Wild Swimming – who’s responsible if things go wrong?

With the warmest February day on record reminding us that
long, sunny days are just around the corner, everyone is thinking about getting
outdoors and enjoying everything that's great about the British summer. One of
the biggest growth areas in outdoor activities over the past couple of years
has been wild' swimming. As splash-happy kids and adults turn away from the
mundane lane slogging of public swimming baths and go in search of watery
adventures, they're naturally drawn to the rivers, lakes and beaches of the UK.

We are fortunate to have some truly stunning spots in the
UK, and our water quality is much higher than in many other parts of the world.
Generally, (and as long as there's no natural issues such as farm/field run-off
or blue-green algae blooms) rivers and lakes are usually fairly safe to swim in
without the risk of catching any nasty diseases. But one thing to bear in mind
is that these rivers, lakes and reservoirs are someone's responsibility, and
the land you're going across is rarely what could be termed public access'
land. So, if you are packing up your DryRobe and your water shoes, grabbing
your costume and your swimming goggles and heading off into the great outdoors,
what are your responsibilities? And what happens if things go wrong?

Public access - are
you allowed to wild swim?

We may have some tempting diving-in points all over the UK,
but unlike places such as Scotland, there is only a legal right to access the
water in some English and Welsh
rivers, not all. So, bear in mind that you may not have right of access to that
secret spot you think you've discovered. Most swimming spots are based on
longstanding tradition or have been used for generations as a swimming spot.
You'll usually find these close to footpaths and public rights of way.

If a lake or river is on private land, then you certainly
don't have the right to access without the landowner's permission.

What about National
Parks and Forestry Commission land?

Under the Countryside and Rights of Way Act 2000, you do have an extensive right to roam' across some land, which means some rivers and lakes are now within reach. However, this still doesn't give you the right to access the water itself. On some rivers there are laws that allow public navigation' which includes swimming, and some local by-laws allow anyone legal access and passage along any river that is navigable to small boats. Again, this varies from river to river, so don't automatically assume that just because you see canoeists paddling down the river that you can access it to go swimming.

Who is responsible if
things go wrong?

This is where things get tricky. A landowner may allow
swimming in lakes and rivers on their land on the understanding that the
swimmers are entirely responsible for their own safety, but this could still be
disputed in a court, and the landowner could be held accountable for any
injuries or even a death. The result of this has been that a lot of landowners
have put up No Swimming' signs on their land to cover themselves in case of an
accident.

The Environment Agency and local councils (as well as many
fishing and angling clubs) also tend to put up No Swimming' notices because of
the concern of litigation. The advice that some (somewhat overenthusiastic)
lawyers are handing out is that landowners (including land management agencies
such as reservoir and lake management teams) should not allow swimming at all
unless there are lifeguards present. The result? Some of the UK's best swimming
spots are currently off limits' and are fenced off.

If there are clear No Swimming' signs and the water is on
private land, then the onus of responsibility does lie with the swimmer. Wild
swimmers are a tough lot (you have to be to go swimming in the middle of winter
with a water temperature of 2°!) and are usually well aware of the dangers of
swimming in open water. Statistics suggest the majority of injuries and deaths
by drowning are influenced by the consumption of alcohol beforehand or are the
result of high spirits. Suing the landowner after ignoring No Swimming' signs
or even being asked to leave the water by the landowner is unlikely to succeed
in court.

If you're a landowner and are concerned about your legal position when dealing with wild swimmers, contact us and we will be able to advise you on your rights.