Ryan Andrew Cockbill v David Riley
| Jurisdiction | England & Wales |
| Judge | Mr Justice Bean |
| Judgment Date | 22 March 2013 |
| Neutral Citation | [2013] EWHC 656 (QB) |
| Docket Number | Case No: 1MA90092 |
| Court | Queen's Bench Division |
| Date | 22 March 2013 |
[2013] EWHC 656 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
(TRIED AT THE BIRMINGHAM CIVIL JUSTICE CENTRE)
Mr Justice Bean
Case No: 1MA90092
Geoffrey Tattersall QC and Darryl Allen (instructed by Potter Rees LLP, Manchester) for the Claimant
Timothy Horlock QC (instructed by Kennedys LLP, Sheffield) for the Defendant
Hearing dates: 11-13 March 2013
The claimant was born on 17 th June 1990. He sustained a catastrophic spinal injury in an accident on 20 th July 2006, when he was aged 16. The accident occurred when he attended a party at the defendant's home in order to celebrate, along with the defendant's daughter and others, the end of their GCSE examinations. The claimant entered a large paddling pool in the garden and suffered a serious hyperflexion injury resulting in a fracture of the spine and consequent incomplete tetraplegia.
The defendant and his wife have four children whose ages at the time of the accident ranged from 16 to 7. They are both teachers by profession. The defendant himself was present throughout the evening. He bought food for a barbeque and a limited amount of alcoholic drink, namely a 12 pack of small bottles of Budweiser beer and 12 bottles of Vodka Kick. The defendant himself drank no alcohol that evening.
At the joint request of counsel I conducted a view at the start of the trial. The room at the rear of the ground floor of the house is the kitchen, and from the window by the sink one gets a good view of the garden. The first area outside the house is a patio on which Mr Riley had placed the barbeque. Beyond the patio is the main lawn. This has a slight slope downhill towards the house and also from right to left as one looks out. About four metres from the edge of the lawn which adjoins the patio is a large tree. The pool in which the claimant suffered injury had been placed a short distance beyond the tree. It had been brought by one of the guests and filled by the defendant. A second, much smaller, pool was placed nearby: it does not appear that it was used that evening and it plays no part in the story. A little over two metres beyond the pool were some steps leading past a flower bed to a second patio area. The defendant told me that he had positioned the main pool deliberately so that one could not jump from the steps into the pool. Beyond the steps and the second patio is a further area of lawn. Towards the far end of the garden there were and still are a swing and a trampoline which were apparently not used on the evening in question.
The defendant's daughter, Sarah, had invited the guests. They were friends she knew from school or from a church youth group. Most were the same age as her but it appears that there were two or three older guests, aged about 19. The youngest person present was her 7 year old younger brother. Before the incident Sarah took some photographs of what was at that stage an entirely happy occasion. One of these shows five teenage boys sitting in the pool, each with water half way up his chest, plus her 7 year old brother who appears to be stepping into the pool. It is possible that at the time this photograph was taken the claimant had not yet arrived; at any rate, he is not among those shown in the photograph.
Evidence: the claimant
Mr Cockbill told me that he had been to the Rileys' home a couple of times before. Sarah had texted him to say that there was a barbeque party and that he should bring swimwear. He did not in fact take swimwear and did not know that there would be a paddling pool provided.
He arrived about 7pm. The accident was about an hour later. His first drink was a can of Scrumpy Jack cider and after that he had two of the small bottles of Budweiser lager. He had drunk alcohol on occasions before (including at his own 16 th birthday party) and knew how it was likely to affect him. He also had one or maybe two burgers from the barbeque.
He said that people were in swimwear sitting in the pool. Then people started jumping and bellyflopping into the pool. There were six or seven people who jumped in several times including Sarah's younger brother. One girl called Charlotte was thrown into the pool.
A boy called Joe Standerwick offered the claimant a spare pair of swimming shorts. The claimant, who wanted to be part of what was going on, went to the downstairs lavatory and changed. He went out to the garden and put his clothes down by the bench. He said "watch me go" and went across to the pool intending to do a bellyflop and made a big splash. He doesn't remember what happened after that.
