Rhind v Astbury Water Park Ltd [2004] EWCA Civ 756

A trespasser dived into a lake at a water park and was seriously injured by a submerged object. As the park owners were unaware of the object's existence, the court held they owed no duty of care under the Occupiers' Liability Act 1984.

Facts

The claimant, Mr Gary Rhind, aged 21, suffered tetraplegia after diving into a shallow lake, or mere, at a country park owned and occupied by the defendant, Astbury Water Park Ltd. The park was a disused sand quarry. Despite a prominent sign stating ‘Private Property Strictly No Swimming’, the claimant ran and performed a shallow dive into the water, hitting his head on a submerged fibreglass container which was not visible from the surface or the shore. The defendant’s employees were unaware of the container’s presence on the bed of the mere. At first instance, the trial judge found the defendant liable under the Occupiers’ Liability Act 1984, holding that, while the defendant did not know of the container, it ought to have been discovered by a proper inspection regime. The defendant appealed this decision.

Issues

The central legal issue on appeal was whether the defendant owed the claimant, a trespasser, a duty of care under section 1 of the Occupiers’ Liability Act 1984. The resolution of the case turned on the correct interpretation of the conditions for imposing such a duty, specifically the requirement in section 1(3)(a) that the occupier must be aware of the danger or have reasonable grounds to believe it exists.

Judgment

The Court of Appeal (Lords Justice Mummery, Sedley, and Gage) unanimously allowed the appeal, overturning the trial judge’s decision and dismissing the claim. The leading judgment was delivered by Mummery LJ.

Reasoning of the Court

Mummery LJ focused on the precise wording of the Occupiers’ Liability Act 1984, which sets out a three-part test in section 1(3) for establishing a duty of care towards a trespasser. A duty is owed if: (a) the occupier 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; 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.

The court found that the trial judge had erred in his application of the first condition in section 1(3)(a). Mummery LJ stated that the defendant did not know of the container’s existence and, crucially, had no reasonable grounds to believe it was there. He criticised the trial judge for conflating the general foreseeability of injury from diving into shallow water with the specific requirement of having knowledge of the particular danger that caused the harm.

In my judgment, the judge was wrong to find that the condition in section 1(3)(a) of the 1984 Act was satisfied. On his own findings of fact Astbury did not have actual knowledge of the existence of the container on the bed of the mere. He was also right to find, as he did, that ‘Astbury had no reason to believe the container was present’.

Mummery LJ further clarified that the statutory test is stricter than the common law foreseeability test. The judge’s error was in using a finding on foreseeability to satisfy the statutory condition regarding knowledge of the danger.

In my judgment, the judge fell into error in transposing the finding on the foreseeability of a risk of injury by striking a submerged object into a finding of reasonable grounds for believing in the existence of a danger, when he had already found that Astbury had no reason to believe that the particular object, the container, was present. The judge ought to have held that the condition in section 1(3)(a) was not satisfied and that the claim under the 1984 Act failed for that reason.

Sedley LJ, in a concurring judgment, emphasised the distinction between a ‘risk’ and a ‘danger’ under the Act.

What the 1984 Act requires is knowledge of, or reasonable grounds for believing in the existence of, ‘the danger’. This means the particular danger which culminates in the injury, not some other danger.

Since the defendant had no knowledge or reason to believe the specific danger (the container) existed, the first condition of the statutory test was not met, and therefore no duty of care was owed.

Implications

This decision is significant for clarifying the scope of an occupier’s duty to trespassers under the 1984 Act. It confirms that the requirements of the Act are to be applied strictly and are not a simple test of foreseeability. The case establishes that for liability to arise under section 1(3)(a), the occupier must have knowledge of, or reasonable grounds to believe in, the specific hidden danger that causes the injury. A general awareness that trespassers frequent the property and may engage in risky behaviour is not sufficient to impose a duty regarding unknown hazards. The ruling prevents occupiers from being held liable for injuries caused by dangers of which they were unaware and had no reason to suspect existed, thus avoiding an overly burdensome duty of inspection for latent dangers created by others.

Verdict: The defendant’s appeal was allowed and the claim was dismissed.

Source: Rhind v Astbury Water Park Ltd [2004] EWCA Civ 756