differences between the design and construction of the BMFW and the WHW would have been apparent. Furthermore, the need for a more even path surface on the WHW, the same sort of steps as provided on the BMFP, a handrail and a barrier at the turn in the path would have been foreseeable. Had a handrail and barrier been in place they would have slowed Michael's descent and prevented his fall to the road.

The defenders' response

[3] In answer the defenders, who are a statutory body set up under the National Parks (Scotland) Act 2002 and article 4 of The Loch Lomond and The Trossachs National Park Designation, Transitional and Consequential Provisions (Scotland) Order 2002 to conserve and enhance natural and cultural heritage and to promote sustainable use of natural resources within the Loch Lomond and the Trossachs National Park area, aver that the national park lies on the geological fissure line running south-west to north-east across Scotland and that the ground is of an upland type. At the area in question there are two separate and distinct paths: one is the Millennium Forest Path, the other is the West Highland Way. Michael and his parents had ascended by means of the former and descended by means of the latter. The paths were way-marked by separate and distinct logos. There were maps available for walkers, both on the boards at the car park and on leaflets available at the visitor centre. Both paths are constructed to the same standards. It was perfectly open to Michael and his family to descend by either path: the decision was theirs. The path down which they descended was of stone-pitched construction, a commonly used construction of sections of rural paths, including the West Highland Way. It is used to conserve and preserve paths that are too steep for gravel construction alone and also to provide a surface with suitable levels of grip for walkers. It is an accepted and approved method of creating and protecting rural pathways, was appropriate at the location and had been laid upon advice from expert path surveyors. No complaint or other notification of any accident concerning this area of path had been received by the complainers prior to the date of Michael's accident. The construction of a stone stairway on the BMFP was done by means of a technique called revetment, which was the appropriate technique for the first section of the BMFP. It was particularly appropriate because the path is benched into the side of the hill and traverses the hill from left to right and without revetment the downhill edge would be susceptible to erosion and undercutting. The material point of the WHW path did not require a handrail as the gradient of the path was not severe and the slope between the path and the drop-off was less than two metres. The slope next to the path is covered in earth and shrubbery. Handrails are placed next to rural paths only when the geography and topography of the area dictate that they are required and they are placed having regard to environmental sensitivities at the particular location. A handrail or barrier would have been likely to have been subject to vandalism and would have placed a maintenance risk on the defenders. The presence of a handrail, in the circumstances and given the description of the accident, would likely not have affected the outcome. Given the gradient of the path and the width of the sloping area before the drop-off Michael would not, if descending the slope at walking pace, have fallen to the road side.

The evidence about the accident

[4] Michael could remember nothing of the accident. The last thing he remembered was being at the top of the hill and starting to come down it at walking pace. His footwear consisted of a pair of white trainers. He next remembered waking up in a room in hospital. He had no idea how he ended up injured on the road.

[5] Michael's father Brian Leonard, aged 45, an Automobile Association patrolman, gave evidence generally along the lines of the narrative in para [1] above. He did not see what happened to Michael to cause him ending up lying injured on the road.

[6] Michael's mother, Mrs Suzanne Leonard, also did not see what caused him to end up on the road as he was out of her sight at the material time. Nor did his sister Amy, for the same reason. Mrs Leonard thought Michael was out of her sight for a couple of minutes and Amy could not remember for how long he was out of her sight.

[7] There is therefore no direct evidence of what caused Michael to end up lying injured on the road. In these circumstances it was sought to rely on indirect evidence from which, it was submitted, an inference could be drawn about what happened to him. That evidence came from Dr Ian McLaren (62), a consultant in emergency medicine at Monklands Hospital, Airdrie and Andrew Petherick (62), a sport and leisure consultant from Bedford. The evidence of Dr McLaren (given by way of affidavit) was that on the balance of probabilities Michael's injuries were consistent with a fall from a height. He thought it most unlikely that Michael's injuries were caused by impact with a motor vehicle on the road as in that event he would certainly have expected serious leg injuries. He considered it far more likely that Michael sustained his injuries by falling down the embankment onto the road. He thought it was likely that Michael was travelling with some momentum when going down the path - that is to say, not walking. He accepted that he could have been running voluntarily or involuntarily as he had lost his balance and was being propelled down the embankment. On the assumption that Michael fell down the embankment from the downhill path he found it difficult to reconcile the fact that he travelled 3.4 metres to the opposite side of the road with his having only been walking on the path before his fall. It was pointed out that there was no evidence from the other members of the Leonard family that Michael had been running before he was out of their sight.

