Risk v College [2013] EWHC 3869 (QB)

Case No HQ12X02503[2013] EWHC 3869 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 06/12/2013
Before
MR JUSTICE JAY
Between
ANDREW RISKClaimantROSE BRUFORD COLLEGEDefendant
Michael Soole QC and Paul Dean (instructed by Blake Lapthorn Solicitors) for ClaimantRonald Walker QC (instructed by Plexus Law) for DefendantHearing Hearing dates: 20 th, 21 st, 22 nd and 25 th November 2013
Judgment

Introduction

[1]At approximately 11:40am on Friday 26th June 2009 the Claimant, who was born on 25th April 1988 and was therefore 21 years of age at the material time, sustained an extremely serious neck injury as a result of striking his head against the junction of the side of an inflatable pool and the ground. More precisely, the Claimant fractured his C5 vertebral body and is now tetraplegic. This is the trial of the issue of liability only.[2]The Defendant, one of the UK’s leading drama schools, is based at Lamorbey House, Sidcup, Kent. It was, and no doubt still is, a tradition at the College that the final day of the summer term and of the academic year should be an ‘Events Day’ comprising a series of ‘Day Events’ (running from 10am to 4pm) and an evening event or ball. These events were organised by the Student Ball Team and not by the Defendant. It was also part of this tradition that the event organisers were second year students presumably aged between 19 and 21 (the Claimant was technically in his third year, although he was at the end of the second year of his course in scenic arts, having switched courses during his second year). The Claimant was one of the two Day Events managers with responsibilities, albeit ones which do not appear to have been closely defined, for the set up and management of the entertainment. The 2009 Events Day largely duplicated the format and activities of the previous year, including the deployment of the inflatable pool. There exist good quality photographs taken in June 2008 evidencing horseplay in and around the inflatable pool which the Defendant accepts demonstrates that the pool had been used in a potentially dangerous way. The accident happened when the Claimant ran towards the pool and took a leap into it chest and face down, somehow landing in such a manner that his head impacted the side of the pool, his chin was thereby forced downwards towards his chest and/or his head rotated slightly, and thereafter his head struck the ground with force. Exactly how this terrible injury was sustained will be the subject of subsequent analysis and decision.[3]The claim is brought under the Occupiers’ Liability Act 1957 and at common law. It is contended that the Defendant owed a duty of care to take appropriate steps to prevent the Claimant from injuring himself, including the making of risk assessments and ensuring proper supervision, if not taping off the pool to prevent people entering it at speed (this last allegation is not pleaded). The duty, so the submission runs, arose on the facts and in the circumstances of this particular case as a deemed incident of the college/student relationship or, in the alternative, on an assumption of responsibility of it by the Defendant arising in these particular circumstances, including knowledge of the risks acquired from the experience of the previous year. The Defendant denies the existence of a duty in these terms, denies breach, denies causation, and in any event asserts (either as its first roll of the dice or its last) that this risk was plain and obvious, yet the Claimant freely chose to run it.[4]I heard evidence from the following witnesses called by the Claimant: Andrew Risk, Jonathan Holbrey, Nick Amatt, Jonathan Martin, Sam Fishlock, Raymond Noakes, David Kerry and Kimberlee Green. The statement of Michelle Kenward was received as hearsay evidence under the Civil Evidence Act 1968. The Defendant’s witnesses were Olivia Wong, Kieran Vanstone and KT Milne. In my review of the evidence I have read and heard I will not cover each and every point made by the witnesses, although I have taken into account everything that they say. The Defendant decided not to call a number of witnesses whose statements are in the trial bundle. I will need to come back to this issue in due course. There was also expert evidence from Professor Ball, a witness in health and safety management issues called by the Claimant. The Defendant refrained from calling similar evidence, taking the view that expert evidence would not assist the Court on the key issues.

The Rose Bruford College Student Union and the Ball Team: Legal Status and Financing

[5]This is an unincorporated association governed by the terms of a written constitution [1/178]. As such, it is a separate legal person with its own financial accounts and management structure. A subcommittee of the Student Union known as the Ball Team hosted and was responsible for the setting up, financing and management of the Events Day [1/234, para 6].[6]The financing of both the Student Union and the Events Day was explored in evidence. Clause 9 of the constitution states that the Student Union shall receive an annual allocation of funds from the College sufficient in the latter’s view to enable the former to carry out its aims and objectives adequately [1/181]. This does not rule out the possibility of the Student Union receiving money from other sources, but that is immaterial to the present action. According to the witness statement of Ms Olivia Wong [1/172, para 7]:
“The SU receives funding from RBC annually and I arrange this. RBC gives an annual subsidy to the SU and the SU is left entirely in control of how to spend the money. I usually release 50% of the funds at the start of the academic year and then 50% when requested by the SU partway through the year”
[7]Ms Wong told me in evidence that the SU budget is approved by the Board and is not negotiated with the SU. It is therefore regarded as something akin to a donation. In previous years the subsidy involved had been in the region of £7,000 to £8,000; she could not exactly remember. The alighting on a particular figure for any given year was based on the amount paid in previous years and an additional sum to reflect inflation.[8]The impression given by Ms Wong’s witness statement was that the College had no control over or interest in the amounts expended by the Ball Team referable to the Events Day in any particular year. No doubt the organisers would hope to break even, or perhaps make a small profit if they could, but all of this was for the Ball Team to worry about and not the Defendant.[9]During the course of his cross examination of Ms Wong, Mr Soole Q.C. sought to dispel that impression and in my judgment he achieved some considerable measure of success. It transpired in oral evidence that the College paid the additional insurance premium for the hire of the marquee, that the College agreed to pay an additional £2,000 for the 2008 Events Day following adroit arm-twisting administered by Kt Milne [2/529e-529k], and that the additional overspend for 2008 was met by the payment of an enhanced subsidy for 2009. I agree with the Claimant’s submission that in this and other respects Ms Wong was seeking to place as much clear blue water as possible between the activities of the Ball Team on the one hand and those of the College on the other. Regardless of any health and safety issues, the College had a clear interest in promoting the success of the Events Day in burnishing its own reputation and goodwill, and in fostering good relations with the student body as a whole. Under pressure from Mr Soole, Ms Wong ultimately assented to the force of this point: as she put it, ‘you could say that the Ball falls within the responsibility of the health and safety committee’. But whether this amounts to an assumption of responsibility for present purposes, or is relevant to it, is or may be a separate matter which I will need to consider.

The Defendant’s Responsibility for Health and Safety at the College

[10]In opening his case Mr Soole directed my attention to the Defendant’s Health and Safety Policy Document for 2008-2009 [2/535]. He referred to a number of provisions but to my mind the key ones are clauses 1.2.1.2, 1.2.3, 1.2.4 and 1.2.5. These recognise in general terms that it is the aim of the Governing Body and College Management to ensure that the college is operated in such a way that all persons who use the premises, including students, are not exposed to risks to their health and safety. On my understanding of section 2 of this document, the entity with ultimate responsibility for health and safety issues at the College is the Governing Body. Below that entity in the organisational hierarchy, the Principal of the College has ultimate executive responsibility for health and safety matters. Beneath him, a body called the ‘College Health and Safety Committee’ meets monthly and exists to advise the Principal and Senior Management Group (as per the Organisation Chart at clause 2.1 [2/540]) on all aspects of health and safety. At the material time this committee was chaired by the Principal’s nominee, Mr Philip Wigley. But day-to-day responsibility for health and safety matters, including the making of risk assessments, resides with the Directors, Managers and staff members responsible for particular activities; as well as the students in particular circumstances. Clause 2.5.2 of the Health and Safety policy is relevant in this last respect, and provides [2/543]:
“2.5.2.1 Students Generally The role of students generally in this respect is to comply with statutory and College health and safety rules and regulations in force and take responsibility for their own safety and that of others. 2.5.2.2 Areas of Responsibility These include the requirement to • comply with all statutory health and safety requirements; • comply with General Health and Safety Rules for all students, as contained in the College Health and Safety Policies, Programme documents and Students Handbook; • comply with specific Programme or Activity Rules appropriate to the Student’s particular circumstances.”
In short, there is no designated health and safety officer within this organisational framework and responsibility for securing the discharge of the College’s health and safety functions is more widely spread, and may in appropriate circumstances involve the students.

These include the requirement to

[11]I have mentioned risk assessments more than once now, and the College makes provision for them in the ordinary course of its activities in line with standard practice and regulatory obligation. I was shown a risk assessment Form [2/486a] which requires hazards to be identified and then the degree of risk to be scored on a scale of 1-5. The likelihood of the risk eventuating is multiplied by the severity of the risk should it mature to produce a score of anything between 1-25 on a ‘risk rating matrix’, with any risk above 9 requiring the taking of priority action and any risk above 15 mandating immediate action.[12]Mr Soole sought to demonstrate on the documents that the Events Day was, in substance, a ‘College Event’ for which the Defendant assumed a measure of responsibility. On my understanding of his submissions Mr Soole did not pray this in aid as a decisive consideration; it fell to be weighed in the balance with other factors. For example, on 15th July 2009 a spreadsheet was emailed to Phil Wigley and others [2/650] listing the College Events for the next academic year. Included in the list is the Student Ball billed to take place on 25th June 2010 [2/648]. However, as Ms Wong explained in re-examination and I accept, all events taking place on College grounds, regardless of whether they are events run by the College, are included on the spreadsheet for administrative and planning purposes. For example, summer schools organised by third parties are equally included, and the organisers would be the ‘person responsible’ in the relevant box. And when one looks again at [2/649] the ‘person responsible’ for what is described as the ‘Student Ball’ is designated as the ‘Student Union’. On analysis, therefore, this document tends to avail the Defendant and not the Claimant. Furthermore, although [3/620] states that a risk assessment would be carried out in relation to all ‘College Events’, it seems to me that this document raises the same issue as the spreadsheet: the highest the point may be put is that the Ball Team as the ‘person responsible’ should have carried out a risk assessment. That said, I will need to examine in due course Mr Soole’s further submissions in support of the proposition that the Defendant assumed responsibility for health and safety matters, in particular an overseeing role of the Ball Team.

