IN THE HIGH COURT OF JUSTICE BETWEEN AND. THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Third Defendant BEFORE THE HONOURABLE MADAM JUSTICE JUDITH JONES

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1 REPUBLIC OF TRINIDAD AND TOBAGO Claim No. CV IN THE HIGH COURT OF JUSTICE BETWEEN ANA CAROLINA BARRY-LASO First Named Claimant YANIK QUENSEL Second Named Claimant AND TOBAGO HOUSE OF ASSEMBLY First Defendant PIGEON POINT HERITAGE PARK LIMITED Second Defendant THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Third Defendant BEFORE THE HONOURABLE MADAM JUSTICE JUDITH JONES Appearances: Mr. D. Mendes, S.C., leading Mr. K. Garcia, instructed by Ms. V. Jaisingh for the Claimants. Mr. E. Prescott, S.C., leading Mr. P. Lamont, instructed by Mr. A. Pascall and Ms. K. Anderson for the First and Second Defendants. Mr. R. Martineau, S.C., leading Mr. S. Alsaran and Ms. M. Goolan instructed by Mr. S. Julien and Ms. D. Jean-Baptiste-Samuel, for the Third Defendant. Page 1 of 36

2 JUDGMENT 1. The Pigeon Point Heritage Park Ltd., ( the Company ) manages and controls facilities at Pigeon Point Tobago known as the Pigeon Point Heritage Park on behalf of the Tobago House of Assembly ( the THA ). The Park is bounded on the north and the west by the sea. In close proximity to Pigeon Point is a famous coral reef known as the Buccoo Reef. Both Pigeon Point and Buccoo Reef are well-known tourist attractions. They both form a part of an area referred to as the Buccoo Reef Restricted Area. This area falls under the auspices of the Department of Marine Resources and Fisheries of the THA. The Park is advertised on the internet by the THA as a tourist attraction with amenities that encompass all things beach on an iconic white-sand beach stretching for a mile and framed by lightblue Caribbean water. Also located at the Park is a well-known picturesque jetty, which extends some 100 feet from the shoreline into the water and which is maintained by the THA. 2. Access to the Park is by way of a gate controlled by the Company. Visitors are required to pay a fee for entry. Included in the facilities provided at the Park, by way of independent concessionaires, are water sports and boat tours to the Buccoo Reef. Lounge chairs are offered for rental. Food and drink are also available for purchase. The services of lifeguards employed by the THA are also provided. Also provided are bathroom facilities inclusive of showers. There is a five foot hedge between the car park and the beach which serves to prevent cars from going onto the beach. There are spaces in the hedge which allow Page 2 of 36

3 walking access to the beach. There is nothing impeding visitors access to the beach or the adjacent water from the Park. Located on the sandy area are lounge chairs and toilets as well as a bar and restaurant. Access to the beach area and the adjacent water is not limited to entry through the Park, access is also possible by way of the sea or along the beach. 3. On the 12 th June 2007 the Claimants, both aged 17 years at the time, were injured by a motor boat while bathing in waters off Pigeon Point ( the adjacent water ) in an area known as the boat channel. This channel, about 20 feet in width, runs close to and parallel to the Pigeon Point shore. At some points this channel can be as close as 20 feet from the shore at the high water mark and is used regularly by boats to access Buccoo reef. The channel presents an unusually safe passage for boats from the rough waters and dangers presented by the reef. The use of this channel by boats is a well known fact to frequenters of the Park and the adjacent water and residents of Tobago in general. 4. The Claimants, neither of whom were native Tobagonians or persons who frequently visited the Park or the adjacent water, were injured while in water approximately four to five feet in depth. Both Claimants suffered severe injuries. While there is some dispute on the pleadings as to whether the Claimants paid an entrance fee for entry onto the Park it is not in dispute that the Claimants entered the beach and the adjacent water from the Park. There is no allegation that the Claimants gained entry to adjacent water and the Park other than through the main gate. Indeed there is no challenge to the evidence led on behalf of the Claimants that an entrance fee was paid by them. Page 3 of 36

4 5. The Claimants entered the Park for the specific purpose of bathing in the adjacent water. They had spent some time at one beach, left another because it was too crowded and then decided to visit Pigeon Point. At the time of the accident there were no warning signs in the adjacent water in the vicinity of the channel or at all. Nor was any part of the adjacent water roped off. Neither were there any warning signs on the beach with respect to boating activity in the channel or at all. For a short time prior to the acquisition of the land on which the Park was located by the State, the previous owners had cordoned off, by means of the use of ropes and buoys, a part of the adjacent water for the purpose of protecting sea-bathers from the risk of injury posed by boats using the channel. This measure was however short lived as the rope was removed by persons unknown. This was not however a fact known to the Claimants. 6. For at least a year prior to the accident the Company had been actively contemplating placing warning signs in the adjacent water, namely buoys and ropes, to indicate bathing areas. This was primarily to deal with the nuisance caused to bathers by the use of jet skis. The day after the accident the Company placed buoys and ropes in the adjacent water approximately 40 to 50 feet from the shoreline. According to the Company this was done in order to provide a warning to sea-bathers of the likelihood of danger in the said waters beyond the said buoys or ropes. 7. The land upon which the Park is located was purchased by the State in the year 2005 Page 4 of 36

