RATCLIFF-v-McCONNELL-&-ANR-(1999)-1-WLR-670

							COURT OF APPEAL RATCLIFF v McCONNELL & ANR (1999) 1 WLR 670 Editor’s comments in red. The House of Lords Appeal Committee refused an application from Luke Ratcliff for leave to appeal in this case on 25 June 1999. STUART SMITH LJ: Introduction 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. In this action he claim[s] damages from the defendants who are the owners and occupiers of the pool ... 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. The pool 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.

The pool was constructed in 1960, it is 18.3m (60 ft) long and 9.1m (30 ft) wide. More than half the pool is uniformly shallow, having a depth of 1.1m (3 ft) that extends for a distance of 10.8m (35 ft); over the next 3.6m (12 ft) the level descends to 2.2m (7 ft) and the remainder of the pool some 4m (13 ft) is at this level. There had been a springboard at the deep end; but this was removed in 1992. 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’. 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. The facts of the accident 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. Findings of fact Use out of hours There appears to be very little evidence of after hours use by students after the routine locking of the gate. The plaintiff himself, James Wooton and Helen Motram, who all came up in the Autumn term of 1994 gave no evidence of use during that term. Rupert Wager was in his second year at the time of the accident. In his oral evidence he said that he had made three visits to the pool after hours, the majority being in the summer; so only one use was in the winter. Stephen Vickers, who was a student at the college from 1992 gave no evidence of abuse by students. Finally Mrs Copp, the college Head of Domestic Services who supervised the cleaning staff from August 1992 to May 1994 said that there was horseplay, fun and typical student behaviour at the pool after the May Ball, Rag Week and similar occasions. She knew of no incident giving rise to injury, which would have been reported to her. It was not clear to what extent her evidence was hearsay, or what she had actually witnessed or to what extent it related to after hours, since the pool was open to 10pm in the summer. … There was in fact very little evidence of misuse of the pool outside permitted hours after the gate was routinely locked. The plaintiff’s solicitor had advertised on radio and in the press for witnesses; that was the extent of the evidence. The knowledge of misuse by the college

Did the college, by its responsible officers know that the pool was being used out of permitted hours? … There was no evidence that anyone in authority knew of Mr Wager’s after hours swims. The defendants employed a security company to patrol the campus at night. It seems that these were two men patrols. The patrolmen wrote daily reports about events that took place during the night which were submitted to Colonel Taylor, the Bursar. The relevant reports were disclosed…Assuming, as we must, that all relevant reports were disclosed, this certainly does not indicate that the patrolmen were either finding or reporting regular use of the pool during prohibited hours. Colonel Taylor said he did not know of any such abuse. It is also clear that people could not be thrown into the pool if the gate was locked… … As I shall show when I come to deal with the law, it is important in a case such as this to identify the risk against which the plaintiff requires to be protected, if he does. In particular, it is necessary to see whether the plaintiff himself was aware of the risk of injury because it was obvious to an adult man. The risk in my judgment was that in diving into the swimming pool at night the plaintiff might hit his head on the bottom. The risk is obvious, unless the plaintiff made sure that there was sufficient depth of water to dive safely, which he did not. … [I]n my view it [i]s [also] necessary…to state in clear terms precisely what it was that he held that the defendants should have done which they did not do. The law Prior to the 1957 Act the liability of the owner and occupier of land was governed by the common law. A sharp distinction was drawn between those who came with permission, whether as licensees or invitees, and those who did not, that is to say trespassers. A duty of care was owed to the former, more stringent in the case of the invitees than licensees. But none was owed to trespassers. The occupier was only liable if he did ‘some act ... with the deliberate intention of doing harm to the trespasser, or at least some act done with reckless disregard of the presence of the

