Claimant diving into water on defendant’s land — Notices prohibiting swimming on display — Whether defendants owing claimant duty of care — Appeal dismissed
The defendants owned and operated land, which included a flooded gravel pit, Astbury Mere, under a licence. Although signs prohibiting swimming were posted around the mere, the claimant dived into the water to retrieve a football. He struck his head, suffering a head injury that resulted in permanent disablement. He commenced proceedings against the defendants for breach of their duty of care.
Held: The appeal was dismissed.
Although the signs prohibited swimming, they did not prohibit entry into the water for other purposes. Thus, members of the public who paddled along the water’s edge were not trespassing.
The two defendants, as licensees, had limited rights over the mere and were not general occupiers. Their activities had no bearing upon the claimant or his entry into the water. The risk of diving into what was clearly shallow water was so obvious that the defendants were under no duty to post specific warning of that risk, or to exclude members of the public from the water’s edge on those grounds, nor were they under a duty to guard against such risks by scouring the mere for possible hazards.
The claimant was a visitor to the mere, and was therefore treated as having been given permission to enter the water to retrieve his football, although that permission did not extend to swimming or diving. He knew that swimming was prohibited, and it followed that he knew that diving was also prohibited. The true cause of his accident was his own action in making a foolhardy running dive into the water. The defendants had not breached any duty of care owed to the claimant.
Brian Langstaff QC and Yvette Genn (instructed by Irwin Mitchell, of Sheffield) appeared for the claimant; Robert Owen QC and Douglas Herbert (instructed by Keeble Hawson, of Sheffield) appeared for the defendants.
Vivienne Lane, barrister