5 from a private owner. Prior to its purchase by the State the Park was called Club Pigeon Point and was run by its owners as a resort and tourist attraction. At the time of the purchase there were existing tenancies, these tenancies comprised shops and boutiques, a water sport provider and boat operators. The adjacent water forms a part of the archipelagic waters of the State of Trinidad and Tobago and is vested in the State. At the time of the accident therefore both the land upon which the Park was located and the adjacent water were vested in the State. 8. By section 25 of the Tobago House of Assembly Act Chap 25:03, ( the THA Act ) the THA is responsible for the formulation and implementation of policy with respect to, among other things: state lands, land and marine parks, tourism, sports and infrastructure including air and sea transportation, in Tobago. By section 25(2) of the THA Act, the THA is empowered to do all such acts and take all such steps as may be necessary for or incidental to the exercise of its powers or for the discharge of its duties. Pursuant to its statutory duties one of the activities undertaken by the THA was patrolling by boat the Buccoo Reef Restricted Area. 9. The Claimants sue the Company, the THA and the State in negligence. No claim or ancilliary claim has been brought against the owner or operator of the motor boat. The claim is brought against the Defendants as the owners and/or occupiers and/or the persons in control of the Park and/or the adjacent waters. Basically the Claimants make two complaints against the Defendants, that, knowing of the risk to bathers posed by water craft using the Page 5 of 36

6 channel, the Defendants: (i) failed to take measures to prevent water craft from traversing an area so close to the shore that would endanger sea-bathers and (ii) failed to warn sea-bathers of the risk of injury by watercraft. 10. All three defendants deny that they owe a duty of care to the Claimants. While not denying that, if a duty of care did exist, the applicable principle of law is that which applies to an invitee entering onto premises under the control of the occupier, they each further submit that even if a duty of care is owed to the Claimants there has been no breach of that duty. They submit that the danger posed by the existence of the boats was an obvious danger and that in the circumstances the Claimants did not exercise reasonable care for their own safety. In any event they submit that even if there was a breach of a duty of care the breach did not result in injury to the Claimants. According to the State the responsibility for the accident lies with the boat driver solely. 11. Insofar as knowledge of the risk of injury to bathers in the adjacent water is concerned the Claimants plead that the Defendants knew or ought to have known that (a) the adjacent water was a popular sea-bathing area as well as a channel regularly used by marine vessels; and (b) sea-bathers were at risk of being struck by marine vessels using the channel. Neither the THA nor the Company deny this plea. The State on the other hand, while admitting knowledge that the adjacent water was a popular sea-bathing area and that marine vessels crossed the waters at some considerable distance outside the Beach Facility, denies knowledge of the channel or that it ought to have known of the risk of injury to sea-bathers. Page 6 of 36

7 12. Only the question of liability is before me at this stage. The issues for my determination are: 1. Is a duty of care owed by any or all of the Defendants to the Claimants; 2. If a duty of care exists are any of the Defendants in breach of such duty of care? 3. If so did the breach result in injury to the Claimants? Is there a duty of care? 13. The case as presented by the Claimants is that the duty of care owed to them arises out of the duty of care owed by an occupier of premises to an invitee: the invitee using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know; : Indermaur v Dames (1866) L.R.1C.P. 274 at page Despite the fact that the case is framed in the liability of an occupier to an invitee This duty is simply a particular instance of the general duty of care which each man owes to his neighbour : per Denning LJ in Wheat v E.Lacon & Co. [1966] AC 552 at 578. Page 7 of 36

8 The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyers question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question. : per Lord Atkin in Donoghue v Stevenson [1932] AC 562 at page The Defendants aver that they have no control over the beach or the adjacent water. According to them the waters off Pigeon Point and the beach are public places to which the public has unlimited access, by way of bathing and use of marine vessels and other water craft. While the correctness of the submission that the sea is a public place to which the public has unlimited access cannot be doubted in my opinion it does not necessarily follow that there can therefore be no duty of care with respect to the use of the sea by members of the public under certain circumstances. 16. On the evidence it is not in dispute that the adjacent water is a popular sea-bathing area through which the channel, regularly used by boats, passes. Neither is it in dispute that this channel runs close to the Pigeon Point shoreline and that there is a risk of injury to persons bathing in that area. Indeed this fact was admitted by both the witnesses for the Page 8 of 36