trespasser’ (Addie v Dumbreck [1929] AC 358). In relation to children, the harshness of this rule was ameliorated by the doctrine of allurement. Moreover, knowledge of constant child trespass, without any attempt to stop it, might amount to permission. The 1957 Act abolished the difference between licensees and invitees. Under it the occupier owes the common duty of care to all his lawful visitors. That ‘duty is to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there’ (s.2(1) and (2)). The 1957 Act did not apply to trespassers and the common law rules continued in force. The law relating to trespassers was reconsidered by the House of Lords in British Railways Board v Herrington [1972] AC 877 where the rule in Addie v Dumbreck was reconsidered. The plaintiff was a boy of 6. He had gone from a meadow where children frequently played onto the defendant’s electrified line and suffered serious injury. He was able to gain access to the line because the fence was in a dilapidated condition. The defendant’s station master knew that children had been seen on the line and that the fence was out of repair. The plaintiff succeeded. Not all their Lordships expressed the nature of the duty in the same way. But it is convenient to cite Lord Diplock’s summary of the law at p941: ‘First: The duty does not arise until the occupier has actual knowledge either of the presence of the trespasser upon his land or of facts which make it likely that the trespasser will come on to his land; and has also actual knowledge of facts as to the condition of his land or of activities carried out upon it which are likely to cause personal injury to a trespasser who is unaware of the danger. He is under no duty to the trespasser to make any inquiry or inspection to ascertain whether or not such facts do exist. His liability does not arise until he actually knows of them. Secondly: Once the occupier has actual knowledge of such facts, his own failure to appreciate the likelihood of the trespasser’s presence or the risk to him involved, does not absolve the occupier from his duty to the trespasser, if a reasonable man possessed of the actual knowledge of the

occupier would recognise that likelihood and that risk. Thirdly: The duty when it arises is limited to taking reasonable steps to enable the trespasser to avoid the danger. Where the likely trespasser is a child too young to understand or heed a written or a previous oral warning, this may involve providing reasonable physical obstacles to keep the child away from the danger. Fourthly: The relevant likelihood to be considered is of the trespasser’s presence at the actual time and place of danger to him. The degree of likelihood needed to give rise to the duty cannot, I think, be more closely defined than as being such as would impel a man of ordinary humane feelings to take some steps to mitigate the risk of injury to the trespasser to which the particular danger exposes him. It will thus depend on all the circumstances of the case: the permanent or intermittent character of the danger; the severity of the injuries which it is likely to cause; in the case of children, the attractiveness to them of that which constitutes the dangerous object or condition of the land; the expense involved in giving effective warning of it to the kind of trespasser likely to be injured, in relation to the occupier’s resources in money or in labour.’ Because of the difficulty of seeing the precise ratio in Herrington’s case the 1984 Act was passed. S.1(1) provides: ‘The rules enacted by this section shall have effect, in place of the rules of the common law, to determine - (a) whether any duty is owed by a person as occupier of premises to persons other than his visitors 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; and (b) if so, what that duty is.’ The duty is owed to all those who are not visitors within the meaning of the 1957 Act, that is to say to trespassers. (s.1(2)). s.1(3) provides: An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in subsection (1) above if - (a) he is aware of the danger or has reasonable grounds to believe that it exists; (b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may

come into the vicinity of the danger (in either case), whether the other has lawful authority for being in that vicinity or not); and (c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection. (4) Where, by virtue of this section, an occupier of premises owes a duty to another in respect of such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned. (5) Any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk. (6) No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another). Although the Court must now obviously apply the words of the statute, it seems to me that the considerations enunciated by Lord Diplock in Herrington, with the exception of the words underlined in his fourth proposition, are still apposite. Those words which I have underlined are no longer correct in the light of s.1(3)(c) and s.1(5). As I have already said, it is important to identify the risk or danger concerned, since the occupier had to have knowledge of it or reasonable grounds to believe it exists (s.1(3)(a)). In this case, as in the case of all swimming pools, there are two dangers. The first is that those who cannot swim, if they fall or get into it, may drown. That is a particular danger to small children who cannot swim, may get out of their depth and do not appreciate the danger. But such a danger is obvious to older children and adults. If the occupier knows or has reasonable grounds to believe that small children may get near the pool (s.1(3)(b)), he may, depending on the circumstances, be expected to offer some protection. That was not the relevant danger here; and in any event by fencing off the pool, the defendants obviously offered protection against the risk of children

