When drinking and diving really don’t mix
What happened?
A thirty one year-old professional scuba diver went out to the pub one evening, in mid-winter, and drank five pints. After midnight, he went to the harbour with a friend who was similarly inclined. He got undressed and dived into the sea. He struck an underwater concrete pillar two feet below the surface, broke his neck and was rendered tetraplegic.
The man made a claim against the properties company who operated the harbour.
Legal Outcome
The initial claim was successful. Under the Occupiers’ Liability Act 1984, an occupier owes a duty to a non-visitor if he is aware of a danger or has reasonable grounds to believe that it exists and knows or has reasonable grounds to believe that the non-visitor is in the vicinity of the danger or may come within its vicinity. In this case, the man would be classified as a non-visitor. A trespasser would be classified as a non-visitor.
The harbour operators appealed, saying they recognised they owed a duty to whom they were well aware, who swam and dived in the summer months, but that duty did not extend to the man and his swimming expedition at midnight in mid-winter.
The Court of Appeal agreed, saying that when a duty is owed to a trespasser, regard should be given to the characteristics and attributes of the individual and the circumstances prevailing when that individual suffered his injury.
What can we learn from what happened?
Another example of the Court of Appeal overturning the initial judgment, and another example of when the courts are saying that people must shoulder a share of accountability and responsibility for their actions.
The context here was the man was drunk, and very ill-advised to even enter the water at all, let alone dive in without knowing what lay under the surface of the water. It was midnight, it was the middle of winter and he was an adult, and what’s more, an adult who was qualified in scuba diving.
So, context is everything and not every case will be the same, but it does reinforce the notion that when a risk is obvious, an occupier’s duty has to be realistically limited to avoid causing an undue burden on society.
Source of Information
Leisure Manager Magazine