Rhind v Astbury Water Park Ltd. & Anor

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)

those who are his visitors for the purpose of that duty.

(3)

An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in sub-section (1) above if –

(a)

he is aware of the danger or has reasonable grounds to believe that it exists;

(b)

he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority being in that vicinity or not); and

(c)

the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.

(4)

Where by virtue of this section, an occupier of premises owes a duty to another in respect of such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned.

……”

There is no doubt, on the judge’s findings, that unlike in Tomlinson, the injury was the result of the “state of the premises” for the purposes of Section 1(1)(a) of the 1984 Act. As I have already indicated, it is therefore accepted on behalf of the appellant that for him to succeed, he has to satisfy us that the judge should have found on the facts that the respondents owed him a duty of care under Section 1(3) above. Although there is a respondents’ notice before us raising the question of whether or not the nature of the rights of occupation were such as to justify the conclusion that the respondents could or should have done any more than they did, we did not hear argument on this matter as it was not necessary for the disposal of the appeal.

Mr Langstaff’s argument was that the evidence was essentially all one way. The witnesses called on behalf of the respondents all stated that the water in the Mere was clear, at least in the shallow part where the obstruction was found. Accordingly the obstruction could and should have been seen. In view of the fact that the respondents were aware that people at least paddled in the relevant area and that those engaged in activities on the Mere as their visitors themselves might be affected by obstructions on the bed of the Mere, they could and should have carried out at the least visual inspection of the area adjacent to the beach and had they done so they would have identified the presence of the fibre glass cover. Had they been aware of its presence, it could and should have been removed.

Before turning to the evidence upon which Mr Langstaff relies, it may be helpful to describe the area in question and the nature and position of the obstruction in a little more detail. The beach from which the appellant ran into the water is a clean, sandy strip varying in depth depending on the height of the water in the Mere, but certainly providing space for people to sit and children to play. The bed of the Mere slopes gently to a shelf approximately 1.5m below the surface of the water, which extends out some 12m or so from the shore after which it drops away steeply to the deeper part of the Mere. The fibreglass container sat on the bed of the Mere on what I have described as the shelf, approximately 10m out from the shore. It was rectangular in shape, looking somewhat like an up turned tray, 1.3m long, 0.9m wide and 0.3m proud of the bed of the Mere at the point at which it projected most. The bed of the Mere at that spot is silty; and indeed the fibre glass container had silt covering its surface.

There is no doubt that Mr Langstaff is correct in submitting that the general tenor of the evidence was that the water was reasonably clear. Mr Lofthouse and Mr Conway of the 2^nd Respondents gave evidence to that effect and accepted that they would remove objects from the shore or the water which they considered to be capable of causing a danger, particularly to their visitors. Perhaps the high point of the evidence as to the clarity of the water was the evidence of Mr Evans, of the 1^st Respondents, who said, at page 145 of the transcript with which we have been provided:

“It’s extremely clear water so if I saw an object ten foot into the water, provided that it was only that deep or Wellington depth, I would probably go in and get it.”

Mr Langstaff further relied upon the report of Mr Gilgeous, who is a commercial diver. He provided a report of the investigation of the bed of the Mere which he carried out on the 1^st May 2002 for the appellant’s solicitors and which discovered the fibre glass container. He described underwater visibility as follows:

“The under water visibility on the day of the survey was good at approximately 3m. The sun was shining, therefore aiding the visibility. However as soon as the diver touched the bottom or finned too close to it, the visibility would be instantly clouded down to virtually zero. This would have the effect of hiding any obstructions present. The visibility of the water would have been clouded at the time of the incident had there been any swimmers, paddlers or waders in this area. The diver carrying out the inspection ultimately utilised specialist cave diving techniques to avoid kicking up the silt during the survey.”

His report described how the fibre glass container was found and concluded:

“The shallow depth of the obstruction, coupled with the sometimes murky water would sometimes make this object a hazard, posing significant risk to a swimmer diving head first into the water.