The Events Day, 2008

[13]The Ball Team for June 2008 was selected by the 2007 Ball Team on application being made by aspiring members for one or more individual positions on the sub-committee. The paperwork for 2008 exists, but not for 2007 or 2009. It comprises a ‘Summer Ball Manual’ [2/496] and ‘the Ball 2008 Event Manual’ [2/510]. The latter was prepared by Kt Milne as a working document at the start of her tenure as Events Manager, and the version appearing in the trial bundle is the record of what happened on the day. I agree with Professor Ball that the 2008 Event Manual is a reasonably impressive document, although Kt Milne’s evidence demonstrated that it did not contain a comprehensive statement of everyone’s responsibilities. I will explain why in a moment.[14]For present purposes it is necessary to focus on health and safety responsibilities in the context of the management tree at [2/513]. Nowhere is there any reference in this document to concurrent, coextensive or overarching health and safety or other responsibilities in the Defendant. On the other hand, I agree with the Claimant’s Skeleton Argument that the Event Manual indicates that health and safety issues, in particular the production of risk assessments, were in the domain of the Event Manager [2/516], the Site Manager [2/519] and the Health and Safety Officer (newly created in 2008)[2/522] but not of the Day Events Managers [2/527]. However, the oral evidence led to a different conclusion. First, as Kieran Vanstone explained, and Kt Milne agreed, the Site Manager was responsible only for the evening event; and this interpretation is born out by a closer examination of the rubrics on [2/519]. Secondly, Kt Milne persuaded me that, notwithstanding the strict wording of the documentation, the Site Managers for the Day Events were, in reality, the Day Events Managers and no one else (see also [2/529b]). It follows that, at least in 2008, the Health and Safety Officer and the Day Events Managers were responsible for health and safety matters and for the risk assessments for the Day Events.[15]The 2008 risk assessments are not available. This is a surprising omission because the evidence is that they were included in the hand-over file transmitted to the newly-formed 2009 Ball Team, and other documents within that file have clearly survived. However, there was also some evidence that the file was in a disordered state and I appreciate that documents might have become dislodged from it over the course of the year, and thereafter.[16]It was unclear from Kieran Vanstone’s evidence whether any risk assessments were carried out for the evening event in 2008. I need not make a finding on this marginal point. Kt Milne, who was a good witness and a sensible young woman, testified that she was sure that risk assessments for the Day Events were compiled by the Health and Safety Officer in conjunction with the Day Events Managers, although she could not now recall what they contained. Mr Vanstone stated that there was a sign along the lines ‘use at your own risk’ in the vicinity of the pool, but this is not supported by a close examination of the relevant photograph [2/384]. Kt Milne stated that she believes that she recommended that there should be signage warning against diving and jumping, although she recognised that the Ball Team would not want to come across to their peers as alleging that the students were devoid of common sense. In the event, we see no such signage in the photograph and Ms Milne cannot take the matter further, save to say that she must have satisfied herself about the adequacy of the risk assessments before she signed them off.[17]It is unnecessary for me to decide on the adequacy of the 2008 risk assessments; the issue is scarcely central to the case, and had it been more evidence would have been brought to bear on it. That said, it is important that I do record the evidence of both Mr Vanstone and Ms Milne which was to the effect, and I accept it, that the College had no role in the preparation or ‘signing off’ of the 2008 risk assessments whatsoever. Mr Vanstone emphasised that this was a student event and not a college event. At paragraph 5 of her witness statement Kt Milne stated that the Events Day was not managed or organised by the College in any way. On the other hand, Ms Milne accepted in cross examination that the College had a health and safety responsibility, and could not (as it were) wash its hands of the matter. Here, her evidence came into alignment with Ms Wong. Both witnesses also stated that risk assessments are relatively straightforward to complete, and that they had received practical and academic training in this respect. Ms Milne went further, and said that if the College did not think that the students were capable, it would not have allowed them to acquire this responsibility – an answer like many in this case which cuts both ways. Nonetheless, I should record my assessment that the safe management of this event was within the competence of these two witnesses who testified in a measured and objective way.[18]Mr Soole submits that the issue of the adequacy or otherwise of the 2008 risk assessments is inextricably intertwined with the photographs showing unacceptable horseplay, and that this in turn has important knock-on effects for the College’s liability for what happened in June 2009. Here, I am referring to the colour photographs showing the jettisoning of a young man into the inflatable pool, entering head down and arms outstretched [2/456]. The Claimant is clearly shown as one of those assisting in this rather dangerous act [2/453]. I describe it in that way although I fully understand and accept that a series of photographs cannot do full justice to exactly what happened on the day; and, in particular, we cannot see from the photographs whether the intention of the four young men doing the throwing was to twist the ‘victim’ round in such a way that he was unlikely to land directly onto his head. We know that the outcome was not an unhappy one.[19]A number of points arise. Mr Walker Q.C. for the Defendant pointed out in cross examination of the Claimant that there is no photographic evidence of similarly dangerous activities carried out in 2008; and, had there been any, it would have been included in the trial bundle. Even so, and as an examination of all the available photographic evidence shows, a number of students jumped, ‘bombed’ or were pushed into the pool (see [2/366-373], [2/387/390], [2/403], [2/415-416], [2/421], [2/430-432], [2/433-434], [2/435-436], [2/438-439], [2/463-466] and [2/469-471]). I cannot rule out the possibility that other students were thrown into the pool by one means or another even if the photographic record does not establish this; it may be incomplete. On the other hand, I have equally no doubt on the evidence that no one in 2008 attempted to dive or enter the pool head-first under their own steam. The second point which arises is that, as I have already pointed out, the pleaded Defence accepts that in 2008 the pool was used in a potentially dangerous way; this must be a reference to [2/456]. Thirdly, the issue arises as to whether the 2008 incident is itself evidence of a lack of supervision. Ms Milne told me that she anticipated that the pool would be the focus of horseplay and had she seen what appears to be going on the photograph, and had she been in the vicinity, she would have tried to stop it. Maybe, but much would depend on exactly where she was standing and the stage at which she realised that the young man was going to be deposited into the pool head first rather than onto his back. The actual means of despatch might not have been obvious to a bystander until a very late stage, by which time it would have been too late.[20]Aside from this one incident, the available evidence is to the effect that the 2008 Events Day was unproblematic and free from concern. I now move forward to the following year.

