Occupier’s liability — Trespasser — Obvious risk — Appellant injured diving into mere in respondents’ park — Respondents putting up warning signs but failing to take further recommended safety measures — Judge finding respondents not under duty of care — Whether respondents owing such duty — Whether in breach — Section 1(3), (4) and (5) of Occupiers’ Liability Act 1984 — Appeal allowed
The first respondent council were the occupiers of a country park that contained a mere on the site of a former sand quarry. The second respondents managed the park. The park was open to the public, but swimming in the mere was prohibited. Numerous accidents had taken place over the years. The respondents had erected large “No Swimming” signs and taken other measures to warn the public of the dangers. Furthermore, the National Water Safety Committee had recommended that extensive landscaping works be carried out to avert the danger, but the respondents had delayed such action due to the cost, which was estimated at about £15,000.
The appellant suffered serious injuries after diving into the mere, and brought a claim for damages against the respondents. He contended that they were in breach of the duty of care owed to him as a trespasser pursuant to section 1(3)(c) of the Occupiers’ Liability Act 1984. This was a duty in respect of risks against which, in all the circumstances, they might reasonably be expected to offer some protection.
The judge dismissed the claim. He held that the respondents had not been under a duty of care because there was no duty to warn of an obvious risk that was neither special nor unusual. He further considered that the respondents had discharged any duty they might have been under by erecting warning signs, and that it was unreasonable to expect them to take the extreme measure of carrying out expensive landscaping.
The respondents subsequently carried out the landscaping works, which proved to be effective in preventing further accidents.
On appeal, the appellant contended, inter alia, that the judge had failed to attach sufficient weight to the history of injuries and near-fatalities at the mere.
Held: The appeal was allowed.
1. It was necessary to consider the wording of the 1984 Act in order to determine whether an occupier was under a duty of care, as case law was fact-sensitive, and no generally applicable principles could be drawn from it. Section 1(3)(c) imposed a duty where it was reasonable, in all the circumstances of the case, to expect the occupier to offer some protection. The test was not whether the occupier ought to offer reasonable protection. Moreover, the reference to “all the circumstances” emphasised the fact-sensitive nature of the test. It had been reasonable to expect the respondents to offer some protection, since they had been aware of the danger posed by the mere. A duty of care towards the appellant was accordingly established. The judge, in finding that there was no duty, had failed to distinguish between the test for establishing the duty under section 1(3) and the level of care necessary to satisfy it, which was governed by section 1(4) and (5).
2. In determining whether the respondents had breached their duty, it was first necessary to apply section 1(5) and ask whether a warning had been sufficient to discharge it. That was a matter of fact and degree, and the judge should have gone further than merely finding that a warning was sufficient because the risk was obvious. That might be so in many cases, but it disregarded the fact that the respondents were aware that the warnings were not working. Section 1(4) accordingly came into play.
3. The test in section 1(4) was whether the respondents had taken such care as was reasonable in all the circumstances to see that the appellant did not suffer injury on the premises by reason of the danger concerned. Many factors could affect the outcome, including: (i) the age and character of the claimant; (ii) the nature and purpose of the trespass; (iii) the extent to which any protective steps taken had proved to be inadequate; (iv) the difficulty or ease of taking more effective steps; and (v) the cost of those precautions balanced against the gravity of the risk of injury. In the instant case, the landscaping works had presented no practical problem, and when eventually carried out had proved to be an effective deterrent. The expense was not excessive, having regard to the serious risk of injury. It followed that the respondents had been under a duty to carry out those works, and, in failing to do so, they had breached their duty to the appellant. The damages recoverable for that breach were to be discounted substantially to take account of the appellant’s own contributory negligence.
William Braithwaite QC and Gerard Martin QC (instructed by Paul Ross & Co, of Manchester) appeared for the appellant; Raymond Machell QC and Patrick Field QC (instructed by James Chapman & Co, of Manchester) appeared for the respondents.
Sally Dobson, barrister