9 THA and for the Company. The State led no evidence in this regard nor did it cross-examine any of the witnesses on this issue. On the evidence therefore it is not in dispute that there was a foreseeable risk of injury to persons bathing in the adjacent water from boats traversing the channel. Neither is it in dispute that prior to the accident no steps had been taken by any of the Defendants to prevent or to warn sea-bathers of the risk presented to them by these boats. 17. The first question to be answered here is whether in these circumstances persons bathing in the adjacent waters are persons so closely and directly affected by the omission to prevent or to warn of a foreseeable risk of injury, that is the risk of injury by boats using the channel, that they fall within the category of neighbour contemplated by Lord Atkin in Donague v Stevenson. In my opinion the answer to this question must be yes. It would seem to me that the fact of an obvious risk of injury suggests prima facie that a duty of care exists. The question is by whom is this duty owed? If there is no one with a sufficient degree of control over the adjacent water or its use then the duty of care which prima facie arises from the existence of the foreseeable risk exists in a vacuum and is meaningless. 18. The next question to be answered therefore is: which, if any, of the Defendants, have a sufficient degree of control so as to put themselves under a duty of care to a user of the adjacent water? Applying the cases on the common law general duty of care, in Wheat v E Lacon & Co. Ltd. [1966] AC 552 Lord Denning stated the relevant principle to be: wherever a person has a sufficient degree of control over premises that he Page 9 of 36

10 ought to realize that any failure to use care may result in injury to a person coming lawfully there, then he is an occupier and the person coming lawfully there is his visitor: and the occupier is under a duty to his visitor to use reasonable care. : per Denning LJ at page 578. The test is occupational control. 19. It cannot, I think, be disputed that had the accident occurred on the land occupied by the Park either the THA or the Company or both would have had a sufficient degree of control over the Park so as to found a duty of care towards visitors to the Park. That such responsibility can vest in more than one person or entity at the same time is not in dispute: Wheat v E. Lacon &Co. 20. While the case as presented against all three Defendants is based on their liability as occupiers the relationship of each of the Defendants to the adjacent water and its users is not however the same. Of necessity therefore the case as presented against each Defendant is not on all fours. On one hand we have the THA and the Company as occupiers and managers of the Park and on the other hand the State as the sovereign body in whom the adjacent water is vested and the THA in whom, by the THA Act, the State has divested certain of its responsibilities for Tobago. The THA and the Company as occupiers of the Park Page 10 of 36

11 21. In my opinion it cannot be challenged that both the THA and the Company exercise sufficient control over the Park as to put them under a duty of care to persons who pay the requisite fee and enter the premises, for ease of reference I shall refer to these persons as visitors. Despite the fact that the land is owned by the State responsibility for the Park was vested in and assumed by the THA by virtue of section 25 of the THA Act. 22. In particular section 25(2) of the THA Act empowers the THA to do all such acts and take all such steps necessary and incidental to the exercise of its powers or for the discharge of its duties and in particular to devise mechanisms for the protection and security of property, buildings or other assets under its control. It would seem to me that in this regard, unlike the relationship between the THA and the Company, the THA cannot be considered the agent for the State. The State in my opinion by section 25 of the THA Act divested the responsibility for the areas identified in the fifth schedule to the THA. 23. On the evidence it is reasonable to conclude that the Company was formed by the THA for the purpose of managing the Park as a tourist attraction. Pursuant to its statutory duties of formulating policy with respect to tourism and implementing such policy the Park was marketed by the THA as a tourist attraction. The Company was incorporated in January 2006 by the THA some months after the acquisition of the land by the State. Its registered office is the office of the Chief Secretary of the THA. The THA retains an overall responsibility for the Park: all the directors of the company are appointed by the THA; the THA is responsible for the employment and deployment of life guards and the provision of Page 11 of 36

12 facilities for the lifeguards; it maintains the jetty. 24. Further, the Board of Directors of the Company considered it necessary to consult with the Secretary of Tourism for the THA with respect to establishing a policy on the operation of jet skis within what they described as the bathing area of the Park. In my opinion both the THA and the Company exercised sufficient control over the Park as to put them in the category of occupier and under a duty of care to visitors. The fact that the Company managed the Park on behalf of the THA does not in my opinion absolve them of all personal liability with respect to breaches of duty of care. In my opinion the fact of their management of the Park vested them with some measure of autonomy with respect to the day to day control of the Park and its facilities. 25. The real complication here is that the accident did not occur on the land but in the adjacent water. The Claimant submits that the responsibility for the risk posed by the boats to users of the adjacent water for the purpose of sea-bathing vests in all three Defendants. It is not in dispute that the adjacent water is vested in the State. Insofar as the THA and the Company are concerned the Claimant submits that the use of the adjacent water is so closely connected with the use of the Park so as to vest responsibility in them for its user by seabathers who access the beach and adjacent water through the Park. 26. The issue is one of proximity. Was the use of the adjacent water for sea-bathing so connected to the facilities provided by the Park so as to vest a degree of proximity between Page 12 of 36

