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Rhind v Astbury Water Park Limited & Maxout Limited, Court of Appeal, 16 June 2004

23 June 2004
The issues

Occupiers 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 age 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.

Judge dismissed the claim
The Claimant appealed.

The decision

The Judge had found that the Claimant knew swimming was prohibited as was diving. The Respondent’s for the Appeal had submitted that although the Judge did not expressly deal with the case on the basis that the Appellant was a trespasser at the time he dived in the water, that was in effect the case. At the Appeal it was accepted by the Appellant that if a duty was owed it was owed under the Occupiers Liability Act 1984. The Appellant argued that his case was distinct from the decision in Tomlinson because whereas in Tomlinson the injury had not been caused by “the state of the premises” (because Mr Tomlinson had simply hit his head on the bed of the lake) in this case the Appellant had suffered his injury because of the presence on the bed of the Mere on a fibre glass container.

The Appellant was unable to establish the threshold requirement for the existence of a duty of care in Section 1(3)(a) of the 1984 Act. (An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in subsection (1) if (a) he is aware of the danger or has reasonable grounds to believe that it exists).

The Appellant was unable to show that the fibre glass container was visible either from the shore or from the surface of the water.

Appeal dismissed.

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