The obstruction No 1 is pictured below showing damage to the base of the container, consistent with impact damage from a swimmer diving headlong into the water in this area. It would be further recommended to remove this obstruction from the water.”

From this evidence, Mr Langstaff submits that the judge should have concluded that the respondents effectively accepted that they were under an obligation to check the shore and the bed of the Mere for obstructions which could have been hazardous, and that had they done so properly, the fibreglass container would have been identified, and identified as hazardous so that it should have been removed. He submits that the judge failed to deal properly with this evidence. In particular, he overstated the appellant’s argument, when he said that he did not consider that there was a duty to “scour the Mere’s bottom”. All that he, Mr Langstaff, had submitted was that there was an obligation to check in particular the area of the beach which was frequented not only by people such as the appellant, but also the respondent’s own visitors as it was a handy place to land, for example, sailboards or canoes.

The problem with these submissions, attractively presented though, as I have already said, they were, is that the appellant neither called nor was able to point to any evidence that the fibreglass container was in fact visible either from the shore or from the surface of the water. The report of Mr Gilgeous merely showed that it was identifiable on an underwater inspection of the bed of the Mere; and Mr Langstaff neither did nor could, in my judgment, properly submit that the respondents were under any obligation to carry out such an inspection. The only evidence as to whether or not it could be seen as a result of the sort of inspection which Mr Langstaff submits should have been carried out, namely from a boat on the surface of the Mere, came from Miss Alison Yates, who was a sailing instructor employed by the 2^nd Respondents at the time. After the fibreglass container had been found by Mr Gilgeous, she herself went to the site in order to take her own measurements. The most important passage in her evidence comes at page 157 of the transcript where the following exchanges took place:

“Mr Owen (Counsel for the respondents): How did you find the object in order to do that task?

A. First of all I went out in a safety boat to try and find it, to look down. I couldn’t actually find it from the boat. I then took …

Mr Justice Morland: Not too quickly. “Went into a safety boat, couldn’t find it”. Was that because it was too deep or were you looking in the wrong place or because of sand and silt in the water, or what?

A. I think it was difficult to see because the sand and silt had settled on top of the object, and also to do with the depth of the water, I think. I then parked the boat and went out on foot to take coordinates from the diving report, walking out from what looked like on the diving report a hole in the bank, and lining up with the green fence and looked there, and then I only eventually found it with a snorkel and mask so I could try and find it. I actually had to put my head into the water.

Q. To begin with you tried to tread on it and it failed that way, but eventually you found I with …….

A.

As I was stamping around, as I was trying to find it, the sand was coming up and making visibility more difficult.”

It seems to me that in the face of that evidence, which the judge expressly found at paragraph 31 of his judgment to have been reliable, Mr Langstaff’s submissions must fail. If Miss Yates, who knew where it was, was unable to see it, the appellant was simply unable on the evidence to establish the threshold requirement for the existence of a duty of care in Section 1(3)(a) of the 1984. The evidence clearly established that the respondents were not aware of the existence of the fibreglass container; and the appellant was unable to establish that they had reasonable grounds to believe that that obstruction existed. It follows that I would dismiss this appeal. I do so without reluctance, because the appellant has so clearly failed to establish fault on the part of the respondents which could justify the award of compensation. But I do so sadly aware of the tragic consequences of this accident to the appellant for whose severe disabilities one can only have great sympathy.

I agree.

I also agree.

We are all acutely conscious of the catastrophic consequences suffered by the appellant as a result of a moment of misplaced youthful exuberance. However neither our natural sympathy for his condition, nor indeed the forensic attraction of Mr Langstaff's argument on his behalf entitle us to interfere with the decision of Morland J, who, with the encouragement of this Court in Donoghue v Folkestone Properties Ltd [2003] EWCA Civ 231 effectively anticipated the decision of the House of Lords in Tomlinson v Congleton Borough Council [2003] UKHL 47 and effectively applied it to the present circumstances.