[8] The evidence of Mr Petherick was to the effect that anyone coming down the path would find it hard to control the speed of his descent and that tripping hazards in a sharp turn in the path above the embankment were not readily visible to the discerning walker. He said that if someone tripped above the embankment the likelihood was that he would fall forward onto the embankment and not the path because of the 90 degrees turn in the path immediately above the embankment and it would be quite possible for him to do a gymnastic roll, particularly if his momentum was increasing as he came down the path.

[9] On the basis of that evidence it was submitted for Michael that it was likely that Michael lost his footing by reason of both the gradient of the path and the uneven surface and trip hazards. The submission for the defenders, on the other hand, was that how the accident to Michael happened and what caused it had not been established.

[10] As Lady Paton stated in Boyd v Lanarkshire Health Board (unreported, 25 February 2000), "a pursuer must establish the circumstances of his accident to the court's satisfaction on a balance of probabilities". It is not in doubt that it is open to the court to make findings in fact about the circumstances of an accident by way of justifiable inference from indirect evidence of the immediately surrounding circumstances: Owners of Ship Swansea Vale v Rice [1912] AC 238; Rhesa Shipping SA v Edmunds [1985] 1 WLR 948; and Datec Electronic Holdings Ltd v United Parcels Service Ltd [2007] 1 WLR 1325. In Fegan v Highland Council 2007 SC 723 the pursuer sustained very serious injuries when she fell over cliffs near Thurso. The sheriff held that she had failed to prove the mechanism of how the accident occurred, her averments being that she had slipped and fallen, but her evidence being that she could not remember what had happened. The sheriff held that she had not proved the circumstances of her accident and on appeal to the Inner House the pursuer argued that he should have found it proved by inference that she slipped or otherwise lost her footing. In rejecting this argument Lord Johnston, delivering the opinion of the court, stated as follows at pps 728-9, para [15]:

"In seeking to resolve this matter, which arises out of an accident with tragic consequences, we accept counsel for the defenders' submissions that we should not interfere with the sheriff's decision to decline to make findings in fact as to the mechanics of the accident on the basis of the evidence, or lack of evidence, that was before him. He was more than entitled to take the view that the evidence such as it was from the pursuer, there being no other eye witnesses, went no further than that she was present on the seat, that on getting up from it she dropped, and then bent down to pick up, her personal stereo, and that was the extent of the findings in fact he was prepared to make as to the mechanics of the accident. Whether she thereafter set off towards the edge of the cliff voluntarily, being disorientated, or involuntarily slipped, could not be determined. Nor indeed could it be determined whether she had slipped or otherwise come to grief on the slight sloping piece of ground. ... We are prepared to accept that sometime after the appellant stood up from the bench she fell over the side of the cliff to the beach below. Indeed, the sheriff's note proceeds on the basis that she did so. In such circumstances we are prepared to make a finding in fact to that effect. However, what caused the appellant to fall over the cliff was a mystery to the sheriff. He was legitimately entitled to reach that conclusion. ... The question of whether the appellant voluntarily walked off the edge of the cliff by reason of becoming disorientated, whether by reason of the lack of light or for other reasons is at least a possibility ..."

