Friday Law Report: College was not liable for diving accident

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The Independent Culture
4 December 1998

Ratcliff v McConnell and others

Court of Appeal (Lord Justice Stuart-Smith, Lord Justice Thorpe and Lord Justice Mummery) 30 November 1998

THE OWNERS and occupiers of a swimming pool to which access was prohibited were under no duty of care to a trespasser who was injured by diving into the pool, where that trespasser was aware of, and had willingly accepted, the risk posed by his actions.

The Court of Appeal allowed the appeal of the defendants, representative governors of Harpur Adams Agricultural College, against a finding that they were liable in damages to the plaintiff for a breach of duty to him under the Occupiers Liability Act 1984.

The plaintiff, a student at the college, and two friends had climbed over the wall surrounding the swimming pool late at night when access to the pool was prohibited. They had been drinking.

The three dived into the pool, the plaintiff diving more deeply than he had intended. The plaintiff hit the top of his head on the bottom of the pool, as a result of which he suffered tetraplegia.

The plaintiff claimed damages from the defendants for breach of duty under the Occupiers Liability Act 1984. The judge found in the plaintiff's favour, but held that he was guilty of contributory negligence and apportioned liability as to 60 per cent against the defendants and 40 per cent against the plaintiff. The defendants appealed.

Anthony Goldstaub QC and Toby Hooper (Oldham Rust Jobson) for the defendants; Richard Lissack QC and Hywel Jenkins (Cunningham John) for the plaintiff.

Lord Justice Stuart-Smith said that the judge's reasoning and conclusions had been contaminated by errors of fact, but there were other difficulties with the judgment.

It was important in a case such as the present to identify the risk against which the plaintiff needed to be protected, if at all. In particular, it was necessary to see whether the plaintiff himself was aware of the risk of injury because it was obvious to an adult man. The judge had not defined the risk and had not adverted to the plaintiff's evidence relating to knowledge of it except in relation to contributory negligence. The risk in the present case was that in diving into the swimming pool late at night the plaintiff might hit his head on the bottom. The risk was obvious, unless the plaintiff made sure that there was sufficient depth of water to dive safely, which he had not.

The Occupiers Liability Act 1984 placed a duty on the occupier to trespassers "in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them".

Where a duty was owed under the 1984 Act, the duty was "to take such care as is reasonable in all the circumstances of the case", and varied greatly depending on whether the trespasser was very young or very old and so might not appreciate the nature of the danger which was or ought to be apparent to an adult.

The question of volenti non fit injuria had to be considered at the same time as the question of the existence of the duty, since if the trespasser willingly accepted the risk as his, there was, under section 1(6) of the 1984 Act, no duty owed by the occupier.

The plaintiff had been a very frank witness. The admissions he had made made it impossible for him to succeed. He had been told expressly by the defendants that the pool was closed. He had not been drunk, and had known what he was doing. He had deliberately climbed the wall. He had intended to make a shallow dive, knowing that it was necessary to make sure that there was enough water available before diving, and must have dived deeper than he had intended. He had ignored the prohibition on access and had done what he wanted to do anyway.

It was quite plain that the plaintiff had been aware of the risk and had willingly accepted it. Accordingly, the defendants had been under no duty to him.