Ratcliff v McConnell
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STUART SMITH,LORD JUSTICE THORPE,LORD JUSTICE MUMMERY |
| Judgment Date | 30 November 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J1130-5 |
| Docket Number | Case No: QBENF 97/1650 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 November 1998 |
[1998] EWCA Civ J1130-5
Lord Justice Stuart-Smith
Lord Justice Thorpe
Lord Justice Mummery
Case No: QBENF 97/1650
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM QBD (HH Judge Brunning
sitting as a Deputy High Court Judge) on 7.11.97
Royal Courts of Justice
Strand, London, WC2A 21L
Anthony Goldstaub QC & Toby Hooper (instructed by Messrs Oldham Rust Jobson for the Appellants)
Richard Lissack QC & Hywel Jenkins (instructed by Messrs Cunningham John & Co for the Respondent)
Introduction
1. In the Autumn term of 1994 the plaintiff, Luke William Ratcliff, became a student at the Harpur Adams Agricultural College near Newport in Shropshire, of which the defendants are representative Governers. In the early hours of 8 December of that year the plaintiff, together with two friends dived into the open-air swimming pool. He struck his head on the bottom of the pool and suffered very severe injuries involving tetraplegia at the level of C4.
2. In this action he claimed damages from the defendants who are the owners and occupiers of the pool. His Statement of Claim alleged that the defendants were negligent or in breach of the common duty of care under the Occupiers Liability Act 1957 (the 1957 Act). The defendants denied liability and in particular alleged that the plaintiff was a trespasser in the pool, because, as he well knew, access to it was prohibited. On the second day of the trial the plaintiff served a reply, which reflected an alternative submission made by Mr Lissack QC in opening the plaintiff's case, that the defendants were in breach of their duty under the Occupiers Liability Act 1984 (the 1984 Act), which deals with the duty of an occupier of land to those who are not his lawful visitors, i.e. trespassers. At the conclusion of the plaintiff's submission to the judge it was conceded that any claim had to be founded on a breach of duty under the 1984 Act. In his judgment delivered on 7 November 1997 His Honour Judge Brunning, sitting as a Deputy High Court Judge, held that the defendants were in breach of their duty under that Act.
3. He held that the plaintiff was guilty of contributory negligence. He apportioned liability as to 60% against the defendants and 40% against the plaintiff. The defendants appeal.
The pool
4. The pool is situated within a paved compound. The walls of some college buildings form part of the enclosure and the remaining areas are contained by substantial walls and fences about seven feet high. Entrance to the pool can be gained through the male and female changing rooms, which give access to the pool side. In addition there was a wooden gate in the brick wall near the shallow end of the pool. During the Autumn and Winter terms, and in particular on the night in question, the changing rooms and the wooden gate were locked.
5. The pool was constructed in 1960, it is 18. 3m (60') long and 9. 1m (30') wide. More than half the pool is uniformly shallow, having a depth of 1. 1m (3'6'') that extends for a distance of 10. 8m (35'); over the next 3. 6m (12') the level descends to 2. 2m (7') and the remainder of the pool some 4m (13') is at this level. There had been a springboard at the deep end; but this was removed in 1992.
6. There were four relevant notices. At the entrance to the pool there was a notice on a white background with the word 'Warning' in red and underneath a prohibition on taking glasses or bottles into the pool. Immediately below this was a notice in red lettering on white background which read:
"THE POOL WILL BE LOCKED AND USE PROHIBITED BETWEEN 10pm AND 6.30am."
Inside the pool area at the shallow end there was a substantial notice in red on white background which said, "SHALLOW END". At the deep end on the fence behind was a similar notice which said, "DEEP END SHALLOW DIVE".
7. There was a light mounted high on the wall of the building at the shallow end. It was activated by movement in the pool area. It had been installed in about 1992 so as to alert the security patrols, who were on duty in the campus at night, to unlawful use of the pool. It did not afford much light to the pool area.