13 the persons in control of the Park and sea-bathers sufficient to found a duty of care with respect to their safety? In this regard the Claimants rely on the majority decision in the Australian case of Nagle v Rottnest Island Authority (1993) 177 CLR 423. In that case the Authority was under a statutory duty to manage and control a public reserve on the coast of an island. The Reserve adjoined a swimming area located off the coast of the island known as the Basin. The Plaintiff was injured when he dived into the water of the Basin and hit a submerged rock. The Court found that the Board effectively ran the reserve as a business deriving revenue from visitors and that in the course of running the Reserve in that manner: (i) promoted the Basin for swimming and related recreational activities by means of publicity and directional signs; (ii) encouraged members of the public to use the basin as a venue for such activities by installing, maintaining and servicing change-rooms and toilets adjacent to the parking area and (iii) installed, maintained and serviced a paved path from the main settlement on the Island to a parking area above the Basin. 27. According to the majority judgment: In these circumstances, it is beyond question that the Board brought itself into a relationship of proximity with those visitors who lawfully visited the Island and resorted to the Basin for the purpose of swimming with respect to any foreseeable risks of injury to which they might be exposed. In this case the basis for holding that the Board came under a duty of care may be simply stated: the Board, by encouraging the public to swim in the Basin, brought itself under a duty of care to those members of the public who Page 13 of 36

14 swam in the Basin. As occupier under the statutory duty already mentioned the Board, by encouraging persons to engage in an activity, came under a duty to take reasonable care to avoid injury to them and the discharge of that duty would naturally require that they be warned of foreseeable risks of injury associated with the activity so encouraged. : page The statutory duty referred to here was the duty imposed on the Board by statute to manage and control the reserve for the benefit of the public. In my opinion nothing turns by the fact that no such statutory duty exists in the instant case. Although there was a dissenting judgment the difference of opinion was not as to whether there was a sufficient relationship of proximity but rather whether the duty of care was breached and whether, if breached, such breach caused the injury. Brennan J. while accepting that a duty of care existed was of the opinion that the duty of care owed to the Plaintiff as a member of the public did not require that the possibility of carelessness in diving be forestalled by a warning sign. In any event he was of the opinion a warning would not have been effective in the circumstances. 29. The THA and the Company, on the other hand, place reliance on the case of Stovin v Wise [1996] AC 923. In that case by way of a majority judgment it was determined that no common law duty of care arose as a result of the failure of a highway authority to remove an obstruction not created by it on lands adjoining the highway. The allegation against the authority was that it had failed to remove an obstruction which it knew was dangerous to the users of the highway and that this failure breached their common law duty to the users of the Page 14 of 36

15 highway. The majority found that with respect to the omission to remove the obstruction there was no duty imposed by the common law in this regard. According to Lord Hoffman, in the case of a highway authority the analogy of an occupier was insufficient for the purpose of imposing liability. 30. Unlike Stovin s case this is not a case of a highway authority. This is a straight case of the duty of the THA and the Company as occupiers of the Park. I accept the reasoning of the majority in Nagle s case. In the instant case the Park was touted as a tourist attraction by and on behalf of the THA. While the THA s authority to do so and establish the Park emanated from its statutory responsibility for the formulation and implementation of policy for both state land and tourism in Tobago, this case is not about the statutory duty of the THA but rather its control over and the use to which they put the premises. 31. The Company, on behalf of the THA, ran the Park as a business and derived revenue from visitors as well as the independent concessionaires. The Park was promoted as a tourist attraction. One of the attractions touted being the iconic white sand beach framed by the light blue Caribbean water. The facilities provided included showers which, according to the witness for the Company, were used to shower after bathing in the sea; beach chairs; water sports and the services of life guards. Access to the beach was facilitated by spaces in a hedge which served to prevent cars driving onto the beach. Indeed it is clear that the Company itself considered it responsible for what it considered to be the bathing area of the Park, hence its deliberations and decisions with respect to the nuisance caused by the use of Page 15 of 36

16 jet skis in this bathing area. 32. On the evidence it is clear and I find as a fact that the facilities and amenities offered at the Park were an adjunct to and for the purpose of enhancing the use of the beach and the quality of the sea-bathing activity in the adjacent waters. This finding accords with the evidence of the witness for the Company Kamau Akili under cross-examination. It would seem to me clear therefore that the Company was established by the THA to develop and enhance the Park and in particular its natural resources, the sea and the beach, for the purpose of the development of tourism, both local and foreign, in Tobago. 33. In the circumstances, despite the fact that the beach and the adjacent water are public places, by providing these facilities the Company and the THA, encouraged visitors to the Park to use the beach and the adjacent water for the purpose of swimming and sea-bathing and made a profit from doing so. In other words by the provision of these facilities the Company and the THA invited the use of the adjacent waters for sea-bathing by its lawful visitors. In the circumstances I am of the opinion that there was a relationship of proximity between the Company and the THA and lawful visitors to the Park with respect to the use of the adjacent water for sea-bathing. 34. This is not a case of the common law requiring a man to act as the Samaritan did as suggested by the counsel for the THA and the Company. In this case, unlike the Levite, the THA and the Company did something. They undertook an activity which brought them into Page 16 of 36

