Davies v Tenby Borough Council
| Jurisdiction | England & Wales |
| Judge | The Master Of The Rolls,Lord Justice Megaw,LORD JUSTICE SCARMAN,LORD JUSTICE STAMP,SIR SEYMOUR KARMINSKI,Lord Justice Stamp |
| Judgment Date | 09 April 1974 |
| Neutral Citation | [1974] EWCA Civ J0409-3 |
| Judgment citation (vLex) | [1974] EWCA Civ J0409-1 |
| Date | 09 April 1974 |
| Court | Court of Appeal (Civil Division) |
[1974] EWCA Civ J0409-1
The Master of the Rolls (Lord Denning),
Lord Justice Megaw and
Lord Justice Scarman.
In The Supreme Court of Judicature
Court of Appeal
Appeal by defendants from judgment of Mr. Justice Ackner on 5th April 1973.
Mr. RONALD WATERHOUSE, Q. C., and Mr. HENCE GRIFFITUS (instructed by Messrs. Helder Roberts & Co., agents for Messrs Ivor Evans and Benjamin of Swansea) appeared on behalf of the Appellant Defendants.
Mr. JOHN DAVIES, Q.C. and Mr. GAETH WILLIAMS (instructed by Messrs. Roche Son & Neals, agents for Messrs. Glasbrooks of Liandeilo) appeared on behalf of the Respondent Plaintiff.
It was Bank Holiday, the 2nd September, 1968. The villagers of Capel Hendre went on a bus outing to Tenby. David Davies, a miner, took his wife and eight children. In the afternoon he dived into the sea. He hit his head on the sand and broke his neck. It has left him paralysed for life in all four limbs. He claims damages from the Tenby Corporation, who put up the diving-board.
The diving-board was on a big rock rising out of the seashore. It is called the Goscar Rock. At low tide, the sea goes out and leaves the rock stranded. The children run across the sand to it and clamber up. At high tide the sea surrounds the rock and flows up the beach. Young and old swim out to it, climb up, and dive from the rock into the water. Years ago this was a risky thing to do. So the Corporation in 1946 erected two diving-boards on the rock. One was a high board. The other a low board. The high board was four feet higher than the low board.
On this Bank Holiday afternoon the high tide was a 2. 45 p. m. About three-quarters of an hour later Mr. David Davies went into the water. He waded a few yards and then swan to the rock. On the way he tried and found that he could not touch the bottom. He climbed up to the high board and dived off it into the water. All went well on that occasion. He came back to the high board a second time. All well again. He came back a third time to the high board. He dived off, but did not come up at once. A women sitting on the beach said to her mother: "He is a fool to dive off the high board". She saw his body come to the surface flat out. Another man waded out and pulled him to the beach. His neck was broken.
That afternoon the police took statements from two of his friends-miners who had been with him on the beach. In the evening they took astatement from the young women. They also took some measurements. It was then low tide. The high board was 11'9" above the level of the sand: and the low board 7'9" above it. They examined the divingboard and found it loose. They made a special note about it: "Board very loose on mountings near rock".
The first question is: What was the depth of water when Mr. Davies dived into it? There was very little evidence about it. The young Women evidently thought it was too shallow. She thought he was a fool to dive off the high board. Then a Mr. Griffiths, who had great experience of this beach, gave his estimate. He was on the spot when Mr. Davies was brought out of the water. He rendered first aid and gave the "kiss of life". He estimated the depth of water at between 3 feet and 3 feet 3 inches. It was, he said, the time of neap tides and was that two days after the accident the police arranged for the beach attendant to measure the depth of water at approximate tide that the man dived into on 2nd September 1968. The each attendant reported that the depth immediately below the top board was 3 feet 8 inches.
On that evidence it would appear that the water was only between 3 and 4 feet in death. Indeed, the plaintiff in his statement of claim said the water was "dangerously shallow". But the Judge rejected it. He accepted Mr. Davies's evidence that he tested the water and could not touch and bottom: and that he made two dives in safety before the disastrous one. The Judge inferred from that evidence that the depth of water was approximately six feet. But on that footing it would be difficult to explain the accident. Because, if the water was six feet deep, it is very unlikely that Mr. Davies would have hit the bottom at all, or at any rate not with such force as to knock him out.
