Cockbill v Riley [2013] EWHC 656 (QB)

Case No 1MA90092[2013] EWHC 656 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue MANCHESTER DISTRICT REGISTRY, (TRIED AT THE BIRMINGHAM CIVIL JUSTICE CENTRE)Date 22/03/2013
Before
MR JUSTICE BEAN
Between
RYAN ANDREW COCKBILLClaimantDAVID RILEYDefendant
Geoffrey Tattersall QC and Darryl Allen (instructed by Potter Rees LLP, Manchester) for ClaimantTimothy Horlock QC (instructed by Kennedys LLP, Sheffield) for DefendantHearing Hearing dates: 11-13 March 2013
JudgmentMr Justice Bean :
[1]The claimant was born on 17th June 1990. He sustained a catastrophic spinal injury in an accident on 20th July 2006, when he was aged 16. The accident occurred when he attended a party at the defendant’s home in order to celebrate, along with the defendant’s daughter and others, the end of their GCSE examinations. The claimant entered a large paddling pool in the garden and suffered a serious hyperflexion injury resulting in a fracture of the spine and consequent incomplete tetraplegia.[2]The defendant and his wife have four children whose ages at the time of the accident ranged from 16 to 7. They are both teachers by profession. The defendant himself was present throughout the evening. He bought food for a barbeque and a limited amount of alcoholic drink, namely a 12 pack of small bottles of Budweiser beer and 12 bottles of Vodka Kick. The defendant himself drank no alcohol that evening.[3]At the joint request of counsel I conducted a view at the start of the trial. The room at the rear of the ground floor of the house is the kitchen, and from the window by the sink one gets a good view of the garden. The first area outside the house is a patio on which Mr Riley had placed the barbeque. Beyond the patio is the main lawn. This has a slight slope downhill towards the house and also from right to left as one looks out. About four metres from the edge of the lawn which adjoins the patio is a large tree. The pool in which the claimant suffered injury had been placed a short distance beyond the tree. It had been brought by one of the guests and filled by the defendant. A second, much smaller, pool was placed nearby: it does not appear that it was used that evening and it plays no part in the story. A little over two metres beyond the pool were some steps leading past a flower bed to a second patio area. The defendant told me that he had positioned the main pool deliberately so that one could not jump from the steps into the pool. Beyond the steps and the second patio is a further area of lawn. Towards the far end of the garden there were and still are a swing and a trampoline which were apparently not used on the evening in question.[4]The defendant’s daughter, Sarah, had invited the guests. They were friends she knew from school or from a church youth group. Most were the same age as her but it appears that there were two or three older guests, aged about 19. The youngest person present was her 7 year old younger brother. Before the incident Sarah took some photographs of what was at that stage an entirely happy occasion. One of these shows five teenage boys sitting in the pool, each with water half way up his chest, plus her 7 year old brother who appears to be stepping into the pool. It is possible that at the time this photograph was taken the claimant had not yet arrived; at any rate, he is not among those shown in the photograph.

