There are all kinds of misplaced concerns out there about liability and the risks of outdoor swimming. In this Q&A we hope to dispel undue fears so that more ‘No Swimming’ signs can be removed and all can enjoy the benefits of outdoor swimming.
When you take into account the millions of people who swim outdoors every year in the UK, there is a very low risk of swimmers drowning and a low risk of injury. The National Water Safety Forum (NWSF) collect and analyse these statistics in order to provide water swim info for those most at risk. In fact, more people drown as a result of walking, running or angling than while swimming.
It is established in English civil and criminal case law that people who go swimming willingly accept the usual risks involved in undertaking this activity (such as cold, unknown depths, fallen trees, water quality) and cannot succeed in a claim against the landowner if they suffer injury as a result of any of those ordinary risks. A claim would be defeated by the defence that the injured person willingly accepted the risks – the legal principle ‘volenti non fit injuria’. If there are any special risks in the water which would not be readily apparent to swimmers but of which the landowner is aware then a sign should be provided to make swimmers aware of these risks. It would be extremely rare to have an area where a landowner would be required to prevent swimming – this would only be where swimming would inevitably be particularly dangerous (such as in the close vicinity of a dangerous weir).
The Health and Safety Executive (HSE) follows the same principles in deciding whether to investigate an incident. They assess several factors and are less likely to investigate if the landowner warned of any special risks, the area was open countryside and the swimming area was not run as a business.
Visitor Safety Group (VSG) guidance advises considering what a visitor might expect and trying to ensure there are ‘no nasty surprises’. It isn’t clear-cut though and depends on the specific location. Royal Society for the Prevention of Accidents (RoSPA) guidance says: ‘Determining what are non-obvious hazards and their subsequent mitigation remains a sensitive and sometimes problematic aspect for open spaces that are, by definition, natural and “non-standard”‘ (p.30).
Adults are responsible for their own safety and any children or vulnerable people in their care. The case law and guidance from VSG and others emphasise balancing the risks and benefits of outdoor activities. We cannot create a totally risk-free society. It is understandable that a landowner would not want an incident on their land as this is distressing for all concerned, but if you have acted reasonably in highlighting any special risks, then you would not be legally or morally liable. A clear and shared understanding of risks between landowner and swimmers can help.
Imogen Radford
Imogen Radford
Do a risk assessment and warn of any unusual or special risks. You do not need to prevent people swimming, other than in extreme circumstances where there are special or unusual dangers and a warning would not be enough.
No, case law has made it clear that landowners are not required to employ lifeguards or otherwise supervise swimmers. In fact, by doing so, you would take on extra responsibilities, such as ensuring proper up-to-date training and resourcing. There are implications for expectations and people’s understanding of responsibility for their own safety. If swimmers are led to believe that lifeguards will be present, they may consider that the lifeguards have undertaken their own assessment that it is safe for people to swim.
As RoSPA’s guidance says, this is ‘Incorrectly perceived as only/best management option’ (p.57). In rural or less busy areas, there would be no expectation of such equipment. If rescue equipment is provided, the landowner would then take on the responsibility to ensure it is maintained.
You could put up a notice to say that visitors swim or enter the area at their own risk and take responsibility for their own safety and that of their children or other vulnerable dependants. But this simply reflects the position in law and so such disclaimers would not affect legal liability.
The landowner does not need to give information about the usual risks of swimming. As case law has made clear, no one wants a countryside cluttered with signage about the ordinary features of the land, and this could set up expectations that such information would always be provided. However, if you do decide to provide information or education about how to stay safe then liaising with swimmers and the community can make that information accurate, relevant and useful.
No, as long as the equipment is regularly assessed and maintained. Doing so could help swimmers or anyone that falls into the water and could also help prevent bank erosion or other impacts.
No, the position is unchanged. Designation applications supported by the local landowner show that swimmers are welcome and this helps to create an atmosphere of responsibility and respect.
The Countryside Rights of Way (CROW) Act 2000 includes a standard clause that swimming is not permitted on any land designated for open access, but the legislation allows landowners to set this aside if they choose. Swimming does not necessarily have to be ruled out in designated wildlife habitats, such as Sites of Special Scientific Interest (SSSIs) or nature reserves, as the designation might be for species or habitats unaffected by swimmers.
We understand that landowners have concerns about the places people swim, including the numbers that can visit a popular location in summer with impacts on parking or the habitat, or of irresponsible behaviour of a minority of visitors. There are numerous examples around the country where landowners welcoming and liaising with local informal swim groups leads to them helping in many ways. This can include litter picking, reporting issues, influencing others, sharing information on risks or issues, encouraging zoning away from sensitive areas, or getting involved in conservation. The Outdoor Swimmers Code promotes respect for the environment, community and safety.
This information is provided in good faith. It is not designed to be relied on as formal legal advice and The Outdoor Swimming Society accepts no legal liability nor assumes any duty of care in relation to this information.
Anyone who decides to swim in open water should remember this is not entirely without risk. Swimmers are, as individuals, responsible for assessing and managing any inherent risks that are a usual part of the activity, and their own capabilities in the prevailing conditions. Swimmers should not expect an occupier or owner to be responsible or liable for such risks or for the safety of swimmers on the land.