Question 3 of the January 2004 paper.
Kellie’s and Jim’s rights would come under the occupier’s liability area of law, which discusses the extent to which the occupier must go to in order to keep people on their land safe.
An occupier, as found in Wheat v. Lacon, is someone who has control over the premises. Lacon tells us that even though the D doesn’t live in the on the premises they can still be held liable as the occupier. A premises is not just limited to buildings, s1.3 of the Occupiers’ Liability Act 1957 tells us that it’s anything really, including vehicles and boats.
In this case, the occupier is Highlife Sports. They do have control of the premises since they run the events and most likely own the land and water.
In this area of law people are separated into two groups. The first group is visitors, given rights under OLA ’57. Section 1.2 of that act describes them as people who have a right to be on the land, either expressed or implied through contract or permission. Right through permission is given by the occupier inviting the person onto the land, whilst s2.6 tells us that some people have a contractual right to be there due to law; postmen, or police for instance.
Kellie would be a visitor since she stay within her own area, and was invited to be there (albeit through her membership, no one needed to say “you can go out there now”).
The occupier owes a common law duty of care (Caparo v. Dickman) to all his visitors and their property. Section 2.2 explains this more by saying that an occupier has a duty to keep their visitors reasonably safe from any harm whilst they’re using the premises for the purpose that they’re invited for.
Of course, children are owed a higher duty of care (S2.3a) since they’re younger and won’t understand the risks as much as an adult. These risks include things that children might find attractive and fun, this is discussed further in Glasgow Corp v. Taylor, saying that occupiers must take all reasonable measures to protect children from these risks. Of course, it could be reasonable to expect their parents to be looking after their child if they are around, Phipps v. Richestor Corp.
Professional people are given a lower standard of care (s2.3b) since they should know that they’re doing. However, this lower standard only applies within the professionals expertises, eg. An electrician should know the dangers of faulty cabling and so shouldn’t take that risk, however, if they burn themselves on a candle they are owed the normal duty of care since that has nothing to do with their job (Ogwo v. Taylor).
An obvious way for Highlife Sports to avoid the incident that happened here would be to build another separate pool for swimmers. However, you can see the impracticality of that. So, s2.4 discusses that signs telling of the hazard could discharge their duty. In this case, Highlife Sports did put up signs forbidding swimmers to cross into that area of the water which may make them less liable.
Since Jim strayed out of where he should be, he is a trespasser, given rights under OLA ’84.
A trespasser if someone who is on the land without a right to be, or who was invited to do something but then left the area they had permission to be in. For instance, whilst Jim was swimming in his own area, he was a visitor there. Unfortunately for him, when he left that area he became a trespasser and is given less rights. For instance, the occupier is now only liable for their personal injury and not their property, s1.8.
An occupier is liable for this when he or she is aware that the danger exists. This is contrasted with a visitor where the occupier doesn’t need to know there’s a risk. They must also know that there’s a likelihood that someone may come across that risk. The D must also be reasonable expected to offer precautions to the risk. S1.3.
I think it’s likely that Kellie would be able to claim damagers for her injuries. These damages would be measured by standards that the courts set. She may also be compensated any time that she has to have off worked.