A lake had formed in a park run by D and was dangerous. D put up signs warning people not to swim and employed people to walk around the park and warn people not to swim. It knew that sometimes people disobeyed the warnings but could not afford to take additional measures. P decided to dive in at a shallow part and was injured. HL dismissed his claim against D, saying that the injury was not caused by the state of the premises but by P’s act in diving in the shallow end (judge had found that the lake was no more dangerous than any stretch of water). Also HL held that this was not a risk against which D might be reasonably be expected to offer some protection within s.1(3)(c) (for same reasons as in Bolton v Stone). Therefore no duty arose in connection with diving in the shallow end.
Lord Hoffmann: There is debate about whether P could come within either category of visitor or NV: Obviously P was not a visitor since swimming in the lake was prohibited. However, before entering the lake he was not a trespasser and therefore the 1984 Act did not apply to him, while his injury was pretty much instantaneous (P did not paddle around before being injured). Therefore could he really have become a NV in the moment between touching the water and sustaining an injury? Hoffmann’s solution is purposive reasoning: the 1984 Act was intended to apply to those who wrongfully entered property or used it for a purpose for which they were not invited. In reality this is the sort of situation which was intended to come within the 1984 Act. The danger was caused by an activity with “inherent risk” (diving in shallow water) and NOT due to any special dangers associated with the lake. No duty is owed by O to a NV who undertakes an inherently risky activity not caused by the state of the premises or acts or omissions done to it. Also, because the activity was obviously dangerous, it was NOT within s.1(3)(c) i.e. one against which D should offer protection. In obiter, he says that assessing what is a reasonable protective measure to offer “in all the circumstances”, cost of the measures and the social value of the activity should be taken into account. The key difference between the 1957 Act and the 1984 Act is that in the former one starts from the assumption that there is a duty, while in the latter one assumes there is not.