Key Facts
- •On August 5, 2018, the claimant, Mr. Bennion, suffered serious injuries while surfing at an artificial lagoon operated by the defendant.
- •The lagoon, opened in 2015, had varying water depths, including a shallow reef (0.9m) designed for wave generation.
- •Surfers could choose from beginner, intermediate 1, intermediate 2, and advanced levels.
- •Mr. Bennion, an intermediate 2 surfer, fell and hit his head on the lagoon floor, resulting in tetraplegia.
- •The incident was captured on CCTV.
- •The defendant had risk assessments in place but they contained errors and inconsistencies.
- •The defendant consulted with health and safety consultants (Inmans) but did not obtain a Declaration of Operational Compliance (DOC).
Legal Principles
Occupiers' Liability Act 1957, section 2(2): An occupier owes a common duty of care to all lawful visitors to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises.
Occupiers' Liability Act 1957
The assessment of liability under the 1957 Act is a factual assessment based on the particular circumstances of each case, considering likelihood of injury, seriousness of injury, social value of the activity, and cost of preventative measures (James v White Lion Hotel [2021] EWCA Civ; Tomlinson [2003] UKHL 47).
James v White Lion Hotel [2021] EWCA Civ; Tomlinson [2003] UKHL 47
Outcomes
The claim was dismissed.
The court found that the defendant had discharged its duty of care. The risk of injury, while acknowledged, was considered moderate, mitigated by various safety measures, and outweighed by the social value of surfing and the impracticality of eliminating the risk entirely by altering the lagoon's design. The court rejected the claimant's arguments regarding inadequate warnings, insufficient consultation, and the shallow depth of the reef.