17 a relationship of proximity with persons using the adjacent water for sea-bathing. By advertising the Park in the context of the beach and the sea and by providing amenities which encouraged the use of these natural resources these Defendants promoted and encouraged the use of the adjacent water for the purpose of sea-bathing. 35. The liability of the THA and the Company rests on their occupation and control of the Park and the use to which they put the Park. It is in these circumstances that a duty of care with respect to the user of the adjacent water arises. In the circumstances I am of the opinion that both the THA and the Company owed a duty of care to the Claimants with respect to the use of the adjacent water to use reasonable care to prevent damage from unusual danger, which they knew or ought to have known. The State and the THA 36. With respect to the State s ownership of the Park it is clear that, despite being the owner, the effect of the THA Act and the assumption of responsibility by the THA for the Park is that the State divested itself of any responsibility for the Park. If a duty of care is owed to the Claimants by the State therefore it will not arise as a result of the invitation to use the adjacent water extended by the THA and the Company to visitors to the Park. The responsibility of the State, if any, must therefore derive from the fact that the adjacent water is vested in it. In this regard the State says (a) the case as pleaded against it is not that the liability of the State arises in its capacity as occupier; and (b) in any event the State has no power to manage or control the use of the sea by members of the public and in particular Page 17 of 36

18 boat drivers. 37. Insofar as the case pleaded against the State is concerned the plea is that at all material times the adjacent water was and is under the sovereign control of the State of Trinidad and Tobago. It would seem to me that this plea is sufficient to raise any liability that may arise as a result of the common law duty of care that arises as a result of occupation or control. 38. The State submits that mere sovereignty is not enough to make the State an occupier of the sea for the purpose of establishing liability. Insofar as the sea is a public place to which the public is entitled to free access there can be no quarrel with this statement. In this regard the State submits that there exists over the adjacent water a right of navigation, analogous to the rights of the public on a highway, which may only be curtailed by legislation. In the absence of legislation in this regard, they submit, persons cannot be prevented from navigating the channel as they have the right and freedom to do so. As an adjunct to this argument the State suggests that in any event there is no corresponding right to bathe in the sea. An astounding submission, to my mind, given the fact that we are twin islands in the Caribbean Sea. 39. While I accept that the public have the right to navigate the adjacent water I do not accept that the situation that is presented here is analogous to the rights of the public on a highway or akin to the duty owed to the public by a highway authority. In this regard the Page 18 of 36

19 cases dealing with the duties owed to the public using the highway or public rights of way in my view have no application to this case except insofar as they may contain opinion of general application as to the duty of occupiers. As described by Lord Hoffman in Gorringe v Calderdale [2004] 1 WLR 1057 the duty owed by a highway authority under the common law derives from and is limited to the duty imposed on the inhabitants of a parish to put and keep its highways in repair. Similarly the analogy to public rights of way does not in my view apply. The issue is one of control. The fact is that an occupier of private land over which there runs a public right of way has no control over the way and its usage. 40. Similarly this is not a case of rights of navigation in or the right to use for the purpose of sea-bathing the adjacent water. Neither does the case presented pretend to seek to deal with any public law duty which may be vested in the State. The case against the State is based in its common law duty as occupier of the adjacent water. In this regard the Claimants submit that as the body in whom the ownership of the adjacent water is vested and with knowledge that the said water was a popular sea-bathing area the State knew or ought to have known that there was a channel used by regularly used boats to traverse the water and as a result a duty of care arises with respect to other users of that water. 41. While I accept the statement that the fact of sovereignty does not automatically make the State an occupier of the sea for the purpose of liability, it seems to me that insofar as the State is concerned, the question is whether, despite the fact that the public has access to the sea as of right and despite the fact that this access includes the right of navigation, the State Page 19 of 36

20 has the power to control its user. In other words does the State as the body in whom the adjacent water is vested have the ability to act so as to make the sea safe? The issue here is occupational control. 42. Insofar as the liability of an occupier is concerned liability is founded on the duty owed by a person by reason of the occupation or control of the premises. It is a duty which arises from the ability to act so as to make the premises safe. In the instant case it is not in dispute that the adjacent water is a public place. While the State is not in the physical occupation of it, indeed it is difficult to imagine physical occupation of the sea, the State as the body in whom ownership of the adjacent water is vested may be in a position to control its user so as to ensure the safety of the adjacent water to its users. It would seem to me that if the State is in such a position then the State would have sufficient control over the adjacent water to impose on it a duty of care with respect to unusual dangers which it knew or ought to have known. 43. Bearing in mind that the adjacent water is archipelagic in nature the answer to this question is to be found in the powers of the State with respect to such waters. By section 32 of the Archipelagic Waters and Exclusive Economic Zone Act Chap. 51:06 ( the Archipelagic Waters Act ) the President may make Regulations for, among other things, the designation of archipelagic sea lanes passage. The fact that no such Regulations have been passed is in my opinion irrelevant. The fact is that it is open to the State by way of Regulations made by the President to control the right of navigation or passage by boats Page 20 of 36

