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

A 20‑year‑old dived into Astbury Mere, striking his head on a submerged fibreglass container and suffering catastrophic injury. As a trespasser, he claimed under the Occupiers’ Liability Act 1984. The Court of Appeal held the occupiers had no duty, as they neither knew nor ought reasonably to have known of the hidden obstruction.

Facts

The appellant, Jamie Rhind, was nearly 20 years old when, on 17 May 1998, he was playing football with friends on a recreational area forming part of Astbury Mere Country Park in Cheshire, adjacent to Astbury Mere, a disused gravel pit used for various water sports.

The Mere and surrounding land were owned by Gladman Developments Ltd, who licensed Astbury Water Park Ltd (first respondents) to exercise fishing and water‑use rights. Astbury Water Park Ltd in turn sub‑licensed Maxout Ltd (second respondents) to operate a sailing school and rental centre from a clubhouse at the Mere’s edge.

From the recreational area, the appellant and his friends had access to a beach on the Mere. In that vicinity there were notices stating

“Private Property. Strictly no Swimming Allowed”

which the trial judge found the appellant and his friends knew and understood.

During the game, the football went into the water. The appellant ran into the water and executed a running dive into shallow water, striking his head on a fibreglass container lying on the bed of the Mere, covered in silt and not then known to the respondents. The object was only discovered during an underwater search on 1 May 2002, which revealed impact damage consistent with a head striking it.

At first instance, Morland J held that the respondents were occupiers for the purposes of the Occupiers’ Liability Act 1957 and that those entering the water on foot to paddle would be lawful visitors, given the commonplace nature of paddling in the shallow water adjacent to the beach. However, the claimant’s dive amounted to swimming in defiance of the prohibition signs and he was treated as a trespasser.

Issues

The key legal issues before the Court of Appeal were:

• Whether, at the time of the dive, the appellant was a visitor under the Occupiers’ Liability Act 1957 or a trespasser to whom only the Occupiers’ Liability Act 1984 could apply.
• Whether the appellant’s injury was caused by a “danger due to the state of the premises” within section 1(1)(a) of the 1984 Act.
• Whether the respondents owed a duty of care to the appellant under section 1(3) of the 1984 Act, in particular whether they were aware of the danger or had reasonable grounds to believe it existed.
• Whether, in all the circumstances, the respondents were reasonably required to take steps such as inspection or removal of underwater obstructions near the beach area.

The appellant accepted that, in line with Tomlinson v Congleton Borough Council, he was a trespasser at the moment he dived, but argued that his case was distinguishable because his injury was caused by a specific hidden object on the bed of the Mere, not merely by ordinarily shallow water.

Judgment

First instance (Morland J)

Morland J found that the respondents were occupiers but rejected liability. He summarised his conclusions:

“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.”

Court of Appeal

Latham LJ delivered the leading judgment, with Thomas LJ and Judge LJ agreeing.

Application of the Occupiers’ Liability Act 1984

The parties accepted that the appellant, when diving, was a trespasser, so any duty depended on section 1 of the Occupiers’ Liability Act 1984. Latham LJ set out the relevant statutory provisions in full, including section 1(1), (2), (3) and (4), emphasising that a duty arises only if the conditions in section 1(3)(a)–(c) are satisfied.

The court held that, unlike Tomlinson, the appellant’s injury was caused by the “state of the premises” because it resulted from the presence of the fibreglass container on the lake bed. Thus section 1(1)(a) was engaged. However, the appellant still had to prove that the respondents owed a duty under section 1(3), in particular that they were aware of the danger or had reasonable grounds to believe it existed.

Evidence on visibility and inspection

The appellant’s argument centred on the alleged visibility of the obstruction and a supposed duty to inspect the shallow area off the beach.

There was evidence from respondent witnesses that the Mere’s water, particularly in the shallow area, was clear. Mr Evans of the first respondents stated:

“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.”

The appellant relied on the report of commercial diver Mr Gilgeous, who carried out an underwater inspection in May 2002 and discovered the fibreglass container. He reported:

“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.”

He 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.”

On this basis, the appellant argued that the respondents effectively accepted a responsibility to remove dangerous objects from the shore and shallow water, and that a reasonable inspection of the area adjacent to the beach would have revealed the container as a hazard that ought to have been removed. He criticised the judge’s characterisation of his case as requiring the respondents to “scour the Mere’s bottom”.

Latham LJ held that this argument failed on the evidence. Crucially, there was no evidence that the fibreglass container was in fact visible from the shore or from the surface in a way that a reasonable occupier would detect by ordinary inspection.

The only direct evidence on whether the object could be seen from a boat came from Alison Yates, a sailing instructor employed by the second respondents. After the container had been discovered by the diver, she went to the site to take her own measurements. Her evidence included the following exchanges:

“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.”

The judge had expressly found her evidence reliable. Latham LJ considered that, if an experienced instructor who knew approximately where to look could not see the object from a boat and needed a snorkel and mask to locate it, then the appellant could not establish that the respondents had reasonable grounds to believe in the existence of that specific danger.

Application of section 1(3) and causation

On the facts found, the respondents did not actually know of the fibreglass container and there was no evidential basis for saying they ought reasonably to have known of its existence through ordinary inspection. The submerged, silt‑covered container was only identifiable by specialist underwater inspection utilising techniques akin to cave diving, which went beyond what section 1(3)(c) reasonably required.

Accordingly, the threshold condition in section 1(3)(a) was not met: the respondents were neither aware of the danger nor had reasonable grounds to believe that it existed. Without this, no duty of care arose under section 1 of the 1984 Act.

Moreover, as Morland J had found, the immediate and effective cause of the accident was the claimant’s own decision to run and dive head‑first into shallow water, despite clear prohibitions on swimming.

Agreement of the Court

Thomas LJ simply stated:

“I agree.”

Judge LJ also agreed, adding that the court was:

“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.”

Implications

This decision reinforces the approach in Tomlinson v Congleton Borough Council and Donoghue v Folkestone Properties Ltd concerning occupiers’ duties to trespassers in respect of natural or semi‑natural features such as lakes.

Key implications include:

• An occupier’s duty to trespassers under the 1984 Act arises only if the occupier knows or has reasonable grounds to believe in the existence of the specific danger; mere foreseeability that people may trespass and suffer harm is insufficient.
• Where a hazard is hidden, silt‑covered and not visible from ordinary vantage points, the court is slow to impose a duty to undertake specialist or intrusive underwater inspections, particularly for recreational bodies of water.
• The obviousness of the general risk of diving into shallow water and striking the bottom or an obstruction remains a significant factor in assessing both duty and breach, especially where clear prohibitory notices are in place.
• Personal responsibility and voluntary assumption of an obvious risk play a central role; “foolhardy” decisions by individuals to engage in dangerous activities may break the chain of causation even where a hazard exists.

The case is an important authority on the limits of occupiers’ liability for hidden underwater obstructions and illustrates the restricted scope of duties owed to trespassers under the Occupiers’ Liability Act 1984.

Verdict: Appeal dismissed; no duty of care under the Occupiers’ Liability Act 1984 was owed by the respondents and the claimant’s action was dismissed.

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