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Rhind v Astbury Water Park Ltd and Maxout Ltd, High Court, 16 May 2003

4 June 2003
The issues

Occupier’s liability – diving into shallow water

The facts

On the 17th May 1998, the Claimant dived in Astbury Mere. He was trying to get a football which had been kicked into the Mere. He was nearly 20 at the time and had been playing with a group of friends on a field next to the beach. Although the Claimant had not swum in the Mere on this occasion, he and his friends had previously and they were aware that swimming was not allowed. The Judge found that all had read at least one of the notices saying “private property – strictly no swimming allowed” at some time.

The Claimant jogged into the water for about 10 paces and when the water was somewhere between his lower thighs and waist, he dived. He described his dive as a flat, shallow dive. Although it was not clear, the Judge found that the Claimant had probably struck his head on a plastic object on the bed of the lake. As a result, he suffered a C5 body wedge compression fracture resulting in incomplete Tetraplegia. The Judge found that the evidence was that the public at large were invited to roam all over the country park and did so, including the land on the edge of the Mere itself. The Judge found that the Claimant was not a trespasser when he entered the water to retrieve a ball, although such permission did not extend to swimming or diving. The notice prohibited swimming and did not purport to prohibit activities that the Judge had observed on a video shown to him, namely adults and children playing about in and wallowing in the shallow water near the beach, which had open access from the country park.

The decision

1. The Defendants were licencee or sub-licencee and had limited rights over the Mere, carrying out specific activities upon it. They were not general occupiers. Their activities had no relationship whatever, either to the Claimant or his entry into the water.

2. The risk of injury through diving was so obvious that these Defendants owed no duty to post specific warning of that risk or to exclude members of the public from the water’s edge, whether by fencing, landscaping or notice.

3. Neither Defendant could be reasonably required to scour the Mere’s bottom for obstructions or to have patrols attempting to stop people entering the water.

4. The Claimant knew swimming was prohibited in the Mere as was by implication, driving. The true cause of the Claimant’s accident was his foolhardy action in running into the water and doing a running dive.

Claim dismissed.

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