Risk v College

An occupier’s general duty does not necessarily extend to protecting an adult of full capacity from an obvious risk which the claimant freely creates by his own conduct. The scope of the duty is assessed by reference to the particular risk and the circumstances of the accident. A protective duty arises only in recognised circumstances, such as lack of genuine and informed choice, vulnerability or dependence, or a specific assumption of responsibility. An assumption of responsibility requires affirmative conduct or representations and, in this context, reliance. A risk assessment is adjunctive to an existing duty and is not itself a free-standing duty. The claim therefore failed because no duty of the required scope arose. In any event, the accident was not reasonably foreseeable and would not have been prevented by the system which the defendant ought hypothetically to have operated.

The claimant, a student at the defendant drama college, became tetraplegic after running towards and entering an inflatable pool at speed during a student-organised Events Day on college premises. The pool had been used for horseplay during the previous year, but the defendant had not organised the event or participated materially in its health and safety arrangements.

The claim relied on the Occupiers’ Liability Act 1957 and the common law. The claimant alleged that the college owed duties to assess risks, supervise the event and prevent the manner of entry which caused the injury. The central issue was whether the college owed a protective duty of the requisite scope, or had assumed responsibility for the claimant’s safety.

1. Claim dismissed. Judgment was entered for the defendant.
2. The general duty under section 2(2) of the Occupiers’ Liability Act 1957 was admitted. The issue was whether its scope extended to protecting the claimant from the particular risk he took. Following Tomlinson v Congleton BC [2004] 1 AC 46, the court held that an adult of full age and capacity who makes a genuine and informed choice to take an obvious risk will ordinarily receive no protection against that self-created risk.
3. The claimant’s antecedent college-student relationship did not alter that conclusion. Section 2(3) required consideration of the care ordinarily expected from the visitor and did not require an occupier to protect against patent and obvious risks. The claimant had created the relevant danger by running 15–20 metres and entering the shallow pool front-first at speed.
4. A protective duty could arise in cases involving vulnerability, dependence, lack of genuine choice or an assumption of responsibility. The defendant had taken no affirmative steps to organise, supervise or control the event, had made no relevant representation, and the claimant had not relied on it. The circumstances therefore fell short of the assumption of responsibility identified in Watson v British Board of Control Ltd [2001] QB 1134 and distinguished from Ministry of Defence v Radclyffe [2009] EWCA Civ 635.
5. The reasoning in Tomlinson v Congleton BC remained applicable. It had not been qualified by Poppleton v Trustees of Portsmouth Youth Activities Committee [2009] PIQR P1 or Woodland v Swimming Teachers Association [2013] 3 WLR 1227. Alternatively, adopting the reasoning in Cockbill v Riley [2013] EWHC 656 (QB), the particular accident was not reasonably foreseeable.
6. Had a duty existed, the defendant would have been in breach by failing to supervise the Student Union’s safety arrangements. However, causation was not established: a reasonable system would not probably have prevented this rapid, impulsive manoeuvre. The court would alternatively have found 75% contributory negligence.