Jamie Rhind and Astbury Water Park Ltd and Another
| Jurisdiction | England & Wales |
| Judgment Date | 16 June 2004 |
| Neutral Citation | [2004] EWCA Civ 756 |
| Docket Number | Case No: B3/2003/2079 QBENF |
| Court | Court of Appeal (Civil Division) |
| Date | 16 June 2004 |
[2004] EWCA Civ 756
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MORLAND J
(QBD) MANCHESTER DISTRICT REGISTRY
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Judge
Lord Justice Latham and
Lord Justice Thomas
Case No: B3/2003/2079 QBENF
Mr B Langstaff, QC & Miss Y Genn (instructed by Irwin Mitchell, Sheffield) for the Appellant
Mr R Owen, QC & Mr D Herbert (instructed by Keeble Hawson) for the Respondent
Latham LJ:
This is another sad story of a young man suffering severe injuries as a result of diving into water, in this case Astbury Mere in Cheshire. It is, in fact only five miles or so from the lake which featured in Tomlinson –v- Congleton Borough Council [2004] 1AC 46. The Mere, like the lake in Tomlinson, is a disused gravel pit which is used for recreational purposes, in particular fishing, sailing, sail boarding, diving and other water sports. It is adjacent to, but does not form part of, the Astbury Mere Country Park owned by the Astbury Mere Trust. The Mere and the immediately surrounding land are owned by Gladman Developments Ltd who had granted a licence to Astbury Water Park Ltd, the first respondents, to exercise fishing rights and to make use of the water, subject to certain immaterial conditions. In turn the 1st Respondents had granted a sub-licence to Maxout Ltd, the 2 nd Respondents, who operate a sailing school and rental centre on the Mere run from a clubhouse which they occupied at the edge of the Mere.
On the 17 th May 1998, the appellant, who was then almost 20 years of age, was playing football with friends on a recreational area adjacent to the Mere, and which was part of the Astbury Mere Country Park. From that area they were able to gain access to a beach on the Mere. At the relevant time there were notices in that vicinity saying "Private Property. Strictly no Swimming Allowed". The judge found that the appellant and his friends were well aware of those notices and that therefore no swimming was allowed.
The appellant's evidence was that at one point the football went into the water. He went to retrieve it. The judge found that he ran into the water, did a running dive into the shallow water and hit his head on a fibre glass container which was lying on the bed of the Mere, covered in silt. This object was not in fact found until an underwater search was made of the relevant area on the 1 st May 2002. The fibreglass container then showed evidence of impact damage consistent with having been struck by a head.
In giving judgment on the 16 th May 2003, Morland J held that the respondents were occupiers for the purposes of the Occupiers Liability Act 1957 and that those who merely entered the water on foot to paddle would, on the evidence that he had heard, be visitors for the purposes of the duties owed by an occupier under Section 2 of that Act as it was common place particularly in nice weather, for people to paddle and otherwise disport themselves in the shallow water adjacent to the beach. The judge's conclusions were as follows:
"55. The two defendants as licensee or sub-licensee had limited rights over the Mere and carried 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. The risk of injury through diving because of the dangers of diving into too shallow water and striking one's head on the bottom or on an obstruction on the bottom is so obvious that in my judgment these defendants owed no duty to post specific warning of that risk or to exclude members of the public from the waters edge whether by fencing, landscaping or notices even assuming that they had the right so to do. Nor do I consider that these defendants were reasonably required to scour the Mere's bottom for obstructions or to have patrols attempting to stop people entering the water.
56. The claimant knew swimming was prohibited in the Mere. It followed so was diving. In my judgment the true effective cause of the claimant's tragic accident was his foolhardy action in running into the water and doing a running dive into shallow water.
57. There was no breach of any duty owed by these defendants to this claimant. Therefore the action must be dismissed."
This case has clear echoes of Tomlinson. And both parties to this appeal rely in one way or another on their Lordship's decision in that case. The respondents submit that although the judge did not expressly deal with the case on the basis that the appellant was a trespasser at the time that he dived into the water, that was indeed the case for the reasons explained by Lord Hoffmann at paragraphs 13, 14 and 15 of his speech in Tomlinson. Accordingly the respondents did not owe to the appellant any duty under the 1957 Act. If any duty of care was owed to him at all, it had to be under the provisions of the Occupiers Liability Act 1984. Mr Langstaff Q.C. in his cogent and attractively presented argument for the appellant, accepts that that is the case. He submits, however, that the present case is clearly distinguishable on other grounds from Tomlinson. The essential basis of the decision of the majority was, he submits, that the injury to Mr Tomlinson was not caused by "the state of the premises" because Mr Tomlinson simply hit his head on the bed of the lake which the judge had found to be no more dangerous than any other ordinary stretch of open water in England. The appellant, on the other hand, was found to have suffered his injury by reason of the presence on the bed of the Mere of the fibre glass container. He accordingly submits that on the evidence the judge should have found that the requirements of Section 1(3) of the 1984 Act were met so that there was a duty of care on the respondents to the appellant and that they failed to exercise such care as was reasonable in all the circumstances so that there was a breach of Section 1(4) of the 1984 Act.
The relevant provisions of Section 1 of the 1984 Act are as follows:
"(1) The rules enacted by this section shall have effect, in place of the rules of the common law, to determine –
(a) whether any duty is owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them; and
(b) if so, what that duty is.
(2) For the purposes of this section, the persons who are to be treated respectively as an occupier of any premises (which, for those purposes, include any fixed or movable structure) and as his visitors are –
(a) any person who owes in relation to the premises the duty referred to in Section 2 of the Occupiers Liability Act 1957 (the common duty of care), and
(b)...
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...for example, paras. 19±25, 39 and 51. 22 Tomlinson v. Congleton BC [2003] UKHL 47; [2004] 1 A.C. 46; Rhind v. AstburyWater Park Ltd [2004] EWCA Civ 756.23 Martin (formerly Collier) v. Peterborough City Council [2003] EWHC 2925.24 McTear v. Imperial Tobacco Ltd [2005] Scots CSOH 69; Lord Nim......