[11] In the present action, which went to proof on the issue of liability alone, the mechanics of the accident have not been proved. There is no evidence to prove the crucial averment that at the point where the path turned sharply to its left on its final descent to the road Michael tripped or lost his footing and fell down a steep bank onto the road. There is no evidence about precisely where any trip or fall occurred on the hill (even whether it occurred on the path), or what caused any such trip or fall. There are several possibilities which come to mind as well as tripping to account for Michael ending up lying on the road: he could have been running down the hill so fast that he could not stop running, he could have jumped from the hill onto the road, or something could have happened to him on the road itself to cause him to end up in the position on which he was found. What caused him to end up in that position must remain a mystery. That being so, his action must fail.

Existence of duty

[12] If the alleged circumstances of the accident had been proved I would have to have considered whether there was any duty on the defenders in relation to the downhill path under section 2(1) of the Occupiers' Liability (Scotland) Act 1960. I would have decided that there was not.

[13] The scene of the alleged accident is shown in the four photographs in 7/14 of process. The downhill path is well depicted in the photograph 7/14/4 of process. I was also shown a video recording of the area taken by Mr Petherwick on 2 November 2012 (6/8 of process) and viewed the area myself along with counsel and solicitors. Evidence about the construction and constitution of the downhill path was given by Bridget Jones (46), the Head of Visitor Services for the defenders, and Douglas Baird (45), Chief Executive of the Cairngorms Outdoors Access Trust. On 10 January 1997 Pathcraft Limited, a member of the Scottish Conservation Projects Group and the leading path builders in Scotland at the time, submitted a tender to the then Loch Lomond Park Authority for the construction of various paths at Balmaha. That tender was accepted and the paths in question, which included the path up to and the path down from Craigie Fort taken by Michael, were constructed by Pathcraft at the same time using the same materials and to the same standards. The path at the scene of the alleged accident was constructed using a universally established technique known as stone pitching (as described in 7/16 of process), which was used even by the ancient Romans, as in the construction of the Appian Way, and accorded with the Principles of Upland Pathwork (PUP) issued by the Upland Path Advisory Group (appended to Mr Baird's report 7/13 of process). The surface of such a path is intended for heavy use with low maintenance and is extremely resistant to wear and tear. Mr Baird inspected the path, which is on a steep 14 degree slope, and concluded as follows at section 5 of his report:

"5.2 Having inspected the path I concluded that the design of stone pitching was appropriate for the site and that the principles of upland path management had been adhered to. The designed path is made of natural materials, is very hard wearing and provides a good grippy surface on what otherwise would be a slippy and difficult slope to walk on.

5.3 The standard of construction is very high for this type of path, with standards meeting the ideal set down by the Upland Path Advisory Group. All the key requirements have been adhered to.

5.4 The path has been well maintained and at almost 20 years old does not have a loose or broken stone anywhere in the section I examined."

[14] Various criticisms of the downhill path were made by Mr Petherick in his two reports 6/7 (dated May 2008) and 6/10 (dated November 2012) of process and in his oral evidence. I have reached the conclusion that Mr Petherick was not an appropriately qualified expert to give evidence on the construction and layout of stone pitched paths in country areas and that in any event his criticisms lacked any proper foundation. He described himself as a sport and leisure consultant. His expertise was in the sphere of sports stadia. It was clear that he had never been involved in any project similar to the construction of the two stone pitched paths in this case. When he compiled his first report he did not know when the two paths in this case were constructed, and seems to have assumed that they were constructed at different times. In his first report he took as his yardstick for construction the Guide to Safety at Sports Grounds and had not considered the principles of upland pathwork. I am satisfied that the Guide to Safety in Sports Grounds is of no relevance in the present context. Moreover, he was unable to point to any departure from accepted or standard practice in the construction of the downhill path. I have no hesitation in rejecting his evidence and in accepting the evidence of Miss Jones and Mr Baird about the downhill path, which I hold was constructed to accepted standards for stone pitched paths.

[15] Section 2(1) of the Occupiers' Liability (Scotland) Act 1960, so far as relevant, provides as follows:

"The care which an occupier of premises is required, by reason of his occupation and control of the premises, to show towards a person entering thereon in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on them and for which the occupier is in law responsible ... be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of such danger."