Evidence: the claimant

[5]Mr Cockbill told me that he had been to the Rileys’ home a couple of times before. Sarah had texted him to say that there was a barbeque party and that he should bring swimwear. He did not in fact take swimwear and did not know that there would be a paddling pool provided.[6]He arrived about 7pm. The accident was about an hour later. His first drink was a can of Scrumpy Jack cider and after that he had two of the small bottles of Budweiser lager. He had drunk alcohol on occasions before (including at his own 16th birthday party) and knew how it was likely to affect him. He also had one or maybe two burgers from the barbeque.[7]He said that people were in swimwear sitting in the pool. Then people started jumping and bellyflopping into the pool. There were six or seven people who jumped in several times including Sarah’s younger brother. One girl called Charlotte was thrown into the pool.[8]A boy called Joe Standerwick offered the claimant a spare pair of swimming shorts. The claimant, who wanted to be part of what was going on, went to the downstairs lavatory and changed. He went out to the garden and put his clothes down by the bench. He said “watch me go” and went across to the pool intending to do a bellyflop and made a big splash. He doesn’t remember what happened after that.[9]Asked about the boys running and jumping into the pool, he said that Matthew Cook did a bellyflop and Jonathan (“Jon”) Callear did a forward somersault. He said that the area around the pool was wet. There had been a lot of splashing and water had gone over the side when Mr Callear jumped in.[10]The claimant said that nobody before him had dived or gone headfirst although Mr Callear had somersaulted. The claimant himself did not intend to dive but to bellyflop. He knew that it would be foolish to dive in. But he accepted that he cannot explain how he ended up with such injuries if he only fell in. He had run from the bench to the pool. He did not slip and fall backwards: his momentum was forwards. He agreed with Mr Horlock QC for the defendant that it looks as though he ended up going in head first. No-one had been injured before him and nobody had collided with anyone else. The worst that had happened was that Matthew Cook had a sore patch on his belly. Nobody had become rude or abusive through taking too much alcohol. A lot of people had brought their own alcohol, but nobody was out of hand through drink.[11]The six or seven boys who had been involved with running and splashing had continued for quite a while. Everyone took it in turns. Only when one person got out of the pool would the next one jump in. When Jon Callear did his somersault he landed on the side of the pool and this spilt water over the edge. Other people spilt some water when they were getting out. You could see that it was quite sodden around the edge.[12]Finally the claimant repeated that his intention had been to bellyflop, that is to go over the top and land flat on the water and thus make a big splash.

Mrs Cockbill

[13]The claimant’s mother was not present at the time of the accident. She was telephoned with the terrible news and arrived as soon as she could. She told me that when she arrived the grass around the pool was very wet. She was kneeling on the grass on the far side of the pool when her son was being treated. Inevitably the fact of the claimant having been lifted, wet and motionless, out of the pool before she arrived (possibly with the side of the pool being pushed down to assist in the process) would have led to that patch of grass being very wet, but that tells us nothing about the state of the grass on the other side of the pool before the accident.

