Carl Wayne Bennion v Adventure Parc Snowdonia Limited

Liability under the Occupiers Liability Act 1957 is assessed factually, by reference to the particular premises, activity and visitor. Where injury results from a permitted activity whose mechanics cannot be separated from the layout or condition of the premises, the common duty may apply.

Breach requires a balance between the likelihood and seriousness of injury, the social value of the activity and the cost and practicality of preventative measures. Inherent risks of sport, the visitor’s knowledge and competence, warnings, supervision, risk assessments and professional advice are relevant. A failure to adopt guidance designed for materially different activities does not itself establish breach.

The claimant suffered life-changing spinal injuries when he fell from a surfboard while using the defendant’s artificial surfing lagoon. He claimed that the defendant breached its common duty as occupier, principally because intermediate-level surfers could fall near a shallow reef and because the defendant had not adopted guidance recommending greater water depth, consulted additional water-safety experts, required a practical demonstration of falling technique, or given further warnings.

The trial concerned liability only. The central questions were whether the risk arose from the state of the premises and, if so, whether the defendant had taken such care as was reasonable in all the circumstances.

1. Duty. The defendant owed lawful visitors the common duty under section 2 of the Occupiers Liability Act 1957. The risk was attributable to the state of the premises. In the circumstances, the distinction between the surfing activity and the lagoon’s layout was artificial because the injury arose during a permitted activity whose mechanics could not be separated from the premises (paras [70]-[71]).
2. Applicable assessment. Following the approach in James v White Lion Hotel [2021] EWCA Civ and Tomlinson [2003] UKHL 47, breach required a factual balancing exercise. The relevant considerations were the likelihood of injury, the seriousness of possible injury, the social value of surfing and the cost or practicality of preventative measures (paras [57]-[59], [71]).
3. Application. There was a known risk of injury from the lagoon’s layout, but it was mitigated by warnings, visitor self-certification of ability, vigilant staff, risk assessments and appropriate health-and-safety advice. The likelihood of serious injury was very low. The reef depth was necessary to create surfable waves, and lowering it was not practical. Removing intermediate level 2 would deprive surfers of a useful progression between white-water and advanced surfing. Guidance recommending 1.5 metres was directed principally to materially different activities and could not reasonably be adopted in this lagoon (paras [65], [72]-[77], [81]).
4. The defendant was not in breach by failing to require a practical demonstration of falling technique or by failing to give further warnings about the reef. Although it had failed to warn that moving from intermediate level 1 to level 2 involved the greatest risk of falling at the most dangerous point, the claimant already knew the reef’s location and depth, so the omission did not establish a failure to take reasonable care (paras [78]-[80]).
5. Disposition. The defendant discharged its common duty of care. The claim was dismissed (para [82]).