Section 1(1) of the Act provides that that provision has effect in place of the relevant rules of the common law. The question of a breach of common law duty does not therefore arise.

[16] It is well established that there is no duty on an occupier of land to provide protection against obvious (or familiar) and natural dangers. In Hastie v Magistrates of Edinburgh 1907 SC 1102 a father brought an action for damages for the death of his child, aged 4 years 4 months, who had been drowned in an artificial pond constructed by the defenders in Inverleith Park. In upholding the decision of the Lord Ordinary to dismiss the action as irrelevant Lord President Dunedin said at p 1106 :

" ...to say that if a child unattended falls into a pond and is drowned that imposes liability on the magistrates seems to me to be against all common sense. It may be quite true ... that the pieces of water in the older parks of Edinburgh are natural and not artificial, but I see no distinction in this matter between pieces of water which are natural and those which are artificial. I never heard that if a child who was left to run about unattended fell into the Serpentine the owners of Hyde Park would be liable."

[17] In Stevenson v Glasgow Corporation 1908 SC 1034 Lord McLaren stated at p 1039:

"In this case the Corporation of Glasgow are proprietors of the Botanic Garden, which is a place of recreation open to the public, and I do not doubt that the Corporation, as proprietors, are bound to give reasonable protection to members of the public against unusual or unseen sources of danger, should such exist. But in a town, as well as in the country, there are physical features which may be productive of injury to careless persons or to young children against which it is impossible to guard by preventive measures. The situation of a town on the banks of a river is a familiar feature; and whether the stream be sluggish like the Clyde at Glasgow, or swift and variable like the Ness at Inverness, there is always danger to the individual who may be so unfortunate as to fall into the stream. But in none of these cases has it been found necessary to fence the river to prevent children or careless persons from falling into the water. Now, as the common law is just the formal statement of the results and conclusions of the common sense of mankind, I come without difficulty to the conclusion that precautions which have been rejected by common sense as unnecessary and inconvenient are not required by law. If it could be shown that there is any special danger at the place where the child fell into the water the case would be different, but I am unable to find in the averments anything more definite than this, that the garden is bounded by a running stream which it was the duty of the Corporation to fence. If there is no such duty in general then the action must fail. "

Lord Kinnear stated at p 1042:

" ... a person going upon property, even by invitation, express or implied, is expected to use reasonable care for his own safety. He is to look out for all the ordinary risks that are necessarily incident to the kind of property that that he is going upon, but, on the other hand, it is held that he is not to be exposed to any unusual danger known to the proprietor, and not known to people who may come upon premises with which they are not familiar. If that be the law, it seems to me clear enough that it imposes no duty upon the owners or managers of public parks to fence every stream of water or every pond which may happen to be found in a public garden. Everybody resorting to the garden knows about these things as well as the owner and occupier himself. They are very obvious and patent, they are on the surface, and if there is any danger attached to them it is a danger from which the people resorting to the garden may reasonably be expected to protect themselves."

He added at p 1043 that:

"there is no authority for imposing on the proprietors or managers of public parks a duty to protect children from such risks as are incident to their childhood."

[18] In Taylor v Magistrates of Saltcoats 1912 SC 880 the pursuer sought damages for personal injuries resulting from a fall sustained by him down an embankment between the railway and the seashore after stumbling on a dangerous inequality on the footpath and, through the absence of a parapet, falling down the embankment onto the shore. The embankment belonged to a private proprietor but the public with his tacit consent, frequented it for the sake of the view and the magistrates had provided seats for the accommodation of the public and steps leading down to the shore. It was held by the Inner House that the place in question being neither a street, a public street nor a public footpath within the meaning of the Burgh Police Acts, the defenders were under no obligation to keep it in a safe condition. Lord President Dunedin stated at p 886:

"For there is no proposition, so far as I know, that the magistrates of a burgh are bound to have everything safe that is within the bounds of the burgh. The practical application of that, of course, would be quite ridiculous. Whoever would suppose, for instance, that if a gentleman went walking upon the path at the foot of the Salisbury Crags, and went a little too near to the edge and slipped his foot upon a loose stone and tumbled down the long slope to Holyrood, in which case he might well hurt himself, he could bring an action against the magistrates because the condition of that path was not safe?"