Mr Riley

[14]The defendant told me that he had known the majority of the children invited to the party since they had been at nursery school. They were sensible and responsible people. He had bought a limited amount of alcohol and felt that he was providing enough, although his daughter took a different view. The paddling pool had been brought by a guest, Luke Wiedeman. The defendant placed it well away from the steps so that no one could jump in from the steps. It was filled with water from a hosepipe. The weather was very good and had been dry for weeks with the result that the ground was “bone dry”.[15]As the party went on the children “got a little bit boisterous”. Some were jumping in the pool and splashing. People started to run and jump in. The defendant said that he was keeping an eye on them. He didn’t see anyone do a somersault though he is not in a position to say that didn’t happen. He was “in and out of the kitchen” getting food, and even when preparing food on the barbeque he would be facing the kitchen rather than the garden. He did not drink alcohol himself, he was planning to go out with friends later after his wife had returned home.[16]He got all the food ready with a view to serving it in one go. The boys were getting a bit boisterous and he thought it was time to calm things down. He sent Sarah to tell them that the food was ready. He is certain that at this point they all got out of the pool. They sat around on the chairs or the bench or the grass. He had not served anyone with food until it was all ready. People were eating. There was no-one in the pool. Mr Riley carried things into the kitchen.[17]He went on:- “Out of the corner of my eye I saw someone run as if to dive. I can’t say I saw the person dive because at that moment my wife arrived. I saw movements as though the person was going to dive. “ He said that he had taught diving for many years and “you need to get some spring in your legs”: he does not remember seeing that happen. In cross-examination he again said that he could not now recall in his mind “the last few seconds” of seeing someone dive into the pool. He emphasised that he did not see the claimant enter the pool; all he could say is that it was “a running movement as though to dive into the pool”.[18]He said that this would have been perhaps 10 or 15 minutes after people came to get food. No-one had been back into the pool during this period. Mr Riley said he felt he had dealt with the boisterousness and did not think he should have done more. He said there is a balance to be struck with 16 year olds and there was a need to keep the party relaxed.[19]He said that by the tree where the pool was placed the ground has a “soak away” effect – if you tip a bucket onto the grass, within 3 minutes there is no standing water.[20]The defendant said that he had no suspicion that any of the children had been drinking too much or had been affected by alcohol. He accepted, however, that he had not stopped alcohol being brought in and said he would not have been prepared to take cans off the young people as they arrived. He did not ask them to turn the drink they had brought over to him. If he had seen anyone who seemed to have had too much to drink, he would have taken action. He accepted that alcohol can give youngsters bravado.[21]He agreed with Mr Tattersall QC for the claimant that about 6 or 7 lads were involved and that some of them were running and jumping into the pool, with people taking turns to jump in, and that some of them landed on their bottoms. He agreed that the atmosphere was boisterous and that there was lots of cheering. He also accepted that once teenagers become boisterous, someone in his position should “keep a wary eye” on them and calm things down. If he had seen anyone thrown into the pool, he said, he would have told them to stop: but he did not see this happen. He did not see Matthew Cook do a bellyflop nor Jon Callear do a somersault. He did see a group of lads running and jumping into the pool and splashing. He felt the boys were getting boisterous and that it was time to calm things down. They all came out of the pool and the boisterous behaviour stopped. They had all been eating for 10-15 minutes before the accident. He agreed that jumping off a chair into the pool or jumping off anyone’s shoulders into the pool would be dangerous, but he had not seen either of these things happen.[22]At the end of his evidence in chief Mr Riley had emphasised that he had taught mountain leadership and was familiar with risk assessments. His written witness statement, which he adopted at the outset of his oral evidence includes 7 paragraphs about his experience as a teacher. Paragraph 19 refers to his career teaching primary school children in the Wolverhampton area for 27 years, culminating in a period from 1993 to 2004 as a primary school head teacher. Paragraph 20 reads as follows:- “As a Head Teacher, I attended a Leadership Course for serving Head Teachers and obtained a Certificate in 2003. The Government led course covered such things as leadership and management skills as well as covering health and safety matters. I was also trained on how to carry out risk assessments. This would cover such things as school trips out; behaviour of children within the confines of the school grounds in and out of classrooms, school activities and lessons provided by the staff of the school. Having attained this Certificate I was then responsible for training my own staff at school so that they too were well versed in such issues as health and safety matters and carrying out risk assessments when teaching and supervising groups of children.”[23]Mr Tattersall began his cross-examination by asking Mr Riley why he ceased to be a head teacher in 2004. He replied that it was for two reasons: firstly he wanted to spend more time with children; and secondly, it enabled his wife to pursue her career as a deputy head.[24]This turned out to be at best an incomplete story. Mr Tattersall introduced the report of an inspection of the defendant’s school carried out from 10-13November 2003. It states that “this school has serious weaknesses in crucial aspects of leadership and management and in standards at the end of Year 2.” It expresses the view that “the impact of the leadership and management of the head teacher is unsatisfactory and that governance of the school is unsatisfactory”. As to behaviour of the pupils, the report states at paragraph 10:- “The behaviour in school is satisfactory overall. The school rewards good work and behaviour and there is a satisfactory policy for the management of misbehaviour. However, this aspect of the school’s approach to managing pupils is inconsistently implemented and leads to unacceptable behaviour and disruption in a small minority of lessons and at other times of the day. Pupil’s behaviour at lunchtimes is at times unsatisfactory, with some boisterous and disruptive behaviour. ”[25]The only mention of health and safety in the report is that “the health and safety arrangements for pupils, staff and visitors are satisfactory”.

Mrs Riley

[26]Mrs Riley, who had not been on the premises, arrived home shortly after the claimant was injured. She was told by someone – she cannot remember who it was - that he had dived into the paddling pool. She dialled 999 and asked for an ambulance. The 999 log says “fallen into pool”; on the other hand the ambulance team record says that the patient “shallow dived” into a pool. Later records are similarly varied. It is not at all clear who said what to whom nor what the source of the information was; consequently I do not attach much significance to this hearsay evidence.

