UK: BLG Local Authority Newsletter - Do We Really Love To Be Beside The Seaside?

At this time of year our thoughts turn to summer holidays. A public authority, particularly in coastal regions, might also view this time of year with some concern. The increased volume of visitors to our coasts and waterways inevitably results in accidents and claims.

The question to be considered is what, if anything, can be done to make those visitors safer and prevent claims? Especially those visitors invigorated by beer and heat, determined to cool down in accordance with the latest dangerous fashions.

Tombstoning

On 7 July 2007, two middle aged men died as a result of jumping from Clacton Pier into the North Sea. The pair, together with four friends, had been drinking for much of the day according to the Deputy Coroner. They had decided to follow their four friends in carrying out a stunt known as "tombstoning" by jumping into the sea from the elevated pier platform.

The pair struggled to stay afloat after entering the water, and coastguards were called to the scene. Both were unconscious when pulled from the water and died soon after.

A member of pier staff told the inquest how he had spent several minutes trying to prevent the two men from jumping in. He explained the obvious dangers involved and, believing they would not jump, moved away. It was then that he heard two splashes, according to his evidence.

In this case there cannot be any claim against the local authority. The individuals concerned jumped into the sea, despite warnings to the contrary, from a platform owned and operated by a private company. But, there are a number of such diving situations where the local authority can, potentially, be exposed to liability. Many claims arise from diving accidents in inland reservoirs and lakes. Happily, the reported cases show the defendant friendly approach the courts adopt.

Tomlinson v Congelton BC (2003) provides the key defence theme for public authorities. The claimant had chosen to dive into a shallow lake at Brereton Heath Park in Cheshire. Despite numerous notices warning against swimming, the area was regularly used by locals. The claimant dived into the water, struck his head on a submerged obstruction and suffered significant spinal injuries. He alleged that the defendant owed a duty of care to those using the area. The House of Lords held against him in finding that the risk was so obvious that such a duty could simply not exist. The court found that "it would be unreasonable to impose on public authorities a duty to protect persons from self-inflicted harm sustained when taking voluntary risks in the face of obvious dangers."

This line was followed closely in Rhind v Astbury Water Park Limited & Ors (2004). The circumstances were similar. The claimant dived into Astbury Mere, down the road from where Mr Tomlinson was injured the year before, and sustained severe spinal injuries. The High Court found that the risk of injury was so obvious that there was no specific duty upon the occupier to post warning notices (despite the fact that such notices were in place) or to exclude the public from the water's edge.

The important principle in these cases is the personal responsibility of the individual to take care for himself, as opposed to the duty owed by a land owner or public body.

The courts were equally robust on the issue of personal responsibility in Hampstead Heath Winter Swimming Club v the Corporation of London (2005). The High Court, on considering a judicial review application, suggested that the local authority should avoid any prosecution under the Health and Safety at Work Act 1974 should a swimmer suffer injury whilst at an unsupervised session. The Corporation had controversially withdrawn lifeguard cover out of hours and prevented the Club from entering the public swimming ponds. The Corporation feared prosecution by the Health and Safety Executive (HSE) in the event that a swimmer suffered injury "out of hours".

In finding that the public ponds should remain open, the Court pointed out that "If an adult swimmer with knowledge of the risks of swimming chooses to swim unsupervised, in a pond which has no hidden dangers, the risk that he would incur would be as a result of his decision and not of the permission given to him to swim. In those circumstances there could be no conviction in accordance with s3. of the 1974 Act".

Sea walls and promenades

In the case of Staples v Dorset (1995), Mr Staples fell some 20 feet from the old harbour wall, known as the Cobb, at Lyme Regis. At first instance he was awarded damages on the basis that the local authority should have posted warning notices with a view to preventing such incidents. The Cobb was covered in algae and seaweed, both notoriously slippery substances. In the circumstances, it was unsurprising that he fell, and the court found that the hazard was such an obvious one that there was no responsibility to erect signs and no liability under the Occupiers Liability Act 1957.

Contrast that with Collier v Anglian Water (1983). Sea defences had been constructed in the 1920s by the original Water Board on land belonging to the local authority. Although the local authority exercised a high degree of control over the promenade area on top of the sea defences, historically all responsibility for repair fell to Anglian Water. The claimant tripped over a defect to the walkway of the promenade caused by one of the concrete surface slabs having become raised slightly over time.

The court held that Anglian Water exercised sufficient control over the land to qualify as occupiers and the claim succeeded against them. However, if a local authority had had control of the area, they would have been liable.

Collier can be distinguished from Staples on the basis of the duties owed. In Staples, the court held that the hazard was a naturally occurring and quite obvious one, whereas in Collier the claimant had tripped over a defect that had arisen through lack of maintenance. Where local authorities have responsibility for the implementation, maintenance and repair of sea defences to which the public have access on their coastlines, it is important that systems of inspection and repair are implemented and adhered to. These systems will need to be tailored to take into account the levels of pedestrian traffic and general usage in a particular area. Where there is frequent public access, frequent inspections are required, but when the area is more remote, then a much more relaxed attitude can be taken.

Conclusions

If there is an obvious risk and a member of the public chooses to take it, then he or she must bear the consequences. The duty of a local authority would not include guarding against those risks that are so obvious as to not require explanation or warning. This would include jumping from a structure into the sea or diving into a lake where you were unaware of the depth or of any underwater obstructions.

Local authorities may wish to consider whether signs warning against the danger of, say, jumping from a sea wall are really necessary in those circumstances, although many put them up out of an abundance of caution. If, however, a local authority erects a sea diving platform it should provide a means of assessing the depth of water being dived into as the tide goes up and down.

A local authority must, however, take steps to ensure that areas for which they are responsible are maintained as far as practicable. Where promenades are concerned, this is likely to extend to a Highways Act style obligation to inspect and repair on a regular basis. However, in more remote areas, the duties are much lower. Note that if a long-standing right of way exists, a defence may exist under case law.

As patterns of public use change and hazards develop, the local authority must take early action to ensure that the public are not exposed to dangers. This might involve placing barriers or railings in busy areas to prevent people falling off a high sea wall, particularly if the problem is a recurrent one. Likewise, in the absence of complaint or accident, an authority might be justified in taking no preventative steps, again in remote areas subject to little or no visitor traffic.

This duty is a dynamic one, especially after winter months when the majority of damage to promenades will occur. A regular and documented system of monitoring is, however, likely to stand the authority in good stead when it comes to defending claims.

And finally...

But what of those unseen dangers that lurk beneath the waves abroad?

Mr and Mrs Ingram took a luxury holiday in Thailand. They paid over £6,000 for a stay at a resort run by Elegant Resorts Limited. After taking to the sea one afternoon, the claimant and his wife were set upon by shoals of jellyfish and stung repeatedly. They complained to the hotel that insufficient warning had been given to them concerning this rare natural phenomenon.

In the case before DDJ Woodcroft in the Mayors & City of London County Court, they alleged defective supply of hotel services against Elegant Resorts. The DDJ found that there had been a failure to warn about the jellyfish invasion and offer alternative accommodation despite the jellyfish swarm obviously being a freak act of nature. The subsequent appeal by Elegant was swiftly dealt with, and the Court of Appeal ordered Mr Ingram to return the £3,000 he had been awarded at first instance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.