The 2009 Ball Team: Health and Safety Responsibilities

[21]The 2009 Ball Team was selected in the same way as its predecessor. The upshot was that Jonathan Holbrey and Nick Amatt were the joint Events managers, Jonathan Martin was the Health and Safety Officer, Andrew Risk and Sam Fishlock were the Day Events managers, Aimee Patmore was the Site manager, and Jonathan Spencer was the Technical manager. These individuals were in place by the start of the 2008/09 academic year, and the first committee meeting appears to have taken place either in December 2008 or in January 2009.[22]The witnesses were asked about the 2008 Summer Ball Manual [2/496], the 2008 Ball Event Manual [2/510] and their respective responsibilities. A number of matters clearly emerged. First, that the 2008 Manuals were provided to the incoming Ball Team, although a number of witnesses could not remember having seen them. Secondly, that no witness was able to tell me that an equivalent manual was produced for the 2009 event. I infer that none was ever created. This was an unfortunate oversight: had the paperwork, in particular the Contact List [2/515],been updated to reflect the identities of the incoming personnel, there would have been a better chance that everyone would have known the exact parameters and content of their functions at all material times. In the result, the preparations kicked off in a somewhat haphazard and disorganised fashion.[23]Nonetheless, the intention was that the 2009 Events Day would be organised in the same way as its predecessor with each member of the incoming committee performing the same functions as his or her homologue. But without key players seeing the relevant documentation there was always the risk that lacunae would develop, and this was exactly what happened in relation to health and safety for the Day Events. Jonathan Martin told me that he never saw the 2008 documentation. He was clear in his oral evidence that he had no responsibility for health and safety in relation to the Day Events, and that had he seen [2/513] in particular he would have carried out risk assessments for these as he had done for the evening Ball, in conjunction with the Technical Manager. Mr Martin did not know if there was a Health and Safety officer for the Day Events. Although he was an honest witness I have to say that had Jonathan Martin given the matter any modicum of thought it should have occurred to him – during the course of the committee meetings and more generally – that there was not a separate Health and Safety Officer for the Days Events and that these fell within his province of responsibility.[24]A number of other witnesses were asked about the responsibility for the carrying out of risk assessments for the Day Events. Jonathan Holbrey accepted he was ultimately responsible for these in his capacity as joint Events Manager; Nick Amatt was less clear about this. Mr Amatt told me that everyone muddled through in relation to what their respective roles were, that it was very much ‘sink or swim’, and that he assumed that someone else – by implication one or both of the Day Events managers – would be taking the lead as regards the risk assessments.[25]In 2008 the Day Events managers had assumed responsibility for undertaking risk assessments, notwithstanding that the documentation did not expressly so state. It follows that even had the 2008 documentation been closely examined by all concerned it would not necessarily have occurred to Sam Fishlock and the Claimant that health and safety issues arising out of the Day Events should have been addressed at ground level by themselves acting in conjunction with the Health and Safety Officer and the Technical Manager, under the oversight of the joint Events Managers. They would have reached that conclusion had a full and detailed hand-over briefing been given by the outgoing committee (and I infer that none was), and/or had proper discussions taken place at the first committee meeting with the aim of ensuring that all team members knew and understood exactly what they were supposed to be doing in the context of updated 2009 documentation and a completed Contact List.[26]The upshot was that health and safety responsibilities for the Day Events fell between the metaphorical cracks. The Claimant told me that he knew that the Day Events should have been risk assessed by the committee and that he thought that Jonathan Martin would be signing them off on the day itself, possibly working from a draft prepared either by himself or by Sam Fishlock. This answer was given in the context of the poster which the Claimant himself prepared a few days before the event itself stating that ‘all events are risk assessed for health and safety’. It was also the Claimant’s oral evidence that Mr Martin should have done the risk assessments and that he expressly told him, ‘will you check out the site and sign the risk assessments off?’ Mr Martin was not specifically asked about this conversation when he gave his evidence, and in the circumstances it is unnecessary for me to make a finding about it. Mr Fishlock’s evidence on this issue was that he believed that Jonathan Martin would be carrying out the risk assessments, ‘or someone else from the Ball Team’. Regrettably, the evidence was that vague. However, Mr Fishlock was undoubtedly an honest witness and he also explained that he did not give any thought as to who would be doing the risk assessments.[27]Given that the Claimant is not bringing a claim against the Student Union and that there is no allegation of contributory negligence in relation to this issue, I need not make specific findings as to the allocation of responsibility for health and safety in relation to the Day Events. I have already stated that it was inadequately addressed: the facts speak for themselves. But I would like to make it clear that no individual member of the 2009 Ball Team should feel that he or she let the others down.[28]Two other general points should be made. First, that the Day Events were regarded as somewhat apart from what was probably thought to be the main event, namely the evening Ball. Mr Holbrey told me, and other witnesses more or less agreed with him, that the Day Events ‘pretty much took care of themselves and existed on their own with minimal assistance or input from others’. In practice this meant that the Claimant and Sam Fishlock were left to sort out the Day Events as best they could. Mr Holbrey also said that at the committee meetings the Day Events managers confirmed that they were happy with the organisation and, by implication, that they did not require any assistance. That may have been so (without prejudice of course to what the documentation required as regards health and safety) but what happened in practice is that much was left to the last minute. Everyone was working lengthy hours in the last week of the summer term and the overall tenor of the evidence was that things were somewhat chaotic. The second general point is that all the witnesses agree that the Defendant played no part in the organisational arrangements and that Phil Wigley’s only concern was to ensure that noise levels were kept within reasonably bounds, so as not to disrupt tuition and not to foment complaints from neighbours. No witness suggested that the College took any interest in health and safety matters.[29]More specifically, Jonathan Holbrey told me that the College played no part in the organisation of the Events Day, and that his colleagues were, he believed, competent to perform their various roles. The Claimant said that there was no supervision from College staff and that in his view Jonathan Martin was both conscientious and capable. Mr Fishlock said that there was constant moaning from Phil Wigley and Sam Noakes; the former stated:
‘if you are doing it, you are doing it alone’
. Although this evidence throws no light on whether the College should have been showing a greater interest in what its students were up to on its land, it is clear from the evidence I heard that it did not actively participate in the arrangements to any material respect.[30]I do not overlook that paragraph 3(2) of the Defence [1/13] avers that at the initial committee meeting Phil Wigley and David White attended on behalf of the Defendant to secure the Ball Team’s agreement that the potentially dangerous activity in relation to the paddling pool would not be replicated in 2009. The Claimant and his witnesses have denied that this was so. The Defendant has served a witness statement from Phil Wigley referring to this alleged discussion, but in the event Mr Walker decided not to call him to give oral evidence at trial. Accordingly, paragraph 3(2) of the Defence falls to the ground. Mr Soole seeks to resurrect it in the context of his submission on adverse inferences, and I will be addressing that later.[31]What the College in fact did (or did not do) is or may be relevant to the Claimant’s case based on an assumption of responsibility, but what it ought to have done meshes with the question of whether it owed a duty of care in any event. A number of witnesses told me that it was assumed that the College would be playing some sort of overarching role. For example, Jonathan Martin said that although this was a Student Union and not a College Event, he was under the impression that the College was or would be overseeing it. Sam Fishlock gave evidence along similar lines, and said that he thought that Phil Wigley would be checking the risk assessments. As he put it, ‘The College didn’t seem to want to have anything to do with it; I stupidly thought that the College was involved’. And I do not overlook the evidence from the Claimant himself who said that the College played no part in the organisation of the event, but the Ball Team could rely on them for advice if it had asked for it. He also said:
‘we could have had more direction from the College. We were heavily over-stretched’
.

The 2009 Day Event

[32]Although there was some pressure to introduce a measure of innovation, the 2009 Day Event replicated the attractions of the previous year. Thus, it included an assault course (tyres, hurdles and a slanted wall), a group of ‘inflatables’ [2/473], a ‘slip and slide’ race [2/475], what has been described as a ‘free standing object’, and an inflatable pool [2/348]. The trial bundle contains numerous photographs from the 2008 Events Day and only a handful from 2009; the page references I have given are to 2008. A site plan does not exist although an indicative layout appears at [1/118].[33]The Claimant told me that he bought the pool on ebay, and that it was/is similar to the sort of plastic pool we can see in the Argos catalogue [2/503-504]. The dimensions of the pool can only be given approximately but it appears to be common ground that the diameter is approximately 12 feet and the height somewhere in the region of 30 inches. Water is filled to the edge of the inflatable ring which surrounds the outer circumference of the pool. From the photographs it is possible to infer that the depth of the water was approximately 26 inches (allowing 4 inches or so for the inflatable ring).[34]The Claimant inflated the pool on 25th June with the aid of Sam Fishlock. It took approximately one and a half hours to fill with water from a standard garden-type hose. It is obvious that the Claimant well knew the relevant dimensions of the pool and that – as is absolutely standard for a pool of this type – there was no inflatable ‘bottom’ to the pool or anything similar. The plastic pvc base was located on solid ground. Furthermore, I am satisfied from Mr Fishlock’s and Mr Dave Kerry’s evidence, and from standard practice, that the pool had warnings against diving imprinted both on the packaging and the plastic side. The Claimant accepted that he might have seen a warning on the pool itself. In this context Mr Walker asked the Claimant the basis for his assertion, through his pleading, that he would have obeyed a warning from the college when he ignored the manufacturers warning(s) on the side of the pool. No clear answer was given to that question.[35]As is implicit in my earlier narrative, the Day Events were not risk assessed before the Claimant’s accident. However, some rudimentary safety precautions were taken. First, the inflatables were surrounded by barriers and tape, probably at the contractor’s recommendation, in order to prevent people running and jumping onto them from a distance, thereby injuring others. On the other hand, no similar tape was placed around the pool until after the accident. Secondly, a modicum of supervision was also organised. According to Michelle Kenward’s witness statement, Amy Southworth was supervising the assault course at the time of the Claimant’s accident, and she went to help her because it was agreed that this is what they would do to help the Claimant out on the day. The Claimant told me that it was recognised that some supervision was necessary for certain activities and that some was provided: either by himself, Sam Fishlock or someone appointed by them. As for the assault course, the Claimant said that he appreciated the risk constituted by the slanting wall and had arranged supervision on the day. As for the pool, the Claimant accepted that it was an obvious magnet for irresponsible behaviour and, although at one point in his cross examination he said that it did not occur to him that the pool required supervision, stating that the pool ‘may have been supervised all day as part of the rotation with other volunteers’. His evidence rather suggests that there was a loose, informal system in place whereby available volunteers would be recruited to individual events as and when the need appeared to arise. It was not the Claimant’s evidence that any formal rota existed, still less that the volunteers were told what to look out for and prohibit. The Claimant also accepted that at the time of his accident Sam Fishlock may have been supervising the pool to prevent foolish play, although he repudiated Mr Holbrey’s evidence given in cross examination to the effect that at the time of the incident both he and Mr Fishlock might have been supervising. The Claimant points out that he had just finished introducing one of the live acts and could not be expected to be doing two things simultaneously.[36]Sam Fishlock went slightly further. He told me that all of the events had at least one of their volunteers on hand to ensure that they were being used properly and to stop people getting hurt. On the other hand, he did not assent to the proposition that he was or ought to have been supervising the pool at the material time: he was in it when the accident occurred. He said that the pool was near to the entrance and people manning the entry point could therefore see whether anyone was at risk of drowning. In similar vein, Kimberley Green told me that she was one of a group of volunteers who was going to supervise all the activities.[37]The overall impression I have from this evidence is that volunteers were on hand to assist the Claimant and Mr Fishlock but that this would be sorted out informally on the day. Although it may well have been the intention that the pool would be supervised at all material times in line with the general expectations of the Day Events managers, it is difficult to accept that the pool was in fact being supervised at the time of the Claimant’s accident, and I do not find that the Claimant himself ought to have been supervising it. I need say nothing more about this issue.