Matthew Cook

[27]Matthew Cook gave evidence by video link from Australia. He had given a witness statement to the defendant’s solicitors. On learning that he was out of the jurisdiction and that it was not proposed to call him to give oral evidence the claimant’s solicitors applied under CPR 33.4 for permission to cross-examine him. In the event, arrangements were sensibly made by consent.[28]In his written statement Mr Cook said that he saw the Claimant run into the garden from the house where he had changed; then “he continued to run towards the paddling pool and jumped in.”[29]In oral evidence Mr Cook said that people started jumping into the pool but he cannot remember anyone doing a bellyflop, and he did not do one. He remembers jumping in from a chair: this was one of the small folding garden chairs shown in the photographs. He brought it close to the edge of the pool, stood on it and jumped in. He may have done it more than once, but he cannot now say how often. He jumped off it and landed feet first in the pool. He did not put his hands out and certainly did not go in head first. He cannot remember any red mark on his stomach and cannot remember any bellyflop. He remembers pulling people up and falling into the pool with them, but not anybody being thrown into the pool nor anyone being on anyone else’s shoulders. He doesn’t know whether anyone else jumped in from the chair. He had put the chair on the right side of the pool as viewed from the house. It was either level with the side of the pool or slightly lower.[30]He said that he and his friends were “playing in the pool up until the accident”. He would not say that things got out of hand. It never crossed his mind that what they were doing was dangerous.

Sarah Riley

[31]Sarah Riley did not see the claimant’s accident. She told me that she did not remember seeing anyone jumping from a chair or doing a bellyflop or doing a somersault or flip into the pool. She said in her statement that she had seen people being “fairly boisterous”: she explained that by this she meant jumping in over the edge of the pool feet first, splashing and laughing as teenage boys do. She thought about six or seven people were doing this. She is not sure whether anyone took a run before jumping in over the side. She does not remember seeing Charlotte Robertson thrown into the pool.[32]She said that her father told everyone when the food was ready, either directly or through her. She then went upstairs to get changed. When she did so there was no one in the pool.

Charlotte Robertson

[33]She told me that she was not thrown into the pool and was not aware of anyone else having been thrown into it, although there was a time when she was upstairs in the house getting changed.

Luke Wiedeman

[34]He was one of a number of boys splashing around and jumping into the pool. He would not describe this as boisterous. He does not recall there being a chair by the pool or anyone jumping in from a chair. People who were jumping in were not taking a big run up from the patio – maybe two or three steps. There was no element of competition. He does not remember anyone pushing anyone in or doing a bellyflop. Someone said the food was ready. He got out of the pool.[35]Mr Wiedeman saw the claimant’s accident. He told me that he was standing on the grass by the patio when he saw Ryan run towards the pool and dive into it. He put his arms out and just dived into the water. He ran from near the bench on the right hand side of the lawn. There was no-one else in the pool. The witness said he was paying attention and was looking towards the pool when it happened. He agreed with the suggestion from Mr Tattersall that the claimant might have slipped but said that the area around the pool was “not really wet” and that no-one had slipped there before the claimant’s accident. Asked by Mr Tattersall whether the claimant might have been putting his hands out to balance himself while moving forward, the witness replied:
“He might have done but I remember him running and diving. I am very clear in what I remember.”

Joseph Standerwick

[36]Mr Standerwick also saw the accident. He saw the claimant take a run up and do what looked like a head first dive over the side of the pool. The witness doesn’t know how long the run up was but he saw the last few steps. He demonstrated the claimant’s diving position with arms slightly bent and hands held together in front of his chest. He said that it was not a good or a proper dive. Mr Standerwick said that he doesn’t think the claimant was intending to do a bellyflop and slipped. “I would have seen a slip”, said the witness “and I didn’t”.[37]Mr Standerwick didn’t see anyone do a bellyflop or somersault and didn’t see Matthew Cook jump off the chair. He did not see Charlotte Robertson thrown into the pool. Both he and Matthew Cook were jumping into the pool: Mr Standerwick said that he ran and jumped in quite a large number of times, but only when no-one else was in the pool.