Asked about the boys running and jumping into the pool, he said that Matthew Cook did a bellyflop and Jonathan ("Jon") Callear did a forward somersault. He said that the area around the pool was wet. There had been a lot of splashing and water had gone over the side when Mr Callear jumped in.
The claimant said that nobody before him had dived or gone headfirst although Mr Callear had somersaulted. The claimant himself did not intend to dive but to bellyflop. He knew that it would be foolish to dive in. But he accepted that he cannot explain how he ended up with such injuries if he only fell in. He had run from the bench to the pool. He did not slip and fall backwards: his momentum was forwards. He agreed with Mr Horlock QC for the defendant that it looks as though he ended up going in head first. No-one had been injured before him and nobody had collided with anyone else. The worst that had happened was that Matthew Cook had a sore patch on his belly. Nobody had become rude or abusive through taking too much alcohol. A lot of people had brought their own alcohol, but nobody was out of hand through drink.
The six or seven boys who had been involved with running and splashing had continued for quite a while. Everyone took it in turns. Only when one person got out of the pool would the next one jump in. When Jon Callear did his somersault he landed on the side of the pool and this spilt water over the edge. Other people spilt some water when they were getting out. You could see that it was quite sodden around the edge.
Finally the claimant repeated that his intention had been to bellyflop, that is to go over the top and land flat on the water and thus make a big splash.
Mrs Cockbill
The claimant's mother was not present at the time of the accident. She was telephoned with the terrible news and arrived as soon as she could. She told me that when she arrived the grass around the pool was very wet. She was kneeling on the grass on the far side of the pool when her son was being treated. Inevitably the fact of the claimant having been lifted, wet and motionless, out of the pool before she arrived (possibly with the side of the pool being pushed down to assist in the process) would have led to that patch of grass being very wet, but that tells us nothing about the state of the grass on the other side of the pool before the accident.
Mr Riley
The defendant told me that he had known the majority of the children invited to the party since they had been at nursery school. They were sensible and responsible people. He had bought a limited amount of alcohol and felt that he was providing enough, although his daughter took a different view. The paddling pool had been brought by a guest, Luke Wiedeman. The defendant placed it well away from the steps so that no one could jump in from the steps. It was filled with water from a hosepipe. The weather was very good and had been dry for weeks with the result that the ground was "bone dry".
As the party went on the children "got a little bit boisterous". Some were jumping in the pool and splashing. People started to run and jump in. The defendant said that he was keeping an eye on them. He didn't see anyone do a somersault though he is not in a position to say that didn't happen. He was "in and out of the kitchen" getting food, and even when preparing food on the barbeque he would be facing the kitchen rather than the garden. He did not drink alcohol himself, he was planning to go out with friends later after his wife had returned home.
He got all the food ready with a view to serving it in one go. The boys were getting a bit boisterous and he thought it was time to calm things down. He sent Sarah to tell them that the food was ready. He is certain that at this point they all got out of the pool. They sat around on the chairs or the bench or the grass. He had not served anyone with food until it was all ready. People were eating. There was no-one in the pool. Mr Riley carried things into the kitchen.
He went on:-
"Out of the corner of my eye I saw someone run as if to dive. I can't say I saw the person dive because at that moment my wife arrived. I saw movements as though the person was going to dive. "
He said that he had taught diving for many years and "you need to get some spring in your legs": he does not remember seeing that happen. In cross-examination he again said that he could not now recall in his mind "the last few seconds" of seeing someone dive into the pool. He emphasised that he did not see the claimant enter the pool; all he could say is that it was "a running movement as though to dive into the pool".
He said that this would have been perhaps 10 or 15 minutes after people came to get food. No-one had been back into the pool during this period. Mr Riley said he felt he had dealt with the boisterousness and did not think he should have done more. He said there is a balance to be struck with 16 year olds and there was a need to keep the party relaxed.
He said that by the tree where the pool was placed the ground has a "soak away" effect — if you tip a bucket onto the grass, within 3 minutes there is no standing water.
The defendant...
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Andrew Risk v Rose Bruford College
...voluntarily assumed the risk. I do not propose to review these cases, but I have drawn assistance from the decision of Bean J in Cockbill v Riley [2013] EWHC 656 (QB) where a 16 year old sustained serious injuries in consequence of entering a paddling pool in a dangerous way. The Defendant ......