21 within the archipelagic waters. 44. Insofar therefore as there was a risk of injury to persons lawfully using the adjacent water for the purpose of sea-bathing by the unlimited exercise of the right of navigation by boats it is clear therefore that the State pursuant to the Archipelagic Waters Act is endowed with the power to prevent such an activity. In the instant case, despite the public nature of the premises, it is the ability to control its user that founds the State s duty of care with respect to its archipelagic waters. In other words the duty of care owed by the State is based on its capacity to act so as to make these waters safe. In the circumstances I find that a duty of care is owed by the State with respect to unusual dangers which it knew or ought to have known of in archipelagic waters vested in it. 45. With respect to the waters adjacent to Tobago however there is an additional complication and it is the effect of the THA Act with respect to the responsibility of the State with respect to things Tobagonian. In other words is the effect of the THA Act to divest the State of responsibility for the waters immediately surrounding Tobago with respect to the areas identified in the fifth schedule of the Act and vest the responsibility for same in the THA? And if so how does that affect the occupational control of those waters? 46. As we have seen the THA Act vests responsibility for the areas identified in the fifth schedule in the THA. This includes the responsibility for the formulation and implementation of policy with respect to state lands, land and marine parks, tourism, sports Page 21 of 36

22 and infrastructure including air and sea transportation, wharves and airports and public utilities in Tobago. 47. By the THA Act responsibility for the matters identified in the sixth schedule remain vested in the State. These matters are: the President; National Security; Foreign Affairs; Civil Aviation; Meteorology; Immigration; Legal Affairs including the registration of legal documents; Judiciary; Auditor General; Ombudsman and Service Commissions: section 26(1). Insofar as these responsibilities are concerned, by section 26(2) of the THA Act, the Government or any Statutory Authority or State Enterprise may by way of memorandum of understanding authorize the Assembly to act as its agent in respect of its responsibilities in Tobago. 48. With respect to the services identified in the seventh schedule and delivered to the public in Tobago by the Government or any other relevant body consideration shall be given to the views of the Assembly: section 26(3). These services are by and large services provided by the bodies identified in the sixth schedule. The THA Act further provides that where services fall within the responsibility of the Assembly pursuant to section 25(1) or where the Assembly acts as agent for the Government, statutory authority or State enterprise pursuant to section 26(2), the services shall be administered by the Assembly. 49. Insofar as the geographical area of responsibility is concerned some assistance may be obtained from section 4 of the THA Act. By section 4 of the THA Act no provision of the Page 22 of 36

23 Act shall be interpreted so as to authorize, among other things: (b) any operation of an Assembly Law beyond the confines of the island of Tobago and such part of the territorial sea of Trinidad and Tobago comprising those areas of the sea having as their inner limits the baselines of Tobago as determined in accordance with section 5 of the Territorial Sea Act and as their outer limits a line measured seaward from those baselines, every point of which is a distant six nautical miles from the nearest point of those baselines unless the contrary is expressly stated therein. 50. Section 29 of the Act deals with what is described as Assembly laws in section 4 and enables the THA in exercise of its powers under the Act to propose and adopt bills in relation to matters for which it is responsible under section 25 of the Act. Section 4 in my view does not only define an area within which laws made by the THA will have effect but indentifies the geographical area over which the THA has control. The State of Trinidad and Tobago therefore by the THA Act, gives some measure of autonomy to Tobago and the control of its affairs to the THA. 51. As a general policy therefore the Act vests responsibility for things Tobago either directly in the THA or in the THA as agent for the Government or the relevant Statutory Authority. This responsibility in my opinion is to be exercised within the geographical area defined and described by section 4. This area is not limited simply to the island of Tobago but extends to the surrounding water and includes the adjacent water. That this is so is to Page 23 of 36

24 my mind confirmed by the fact that the THA Act specifically vests in the THA responsibility for marine parks, sea transportation and wharves. That the THA s area of responsibility or jurisdiction includes the adjacent water is in my opinion confirmed by the evidence given on behalf of the THA that it is responsible for the Buccoo Reef Restricted Area which area includes Pigeon Point and that responsibility included patrolling the area. 52. The fact that the assumption of such responsibility may have been pursuant to its duties with respect to marine parks and with respect to the sustainable management of fish and marine life in the area is to my mind irrelevant. The fact is that the THA assumed control of that area pursuant to its responsibilities under the THA Act. Further, as evidenced by the fact of patrols, not only was the THA in the physical control of the area, insofar as one can be in the physical control of the sea, but by section 29 of the Act the THA has the ability to propose and adopt Assembly laws in accordance with the section to take effect within a geographical area which includes the adjacent water. It is therefore within the power of the THA to propose legislation whether by way of statute or by way of regulation made by the President to control the right of navigation in waters within its geographical area of responsibility. In the circumstances the THA is vested with the power to make the adjacent water safe. Accordingly I find as a fact that insofar as the adjacent water is concerned the THA was in the occupational control of same and that in the exercise of such control it is not acting as agent of the State. 53. While therefore in the peculiar circumstances of the THA Act the State has no Page 24 of 36