Assessment of witnesses

[38]Other than the medical records which, as I have noted above, give varying anonymous accounts of a dive or a fall, there are no contemporaneous records of things said or done by the witnesses to this tragedy such as there would be in the case of a serious road traffic accident or most workplace accidents. The signed statements of the principal witnesses were made on varying dates between 2008 and 2011, though drafts may well have been obtained at an earlier stage. Inevitably the accuracy of the memory of the most honest of witnesses is liable to be affected by the passage of time. There is also the obvious point that until the tragedy occurred no one had any reason to make a mental note of what was happening.[39]The Claimant himself struck me as frank and honest and doing his best to remember the lead-up to the moment which changed his life. But that does not mean that he, any more than anyone else, will necessarily have an entirely accurate recollection of what happened before the moment of the tragedy.[40]I was less impressed by the Defendant. In his witness statement he said that he saw the Claimant dive into the pool; in oral evidence (admittedly in chief) he said that after all he had not seen the dive itself. Mr Horlock submitted that this frankness is to his credit, but I regard it as a matter for concern when a party to a claim signs a witness statement which mis-states what he saw on a crucial issue of fact. The material in the report on the Defendant’s school would not have been relevant if he had not made it so by the heavy emphasis given in his witness statement to his extensive experience, his leadership and management skills and his training in risk assessments relating to the behaviour of children in and out of the classroom. Paragraph 20 of the witness statement, in particular, though literally true, is misleading in the light of OFSTED’s findings. Mr Tattersall’s submission that Mr Riley was an evasive and unsatisfactory witness was to some extent justified, although I do not find that he went so far as to tell outright lies.[41]However, Mr Horlock was able to call young witnesses of a much higher quality. Luke Wiedeman, Joseph Standerwick and Matthew Cook, each of them with no axe to grind, gave clear, careful and straightforward evidence. So too did the Defendant’s daughter, although as Mr Horlock accepted she cannot be regarded as independent.

Issues of fact

[42]The first issue in chronological order is what alcohol was available and whether the Claimant or indeed anyone else was drunk. The Defendant had bought a modest quantity, no more than about one bottle of Vodka Kick or bottle of Budweiser for each participant, but there is ample evidence that guests brought their own supply, typically a pack of four cans of lager, and that the Defendant took no steps to centralise what stocks there were. But, as Mr Horlock pointed out, there is no evidence that anyone drank alcohol to the point where they were misbehaving, rude or aggressive, or unsteady on their feet. I have before me reports from two experts (not referred to in either side’s closing submissions) indicating that the Claimant’s own blood alcohol level was somewhere between 45 and 60 mg/ml: enough to have a slightly disinhibiting effect, but not enough to be visibly affected.[43]The second issue is what had been going on before the accident. I accept the evidence of Sarah Riley that six or seven boys were jumping in over the edge of the pool feet first, splashing and laughing. The likelihood in my view is that some of them took short run-ups in order to make the jump. The Defendant conceded that some of those who jumped in landed on their bottoms. I also accept the evidence of Matthew Cook that he had jumped in, at least once and possibly more than once, from a chair. He was the tallest of a group of boys shown in one photograph, and it seems unlikely that he would not have been observed. Probably no one thought it at all remarkable.[44]The Claimant’s evidence that he saw Jon Callear do a somersault is not supported by anyone else. Mr Callear was not called by either side and there is no statement from him before me. I find that the most likely explanation is that Mr Callear did some form of non-airborne somersault over the side of the pool which was not such as to attract the notice of Mr Riley nor indeed of anyone else. If he had done an airborne somersault – almost as dangerous as a dive – it would have been observed by others. I am not persuaded on the balance of probabilities that anyone did a somersault through the air, nor a dive, nor (apart from the Claimant) tried to do a bellyflop or star jump. I accept the evidence of Charlotte Robertson that she was not thrown into the pool. There is no evidence, apart from the Claimant’s, that anyone was thrown into the pool: an exercise which would have involved a total of three people. As with the suggested somersault, the most likely explanation is that what occurred was less remarkable, namely that someone was pushed into the pool, and that this did not register in anyone’s memory. There is no reason why it should have.[45]The next issue is whether there was a gap between the six or seven boys jumping into the pool, splashing and laughing and the accident. I accept the evidence of the Defendant that when things seemed to be getting rather boisterous he and Sarah told people that the food was ready and that this caused a break in the action, though I doubt whether that break was as long as 15 minutes. It was probably during this break that the Claimant, having eaten one or two burgers, decided to borrow Mr Standerwick’s spare swimming shorts, went inside to get changed, then came out again, put his clothes down by a bench, and ran towards the pool. There is no suggestion that anyone else was in or by the pool at the moment of the tragedy.[46]I have to consider how the Claimant entered the pool. Matthew Cook says that he jumped in; the Claimant himself cannot say but his evidence is that his intention was to do a bellyflop; Luke Wiedeman and Joseph Standerwick both say that he ran and dived. The injuries he sustained to his cervical spine are plainly consistent with his going in head first.[47]I find that he did indeed intend to do a belly-flop, that is to say to go over the edge of the pool head first but horizontally and then hit the water with his stomach, but that he misjudged the angle so that he struck first the water and then the bottom of the pool with his head first.[48]The final issue is whether this occurred because he slipped on grass which had been allowed to become very wet. I am not satisfied on the balance of probabilities that he did slip. Mr Standerwick is clear that he did not, and I accept his evidence. Even if I had found that he did slip on wet grass, I would not have held that this was relevant to establish liability on the part of the Defendant. The use of a paddling pool by a number of teenagers, whether boisterous or not, will inevitably lead to some spillage. I also accept the evidence that the weather had been hot and dry for some weeks before the evening in question and that the slight slope towards the left hand side of the garden assisted with rapid drainage in dry conditions.