[19] In Taylor v Glasgow Corporation 1922 SC (HL) 1 a child died as a result of eating poisonous berries growing on shrubs easily accessible from a children's play area in a park managed by the defenders. It was averred that it was the defenders' duty to warn children against the danger or to prevent them from reaching the shrubs. A plea to the relevancy of the pursuers' case was repelled but Lord Shaw of Dunfermline stated at pages 10-11:

"In grounds open to the public as of right the duty resting upon the proprietors, or statutory guardians like a municipality, of making them reasonably safe does not include an obligation of protection against dangers which are themselves obvious. Dangers, however, which are not seen and obvious should be made the subject either of effectively restricted access or of such express and actual warning of prohibition as reaches the mind of the persons prohibited. The two Scottish cases of Hastie and Stevenson clearly illustrate the distinction. Grounds thrown open by a municipality to the public may contain objects of natural beauty, say precipitous cliffs or the banks of streams, the dangers of the resort to which are plain. ...

When the danger is familiar and obvious, no special responsibility attaches to the municipality or owner in respect of an accident having occurred to children of tender years. The reason of that appears to me to be this, that the municipality or owner is entitled to take into account that reasonable parents will not permit their children to be sent into the midst of familiar and obvious dangers except under protection or guardianship. The parent or guardian of the child must act reasonably; the municipality or guardian of the park must act reasonably. This duty rests upon both and each; but each is entitled to assume it of the other.

Where the dangers are not familiar and obvious, and where in particular they are or ought to be known to the municipality or owner, special considerations arise."

[20] In Cotton v Derbyshire Dales District Council [1994] EWCA Civ 17 the plaintiff went for a hillside walk along a path on a hill called High Tor and ended up straying off the path and falling over a cliff and suffering serious injuries. In the Court of Appeal Henry LJ referred to the dictum of Lord Shaw of Dunfermline in the Taylor case that the duty on the proprietors of grounds open to the public of making them reasonably safe does not include an obligation of protection against dangers which are themselves obvious and added:

"It seems to me that any notice here of the sort suggested would simply have been pointing out a danger which, when it arose, would have been obvious. Once it was appreciated that there was no path, the danger of proceeding down a steep gradient where the footing was insecure and unstable and where you could not see what was over the brow would have been obvious."

[21] In Graham v East of Scotland Water Authority 2002 Rep LR 58 a widow sought damages from a water authority following the death of her husband through drowning in Glencorse Reservoir on his way home. She averred that he had fallen over a low wall at the edge of the reservoir and that the water authority should have fenced the edge of the reservoir at the point where he fell as the road beside the reservoir was frequented by local farmers and tourists and therefore presented a foreseeable hazard. The water authority argued at procedure roll that it had no duty to fence permanent and obvious features of the environment. Lord Emslie held that the danger alleged fell within the intended scope of the authorities concerning obvious dangers on land against which no duty to fence is in law incumbent on an occupier and, whilst the reservoir and wall were manmade and in that sense artificial, by the date of the accident they were well established and permanent features of the landscape and, in the absence of a history of accidents or complaints, the danger alleged could not properly be classified as so special as to warrant the imposition of a duty to erect fencing for the protection of the public at large. His Lordship stated at p 61, paras [18] and [19] as follows:

"[18] ... It may be said, of course, that the reservoir and the wall along its edge were man made and in that sense artificial, but in my view what really matters is that by the date of the accident these were well established, permanent and familiar features of the landscape. It is to be expected that the banks of any stretch of open water will vary in their height and configuration, and that the height and line of any wall along such banks will not be uniform. I am therefore unable to accept - at least without a history of accidents or complaints - that the danger alleged by the pursuers can properly be classified as unusual, unseen, unfamiliar or otherwise so special as to warrant the imposition on the defenders of a duty to erect fencing for the protection of the public at large. The defenders' position here is, it seems to me, stronger than that of the occupiers of a canal, a railway embankment or a jetty on the shore, and no less strong than that of the occupiers of ponds, river banks and cliffs who are under no duty to fence them notwithstanding the foreseeable possibility of danger to the careless or unwary.

