Judgment was handed down on 21 December 2023. Whilst it turned on its own unique set of facts, the case is another link in the chain originating from the House of Lords' decision in Tomlinson v Congleton Borough Council and another [2003] UKHL 47.
Introduction
At the time of the accident, the defendant ran a surfing facility which was sited in an artificial lagoon. The floor of the lagoon rose from the centre and reached a plateau towards the edge. Along the centreline of the lagoon a "wavefoil" ran up and down a track fixed to the lagoon bed. This generated waves as it pushed water from deeper to shallower areas of the lagoon.
The accident
The claimant was an experienced surfer who had attended the park on several occasions before the day of the accident in August 2018. He had booked an "Intermediate level 2" session which meant he started from nearer the central pier.
The claimant signed a "statement of risk" and watched a safety video before he started, including a declaration that he recognised that surfing is a hazardous sport.
CCTV evidence showed the claimant crouching on his surfboard at the time of the accident. The claimant fell from his board at about 10m away from the side of the central pier, rotated as he fell and was approximately horizontal when he hit the water.
The parties' medical experts agreed that the claimant's head had probably struck the floor of the lagoon when his neck was in a flexed position, causing a dislocation/fracture at C6/C7. Sadly, the claimant was rendered tetraplegic as a result of the accident.
The claim
The claimant alleged that the defendant was in breach of its common duty of care under s.2(2) of the Occupier's Liability Act 1957 (the Act). In addition, the claimant's various allegations of negligence/breach were crystallised at the trial into the following issues:
- The take-off point for surfers of the claimant's standard meant that they would fall in the shallowest area of the lagoon;
- The defendant failed to heed guidance as to the minimum water depth which the claimant's expert stated should have been 1.5m;
- The defendant failed to consult experts about the water depth;
- The defendant failed to require/teach a good fall technique; and
- The defendant failed to warn of the water depth.
The law
The court considered the principles set out by the Court of Appeal in James v White Lion Hotel [2021] EWCA Civ 31 which relied heavily on the judgment in Tomlinson: did the risk to the claimant arise as a result of the state of the premises? If so, then whether or not appropriate care had been exercised required an assessment of:
(a) The likelihood of injury;
(b) The seriousness of the injury;
(c) The social value of the activity which gave rise to the risk; and
(d) The cost of taking preventative measures.
Findings of fact
The court made numerous findings including the following:
- That the depth of the reef had to be 0.9m for uniform surfable waves to be created in the first place;
- The water depth could not be increased and the lagoon could not have operated with a minimum depth of water of 1.5m;
- It was appropriate for Intermediate level 2 surfing to have taken place;
- The claimant knew where the reef was and how deep it was, as a result of his visits to the lagoon and also from watching the pre surf brief video;
- The claimant had self-certified his abilities and it was not reasonable for the defendant to require every surfer to physically demonstrate a basic ability; and
- The defendant did fail to warn the claimant that moving from Intermediate level 1 to level 2 exposed him to the greatest risk of falling at the most dangerous point in the lagoon, but the claimant knew where and how deep the water over the reef was.
The court's conclusions
A duty of care was owed to the claimant. The defendant's contention that the accident was due to the claimant's surfing rather than the state of the premises was rejected, as s.2(2) of the Act is clear that the duty is to keep the visitor safe when using the premises for the purposes for which he is invited/permitted to be there. However, the overall risk of injury was moderate. The only real steps that could have been taken to reduce or remove the risk were to remove Intermediate 2 as a surfing level or lower the reef. The cost of lowering the reef was prohibitive and the social utility of the activity would be lost. Similarly, the cost of removing Intermediate 2 surfing would be to deprive those who wanted to progress to surfing green water (the vertical part of the wave) of the chance to do so.
Taking everything into account, it was clear that the defendant had discharged the duty it owed the claimant and the claim was dismissed.
Final thoughts
The courts have approached cases involving other potentially hazardous leisure activities but with apparent social utility in a similar robust way, following Tomlinson. In Poppleton v Trustees of the Portsmouth Youth Activities Committee [2008] All ER (D) 150, the claimant was ascending an indoor climbing wall and tried to leap from a back wall to grab hold of a buttress on an opposite wall. He did not know he was not supposed to do this. The court held that the defendant was under no duty to assess his competence, nor to train or supervise him and that, if supervision was required in this case, it would be needed for a host of common-place leisure activities.
Similarly, in Harrison v Intuitive Business Consultants Ltd [2021] EWHC 2396, the claimant was taking part in a race and was attempting an elevated monkey ring obstacle when he fell to the ground. The court dismissed the claim and held that, although the defendants had owed a duty of care to give instruction as to the appropriate method to be adopted when moving from the platform onto the rings, the required instruction had in fact been given and that, even if it had not been, its absence would not have been causative of the accident.
In Bennion, the judge accepted that surfing has inherent risks, but that the claimant was an experienced surfer and that the defendant had correctly identified and provided for the risks. The claimant had accepted the inherent risk when he chose to surf.
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