Whether there is liability under the Occupiers’ Liability Act 1957 is essentially a factual assessment based on the particular circumstances of each case, which must include the degree of care and want of care that would ordinarily be looked for in a visitor.
In Bennion v Adventure Parc Snowdonia Ltd [2023] EWHC 3334 (KB); [2024] PLSCS 5, the High Court rejected a claim on liability under section 2 of the 1957 Act, which requires an occupier of premises to take appropriate steps to keep visitors reasonably safe when using the premises for the purposes for which they are invited or permitted to be there.
The case concerned life-changing injuries suffered by the claimant when surfing at an artificial lagoon in North Wales, operated by the defendant. The lagoon was 300m long and 113 m wide, with deep and shallow areas in its bed. Waves of up to 1.9m were created by a wave foil running on a track fixed to the centre of the lagoon bed pushing water from deeper levels into shallower levels. The lagoon rose from the track and plateaued at a reef 3m wide and 0.9m below water level.
On 5 August 2018, the claimant fell from his surf board and suffered a serious neck injury when his head hit the lagoon floor. Wearing a helmet would not have mitigated the injury. The court was satisfied that the defendant owed the claimant and all lawful visitors to the lagoon a common law duty of care under section 2 of the 1957 Act. Whether appropriate care had been exercised required an assessment of the likelihood of injury; its seriousness; the social value of the activity giving rise to the risk and the cost of taking preventative measures.
The court considered that, while the social value of surfing was obvious, it was an inherently risky pastime. The defendant knew, through risk assessments, of the risk of injury owing to the layout of the lagoon: at worst, there would be serious consequences if a surfer hit the lagoon floor. However, to create a surfable wave it was necessary to have the reef depth at 0.9m and positioned where it was. The claimant was aware of the depth of water over the reef owing to a pre-surfing video. It was neither practical nor workable to remove the reef or increase the depth of the water.
Considering the evidence in the round, the likelihood of serious injury was low and the claimant’s accident a one in 20-year possibility. The defendant was not in breach of duty.
Louise Clark is a property law consultant and mediator