getting into it. The relevant danger here was what if someone dived into the pool they might hit their head on the bottom if there was insufficient water to accommodate the dive. That is a danger which is common to all swimming pools. There is no uniformity in shape, size or configuration of swimming pools. It seems to me that it is a danger which is obvious to any adult and indeed to most children who were old enough to have learnt to dive. Mr Lissack sought to portray the danger here as a hidden one or something in the nature of a trap. In my judgment it was nothing of the sort. Even if the defendants knew or had reasonable grounds to believe that students might defy the prohibition on use of the pool and climb over the not insignificant barrier of the wall or gate, it does not seem to me that they were under any duty to warn the plaintiff against diving into too shallow water, a risk of which any adult would be aware and which the plaintiff, as one would expect, admitted that he was aware. Had there been some hidden obstruction in the form of an extraneous object in the pool or a dangerous spike, of which the defendants were aware, the position might have been different. Though even so I am doubtful whether the defendants needed to do more than they did, namely to prohibit use of the pool except during certain permitted hours in the summer. Even in the case of a lawful visitor there is no duty to warn of a danger that is apparent (Staples v West Dorset District Council (1995) P1QR 439). … The question is whether the defendants should have offered other protection to the plaintiff from a risk which he should have been fully aware of, and indeed was aware of…If they chose to come deliberately at night, so that they cannot see dangers, which would be apparent in day light, it is not the occupier’s duty to light or make the hole safe. … [T]he nature of and extent of what it is reasonable to expect of the occupier varies greatly depending on whether the trespasser is very young or very old and so may not appreciate the nature of the danger which is or ought to be apparent to an adult.

… It is also clear that the question of volenti non fit injuria has to be considered at the same time as the question of consideration of the existence of the duty, since if the trespasser willingly accepts the risk as his, there is no duty owed by the occupier (s.1(6) of the 1984 Act) … How should these principles be applied in the present case? The plaintiff was a very frank witness. The admissions he made in my judgment make it impossible for him to succeed. He had been told expressly by the defendants that the pool was closed and contained dangerous chemicals. He was not drunk, and he knew what he was doing. He deliberately climbed the wall. He did not notice the light. He intended to make a shallow dive. He had a wide knowledge of swimming pools. He knew there was no standard pool and there was no standard depth profile. All pools are different. He knew that diving could be dangerous and that it was necessary to make sure that there was enough water available before diving. He did not know where the variations in depth might be, and did not know whether or where it might be safe to dive. He knew he had to take great care to control the angle of the dive. He knew that alcohol might affect his judgment. He must have dived deeper than he intended. He was aware that access to the pool was prohibited. He did not know what notices were posted in the pool or changing room. He paid no regard to the prohibition of access and was going to do what he wanted anyway. He ignored the notice at the gate, though he saw the word ‘WARNING’, disregarding the rest of the notice. He did not consider that the water level might be low, as in fact it was. He did not look at any signs and probably would not have read any different signs. In my judgment it is quite plain that the plaintiff was aware of the risk and willingly accepted it. Accordingly, I would hold that the defendants were under no duty towards him. This accident has had the most appalling consequences for the plaintiff; a promising life is now destined to be spent in a wheelchair. It is impossible not to have great sympathy with him. It is unfortunate that a number of high spirited young men will take serious risks with their own safety and do things that they know are forbidden. Often they are disinhibited by

drink and the encouragement of their friends. It is the danger and the fact that it is forbidden that provides the thrill. But if the risk materialises, they cannot blame others for their rashness. I would allow the appeal.