England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NORTHAMPTON COUNTY COURT
(Mr Recorder Gosmark)

		Royal Courts of Justice Strand London WC2 Tuesday, 10th July 2001

1. LORD JUSTICE POTTER: This application involves a water skiing accident when the claimant/appellant, a young man, was swimming with a friend in a lake plainly in use by water skiers. The judge considered the arguments before him with considerable care. In refusing permission on paper, I observed that his was an extremely careful judgment which gave clear reasons for the findings of fact and law and on which I could see no reasonable basis on which the Court of Appeal could be persuaded to overrule it.
2. With some hesitation, I have decided that it is right to grant permission, thanks to the very clear and persistent oral presentation by Mr. Wilson on behalf of the applicant. The appeal will be comparatively short. It is unfortunate that in giving directions I did not give a direction to the effect that, if the application was renewed, it should be made on notice with the appeal to follow immediately, not least because the amount of damages in issue is not very large, and it seems to me that if the appeal is successful the appellant is bound to have his damages substantially reduced on the grounds of contributory negligence. The judge felt that he had been entirely the author of his own misfortune.
3. However, two points have been developed by Mr. Wilson. The first relates to what, on the apparent finding of the judge (although he did not express himself clearly on the topic), must have been a breach of the rules of the water ski club by the respondent, in that he did not use his klaxon or horn, or whatever warning he had on his boat, at a decent distance from the area between the jetty and the island where the accident happened, so as to indicate the likelihood of his arrival to the claimant and his friend, who, as the judge held, by that stage were both in the water swimming back to the jetty from the island. It is suggested by Mr. Thomas that, had the warning been given at an appropriate spot, that is to say, a spot reasonably distant from the place where the accident happened, namely at or about the point where the course drawn out for water skiers by the club bifurcates, so as to indicate that those continuing with their water skiing should go on the far side of the island, whereas those coming into the jetty should exercise care, then the accident would have been avoided. It is submitted that, if that had happened, then it is likely that the claimant would not have entered the water at all or (if already swimming) would have been alerted to the danger. Speaking for myself, it seems unlikely that it could be established that he was not yet in the water but, nonetheless, there is plainly an argument that, even to a swimmer swimming with his head down, a warning of that kind would have been heard, giving him an opportunity to wave and indicate his presence to any boat which was advancing.
4. The other point that is raised is one with which the judge dealt with some care, namely the likely visibility of the claimant to the defendant when the latter was driving his boat and approaching the scene of the accident. It was and is suggested that he failed to keep a proper lookout, on the basis that his son, who was in the boat and looking ahead, could see that there were two swimmers in the water rather than one. It was the sight of one in the water, namely the claimant's companion, which caused the defendant to change course in order to avoid him, being unaware that by doing so he would strike the claimant. The flavour of the case is undoubtedly one where on any view, as I have indicated, the claimant, who had every reason to expect that there would be water skiers using the lake, to a large extent brought the misfortune upon himself. However, that is not to say that the full court will not find that a degree of negligence was exhibited by the defendant. As Mr. Wilson has pointed out, his arguments do not so much involve the reversal of findings of fact on the part of the trial judge, which the full court in a case of this kind would not be prepared to undertake, but rather involve criticism of the judge's failure to draw inferences based on his primary findings of fact which would have led to a finding of liability. In those circumstances, I have indicated that I am prepared to grant permission in this case.
Order: Application allowed.