Rhind v Astbury Water Park Ltd. & Anor

Under section 1(3) of the Occupiers Liability Act 1984, a duty to a non-visitor arises only where the occupier knew, or had reasonable grounds to believe, that the relevant danger existed, knew or had reasonable grounds to believe that the claimant was or might be near it, and could reasonably be expected to offer protection. A later specialist discovery of an underwater obstruction does not establish the occupier’s prior knowledge or reasonable grounds. Nor does it impose a duty to conduct an underwater search without evidence that the obstruction was visible on a reasonable inspection. The appeal failed because the claimant did not satisfy the threshold requirement in section 1(3)(a).

The appellant suffered severe injuries after running into a disused gravel-pit lake and diving into shallow water, striking a fibreglass container concealed by silt. Morland J held that the respondents were occupiers under the Occupiers Liability Act 1957, but that they owed no breached duty, and dismissed the claim.

On appeal, the appellant accepted that, as a non-visitor, any duty had to arise under section 1(3) of the Occupiers Liability Act 1984. He argued that the respondents knew, or had reasonable grounds to believe, that the obstruction existed and should have inspected and removed it. The central issue was whether the evidence established the statutory threshold for a duty of care.

1. Appeal dismissed. The appeal was unanimously dismissed. Latham LJ gave the leading judgment, with Thomas LJ and Judge LJ agreeing.
2. Applicable statutory framework. The appellant accepted that he was not a visitor and that any duty had to arise under section 1(3) of the Occupiers Liability Act 1984. The injury was caused by the fibreglass obstruction on the lake bed and was therefore due to the state of the premises for section 1(1)(a). This distinguished the ordinary lake-bed risk considered in Tomlinson v Congleton Borough Council [2003] UKHL 47, reported at [2004] 1AC 46. The court did not need to determine the respondents’ precise rights of occupation.
3. Knowledge of danger. Section 1(3)(a) required proof that the respondents knew, or had reasonable grounds to believe, that the obstruction existed. The evidence established neither actual knowledge nor reasonable grounds. The fact that a specialist diver later found the container did not prove that it was visible, or reasonably discoverable, before the accident.
4. Reasonable inspection. The diver’s report showed only that the obstruction could be located through an underwater inspection. There was no evidence that it was visible from the shore or from the surface of the water. Miss Yates could not find it from a safety boat even though she knew its location, and ultimately located it using a snorkel and mask. Silt further reduced visibility. The respondents were not under an obligation to carry out an underwater search.
5. Concurrence and order. Judge LJ observed that Morland J’s approach, assisted by Donoghue v Folkestone Properties Ltd [2003] EWCA Civ 231, effectively anticipated and applied the approach later adopted in Tomlinson. The appellant failed to establish the threshold duty, so the question of breach under section 1(4) did not arise. Order: appeal dismissed, as agreed.

• Court of Appeal (Civil Division): On appeal from Morland J, the court dismissed the appeal: [2004] EWCA Civ 756.
• Queen’s Bench Division: Morland J held that the respondents were occupiers under the Occupiers Liability Act 1957, found no breach of duty, and dismissed the action on 16 May 2003.