The law

[49]It is common ground between counsel that in accordance with the decision of the House of Lords in Caparo Industries v Dickman [1990] 2 AC 605 a duty of care only arises in circumstances where there is sufficient proximity and foreseeability of damage and it is fair, just and reasonable that a duty should be imposed.[50]In Tomlinson v Congleton BC [2004] 1 AC 46 the claimant, then aged 18, ran out from a sandy beach at the side of a lake, created by the defendant council from an old sand quarry, and dived into the water. He struck his head hard on the sandy bottom of the lake and broke his neck. He had ignored warning notices saying “no swimming”, although Mr Tattersall did not submit that this was essential to the decision. The House of Lords held that the defendant council were not liable to the claimant either at common law or under the Occupiers’ Liability Acts. Lord Hoffmann said (at [44]) that “Mr Tomlinson was freely and voluntarily undertaking an activity which inherently involved some risk” and (at [65]) that “the risk of [him] striking his head on the bottom of the lake was not one against which the appellants might reasonably have been expected to offer him some protection, and accordingly they are not liable to him because they owed him no duty”.[51]Tomlinson, in contrast to the present case, concerned the possible liability of what might be described as an absent occupier. So the passage at [45], cited by Mr Horlock, where Lord Hoffmann says that “I think it will be extremely rare for an occupier of land to under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon his land”, does not seem to me to be relevant to a case where, as here, the defendant “has in some relevant way assumed responsibility for the claimant’s safety” (per May LJ in Trustees of the Portsmouth Youth Activities Committee v Poppleton [2008] EWCA Civ 646 at [17]).[52]Indeed, there was no dispute that the Defendant owed the Claimant a duty of care. I asked counsel what that duty comprised. Mr Horlock submitted that it was in these terms: reasonably to keep an eye on what was going on; to keep abreast of what people were doing; if matters were getting out of hand, to intervene in a reasonable manner, though not so as to spoil the party. Mr Tattersall agreed. So do I.[53]In Perry and Perry v Harris [2008] EWCA Civ 907 the 11 year old claimant was one of a group of children playing on a bouncy castle hired by Mr and Mrs Perry for their children’s birthday party. Mrs Perry was supervising the children. The trial judge found that she had given permission for the claimant and another child to play on the castle. While her back was turned the children began to do somersaults on the castle and the claimant was seriously injured. The Court of Appeal held that the defendants were not liable. I was referred to two passages in particular. Lord Phillips CJ at [37] accepted the contention of the defendant that “the standard of care that she was required to show was that which a reasonably careful parent would show for her own children”. At [38] he said, in a passage which I regard as important:
“A reasonable parent could foresee that if children indulged in boisterous behaviour on a bouncy castle, there would be a risk that, sooner or later, one child might collide with another and cause that child some physical injury of a type that can be an incident of some contact sports. We do not consider that it was reasonably foreseeable that such injury would be likely to be serious, let alone as severe as the injury sustained by the claimant.”
