In a nut shell I’ve been mucking about in the woods and have found a nice wee run to finish off the circuit. There were a couple of large fallen trees that i would have to dismount and carry to get over – built small ladders for them easy peasy no problem. There is however a burn right at the end and it is extremely awkward to get over a the minute. I was toying with the idea of building aladder (about 3m) to get over it. This would result in it being about 1.2m above the water.

Anyway i ran my plan by my girlfriend and she started on duty of care for other people who might come across it, the area is kind of near a housing estate but is out of the way enough that very few people would find it.
What is STW's view on these kinds of shenanigans? This is in Scotland.

Your not going to leave your contact details on it are you?!

Just build it properly and claim you know nothing about it 🙂

As long as it's not at Cathkin Braes, you should be fine 😉

Make the trail, ride it, if others do and hurt themselves, tough. They'll just have to get better.

I didn't sue the lads, who put a rope on a big tree to swing on, when I fell off into the river. I just ran home crying. I was 6 though and it was 1975

Build it. Ride it. Don't get upset when someone sets it on fire.

Your not going to leave your contact details on it are you?!

Land owner could be found responsible though.

Build it sensibly, ride it and as mentioned when it gets destroyed don't get upset just build it again.

Could be one theory and not a one I may support.

Just remember it will get wrecked don`t get upset when this happens then you need to decide if it is worth building again

As long as it's not at Cathkin Braes, you should be fine

And out of a purely hypothetical interest why should anything like that not be done there?

Drac – Member

Land owner could be found responsible though.

How? Why? Its not possible

I still think it is wrong tho without the landowners permission

Hi Teej!

I thought the landowner would have some responsibility if they had given permission but not if they knew nothing about it.

How? Why? Its not possible

There's a risk this why the likes the FC are very cautious of people building trails on there land without permission.

Drac – sorry but thats piffle. Its a myth that keeps on being spread around but it does not and cannot happen.

Why is negligence a myth?

Build a booter if it's only 9ft. Much less noticeable and much more fun.

build it well/ ride it

Drac – Member

Why is negligence a myth?
'cos in the situation you describe there is no negligence. You cannot be negligent about something you know nothing about and wouldn't be expected to know about.

Harm must be (1) reasonably foreseeable (2) there must be a relationship of proximity between the plaintiff and defendant and (3) it must be 'fair, just and reasonable' to impose liability. However, these act as guidelines for the courts in establishing a duty of care; much of the principle is still at the discretion of judges.

http://en.wikipedia.org/wiki/Negligence

So what then happens when the landowner finds out? Does he then run the risk of a law suit, or have to pay the cost of removal?

'Extremely awkward to get over' could be someone else's challenging obstacle. Leave it natural would be my opinion. 😉

'cos in the situation you describe there is no negligence. You cannot be negligent about something you know nothing about and wouldn't be expected to know about.

That's the problem right there, proving you don't know anything about it.

Sorry Wikipedia isn't great source of reference but as you've used I'll do exactly what you did and only use a part.

However, these act as guidelines for the courts in establishing a duty of care; much of the principle is still at the discretion of judges.

Remember I said there was a risk I didn't say 'will'.

Sorry Drac I think TJ is right, show us an example of legal action over a trail or trail feature, otherwise your comments are bollocks.

Drac – then please explain how it can be negligence – Its a bit of the law that I have a little knowledge about and I can see no way that there is any possibility that the landowner could be held to be negligent. Its the "reasonably foreseeable" bit that counts here – a basic premise of negliegence

Edit – ta toys –

I went for a meeting with FC some years back down in well a forest is all I say, they were asking trail builders from around the country to visit. They'd had big problems with illegal trail building down there and some one had been seriously injured who had come off one of these places. The FC were going through the legal case of it all as the injured party was suing them. When asked how that was possible if they FC didn't build it the answer was they could be found negligent as it was their land if a member of public is hurt on there then they have to show they took all reasonable steps to prevent such things. I can't recall what the final outcome was and may not even be able to find anything as not sure how much appeared in the press.

Toys that's a really helpful input.

any references? Otherwise its still bollocks.

Are any of you considering occupiers' liability legislation?

I don't see the issue with reasonable forseeability if a landowner finds a trail with dangerous features and does nothing about it.

And finally, even if there is no case law, claims may get settled to avoid the prospect of a precedent being set. So a lack of case-law does not mean there is no claim.

You don't 'build' cheeky trails. They're already there…

Thank you cynic-al and I'd say you'll have a bit more than "a little knowledge about".

Its the "reasonably foreseeable" bit that counts here – a basic premise of negliegence

I see it like this:

Landowner has no idea what's built on his land, and someone falls off a badly built bit of shore or whatever. He's probably fine – he didn't know it was there, so the only route that could be argued is that he should inspect his land regularly, which isn't really going to stick.

However, landowner comes across a bit of badly built shore, and he leaves it, then there's a possibility that someone could do him for negligence if they fall off. He knew it was there and didn't do anything about it.

At the end of the day, the threat of litigation is as much an issue as successful litigation. The prospect of all the hassle of a court case is enough to make most organisations act very cautiously.

cynic-al – Member

Are any of you considering occupiers' liability legislation?

When I looked at this it seemed to have to me the same sort of Reasonably foreseen" type of qualification. "Section 1(4) establishes the duty, which is the same as the "common duty of care" laid out in the Occupiers' Liability Act 1957; that the occupier "take such care as is reasonable in all the circumstances of the case to see that the non-visitor does not suffer injury on the premises by reason of the danger concerned"

I don't see the issue with reasonable forseeability if a landowner finds a trail with dangerous features and does nothing about it.

If the landowner knows the trail is there or should have known then negligence is possible ( if still unlikely). In this case the landowner would not know it was there nor could be reasonably expected to know its there.

If the landowner knows the trail is there or should have known then negligence is possible ( if still unlikely). In this case the landowner would not know it was there nor could be reasonably expected to know its there.

Not sure I'd agree, there's an argument that it's obvious what bits of land are going to get used without permission, which may create a duty to inspect.

Weren't there cases regarding quarry pits etc with folk drowning?

Fair enough Al – if it was a bit of land with a known issue of dangerous trail building then perhaps the landowner would have a duty inspect or fence off or something.

At the end of the day, the threat of litigation is as much an issue as successful litigation. The prospect of all the hassle of a court case is enough to make most organisations act very cautiously.

Precisely. It's Health and Safety gawn maad.

yawn its all paranoia gone mad. The only evidence we have is drac's story of the FC's scare tactics which isn't even verifiable. It doens even have to be case law. Just a report of someone blaming the trial builder/land owner would be a start.

Whether the land owner has any legal liability for what's built on his land is a little academic. The real issue is whether the landowner thinks he may have any liability, or if it's somehow otherwise deleterious to his interests. If he does, he's pretty likely to destroy the trail.

My experience is that businesses tend to be overcautious of the law so long as they're relatively ignorant of it. As soon as they have someone who can spell things out for them, they want to push things as far as possible to their advantage.

I am not a lawyer, for what it's worth. My experience comes from compliance consultancy, but I wouldn't be surprised if tax accountants and lawyers have similar experiences.

So to conclude, I will build it.

Yeah go for it.