Ratcliff v McConnell

An occupier does not ordinarily owe an adult trespasser protection against an obvious danger which the trespasser understands and willingly accepts. Under section 1 of the Occupiers’ Liability Act 1984, the relevant danger must be identified precisely. The duty depends on the occupier’s knowledge, the likelihood of the trespasser’s presence and whether protection may reasonably be expected in all the circumstances.

A clear prohibition on entry, supported by a substantial physical barrier, may constitute reasonable protection. An occupier need not provide additional warnings or disciplinary deterrents where an adult deliberately defeats the barrier and knowingly encounters the obvious risk. Liability also requires proof that the omitted precaution would probably have prevented the injury.

A student entered his college’s locked outdoor swimming-pool compound during the night by climbing over a gate. Despite knowing that entry was prohibited and that diving without first establishing the water’s depth was dangerous, he made a running dive, struck the bottom and sustained tetraplegia.

His claim was ultimately advanced under the Occupiers’ Liability Act 1984. A deputy High Court judge held the college governors liable, subject to a 40% reduction for contributory negligence. The governors appealed. The central questions were whether the statutory duty arose, whether the student had willingly accepted the risk, and whether any further warning or prohibition would have prevented the accident.

1. Appeal allowed unanimously. Stuart-Smith LJ delivered the leading judgment. Thorpe and Mummery LJJ agreed. The trial judge’s material factual errors concerning the frequency of unauthorised use and the college’s knowledge contaminated his reasoning.

2. The danger had to be identified precisely for section 1(3) of the Occupiers’ Liability Act 1984. It was the risk that a person diving into the pool might strike the bottom where the water was insufficiently deep. That risk was obvious to an adult familiar with swimming pools. It was not a hidden danger or trap.

3. The statutory duty is owed to the individual trespasser. What may reasonably be expected from an occupier varies with the trespasser’s age, intelligence and appreciation of the danger. The considerations stated in British Railways Board v Herrington [1972] AC 877 remained relevant, except for Lord Diplock’s formulation based on what would impel a person of ordinary humane feelings. Sections 1(3)(c) and 1(5) supplied the applicable statutory standard.

4. The student knew that access was prohibited, deliberately climbed the barrier, understood that pools differed in depth and knew that diving was dangerous unless sufficient depth was established. He nevertheless proceeded without establishing where diving was safe. He therefore willingly accepted the risk within section 1(6), and the governors owed him no duty in respect of it.

5. The locked enclosure and prohibition on use were reasonable measures. The governors were not required to give a further warning against an obvious danger, delineate a safe diving area or demonstrate enforcement through punishment. The college’s guidance concerning the pool’s suitability for diving did not alter the question whether further protection was reasonably required for a trespasser who already understood the relevant risk.

6. Causation was not established in any event. The student ignored the prohibition on entering and swimming and was indifferent to the displayed notices. It was fanciful to conclude that an additional prohibition on diving would probably have deterred him. The order below was set aside, with costs subject to the stated legal-aid qualification.

1. Court of Appeal: Allowed the governors’ appeal unanimously and set aside the finding of liability.

2. High Court: HH Judge Brunning, sitting as a deputy High Court judge, held that the governors had breached their duty under the Occupiers’ Liability Act 1984. Liability was apportioned 60% to the governors and 40% to the claimant for contributory negligence.