[54]Mr Tattersall referred me to two cases involving injury to soldiers engaged in recreational activities. In Ministry of Defence v Radclyffe [2009] EWCA Civ 635 the claimant and others had jumped from a bridge 20 metres above the water after asking a more senior officer, Captain Jones, for permission to do so. The Court of Appeal upheld a finding of the trial judge that Captain Jones had assumed a duty to take reasonable care to guard his subordinates from a foreseeable risk of injury and that the Ministry were liable accordingly. Similarly in Uren v Corporate Leisure UK Ltd and Ministry of Defence [2013] EWHC 353 (QB), a retrial following proceedings in the Court of Appeal, Foskett J held that liability was established in a case where the claimant and several others had taken part, during a “Health and Fun Day”, in a competitive game in the course of which they were allowed to enter a small pool with a one-metre drop into a depth of water of only 18 inches head first, with what the judge accepted was a reasonably foreseeable risk of serious injury.[55]Mr Tattersall submits that simply by setting up the pool and allowing it to be used at the party the Defendant “created a foreseeable risk of danger and injury, as the Defendant himself recognised by his reference to the location of the steps”. The submission that allowing the use of a paddling pool at a party attended by 16-year-old friends of the occupier’s children of itself creates a foreseeable risk of significant injury or justifies a formal risk assessment is in my view quite unrealistic. Nor do I consider that the fact that the guests were allowed to consume modest quantities of alcohol made the risk of significant injury foreseeable.[56]The heart of Mr Tattersall’s case was really the submission that by not intervening earlier and more forcefully when the six or seven boys were running and jumping into the pool the Defendant “created a situation with an obvious risk of serious injury”. I do not accept that he did. It was reasonably foreseeable that someone would lose his footing and suffer minor injury. Even after a number of boys had jumped into the pool feet first, 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 of diving into even a swimming pool of unknown depth, let alone a paddling pool, was described by Stuart-Smith LJ in Ratcliff v McConnell [1999] 1 WLR 670, as “obvious to any adult and indeed to most children old enough to have learned to dive”.[57]Even if I am wrong about this, I accept the submission of Mr Horlock that by calling in the guests to have some food the defendant had a calming effect on the boisterous atmosphere which had built up. Mr Tattersall is of course right to say that Sarah’s friends regarded Mr Riley as an authority figure and would no doubt have obeyed any instruction he gave them, for example not to run or not to jump into the pool. But I do not accept that he was under a duty in law to give such an instruction, either to the guests in general or to the Claimant in particular.

Conclusion

[58]In the result I am not satisfied that the Defendant was in breach of his duty of care to the claimant. I must therefore give judgment for the Defendant and dismiss the claim. If I had found against the Defendant, I would have assessed the Claimant’s contributory negligence at two-thirds.[59]I end this judgment by adopting the concluding words of Coulson J when dismissing the claim in Geary v JD Wetherspoon plc [2011] EWHC 1506 (QB). I understand that the Claimant will be bitterly disappointed with this conclusion, and that anything I choose to add will be of little comfort to him. But it would be wrong for me to conclude this judgment without commending him for his candour, straightforwardness and resilience. No one who heard his evidence in court could have anything but the greatest possible sympathy for him, as he bravely deals with the consequences of a moment’s error of judgment.

Cited in 1 later judgment