The Claimant’s Accident

[38]According to paragraphs 21 and 22 of his witness statement the Claimant was called over to the pool by Sam Fishlock, who was already in the pool, and a couple of other friends, who I infer were standing outside it. It was a spur of the moment decision, a joyful thing to do, he added in evidence. And then:
“The run up to the pool was at least 15-20 metres. I ran and jumped as fast as I could, enjoying the moment. I intended to land in the middle of the pool … As I landed in the pool I was propelled forward. My head hit the side of the pool and was I believe pushed down to the ground. It all happened so quickly.”
[39]In his oral evidence the Claimant said that he could not really say what he was intending to do; he simply could not remember. He explained that his intention was to jump, to dive-bomb in, to dive in. Under cross examination the Claimant accepted that he did not enter the pool head first the previous year, nor could he remember anyone doing that. He probably did not think that the events of the previous year were dangerous; he certainly did not consider that what he was doing on 26th June 2009 was risky.[40]To be fair to the Claimant, I think that it must be obvious that the appalling aftermath of his accident makes it difficult to regard him as an entirely reliable historian when it comes to the precise mechanism of his injury and exactly what happened in the few seconds between him starting to run towards the pool and his head striking the plastic at the junction between the side of the pool and the hard ground. For a more accurate account it is necessary to look at other available evidence.[41]Ms Kennard’s version, which was not tested in evidence, was:
“As he was running it was clear that he was going to dive in … he then dived in”
[42]To my mind, the most compelling account came from Sam Fishlock, who has the twin merit for my purposes of being a clear and reliable witness, and (both fortunately and unfortunately) having an excellent view of what happened.[43]According to Mr Fishlock, the Claimant was attempting to land on top of the water as a belly-flop. He entered the water at an angle, i.e. the trajectory was not flat but directed slightly downwards. The Claimant’s head then hit the plastic side of the pool under the water line, and it was then pushed towards his chest and downwards: plainly, the forward momentum generated by the lengthy run-up and the leap into the pool was substantial. The Claimant’s head then hit the ground at the junction between the side of the pool and the bottom of the pool. As Professor Ball told me subsequently, what was critical here was the angle of the impact, the position of the Claimant’s head, and (I deduce) the considerable forces involved. Mr Fishlock also told me that the Claimant did not have his arms outstretched in front of him, and that (in his view) he was being silly.[44]Mr Fishlock was also asked about the accident report which is at [3/592]. It emerged in evidence that the source of the information set out in this document was this witness. Mr Walker put to Mr Fishlock that what the Claimant did was even more unforeseeable than diving into the pool, in that the latter would involve the Claimant’s arms being outstretched in front of him. It is unclear whether Mr Fishlock agreed with that suggestion or not: ultimately, his answer does not matter, because the issue (to the extent it matters) is one for the Court. Frankly, I am not convinced that Mr Walker’s point was a good one. In one sense the Claimant was not ‘diving’ into the pool; he was entering it chest first, not head first. In another sense the Claimant was exposing himself to the risk of head injury in that he would be unlikely to be able to control what happened on impacting the water at speed in a pool of these modest dimensions; and so what started out as an intended ‘belly flop’ was quickly transformed into a dive. The fact that his arms could offer him no protection merely added to that risk. It goes without saying that at the precise moment the Claimant decided to run towards the pool and enter it at speed it simply did not occur to him that this was a dangerous thing to do: had it done so, he would not have done it. This observation is consistent with the Claimant’s evidence – ‘if I had seen a running dive I would have prevented it’. And the Claimant added:
‘It wouldn’t have occurred to me that anyone would do that’
.

The Aftermath of the Incident

[45]It is unnecessary for me to dwell on the immediate aftermath of this incident save in two respects.[46]First, a number of risk assessments were completed shortly after the accident but backdated to 20th June 2009. According to the documents themselves [3/601-606] these were prepared by Sam Fishlock and counter-signed or ‘accepted’ by Jonathan Martin. To my mind, it is unnecessary for me to decide exactly who completed which parts of the risk assessment, when, in what circumstances, and at whose prompting. All the relevant witnesses frankly accepted that the risk assessments should never have been completed in this way, and that they panicked. It may well be that witnesses misinterpreted Dave Kerry’s observation that they had better ensure that the paperwork was in order, but I need not to explore this issue any further.[47]In many respects the risk assessments would appear to be reasonable documents, inasmuch as risks were accurately identified and sensible control measures were prescribed. However, I am not evaluating the quality of the risk assessments in general terms. That said, on the issue of causation, I do need to consider the risk assessment for the inflatable pool [3/602]. Aside from a number of other hazards which are not in issue, ‘foolish play’ is said to create the hazard or risk of ‘slips, bruises, cuts, concussion’, and to yield a total risk factor of 16. The appropriate ‘control measures’ are said to include supervision at all times and ensuring no more than five persons in the pool at any one time.[48]In my view, the obvious self-serving and ex post facto quality of the risk assessment creates a number of difficulties. First, it is difficult to understand why the risk should be so high – 16 – if the consequences were limited to the relatively minor injuries identified in this assessment. The only explanation is that the author of the risk assessment had taken into account the accident which had already taken place without mentioning it. Secondly, if the risk were really as high as 16 one would have thought that the control measures should have been far more intrusive than those actually identified. Thirdly, whereas I would be prepared to accept that there is some evidence to support the proposition that a measure of supervision was, or ought to have been, in place at the material time, I strongly suspect that the five person limit was dreamt up on the spur of the moment, albeit it is not something which would have had any impact on the causation of this particular accident. These are all matters which cause me to view this risk assessment with a substantial degree of scepticism.[49]Secondly, I should mention at this stage the unchallenged evidence of both Sam Fishlock and Dave Kerry which was to the effect that after the accident Phil Wigley reprimanded Sam Fishlock in relation to the absence of risk assessments, but Dave Kerry then entered the College board room and got angry with Mr Wigley. The latter was saying that the risk assessments (which by that stage had been brought into the room by Jonathan Martin) were ‘rubbish’ and had not been correctly filled in. Dave Kerry, on the other hand, was laying the blame at Mr Wigley’s door – he was supposed to check the risk assessments and had not done so. Paragraph 17 of Mr Kerry’s evidence states:
“He [Mr Wigley] would normally have signed these risk assessments off and seen them before the day and, if not, he would have been chasing the guys for their whereabouts. I myself had to provide Phil with risk assessments for the workshop where I worked. Phil always signed these off for me.”

The Claimant’s Expert Evidence

[50]The Claimant called expert evidence from Professor David Ball, Professor of Risk Management at Middlesex University since 1997 and a man with very considerable academic and practical experience in this domain.[51]The Defendant decided not to serve an expert report in this case, taking the view that most of the relevant issues were for the Court and not for an expert at all. In relation to Professor Ball’s report Mr Walker put it to him in cross examination that he was seeking impermissibly to address matters of law and to comment on the available evidence, in both of which endeavours he was travelling outside the permissible bounds of the advice he can give to the Court in a case of this sort. To take just one specific example: Professor Ball’s report proceeds on the premise that the College owed some sort of duty to undertake risk assessments in these circumstances, even if that duty was jointly owed with the Student Union. Mr Walker’s point is that this event was no part of the College’s ‘undertaking’ and that it followed that no duty was owed under the 1999 Regulations or otherwise.[52]I agree with Mr Walker’s strictures, insofar as they went, but in a number of respects Professor Ball did offer me valuable assistance which I would seek to summarise in the following manner.[53]The merit of risk assessments is that they are a necessary albeit insufficient part of a culture which takes the identification of hazard, of risk and of amelioration measures seriously; they are not merely pieces of paper which need to be ‘signed off’ in a formulaic manner. Although risk assessments do not strictly speaking have to be confined to writing, there must be a systematic process which leads to their creation before the hazard is engendered and not afterwards. A proper system of assessing risk and generating the necessary documents well in advance is more likely to be a system in which the necessary control mechanisms are also properly implemented, rather than addressed haphazardly and adventitiously on the day.[54]Professor Ball told me that under the Regulations the undertaker is supposed to record the significant findings ex ante and not ex post. This prevents vagueness, uncertainty and a failure to understand individual responsibilities – which, I would add, is exactly the vice which operated in the instant case. Professor Ball was disinclined to be drawn on whether the ante-dated risk assessments were in fact reasonable, pointing out that those who completed them were too remote from the assessment. Although he opined that the risk assessments in the trial bundle were somewhat vague and superficial, he accepted that he had not made any substantive criticisms of them in his report: ‘I am not prepared to criticise a useless document’, he explained.[55]On closer examination of Professor Ball’s report I note that he does refer in passing to the installation of barrier tape around the pool (see paragraphs 6.48 and 6.58) although he does not elevate this to a specific recommendation. Rather, his report focuses on the need to ensure that a proper system of follow-through was in place, including ‘ask to see the risk assessment, look at controls proposed, walk through on the day to check it was in place’ (paragraph 7.1(h), [1/303]. In oral evidence Professor Ball clarified that he was not saying prescriptively that barrier tape was an essential component of any safe system; rather, that it might have been if the risk could not otherwise have been controlled adequately.[56]Finally, Professor Ball was asked questions in cross examination about the level of risk. He agreed that a vertical dive was not foreseeable whereas a belly flop might have been. Of course, there is all the difference in the world between a belly-flop from a standing position and the running manoeuvre which the Claimant attempted, and about which Professor Ball was not specifically asked. However, Professor Ball urged me not to focus just on the object in question, namely the pool. He stated that the Court needed to focus on what he called the juxtaposition of the object and the known behaviours of high-spirited youngsters in this sort of context. In this context I have considered Dr Steinberg’s paper drawn to my attention by Professor Ball, A Social Neuroscience Perspective on Adolescent Risk Taking, Developmental Review 28 (2008) 78-106 [1/325-353].

