Occupiers’ liability – Duty of care – Occupiers’ Liability Act 1957 – Defendant operating artificial lagoon – Claimant injured while surfing in lagoon – Claimant seeking damages for loss suffered – Whether defendant liable for breach of common duty as occupier – Whether defendant failing to take reasonable care to see claimant reasonably safe when surfing at premises – Claim dismissed
The claimant went to surf at an artificial lagoon operated by the defendant which stood on the site of former aluminium works at Dolgarrog in North Wales, around seven miles inland from Conwy. It was capsule shaped, a rectangle rounded at each end with approximate semi-circles. At its longest point it measured 300m and it was 113m wide. The lagoon was designed to create waves that could be surfed with a height of up to 1.9m.
It catered for surfers of all abilities. Lessons were offered but it was also possible to “free surf”. Each free surfer needed to select a level of expertise from four choices: beginner, intermediate, level 1 or 2 or advanced.
Before surfing, the claimant was required to sign a “statement of risk”. It contained six numbered paragraphs with a confirmation that each had been read, understood and agreed to. He agreed to a statement that surfing was a sport which was both physical and demanding and which “obviously [had] inherent hazards”.
The claimant suffered serious and life changing injuries. He asserted that the defendant acted in breach of its common duty as the occupier of the lagoon and thereby caused him loss. The claimant argued that the defendant failed to take such care as in all the circumstances of the case was reasonable to see that he was reasonably safe when surfing at the premises: the “common duty of care” set out at section 2(2) of the Occupiers’ Liability Act 1957.
Held: The claim was dismissed.
(1) The assessment of whether there was liability under the 1957 Act was essentially a factual assessment based upon the particular circumstances of each case including the degree of care, and of want of care, which would ordinarily be looked for in a visitor: see section 2(3) of the 1957 Act.
The first question was whether the risk to the claimant arose as a result of the state of the premises (the lagoon). If so, then whether or not appropriate care had been exercised (whether there had been a breach) required an assessment of: (i) the likelihood of injury; (ii) the seriousness of the injury; (iii) the social value of the activity which gave rise to the risk; and (iv) the cost of taking preventative measures. That required the court to conduct a balancing exercise: James v White Lion Hotel [2021] EWCA Civ 31; [2021] PLSCS 11 and Tomlinson v Congleton Borough Council [2003] UKHL 47; [2003] PLSCS 203; [2004] 1 AC 46 applied.
In the present case, the court was satisfied that the defendant owed the claimant and all lawful visitors to the lagoon the common duty of care set out at section 2 of the 1957 Act. The claimant was at the lagoon in order to surf and paid a fee to the defendant to use the premises for that purpose. He was injured in the course of surfing. In those circumstances, any distinction between the activity and premises was a false one. Section 2(2) of the 1957 Act made it plain that the duty was to take appropriate steps to keep the visitor reasonably safe when using the premises “for the purposes for which he is invited or permitted by the occupier to be there”. Where the injury arose from the permitted activity and the mechanics of the injury could not be separated out from the layout of the premises it was clear that the duty was owed.
(2) There was a known risk of injury as a result of the layout of the lagoon. The risk assessment highlighted that risk. Acting, as it had to, on a worst-case scenario the risk assessment showed the defendant was aware that serious consequences could follow if a surfer hit the lagoon floor. There was a range of serious consequences that could flow. At one extreme was the type of injury suffered by the claimant. A low-impact injury which, as a result of neck flexion, caused immediate and irreparable damage. At the other extreme (within the range of serious consequences) was an injury which did not cause immediate and irreparable damage, but which rendered the surfer unconscious.
It was necessary to take into account the fact that surfing was an inherently risky pastime. Unlike skiing or mountain biking (which in other aspects were comparable activities) surfing was likely to end with a fall from the surfboard. Surfing required a level of fitness and involved exertion. Like any sport, it had a recognised degree of social utility. On the evidence in the present case, in order to create a surfable wave it was necessary to have the reef not only at the height at which it stood, but also positioned where it was. Removing the reef or increasing the height of water above it was not a practical or workable option.
When the evidence was viewed in the round, the risk of injury when surfing was moderate. The risks had been considered and mitigated by ensuring (for example) that obvious risks (such as the shallowness of the reef) were drawn to the attention of surfers, by ensuring that surfer self-certified their level of ability before booking non-beginner sessions, by providing vigilant staff at the lagoon, by appropriate risk assessments and by consulting health and safety professionals appropriately. The likelihood of serious injury was very low.
(3) The claimant’s accident was (on one view) a one in 20-year possibility. The social value of surfing (as a sport) was obvious. The only real steps that might have been taken to reduce the risk (or remove it) were to remove intermediate 2 as a surfing level or lower the reef. The cost of lowering the reef would be that surfing would not be possible. The entire social utility of the activity would then be lost. Equally the cost of removing intermediate 2 would be to rob those (perhaps small number of) surfers who wanted to progress to green water (the vertical part of the wave) at the lagoon of a safe chance to do so.
Taking those points into account, it was clear that the defendant had discharged the duty that it owed to the claimant.
Marc Willems KC (instructed by Irwin Mitchell) appeared for the claimant; Christopher Kennedy KC and Brian McCluggage (instructed by DAC Beachcroft) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of Bennion v Adventure Parc Snowdonia Ltd
