Claimant’s husband swimming in pond in grounds open to public and owned by defendant – Husband drowning – Whether defendant taking reasonable care to ensure visitor reasonably safe – Whether husband appreciated risks – Section 2(2) of Occupier’s Liability Act 1957 – Judge finding occupier liable – Appeal allowed
In August 1997 the claimant, her husband (D), and four of their five children went to Hardwick Hall, Chesterfield, Derbyshire, a property owned by the defendant (the Trust). The family lived nearby and regularly visited the country park and swam in a 10ft deep pond in the grounds. There were no notices around the pond to discourage swimming and no lifesaving equipment nearby. The pond was patrolled occasionally by a warden employed by the Trust, who discouraged swimming, but there was no set system preventing people from using the pond.
D swam to the centre of the pond, but after five minutes his wife noticed him waving to her in alarm. She alerted another visitor to the park, who dived into the pond and after some time found his body under the water and brought it to the side. D died in hospital several days later without ever regaining consciousness.
The claimant issued proceedings against the Trust, claiming that it had failed in its duty under section 2(2) of the Occupier’s Liability Act 1957 “to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there”. The county court held that the Trust had breached its duty of care to visitors by not putting up warning signs and not supplying lifesaving equipment, and awarded the claimant damages. The Trust appealed.
The claimant submitted, inter alia, that as the Trust had admitted that there were risks other than drowning, particularly Weils disease, it could have foreseen some form of personal injury from swimming in the pond and should have displayed adequate warning notices or taken other adequate steps. It was argued that if D had been properly warned of the risks, he would not have swum in the pond.
Held: The appeal was allowed.
Any failure by the defendant to warn sufficiently against Weils disease could not establish a breach of duty giving rise to damages in respect of another danger, namely drowning. An occupier’s duty to warn a visitor only arises where a visitor would be unaware of the nature of a risk without such a warning. The risks to competent swimmers using the pond were perfectly obvious and there were no special risks that the Trust should or could have been aware of. “No swimming” notices would have told D no more than he should have known of the obvious dangers. If the award had been allowed to stand, warning notices would have had to be put up beside every pond, reservoir, riverbank and stretch of coastline in the country. South Australia Asset Management Corporation v York Montague Ltd [1996] 2 EGLR 93, Caparo Industries plc v Dickman [1990] 1 All ER 568 and Staples v West Dorset District Council [1995] PIQR P439, applied.
Ian McClaren QC and Douglas Herbert (instructed by Banner Jones & Middleton, of Chesterfield) appeared for the claimant; Ronald Walker QC and Jonathan Howard (instructed by Hextall Erskine) appeared for the defendant.
Thomas Elliott, barrister