Findings of Fact: Adverse Inferences

[57]Upon the completion of the evidence I invited Counsel to identify the findings of fact each of them wished me to make. Mr Walker did not take up my invitation although during the course of his written and oral arguments he did refer in general terms to the circumstances of the instant case which in his submission were critical to his contention that no relevant duty of care was generated.[58]Mr Soole did take up my invitation and he submitted for my consideration a document headed ‘Issues of Fact Requiring Resolution’. In my judgment, not all of these issues do require resolution but I will be dealing with the essential matters in due course. However, there is a preliminary issue which I need to resolve, namely whether I should be drawing inferences against the Defendant on the ground that a tactical decision was made by Mr Walker not to call two potentially important witnesses from whom witness statements had been obtained, namely Phil Wigley and David White. I indicated to Mr Walker during the course of the trial that I was unhappy with his client’s approach, and at one stage was contemplating the reception of these witness statements under CPR rule 32.5(5), making such use of them as I saw fit. However, it was Mr Soole who advised me that such an approach would not be consistent with Court of Appeal authority, and there the matter rested. But the question of drawing adverse inferences is very much a live issue.[59]In Wisniewski v Central Manchester HA [1998] PIQR P 324 Brooke LJ, after reviewing the authorities, concluded that (and here I am content to rely on the Claimant’s summary of this decision, it not having been challenged by Mr Walker):(i) in certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action;(ii) if a court is willing to draw such inferences, they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably be expected to call the witness;(iii) there must, however, have been some evidence, however weak, adduced by the former on the matter in question before the Court is entitled to draw the adverse inference: in other words, there must be a case to answer on that issue;(iv) if the reason for the witness’s absence or silence satisfies the Court, then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.[60]The Claimant’s main ambition is to invite me to draw an adverse inference against the Defendant in relation to what was pleaded on instructions in paragraph 3(2) of the Defence, namely that at the initial meeting in late 2008 or early 2009 the Ball Team agreed with Messrs Wigley and White that there would be no repetition of the potentially dangerous behaviour which occurred in 2008. Mr Soole did not submit that I could or should draw the inference that at the initial meeting there was indeed a discussion and agreement reached along these lines: that would be expressly to contradict his own case, which was flatly to deny that there was any such discussion. Rather, it would be appropriate to infer that Mr Wigley must have been under the apprehension (as opposed to the misapprehension) that it was his responsibility to ensure that health and safety matters were being properly addressed by the Defendant.[61]The final piece of the jigsaw of Mr Soole’s ingenious and sophisticated submission is that his client’s supplementary witness statement does provide evidence of the very discussion the existence of which Mr Risk strongly denies. The Claimant after all refers, as he is entitled to do, to the witness statement of Mr Wigley if only to repudiate its contents. Accordingly, the submission is that the Court has some evidence on a relevant issue on which to found the drawing of the adverse inference, that issue being the acceptance of responsibility by Mr Wigley for health and safety matters at this Events Day.[62]I cannot accept Mr Soole’s submission, for two reasons. First, I accept Mr Walker’s riposte that a close reading of CPR rules 32.4, 32.5 and 32.5(5) does not permit the ‘other party’, here the Claimant, to deploy the Defendant’s witness statements in this way, either directly or through the back door. Mr Risk’s supplementary statement has no free-standing evidential status: its role was, and is, to comment on the Defendant’s anticipated evidence but it could only become admissible, and relevant, if that evidence was in fact given. As it happens, the evidence was not adduced by the Defendant, and there is no longer any need for the Claimant to deny the existence of discussions about which no admissible evidence has been given. The Claimant’s supplementary witness statement therefore ceases to have any evidential value. Secondly, the fact that Mr Wigley may have agreed with the Ball Team that there should be no repetition of the potentially dangerous behaviour perpetrated in 2008 does not assist me one way or another in deciding whether the Defendant assumed any relevant responsibility to secure the health and safety of anyone. In my judgment, the existence of such an agreement is equally consistent with Mr Wigley leaving it entirely to the Ball Team to implement.[63]Thus far, I have only dealt directly with paragraphs 2-5 of the Claimant’s document, ‘Adverse Inferences’. However, the same reasoning equally applies to paragraphs 6-12. As for Mr Wigley’s health and safety training, I am not persuaded that I need make any finding of fact about that; it does not impact on the existence of any relevant duty of care, or (to the extent that it arises) any issue of breach. As for paragraphs 13-14, I have already referred to Mr Wigley’s attitude at the post-accident meeting (see paragraph 49 above), but I have to say that the highest this point may be put is that Mr Kerry (who gives the clearest evidence on this matter) clearly believed from his own experience that Mr Wigley should have checked the risk assessments; it does not avail me in deciding whether Mr Wigley was obliged to in this specific context. To be clear: Mr Kerry was drawing directly on his experience as workshop manager and in this regard the College would clearly have a role qua employer. Similar points may be made about paragraphs 15-16.[64]I suspect that in skilful and persistent cross examination Mr Soole might have extracted the concession from Mr Wigley that the latter believed that the College (which in this context means Mr Wigley himself) owed some sort of health and safety responsibility for this event. But such a concession, if made, would not in itself and without more have assisted me in deciding whether the College assumed responsibility for the Claimant’s wellbeing in a relevant respect. Without more, it would be tantamount to an expression of opinion.

Findings of Fact

[65]The Claimant’s document ‘Issues of Fact Requiring Resolution’ invites me to arrive at findings of twenty facts, some of which are admittedly interrelated. I have already made findings on a number of these matters but will set some of them out again for the avoidance of doubt. A number of the suggested findings are irrelevant to the issues (e.g. finding 1, ‘did Mr Wigley have Health and Safety Training?). A number involve inferential findings of secondary fact which are more appropriately addressed at a later stage. And I need to add to the list a handful of matters which the Claimant has not included. I also propose to approach this exercise in my own way.[66]The Defendant has accepted that there was a potentially dangerous occurrence involving the pool in 2008 as evidenced by the photographs at [2/454-459], and that it was aware of this. The Claimant seeks to go further in two ways. First, reliance is placed on other photographs (see paragraph 19 above) showing various acts of entering the pool. Although I would characterise these as evidencing horseplay, I do not conclude that we can see potentially dangerous behaviour. Secondly, Mr Soole submitted that the purpose of the pool was to encourage horseplay and larking around. Kt Milne and others accepted that it was foreseeable that the pool would be a magnet for irresponsible behaviour, but I would not agree that this was its sole or main raison d’être. It was a source of fun; it enabled young people to cool off on a hot day and to enjoy themselves. These are considerations which enter into the mix when I come to address the social utility issue raised in Tomlinson.[67]The 2009 Events Day was organised on the same basis as its immediate predecessor. As a matter of fact, the College played no role in the organisation and management of the event, still less in participating in health and safety issues. I have already said that the College did assist in financing the event; and, in particular, were directly involved when the 2008 event ran over budget. The College also made available some of its equipment and funded the insurance cover for the marquee. Regardless of whether this was a ‘College Event’, I have found that the Defendant was not the ‘person responsible’ in the relevant column (see paragraph 12 above).[68]In my judgment, the College could always have banned the use of the pool at any stage: as occupier of the land, it could regulate the terms on which these visitors were permitted to use it. The College caused the pool to be dismantled after the Claimant’s accident, and it did not feature in 2010. In addition, it emerged in evidence, contrary to the impression given by Ms Wong’s witness statement, that the event was not restricted to students of the College. Provided that the visitors’ book was completed, and (I would add) subject to an overriding discretion to refuse entry, the guests and partners of students were allowed admission. This, in my judgment, is highly relevant to the issue addressed in a number of questions posed by Mr Soole in his document ‘Issues of Fact Requiring Resolution’, namely whether the College had some sort of overarching or residual responsibility for health and safety matters. Imagine that a visitor had been injured as a result of horseplay or whatever perpetrated by a student or fellow visitor. Or imagine that a member of the College had been injured as a result of someone launching themselves irresponsibly onto one of the inflatables which we can see taped off in the photographs. Although an action would probably lie against the Student Union, the possibility arises (I put it no higher than that) of a separate or concurrent action against the College itself. But none of these considerations avails the Claimant because the focus of my analysis must be directed to the scope of the College’s duties vis-à-vis him and not hypothetical colleagues and visitors comporting themselves in different ways. Thus, the existence of an overarching duty in abstract terms is irrelevant to this particular case.[69]I have already said that a number of witnesses opined that the College did owe some sort of health and safety obligation in this context. My approach to this evidence is two-fold. First, to point out that opinions of this nature are not evidence at all but rather expressions of view, perhaps of aspiration, reflecting perceptions as to what the law should require or impose in this class of case. Secondly, it is clear that the College did not state or represent, expressly or by implication, that it assumed health and safety functions in relation to this event. I will need to return to this point in the context of the Claimant’s case on assumption of responsibility, but at this stage I set out my conclusion that none of the documents points to an acceptance of a concurrent or free-standing set of duties as regards this student-run event. On the contrary, the documents read as a whole demonstrate that the Student Union would be responsible, and to the extent necessary would discharge the obligations identified in the Defendant’s Health and Safety policy. And the College’s conduct at all material times, excepting perhaps Mr Wigley’s defensive and unattractive behaviour in the immediate aftermath of this tragedy, is wholly consistent with a hands-off approach.[70]Mr Walker invited me to find that the 2009 Ball Team was competent to perform risk assessments and had received sufficient training of a practical and academic nature during the academic year. Mr Soole invited me to hold that the Claimant and his witnesses were responsible people, not in the sense that they could and should have been trusted to undertake risk assessments, but in the different sense of their being amenable to proper warnings as to risk being given by the College, had they been. These invitations require a careful and nuanced answer. In my judgment, not all of the Claimant’s witnesses came across as well as did Kt Milne and Kieran Vanstone, but overall they were reasonably competent and capable of carrying out adequate risk assessments on these relatively straightforward pieces of equipment, including of course the pool. Sam Fishlock and the Claimant himself were impressive witnesses. Difficulties arose because the preparations for the 2009 event started on the wrong foot because the joint event managers failed to prepare a proper manual for 2009 and failed to ensure that everyone was aware of the exact scope and content of their responsibilities. The Day Events managers were left to organise everything on their own with minimal input from other members of the Ball Team, and (as usually happens in this sort of situation) too much was left to the last minute. Health and Safety issues were accordingly overlooked, and no written assessments were prepared until after the accident. This is a classic case of a series of minor, related failings - the responsibility for each of which it is unnecessary to pinpoint – leading to a catastrophe.[71]I would prefer to postpone addressing the question of what the Claimant would or might have done had he been warned until I come to deal with the issue of causation at a later stage.[72]Mr Soole does not invite me to find that the pool was dangerous. Strictly speaking this raises an issue of secondary, not of primary fact, but I consider that I must do so at this stage, although care needs to be taken to define the exact terms of the question which requires answering. I remind myself of Professor Ball’s evidence that it was not the object that was dangerous but rather the juxtaposition of the object with the known behaviours of high-spirited students operating in a group setting (I have added very slightly to his evidence to highlight the relevant issue). I am prepared to go along with much of that, but not all of it. The question which arises in the circumstances of this particular case, not some other hypothetical case involving a different claimant and a different accident, is whether this pool was dangerous if someone was intent on entering it at speed, front first, arms to the side, thereby exposing his head to the risk of collision with the side of the pool and thereafter the ground. The answer to that question is in the affirmative, but one would need immediately to add that the relevant danger, or risk, has been wholly created by the person who chooses enter the pool in that way, even if at the precise moment of entering the pool he may not have been aware of the risk.[73]I appreciate and understand that the pool was also potentially dangerous in the sense that a head injury might result if four young and fit individuals chose to launch a ‘victim’ from a height directly head down into the pool. But this is not an issue which arises in the context of this particular accident and I say nothing more about it.[74]The pool was not otherwise dangerous. Its dimensions were plain and obvious, as was the depth of the water in it. The Claimant may well have been oblivious to the risk in the heat of the moment, but I am sure that as a sensible young man he would have perceived it had someone else chosen to do what he did, or something similar. I refer to the evidence he gave summarised at paragraph 44 above. Furthermore, the pool could withstand a considerable amount of horseplay or larking about, subject always to the possibility of people suffering minor bruising to their coccyx or whatever.[75]Whether or not the risk of injury from head/front first entry was foreseeable raises separate issues, but I should address the question as to such a risk being actually foreseen by anyone, including the Defendant. In my judgment, the Defendant cannot be taken as actually foreseeing such a risk, and I have rejected the Claimant’s submission that I should draw an adverse inference to that effect. What happened in 2008 was potentially dangerous, but the Claimant’s accident occurred in a different way. None of the Claimant’s witnesses foresaw that such an accident might happen, and I have already said that the Claimant himself did not, otherwise he would have stopped himself in his tracks.