[19] I agree with counsel for the pursuer that the abstract concept of 'obviousness' is not per se a satisfactory test in this area of the law. It is, however, relevant to note that in the earlier authorities that term has generally been used to denote features of the environment which are permanent, ordinary and familiar. Natural landscape features plainly fall into that category, and in my opinion the same applies to long standing artificial features which are neither concealed nor unusual, nor involve exposure to any special or unfamiliar hazard. It is well settled that an occupier must fence off dangers falling within the latter category, for example the industrial machinery discussed in Dumbreck or the poisonous plants discussed in Taylor. But I think it goes too far to suggest that such a duty applies to the combination of permanent, ordinary and familiar features of the landscape on which the pursuer relies in the present action."

[22] In Duff v East Dunbartonshire Council 2002 Rep LR 98 the pursuer sought damages from the occupiers of a public car park, and from the occupiers of an adjacent embankment, for injuries sustained by him when he passed through an exit at the rear of the car park, proceeded onto the embankment, lost his footing and fell. It was held by the Inner House that, after amendment, he had pleaded a relevant case. Lord Marnoch stated at p 102, para [3] of his opinion:

"Having read all the authorities and dicta cited to the Lord Ordinary ... it seems to me that they are dealing with the type of case where the existence of the physical feature giving rise to the danger (eg a river) is known to the person injured and that, I think, would probably also be true of the example figured by the Lord Ordinary, namely that of a path which proceeds along an embankment or cliff edge. In such situations it is, of course, plain that persons of ordinary intelligence should give a wide berth to whatever danger is presented. Alternatively, they must be taken to have accepted whatever risk is involved."

[23] In Tomlinson v Congleton Borough Council [2004] 1 AC 46 there was a lake, which was known to attract many visitors in hot weather, that had formed in a disused quarry in a country park owned and occupied by the first defendant and managed by the second defendant. Swimming in the lake was prohibited and the defendants placed prominent notices reading "dangerous water: no swimming" and employed rangers with the duty of giving oral warnings against swimming and handing out safety leaflets. The first defendant, aware that the notices were frequently ignored and had little effect in preventing visitors to the car park from entering the water and that several accidents had resulted from swimming in the lake, intended planting vegetation around the shore to prevent people from going into the water but had not yet done so due to a shortage of financial resources. On a hot day the plaintiff, aged 18, went into the lake and from a standing position in shallow water dived and struck his head on the sandy bottom, breaking his neck. He claimed damages against the defendants, alleging that their accident had been caused by their breach of the duty of care that they had owed to him as a trespasser under section 1 of the Occupiers' Liability Act 1984. The judge at first instance found that there had been nothing about the lake that had made it any more dangerous than any other stretch of open water and that the danger and risk of injury from diving in it where it was shallow had been obvious. The Court of Appeal by a majority allowed an appeal by the plaintiff but the House of Lords reversed the Court of Appeal and dismissed the claim, holding that the accident had been due to the plaintiff's own misjudgement in attempting to dive in too shallow water and not to the alleged breach of duty by the defendants. They also held that the risk was not one in respect of which the defendants might reasonably have been expected to afford the plaintiff some protection. Lord Hoffmann stated as follows at pps 80 and 84-5:

"27 ... Mr Tomlinson was a person of full capacity who voluntarily and without any pressure or inducement engaged in an activity an inherent risk. The risk was that he might not execute his dive properly and so sustain injury. Likewise, a person who goes mountaineering incurs the risk that he might stumble or misjudge where to put his weight. In neither case can the risk be attributed to the state of the premises. Otherwise any premises can be said to be dangerous to someone who chooses to use them for some dangerous activity. In the present case Mr Tomlinson knew the lake well and, even if he had not, the judge's finding was that it contained no dangers which one would not have expected. So the only risk arose out of what he chose to do and not the state of the premises.

