Grimes v Hawkins & Anor

An occupier’s duty is assessed by asking whether the premises were reasonably safe for the purposes for which the visitor was invited or permitted to use them. That purpose may include diving into a swimming pool, even without a diving board. The duty does not ordinarily require an occupier to prevent adults from freely undertaking activities involving obvious inherent risks, where there is no hidden or unexpected danger and no assumption of responsibility for safety. The same policy considerations may make it neither fair nor reasonable to impose an equivalent common law duty under Caparo. A private swimming-pool owner was therefore not required to prohibit diving or close the pool to adult visitors in the circumstances.

The claimant suffered tetraplegic injuries after diving into a swimming pool at the first defendant’s home. She alleged that the defendant was liable under section 2(1) of the Occupiers’ Liability Act 1957 and in common law negligence. The defendant admitted that he was the occupier and that she was a visitor, but denied breach and the existence of the alleged common law duty. The central issues were whether use of the pool, including diving, fell within the purpose for which she was permitted to be on the premises, whether the pool presented a danger requiring preventive measures or warnings, and whether a common law duty requiring the pool to be closed or diving prohibited was fair, just and reasonable.

1. The claim against the first defendant was dismissed. The claimant was an invited guest and was at least permitted to use the pool. Diving formed part of that permitted use because, absent an express prohibition, entering a pool may occur by steps, jumping or diving.

2. Under sections 1(1) and 2 of the Occupiers’ Liability Act 1957, the defendant owed the common duty of care to take such care as was reasonable in all the circumstances to see that the claimant was reasonably safe for the permitted purpose. The pool was an ordinary, properly designed and maintained domestic pool. Its slope and deep end were visible, there were no hidden hazards, and the claimant had spent sufficient time in the pool to familiarise herself with its contours.

3. The risk was the inherent and obvious risk of injury from an incorrectly executed dive or diving into water that was too shallow. The claimant was an adult, an experienced swimmer and knew that diving into water of unknown or insufficient depth was dangerous. The occupier was not required to adopt a paternalistic approach by prohibiting adult visitors from diving or putting the pool out of bounds.

4. Tomlinson (FC) v Congleton Borough Council and Others [2003] UKHL 47 supported the importance of individual free will where a claimant voluntarily undertakes an activity involving inherent risk. The absence of hidden or unexpected dangers meant that the present case could not be distinguished on that basis.

5. The alleged common law duty was practically identical to the statutory duty. Applying the reasoning in Trustees of the Portsmouth Youth Activities Committee (A Charity) v Poppleton [2008] EWCA Civ 646 and Tomlinson, and irrespective of the other limbs of the Caparo test, it would not be fair, just or reasonable to impose a duty requiring the defendant to close the pool or prohibit adult diving. There was also no assumption of responsibility and insufficient proximity for such a duty.

First instance decision. The judgment states that proceedings had been issued against the first defendant and the hospital, but only the first defendant’s liability was tried in this judgment. No earlier judicial decision is stated.