The Claimant’s Submissions

[76]Mr Soole advanced his client’s case under the Occupiers’ Liability Act 1957 and at common law. He accepted that in the circumstances of this case the outcome would be the same under both legal avenues, and I agree. The Defendant owed the Claimant a common duty of care, namely ‘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’ (see s.2(2)). Mr Soole submitted that these purposes included the carrying out of a degree of horseplay. I have already found that they did not include entering this shallow pool front or head first.[77]But Mr Soole advanced what appeared at first blush to be a more compelling submission based on the terms of s.2(3) of the 1957 Act, which provides in material part:
“[the relevant circumstances] include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases- (a) an occupier must be prepared for children to be less careful than adults; and (b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risk ordinarily incident to it, so far as the occupier leaves him free to do so” (a) an occupier must be prepared for children to be less careful than adults; and (b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risk ordinarily incident to it, so far as the occupier leaves him free to do so”
[78]Mr Soole’s point was that the Court always adopts a flexible approach and treats all the relevant circumstances of the case as falling along a spectrum rather than within closed or rigid categories. He derived further support for this approach from Clerk & Lindsell on Torts, 20th edition, paragraph 12-29. In other words, the Court may have regard to the relative youth of the Claimant, and the environment in which he was behaving in the day, in giving content to the Defendant’s duty qua occupier under s.2(2). The duty, after all, is owed to the particular visitor: see Ratcliff v McConnell [1999] 1 WLR 670, per Stuart-Smith LJ at paragraph 44.[79]Mindful of Mr Walker’s heavy reliance on the case of Tomlinson v Congleton BC [2004] 1 AC 46, Mr Soole submitted that Lord Hoffmann’s now famous dicta relating to risks inherent in an activity which was freely undertaken on land (see paragraphs 45 and 46 of Lord Hoffmann’s Opinion) did not preclude the possibility of a relevant duty of care arising if one of two conditions were met. The first condition was where the law imposes a protective duty of care, in other words a duty to safeguard the Claimant from such risks. The second condition was where the Defendant was deemed to have accepted responsibility for the Claimant’s safety in all the circumstances of the case. Mr Soole sought to bring his client’s case within both of these conditions, although for his purposes he only needed to persuade me about one of them.[80]As for the first condition, Mr Soole recognised the problem constituted by the final sentence of paragraph 46 of Lord Hoffmann’s Opinion in Tomlinson as reinforced by the recent decision of the Supreme Court in Woodland v Swimming Teachers’ Association [2013] 3 WLR 1227. This appears to restrict the imposition of a protective duty of care to certain defined categories of case. Mr Soole’s answer was to seek to bring my focus round to the terms of s.2(3) of the Occupiers’ Liability Act 1957 and to the host of factors set out in paragraph 18 of his written closing submissions demonstrating that the College knew of the risk, associated itself with this event, and therefore neither could nor should be permitted in law to decouple itself completely from it.[81]As for the second condition, an assumption of responsibility (Mr Soole eschews the adjective ‘voluntary’, and I am minded to agree), the Claimant’s submission is that this entails a fact-sensitive inquiry which, if accurately performed, gives rise to the inferential conclusion that the College did accept legal responsibility for the risks which resulted in the Claimant’s accident. The authorities are not to be read like statutes, and Mr Soole submitted in particular that the Court’s inquiry is an objective one and that it did not require proof of reliance by the Claimant on anything the College agreed to do or to refrain from doing. Ultimately, however, Mr Soole relied on the same factors in support of fulfilment of the second condition as he did for the first.[82]The Claimant’s case placed considerable weight on an obligation on the College to perform some sort of risk assessment, and it is common ground that this did not take place. However, it is necessary to be careful about this, in two respects. First, the obligation to undertake a risk assessment could arise only if a relevant duty of care existed. Mr Soole accepted when he opened his case to me that such an obligation was adjunctive to a duty if it existed; it could not operate in any sort of free-standing manner. Secondly, and this point is more in Mr Soole’s favour, a risk assessment is far from being a panacea. Rather, it is part and parcel of a comprehensive system for the identification and management of hazards and risks, and scarcely ends with the perfunctory compilation of a sheaf of papers.[83]A similar series of points were made by Smith LJ in Uren v Corporate Leisure UK Ltd & MoD [2011] EWCA Civ 66, at paragraphs 39-45. A failure to undertake a risk assessment will never be directly causative of an accident but it may be indirectly so, and in such circumstances – if the Court concludes that the accident would not have happened but for the relevant omission - liability will follow. Smith LJ also emphasised that risk assessments were an important feature of the health and safety landscape, and that they needed to be carried out properly; and judges should not sweep them aside. On the other hand, the Court of Appeal recognised that risk assessments were not a ‘cure-all’ and that it was only ‘sometimes’ that the failure to undertake them would affect or determine the outcome of a claim. I bear all these considerations in mind but do not draw any additional assistance from the decision in Uren. There, it was clear that both defendants owed a statutory duty to the Claimant to undertake a risk assessment (c.f. the instant case), and the judge held that there had been a breach of that duty. Secondly, the case turned on the assessment of the level of risk and an examination of the circumstances in which that risk arose.[84]Finally, Mr Soole submitted that if the relevant duty of care existed then everything else, as it were, slotted into place. He invited me to find that the Claimant was a responsible young man who would have obeyed warnings from the College and/or instructions given by supervisors on the day. Mr Soole did not place much weight on the absence of barrier tape round the pool, but he submits that had a proper risk assessment identified the need for such tape its absence was causative. His real point is that a proper system in place, either imposed or overseen by the College (it matters not which) would on the balance of probabilities have prevented the Claimant’s accident. And he also invites me to find that any contributory negligence should be low.