45 I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang-gliding or swim or dive in ponds or lakes, that is their affair. Of course, the landowner may for his own reasons wish to prohibit such activities. He may think that they are a danger or inconvenience to himself or others. Or he may take a paternalist view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so.

46 My Lords, as will be clear from what I have just said, I think that there is an important question of freedom at stake. It is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious. The fact that such people take no notice of warnings cannot create a duty to take other steps to protect them. ... A duty to protect against obvious risks or self-inflicted harm exists only in cases where there is no genuine and informed choice ..."

Lord Hutton stated at pps 88-89:

"59 Stevenson v Glasgow Corporation and Hastie v Edinburgh Magistrates (which were not concerned with trespassers) were decided almost a century ago and the judgments are couched in old-fashioned language, but I consider that they express a principle which is still valid today, namely, that it is contrary to common sense, and therefore not sound law, to expect an occupier to provide protection against an obvious danger on his land arising from a natural feature such as a lake or a cliff and to impose a duty on him to do so. In my opinion this principle, although not explicitly stated, underlies the cases relied on by the appellants where it has been held that the occupier is not liable where a person has injured himself or drowned in an inland lake or pool or lake or in the sea or on some natural feature."

[24] In Fegan v Highland Regional Council (supra) Lord Johnston stated at p 729 as follows:

"There is no doubt that the general law remains as stated in the somewhat historical cases of Stevenson and Taylor to the effect that in general terms an occupier of land containing natural phenomena such as rivers or cliffs, which present obvious dangers, is not required to take precautions against persons becoming injured by reason of those dangers unless there are special risks such as unusual or unseen sources of danger. We do not consider that the case of Tomlinson v Congleton Borough Council and anr adds anything to that position. The professional safety witness led for the appellant, who contended for the erection of fencing, considered that practice had changed since Stevenson and Taylor. In our view the sheriff was correct in thinking that the law remained as stated in those cases and we consider the sheriff was entitled not to accept his evidence on the provision of fencing. Agreeing with the sheriff, we are unable to accept that the combined circumstances of the location of the seat, which would obviously attract people to sit upon it, removed from the edge of the cliff by some distance surrounded by mown grass, which would not in itself pose any danger, do not amount to a special risk or circumstance of special danger requiring the local authority applying its mind to the exercise of reasonable care in this case tot ake any precautions at this location. ... the sheriff, who not only heard the evidence but also inspected the locus, was entitled in our view to conclude that there were no unusual or special dangers at the locus requiring the occupier to take precautions such as the erection of fencing."

[25] It is clear from what was stated by the House of Lords in Tomlinson and the Inner House in Fegan that the principle laid down in Stevenson and Taylor remains sound law and must be applied to the facts of this case. The stone pitched path was not, of course, a natural feature of the landscape but a manmade one. I do not think that makes any difference. It was, as I have already held, a path constructed to accepted and normal standards. It is self-evident that it was constructed in order to secure greater safety for those going up or down the hill by providing greater grip and stability on the ground. Had there been no such path and only mother earth there would have been obvious dangers of slipping on the hill. It also blended or merged well with the landscape and by 2006 was an established feature. There was no history of complaints about, or accidents upon, it. In these circumstances I adopt the approach taken by Lord Emslie in Graham in relation to manmade or artificial features on land. 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. Indeed, I would go further than Lord Emslie and hold that 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 Michael was aged only 12 at the time is of no relevance to the issue of the existence of a duty on the defenders.

[26] As the circumstances of the accident have not been proved and in any event the defenders were under no legal duty to protect Michael against the risk of injury from walking on the downhill path I shall assoilzie the defenders.