25 liability as occupier of the water forming a part of the geographical area described in section 4 of the THA Act I find that a duty of care was owed to the Claimants, as users of the adjacent water, by the THA and the Company to prevent damage from unusual dangers in the adjacent water of which the THA and the Company knew or ought to have known. Insofar as the liability of the THA is concerned, its liability arises as a result of its occupation of the Park as well as its occupational control over the adjacent water. Has there been a breach of the duty? 54. The Claimants submit the Defendants breached the duty of care owed to them in that they failed to (i) prevent water craft from coming so close to the shore so as to injure seabathers and (ii) warn such persons of the risk of injury from water craft. 55. In this regard therefore there being no duty of care owed by the State the Claimants must show that the danger was (a) an unusual danger and (b) one which was known to the THA and the Company or of which they ought to have known and (c) one that could have been avoided by the use of reasonable care. By their defence filed in the action both the THA and the Company admit that this was a danger known to them both. In any event the evidence is that it was common knowledge in Tobago. 56. The fact that the risk was foreseeable does not in my opinion make the danger not unusual. According to Lord Porter in London Graving Dock Co. Ltd. v Horton [1951] AC Page 25 of 36

26 737 at page 745: I think unusual is used in an objective sense and means such danger as is not usually found carrying out the task or fulfilling the function which the invitee has in hand, though what is usual will, of course, vary with the reasons for which the invitee enters the premises. 57. In the instant case the danger presented was by a motor boat being driven so close to the shore in a popular sea-bathing area as to endanger bathers. The task at hand was seabathing for the purpose of recreation. This was what the Park was held out as being able to provide: the use of an iconic white sand beach fringed by light blue Caribbean waters. The adjacent water was a well-known and popular sea-bathing location. The Claimants were according to the evidence in water between 4 to 5 feet in height. While there is no direct evidence as to the distance from the shore, according to one of the passengers of the boat she travelled no more than about 50 to 60 feet to the shore when the boat stopped after hitting the Claimants. In my opinion it cannot be that the risk of injury from boats is a danger usually faced by sea-bathers while bathing in water of that height and proximity to the shore. Further and of equal importance if not more important was the fact that on the evidence the channel was an abnormality. It presented an atypical means of passage by boats safe from the perils and rough water of the reef. 58. The question of unusualness must be decided with reference not to the knowledge and experience of the particular invitee but to the knowledge and experience which may Page 26 of 36

27 reasonably be expected to be possessed by the class to which the invitee belongs- it is what has been called the apparent experience of the invitee. : per Walsh J. in O Donoghue v Green [1967] IR 40. The test is an objective one. 59. While none of the Defendants specifically submit that the danger posed by the boats was not an unusual danger, they submit that the risk was one of which the Claimants were aware or of which they ought to have been aware. To some extent this submission is also relevant to the question of causation. As suggested by Lord Porter in the London Graving Dock case at page 746: the duty is to provide a reasonably safe premises or show that the invitee accepted the risk with full knowledge of the dangers involved. It is incumbent therefore to show that the Claimants not only knew and appreciated the danger but willingly undertook it. 60. The evidentiary onus here is on the Defendants. In this regard they must establish that (a) the Claimants knew of the danger; (b) they fully appreciated the risk of injury; and (c) they voluntarily agreed to accept the risk and its consequences: Mood v Woodforth [2003] NSWCA 9. In my opinion the evidence does not support such a submission. The fact that the regular use of the channel by boats was well known to residents of Tobago and regular users of Pigeon Point does not in my opinion lead to the conclusion that the danger posed was not unusual or that it was known or ought to have been known to the Claimants. The fact is that neither Claimant was a resident of Tobago nor were either of them regular users of the beach in the area or the adjacent water. The evidence is that the second Page 27 of 36

28 Claimant was a first time visitor to Trinidad and Tobago while the first Claimant, although born in Trinidad, had only been to Pigeon Point once, some 7 to 8 years before, at aged 10 or 11 years. It would seem to be that the test with respect to unusualness to be applied in this instance is that of the apparent experience of a visitor to Tobago. This, in my view, was the class of person to which the Claimants belonged. 61. The fact that there may have been boats moored or tendered within the sight of persons, including the Claimants, on the beach or in the adjacent water in my opinion does not present a sufficient tip off to a person in that class that there is a risk of injury while in the water from boats using the channel. In the first place there is no evidence of the location of these boats in relation to either the channel or the shore. In the second place there is a difference between boats that are moored and boats being powered by motor through the water. Indeed there is no evidence as to whether these boats were motor boats at all. A completely different risk is posed by the use of motor boats as compared to row boats. 62. Similarly the fact that boats could be seen moving in the distance does not suggest a danger from injury in this particular area. It is expected that there will be boats in the sea. What is not expected is the existence of the channel or that there will be boats powered by a motor traversing an area popularly used for sea-bathing. I find as a fact that the use of the channel by boats in the adjacent water presented an unusual danger to sea-bathers in the adjacent water and one which was not within the apparent experience of visitors to Tobago and in particular the Claimants. Neither in my opinion does the fact that the Claimants may Page 28 of 36