Conclusions

[85]I entirely agree with Mr Walker that the correct starting-point is to consider not whether the Defendant owed the Claimant a duty of care (the general duty under s.2(2) of the Occupiers’ Liability Act 1957 is admitted) but whether the Defendant owed a particular duty to protect the Claimant from the risk he took. The Claimant characterises this particular duty as a ‘protective duty’ and I am content to adopt the Claimant’s terminology.[86]So, the issue is not as to the existence of a duty but its particular scope. On this approach the debate is not about breach of duty, being a secondary question, but rather about the primary one of whether a duty of the relevant breadth or ambit applies to the circumstances of the Claimant’s accident. If the duty does not travel far and wide enough (for the Claimant’s purposes), the inevitable conclusion is that the claim fails at first base: viz. the absence of any relevant duty of care.[87]This approach is consistent with principle and the highest authority: see, for example, the citation from Lord Bridge in Caparo in paragraph 22 of the judgment of May LJ in Darby v National Trust [2001] EWCA Civ 189. A similar approach underpins the analysis of Lord Hoffmann in Tomlinson. It is no more, and certainly no less, than the application of a general principle of the law that the existence of a duty of care, and its scope, can never be determined in abstract; regard must be had to all the circumstances of the case, including the salient features of the accident itself and the range of factors contemplated by s.2 of the 1957 Act.[88]Mr Walker placed particular reliance on Tomlinson and in my view he was correct to do so. The claimant in that case was aged just 18 – he was therefore of full age and capacity, and as it happens younger than Mr Risk – although there was no antecedent relationship of any sort between the parties. Indeed, the House of Lords held that Mr Tomlinson was a trespasser at the material time, and that the duty owed to him was the (theoretically at least) lower one under the Occupiers’ Liability Act 1984. However, the House of Lords made it clear that the outcome would have been the same under the 1957 Act: see paragraphs 39 and 50 of the Opinion of Lord Hoffmann. The only difference between the two Acts is that under the 1957 Act one starts from the assumption that there is a duty whereas under the 1984 Act one starts from the assumption that there is none: see the final sentence of paragraph 38.[89]Apart from the issue of antecedent relationship, the present case differs from Tomlinson in two other respects. First, Mr Tomlinson could not see the bottom of the lake although it was a smooth sandy surface without any obstruction or other hazard (see Lord Hobhouse at paragraph 66). That said, the risk from shallow water remained obvious as he was standing in it. I regret to have to find that the risk in the present case was even more obvious since the Claimant filled the pool himself and in any event could well see how shallow it was. Secondly, in Tomlinson the House of Lords was addressing an inherent, static risk constituted by a lake forming in a disused quarry and existing for a number of years. In the present case I am concerned with the transient presence of a movable inflatable pool which was only ever going to be in situ for approximately 24 hours. In the view of the House of Lords Mr Tomlinson was unable to demonstrate that the risk was due to the state of the premises or ‘things done or omitted to be done on the premises’: see paragraph 29 of the Opinion of Lord Hoffmann. Accordingly, the first part of the ratio was that there was no risk of a kind which gave rise to a duty under the 1957 or 1984 Acts. However, the transient nature of the activity of bringing the inflatable pool to the premises leads me to reach a different conclusion on this point. To my mind, the risk to the Claimant, such as it was, did result from something ‘done or omitted to be done on the premises’. Furthermore, this Claimant seeks to bring a parallel case at common law whereas Mr Tomlinson could never have done so. It follows that the Claimant is not precluded by the first limb of the ratio in Tomlinson and it is necessary to consider the application of the second limb.[90]Having decided, on the facts of Tomlinson, that for the purposes of the scope of the duty under s.1 of the 1984 Act the claimant was able to demonstrate both knowledge and foresight of the danger and knowledge and foresight of the like presence of trespassers, the key question for the House of Lords became this: was the risk one against which the council might reasonably be expected to offer Mr Tomlinson some protection? (see paragraph 32 of the Opinion of Lord Hoffmann). This question raised exactly the same issue pertaining to the scope of the common duty of care under s.2(2) of the Occupiers’ Liability Act 1957. In answering that question Lord Hoffmann’s approach was to consider two matters: the first was the degree of risk weighed against the social value of the activity concerned; the second was whether the defendant should be entitled to allow people of full capacity to decide for themselves whether to take the risk.[91]Lord Hoffmann answered both questions in the defendant council’s favour. As for the first, although there was a quantifiable risk of injury, including of serious injury, it was equivalent to the level of risk which flows from other similar activities such as cycling and mountain walking, and that risk was outweighed by the social value, including the enjoyment and pleasure, consequent upon swimming in this lake. I will be returning to this issue in a moment in the context of Lord Hobhouse’s Opinion. As for the second question, paragraphs 45 and 46 of Lord Hoffmann’s Opinion dealing with personal autonomy and free will have been cited on so many occasions now that they do not merit a further outing in this judgment. However, in addressing Mr Soole’s submission about a protective duty, I do need to set out the final sentence of paragraph 46:
“A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, as in the case of employees whose work requires them to take the risk, or some lack of capacity, such as the inability of children to recognise danger … or the despair of prisoners which may lead them to inflict injury on themselves …”
[92]Mr Soole had two principal ripostes to this passage, and I would add a possible third. First, he submits that his client did not enjoy a ‘genuine and informed choice’ inasmuch as the risk may have been obvious to the College but he was oblivious to it, and it would be quite wrong for the Defendant to shelter behind the age of the Claimant and the fact that he was technically of full capacity. Secondly, he submits that Lord Hoffmann is merely giving examples of the types of case where the law takes a truly paternalistic view, in the sense that legal (as opposed to moral) responsibility attaches. The categories of the law are never closed, and the common law is sufficiently organic to encompass the particular features of the present case. Thirdly, it might be argued that Lord Hoffmann’s Opinion could never be the last word on the matter, and the law may have moved on since July 2003.[93]I will need to examine whether Mr Soole’s argument might derive support from any later case, but I cannot agree with him on his main points. I have already dealt with the Claimant’s state of mind at the moment he decided to run towards the pool and then leap into it, and what he might have thought or done had someone else been attempting that mode of entry. By acting as he did the Claimant created an obvious and serious risk which would not otherwise have existed. Whether or not the Claimant would have responded to advice or warnings from the College, and regardless of whether there was adequate supervision, the Claimant did exercise a genuine and informed choice at the critical moment: he was entirely free to accept, or to reject, Sam Fishlock’s invitation to enter the pool, and to decide on how he was going to do so.[94]Lord Hoffmann may not have intended to set out an exhaustive list of the cases where the law imposes an obligation on the defendant because a claimant does not truly possess a genuine and informed choice, but Mr Soole was unable to put before me a case where liability was established in a college/student context in this sort of situation. Instead, Mr Soole invited me to look more generally, and consider a fluid and dynamic application of s.2(2) and (3) of the 1957 Act. The difficulty with this approach is that I do not understand the law to be anything like as flexible as the Claimant urges upon me: once a genuine and informed choice is established in an individual of full age and capacity who is not under the protective wing of a defendant with control over what he might do, and an obvious risk is created by the claimant himself, the law usually looks no further, subject always to the possibility of an assumption of responsibility arising on particular facts. Put another way, Mr Soole’s antecedent relationship may well be relevant to liabilities arising under the Occupiers’ Liability Act 1957 where there are hidden dangers or avoidable hazards, or indeed liabilities arising at common law where college employees are directly instructing or supervising their students; but in the absence of some particular assumption of responsibility taking the instant case out of the general run of cases it seems to me that the final sentence of paragraph 46 of Lord Hoffmann’s Opinion sets out the law.[95]There is a further difficulty with Mr Soole’s submission on s.2(3). The purpose of this sub-section is to qualify the scope of the common duty of care arising under s.2(2) so as to expand its potential ambit in relation to children (and, ironically, a ‘child’ in 1957 could have been as old as 21 less one day) but to circumscribe its application with reference to the degree of care for his own safety ordinarily to be looked for in the visitor. Not merely is the sub-section expressly recognising that a visitor should be expected to guard against special risks incident to his calling or particular knowledge, it seems to me that, viewing the matter more generally, an occupier is entitled to expect that a visitor should protect himself against risks which are patent and obvious to behold. Thus, the scope of the duty is defined by the degree of care ordinarily to be looked for in the visitor, and the fact that a small minority of visitors may fail to protect their own safety is irrelevant (see also Lord Hoffmann’s rejection of Sedley LJ’s approach in the Court of Appeal in Tomlinson, in paragraph 46 of his Opinion).[96]Aside from Lord Hoffmann’s pungently expressed reasoning, I must point out that there are also passages in the Opinions of Lord Hutton and Lord Hobhouse which do not aid the Claimant whatsoever. In particular:
“Therefore I consider that the risk of the plaintiff striking his head on the bottom of the lake was not one against which the defendants might reasonably have been expected to offer him some protection, and accordingly they are not liable to him because they owed him no duty. I would add that there might be exceptional cases … where a claimant might be able to establish that a risk arising from some natural feature on the land was such that the occupier might reasonably be expected to offer him some protection against it, for example, where there was a very narrow and slippery path with a camber beside the edge of a cliff from which a number of persons had fallen (per Lord Hutton, paragraph 65).” “One cannot say that there was no risk of injury because we know now what happened. But in my view, it was objectively so small a risk as not to trigger section 1(1) of the 1984 Act, otherwise every injury would suffice because it might imply the existence of some risk. However, and probably more importantly, the degree of risk is central to the assessment of what reasonably should be expected of the occupier and what would be a reasonable response to the existence of that degree of risk … If the risk of serious injury is so slight and remote that it is hardly likely ever to materialise, it may well be that it is not reasonable to expect the occupier to take any steps to protect anyone against it … the fourth point is that it is not, and should never be, the policy of the law to require the protection of the foolhardy or reckless few to deprive, or interfere with, the enjoyment by the remainder of the liberties and amenities to which they are rightly entitled (per Lord Hobhouse, paragraphs 80 and 81).”
[97]Both Lord Hoffmann and Lord Hobhouse base part of their reasoning on the weighing up of the social value of the activity against the quantum of risk. I would apply the same approach in the present case, albeit recognising that the social value of this inflatable pool was not as high as the lake in Tomlinson.[98]I have floated the possibility that Tomlinson might not be the last word on this topic, and I need to refer to two subsequent authorities. In Poppleton v Trustees of Portsmouth Youth Activities Committee [2009] PIQR P1, the Court of Appeal applied the reasoning and approach of Tomlinson to indoor climbing premises where the defendant occupier and manager clearly had greater awareness of the risk than did the claimant. However, there was no duty to warn him against obvious and inherent risks (see May LJ, paragraph 18) in the context of a genuine and informed choice (paragraph 17). It is true in that case that Mr Poppleton accepted that he was aware that there was some risk (final sentence of paragraph 18) but the outcome would have been the same even had he not been. Whatever the claimant’s actual state of mind, the risk was so inherent and obvious that no warning of it was required. That said, May LJ did recognise that the position would be different if the defendant had in some relevant way assumed responsibility for the claimant’s safety (paragraph 17).[99]The second authority I need to touch on is the recent decision of the Supreme Court in Woodland v Swimming Teachers Association [2013] 3 WLR 1227. Although this case is directly concerned with the issue of non-delegable duties of care, I consider that it is helpful in the present context for the purpose of demonstrating that Lord Hoffmann’s dictum in paragraph 46 of Tomlinson has not been qualified or extended by any subsequent utterance from courts of the highest authority. On my understanding of paragraph 23 of Lord Sumption’s Opinion, a protective duty of care only arises where:
“…(1) The Claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes.”
[100]Lord Sumption then proceeds to consider the additional essential components relevant to the imposition of a non-delegable duty of care, but it is unnecessary for me to list all of these. If meeting these were required by the Claimant in the present case, he would clearly fail to do so, in particular the requirement that there exist a substantial element of control by this Defendant over him. But what is directly relevant for present purposes is the identification of the relevant categories of case in which the duty might arise, and the relationship between college and student does not feature.[101]For all these reasons I would hold that unless the Claimant is able to carve out some sort of exception from Tomlinson his case must fail at first base, namely the absence of any relevant duty of the requisite scope.[102]In seeking to dissociate his client’s case from the consequences of Lord Hoffmann’s negation of any broad doctrine of ‘protective duty’ in paragraph 46 of Tomlinson, Mr Soole’s first submission is that the law imposes on the Defendant a relevant duty of care in all the circumstances of this case, having regard in particular to s.2(3) of the Occupiers’ Liability Act 1957 and the range of factors listed under paragraph 18 of his closing submissions. These factors include: full knowledge of the risk by the Defendant (arising out of the history); appreciation of the risks that should be taken; the College’s involvement in this activity and the fact that it was a ‘College Event’; the Defendant’s conduct overall; and the Health and Safety policy creating as it were ‘self-imposing duties’ on the College as regards student activities of this sort.[103]I have already addressed Mr Soole’s point on s.2(3) of the 1957 Act. In relation to this miscellany of considerations, I consider that it is necessary at all stages of the analysis to differentiate factors which may be relevant to assumption of responsibility from those which cannot logically bear on the question of whether the law imposes or requires a duty of care. In my judgment, none of the Claimant’s paragraph 18 factors is relevant to the latter. The law imposes a protective duty of care only if the Claimant can bring his case within the principles identified in the final sentence of paragraph 46 of Lord Hoffmann in Tomlinson, and I have already decided that he cannot.[104]This brings me to Mr Soole’s second submission, namely that the Defendant assumed responsibility for the Claimant’s safety in all the circumstances of this case as set out in paragraph 27 of his closing submissions (and which more or less exactly replicate paragraph 18). Mr Soole pointed out that assumption of responsibility is very much a fact-sensitive issue and must turn on the Court’s objective assessment of the circumstances, not the Defendant’s evaluation of the situation. I agree.[105]To my mind the leading authority on assumption of responsibility in this context (c.f. the context of pure economic loss) remains Watson v British Board of Control Ltd [2001] QB 1134. Much of the reasoning of Lord Phillips MR (as he then was) was devoted to the imposition of duty question, but the case ultimately turned on whether the defendant assumed responsibility for Michael Watson’s safety in the event that he required medical assistance at the ringside. The Court of Appeal identified a number of factors which indicated that it did, including the creation and maintenance of a detailed system of regulation, approving medical officers, and providing detailed guidance as to what should be available at ringside (see paragraph 85 of the judgment of Lord Phillips MR). Furthermore, Mr Watson could reasonably rely on this panoply of safety provision and, presumably, would not need to make or consider provision of his own.[106]Another example of a case where the Claimant succeeded on assumption of responsibility principles is Ministry of Defence v Radclyffe [2009] EWCA Civ 635. In that case the Claimant sustained serious injuries when he jumped from a bridge into a lake. Sir Anthony May PQBD rationalised the basis of liability as follows:
“[Captain Jones] was the officer in charge of them in Germany and, in the context of the swimming party, it was fair, just and reasonable to take reasonable care to guard his subordinates against the foreseeable risk of injury, if they jumped from the bridge into the lake. By his own presence there in the circumstances that pertained and by reason of his rank, he assumed responsibility to prevent them from taking undue risks of which he was or ought to have been aware. They asked him if they might jump. The very fact that they asked predicates reliance sufficient for a duty of care and the assumption that he had authority to order them not to jump. … The relationship between them and Mr Radclyffe was that of employer and employee, and they had, as I have indicated, assumed through Captain Jones responsibility for his safety. (paragraphs 21 and 22)”
[107]None of this reasoning avails the Claimant. In contrast with Radclyffe, there was no relevant antecedent relationship between the parties. The Defendant was in no relevant sense present at the scene. And, furthermore, the Claimant could not consequently rely on anything it did. My reading of paragraph 21 of the judgment of Sir Anthony May is that Mr Radclyffe’s reliance on Captain Jones was an additional reason for fixing the MoD with a relevant duty of care.[108]In my judgment assumption of responsibility in this sense requires an examination not of what the Defendant ought to have done but of what it in fact did. The Defendant did not take any interest in health and safety matters at these events. True it is that this omission would not absolve the Defendant if the law imposed a duty of care upon it, but at this stage of the argument we are considering the responsibility the Defendant did assume, not what it should have assumed. Knowledge of the risk is irrelevant to that issue (it becomes a relevant consideration in relation to the issue of breach). The Claimant is on slightly firmer ground in seeking to bring into consideration the Defendant’s Health and Safety policy, but as I have already pointed out this is in quite general terms and does not specifically require the taking of proactive measures for student-run events. Clause 2.5.2 of the Health and Safety Policy [2/543] is also of some relevance in this respect.[109]I conclude that the factors enumerated in paragraph 27 of Mr Soole’s closing written argument fall a long way short of establishing the necessary ingredients of an assumption of responsibility. What would be required is evidence of the very matters of which the Claimant denies the presence: namely, affirmative steps by the College through Mr Wigley and others to ensure that proper risk assessments were taken and all relevant control measures enforced; or, at the very least, affirmative statements and representations by the College that these specific steps would be taken. Moreover, I also hold that in a case like the present an element of reliance by the Claimant is a pre-requisite of a duty of care arising on this suggested basis, and here reliance is singularly lacking.[110]Mr Soole invited me to stand back from the law and to take a merits-based approach. Unsurprisingly, Mr Walker concluded his oral argument in like vein. I am content to do this but only for the limited purpose of ‘sense-checking’ my conclusions, not with the endeavour of arriving at any of them. On that admittedly limited basis I find myself parting company with Mr Soole, for this reason. In the absence of any indication that it would safeguard the students in any respect, still less from their own actions in the face of obvious risks, why should the College be found to have assumed responsibility for the very matters which the law would otherwise say lies within the personal sphere of the Claimant?[111]My attention has been drawn to a number of first instance decisions which appear to me to turn on their own facts. Different judges have applied slightly different approaches to these issues: some have held that a duty exists but there is no breach, one has held that the type of accident in play was not reasonably foreseeable, and another has held that no duty is capable of arising in this sort of situation because the Claimant 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 was supervising the party of children and therefore had ‘in some relevant way assumed responsibility for the claimant’s safety’ (see paragraph 51 of the judgment, and c.f. the instant case). The basis of Bean J’s decision was that ‘it was not reasonably foreseeable that someone would attempt to carry out a dive or a belly-flop (which can very easily turn into a dive) and thus suffer grave injury’; the danger was plain and obvious (paragraph 56). I agree. Thus, even if I am wrong in concluding that on the facts of the instant case there was no assumption of responsibility, this claim should fail for the separate and additional reason that this particular accident was not reasonably foreseeable.[112]Mr Walker invited me to adopt a ‘belt and braces’ approach and to hold that even if a duty of care was found to exist then(i) there was no breach, and(ii) there was no causation. In view of my conclusions on the main issues I would aim to address these points quite briefly.[113]If, contrary to my conclusions, a duty of care is capable of arising in the circumstances of the instant case, I would hold that the duty was to superintend the Student Union rather than perform appropriate functions directly. I have held that the Ball Team was reasonably competent and I do not accept that it was incumbent on the Defendant personally to undertake risk assessments and to supervise. It would be been sufficient to have taken reasonable steps to ensure that the students were carrying out proper risk assessments and that the system in place for supervision on the day was reasonably adequate.[114]The Defendant did none of these things, and it inevitably follows that if a duty of care exists the College was in breach of it.[115]Causation raises more difficult questions on the facts of this case. Had the Defendant not been in breach of duty, it would have checked the risk assessments, run through them with the Day Events managers and the Health and Safety officer, and have satisfied itself that there was a clear rota in place for supervision at all material times and that the supervisors were properly briefed. I do not find that the risk assessments should have covered the risk of head-first entry into the pool, although ‘foolish play’ should have been in contemplation, as indeed it was – albeit after the event. I do not find that the Defendant would have required the pool to have been taped off; this would have been disproportionate and, I have to say, somewhat patronising. Nor do I find that the Defendant would or should have warned the Ball Team about avoiding plain and obvious risks, although I do find that the Defendant would and should have issued firm warnings about avoiding a repetition of the horseplay of the previous year.[116]On the basis of these findings I have to consider whether his accident would still have happened. The burden is on the Claimant to demonstrate that it would not have done, and I cannot accept that he has discharged it. I cannot accept Mr Soole’s submission that the question I have to ask myself is whether the Claimant in general terms is a responsible young man (he clearly is) and whether he would have complied with proper warnings from the College. I have explained the sort of warnings which in my view the College ought to have given. Nor do I reach this conclusion on the basis of Mr Walker’s submission that the risk assessments in the trial bundle are adequate, and that the pool in particular was adequately supervised. These were not proper risk assessments in any intelligible sense of the term, and the system in place for supervising was hit-and-miss. Rather, I reach my conclusion on the narrower footing that the ex hypothesi reasonable system outlined in paragraph 115 above would not have prevented an accident involving someone running towards the pool from 15-20 metres away and then propelling himself into it. As the witnesses at the scene have observed, this all happened so quickly.[117]If, contrary to all of the above, liability and causation should be established in the circumstances of this case, I would have found contributory negligence at the level of 75%.

Disposal

[118]For all the foregoing reasons, this claim fails, and Judgment must be entered for the Defendant.[119]Throughout this trial the Claimant acquitted himself with complete honesty, integrity and decency. He accepted that this was a spur of the moment decision, and I consider that it was out of character, or more precisely that no one should be judged on the basis of one-off impulsive actions. On a human level I regret the conclusion that I have reached, but to my mind the legal principles are clear and the weight of authority overwhelming.

Cited in 1 later judgment