8. The judge, basing himself on the evidence of Mr Sanders, the plaintiff's expert, who was a water and leisure consultant, held that the pool was unsafe for diving and diving ought to have been prohibited at all times. This was because it did not comply with recommendations published by an authoritative Working Group in September 1990. The report recommended that 'Diving should not be permitted into water with a vertical depth of less than 1.5m'. And, 'Diving should not be allowed in pools where there is a forward clearance of less than 7.6m'.
9. A diver from the deep-end would have 5. 8m (18') of water deeper than 1. 7m (51/2') until he came to the sloping part of the pool. But if the dive was made from the long side at the deep end in that distance of 5. 8m (18'), there would have been 9. 1m (30') of deep water to the opposite side, and this would have been safe.
10. Mr Sanders also criticised the inadequacy of the depth signs and the absences of signs prohibiting diving. It is now however accepted by Mr Lissack, on behalf of the plaintiff, that the plaintiff would not have seen such signs. Their absence therefore have no bearing on the accident.
The facts of the accident
11. The plaintiff and his two friends, Rupert Wager and James Wooton, had attended a disco in the students' bar, which is situated about 100 yards from the entrance of the pool. The bar closed at 10.45pm, his friends continued drinking from beer they had brought in; but the plaintiff said he did not drink alcohol after the bar closed. He had drank about four pints. After the disco finished at about 2.30am the other two suggested that they should go for a swim; the plaintiff agreed. The plaintiff did not read the notice by the gate, though he was conscious of the word 'WARNING' on the top notice. All three climbed over the gate. They undressed. The plaintiff put his foot in the water to feel the temperature. It was, not surprisingly, very cold. The plaintiff heard Wager tell Wooton which was the deep end. All three then lined up at the side of the pool. Wager was nearest the deep end, then Wooton, then the plaintiff. All three did a running dive. It is apparent that the place where the plaintiff dived must have been either where the shallow end started or, more probably towards the top of the relatively steep slope from the deep to the shallow end. He hit the top of his head on the bottom. It seems clear that he must have dived somewhat more deeply than he intended.
The Judge's findings of fact
12. The judge made a number of findings of fact, in particular in relation to the use of the pool out of permitted hours, the number of previous incidents involving injury, and the state of knowledge of the defendant's responsible officers. Mr Goldstaub QC has strongly criticised these findings; he submits that they do not accord with the evidence. It is convenient to consider these findings at this stage, and state my conclusions as to what the evidence showed, in so far as it differed from the judge's findings.
Use out of hours
13. The judge said at p16:
"…there is…a clear picture of persistent use and misuse of the pool by students over a period of years during opening hours and, more significantly, during periods when the pool was ostensibly closed and entry to it forbidden. The birthdays of students were celebrated by their colleagues throwing them into the pool either clothed or unclothed. Swimming took place during the night both in summer and to a lesser extent in winter. There was frequently high spirited horse-play around the pool. All this took place against a background of at times heavy drinking by the students in the nearby bars: swimming and horse-play occurred after such activity."
14. Mr Goldstaub submitted that this finding was erroneous and misleading particularly since the judge failed to differentiate between the period before and after 1989/1990. Before then there was considerable after hours misuse of the pool in summer (very little in winter). This was deposed to by a witness, Mr Monether, a student who had left the college in 1989. He said that the pool was only locked intermittently at night in his day. There was use of the pool at night, and occasionally people were thrown in, especially in summer. The college threatened to close the pool, but it was not closed in his time. Philip Reece had been a student between 1986 and 1990. He said there was often skylarking at the pool. He had been thrown into the pool in winter. The gate was not locked in his time.
15. From about 1989/1990 (presumably the autumn term after Mr Monether had left) the gate was, or was supposed to be locked at night (apparently in fulfillment of the threat to close the poo1). Mr Robson, who was the Head of Student Services, said that after the gate was locked at night the problem of misuse of the pool out of hours was 'reduced by a massive percentage' (Day 3/71). The judge ought, therefore, to have applied his mind to the position after 1989/1990. Moreover, it is necessary to draw a distinction between misuse by students of the college who, if caught, could be disciplined, and others such as visitors (for example rugby players) and intruders such as village boys.
16. There appears to be very little evidence of after hours use by students...
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