Faced with this difficulty, the Judge put forward a theory of his own. According to his theory Mr. Davies did not make an ordinary kind of dive at all. He did not dive from the end of the board as any ordinary person would do. He only went out part of the way along the board. Then when he was on the board 2 or 3 feet short of the end, he turned to his right, and then dived outwards at rightangles to the diving-board, or at any rate at a considerable angle. This dive to the right would bring him up against rocks which at that point would only be a foot or two below the water. So his head hit the rocks. That was the Judge's theory of how the accident happened. At any rate he thought it the most probable theory.
The question arises: is this Court bound to accept the Judge's theory? We have on occasion been told by the House of Lords that we must not interfere with the findings of the trial Judge. Two cases which stand out in my memory are Morris v. West Hartlepool Steam Navigation Co. (1956) A. C. 552, and Onassis v. Vergottis (1968) 2 Lloyd's Rep. 403. In each of those cases, by a majority of 3 to 2, the House reversed the decision of this Court. But those cases must be regarded as exceptional. This is the Court of Appeal. It is our task to review the decisions of the trial Judge on questions of fact as well as of law. If we find ourselves unable to agree with him, it is our duty to say so. The better guide on this subject is to be found in Wheat v. Lacon (1966) A. C. at page 569, when Lord Dilhorne said that it was the duty of their Lordships "not to shrink from the task of evaluating the evidence and to decide what inference, if any, can properly be drawn from the undisputed evidence".
In the present case I find myself unable to accept the Judge's theory of a dive to the right. There was no evidence to support it. The plaintiff did not suggest it. His Counsel did not advance it. Counsel for the Corporation did not put it forward. Moreover, ifMr. Davies had hit the rocks, there would, one would think, have been marks or abrasions on his head. But there was none. So it would look as if his head struck sand, and not a rock. In any case, if the plaintiff did dive to the right, I doubt whether he could blame the Corporation. The divingboard was an invitation to dive from the end in the ordinary way, and not from the side.
The Judge put forward another theory, but he did not regard it as so probable. This was that the plaintiff slipped on the end of the board and went deeper than he intended. This theory has some cogent evidence to support it. It is the evidence of the police who, on examining the divingboard on the very evening of the accident, found it very loose on its mountings near the rock. The Judge said that: "The slippery nature of this board could have combined with the loose mountings to have produced a slip". The plaintiff's evidence was consistent with this theory. He said: "My arms reached out to do a dive. I had taken my balance, and, as I was about to dive outwards, say four feet out, it was as if somebody had grabbed hold of my ankles from behind and I had gone deeper and I felt myself going to the right. That is my last recollection of Tenby".
I am quite prepared to accept this theory. It seems to me to be probably the right explanation of the accident. But, in accepting it, I must say that I cannot accept the Judge's inference that the water was six feet deep. Evaluating the evidence as best I can, I think the water was too shallow for Mr. Davies to dive with safety from the upper board. It was all right so long as everything went well. That is shown by the first two dives which he made without harm. But it was too shallow if anything went wrong. That is shown by the last dive when he broken his neck. And the reason why things went wrong was because the diving-board had become very loose on its mountings. It seems to me probable that it suddenly gave a jerk which gave hima feeling as if some one had grabbed his ankles. That is why he went too deep and hit his head on the sand.
What then is the position on liability? I think that the Corporation were guilty of want of care in allowing the board to become loose on its mountings. It may be, too, that they ought to have had a non slip surface at the end, thought I am not so sure about this. At any rate one or both faults are quite sufficient to make then liable. But was the plaintiff guilty of contributory negligence? I think he was. The water was too shallow for him to dive with safety from the upper board. And he ought to have known it. He had made his way out to the board and knew the depth of the water. He was, I know, an experienced diver, but even so he ought not to have done it. He made no allowances for a mischance which might send him too deep.
Seeing that both were at fault, the question remains: In what proportions is responsibility to be apportioned? I feel that the greater responsibility should be on the Corporation: because, if they had kept the board in good order, the accident might never have happened: but Mr. Davies must bear his share, because he ought not to have tempted providence, as he did. After consultation with my brethren, we agree that the Corporation should bear three quarters of the responsibility, and Mr. Davies one quarter.
Next the question of damages. Mr. Davies is now a quadriplegic. He is completely bedridden. He has no use in his legs or his right arm. He can just move his left arm so as to point with his finger. He cannot himself use his bowels or bladder. The...
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