29 have seen, from the beach or from the adjacent water, boats whether moored or moving, suggests that they accepted the risk of injury by boat. It follows therefore that there is no evidence in support of the Defendants submission that the risk of injury by boats was one which the Claimants willingly accepted. 63. The duty is not to prevent the damage but to use reasonable care to prevent it: per Lord Porter in London Graving Dock. The Claimants submit that by failing to take measures to prevent water craft from traversing an area so close to the shore that would endanger sea-bathers and failing to warn sea-bathers of the risk of injury by watercraft the Defendants have breached the duty of care owed to them. 64. With respect to the duty of the THA and the Company, as occupiers of the Park, it would seem to me that warning of the presence of boats traversing the adjacent water by way of the erection of signs, was the action that a reasonable person in their situation would have taken to guard against the foreseeable risk of injury that existed. It is not seriously suggested that these Defendants did not have the power to erect such signs. In any event on the evidence I find that these Defendants did. It is clear from the evidence that not only did they have control over the area of the Park proper but, as evidenced by the presence of the concessionaires, life guards, bathroom facilities and beach chairs they also exercised some element of control over the sandy area sufficient to allow for the erection of warning signs. In my opinion the failure to erect such signs was a breach of the duty of care owed by both the THA and the Company as occupiers of the Park. Page 29 of 36

30 65. With respect to preventing boats accessing the area used for sea-bathing it goes without saying that measures which prevent the boats access to the area used by sea-bathers would have prevent injury. While the presence of ropes or buoys in the adjacent water will not necessarily prevent a boat operator hell-bent on using the channel from accessing it, the duty on the occupier is merely to take reasonable care to prevent the damage. In my opinion the presence of the ropes and buoys will not only hinder the use of the channel by boats but will provide a warning, this time to boat operators and will serve to demarcate a safe area for bathing. In my opinion such a measure would discharge the duty of care owed. 66. The real question that arises is whether either the THA or the Company has the authority to put such measures in place? It seems to me that the THA has both the power and the authority to institute this measure. Indeed on the evidence the Company has done, since the accident, so with the blessing of the THA. It would seem to me that (a) as the Authority in whom the State has divested some of its sovereign power with respect to Tobago and (b) given the fact that the adjacent water is within the geographical area demarcated by section 4 of the THA Act the THA had the authority, by use of ropes and buoys to prevent access to the adjacent water by boats and other water-craft. Further it is clear that since the accident the THA has exercised that authority. In the circumstances I am of the opinion that the failure to prevent boats access to the adjacent water by the use of buoys and ropes to cordon off the area was a breach of the duty of care owed by the THA to Page 30 of 36

31 the Claimants. 67. There is no issue of the reasonableness of the relative costs of implementing these measures. In my opinion the costs of putting these measures into place is negligible. In any event as we have seen the cost of cordoning off by ropes and buoys was a cost willingly undertaken by these Defendants after the incident. 68. In the circumstances I am of the opinion that there was a breach of the duty to take reasonable care to prevent damage from unusual dangers know to them owed to the Claimants by the THA and the Company. Causation 69. Even where a breach of duty of care has been shown it is still incumbent on a claimant to show, on a balance of probabilities, that such breach caused or materially contributed to the damage. Although no contributory negligence was pleaded the State submits that nonetheless there is evidence upon which I can find that the Claimants actions contributed to the accident. This evidence the State says is the evidence of Corporal Clive Joseph. I do not accept that there is evidence before me in this regard. The evidence of Corporal Joseph is that from his investigations into the accident he came to certain conclusions. This to my mind is only evidence of the opinion of Corporal Joseph and nothing more. Page 31 of 36

32 70. With respect to the breaches alleged the question is whether the failure to either warn or prevent boats traversing the adjacent water caused or materially contributed to the injury to these Claimants? Put another way would the placing of a warning at strategic points on the beach or in the Park or the taking of steps to prevent boats accessing the bathing areas have prevented the injuries claimed? Insofar as steps could have been taken to prevent boats accessing the bathing area the answer must be yes. The removal of the boats from the area would obviously have prevented the Claimants from being injured. 71. The THA and the Company say that the Claimants were injured because they chose to bathe in a dangerous area of the sea. In this regard they rely on the case of Tomlinson (FC) v Congleton Borough Council and others [2003] UKHL 47. In that case a young man was injured when he dived head first into a man-made lake. The dive was badly executed. He hit his head and broke his neck at the fifth vertebra. He sought and failed to place liability on the Borough Council as occupiers of the park under the Occupiers Liability Act 1957 and In Tomlinson s case however swimming was not allowed in the lake. There were signs which specifically said Dangerous water. No Swimming. 72. While on the evidence it is clear that the Claimants deliberately moved from an area which was safer to the channel, in the absence of any evidence which can vest in the Claimants knowledge of the risk of bathing in that area, it cannot be said that the Claimants chose to bathe in a dangerous area of the sea. There is in my opinion no evidence that these Page 32 of 36