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Occupier's Liability and Risk Assessments: Grimes v Hawkings

23 September 2011

Many activities have inherent risks which are obvious to those who take part.

In this article we look at the case of Grimes v Hawkings in which the court concludes that sometimes it is just bad luck when the risk occurs and you suffer catastrophic injuries.

What happened?

There was a swimming pool at H’s house. It had a deep and shallow end although the depth was not marked on it. While H and his wife were away overnight, their younger daughter (aged 18) was allowed to have four friends to stay overnight. In fact the daughter invited about 20 people, many of whom had come via the pub. The daughter provided swimwear for those who wanted to use the pool. C (also aged 18, an experienced swimmer and not drunk) was swimming around for half an hour and knew where the deep end was. She then dived from the side towards the deep end in what she intended to be a shallow racing dive. Unfortunately the dive was steeper and she hit the bottom with catastrophic consequences.

What question did the Court have to decide?

Was H liable under the Occupiers’ Liability Act 1957 for a breach of the common duty of care, i.e. the duty 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 to be there?

What did the Court say?

H, though not present at the incident, accepted that he was an occupier and owed a common duty of care under the Act. C had been invited and was, at the very least, permitted to use the pool. The fact that there was no diving board did not prevent the permission including diving.

Everyone knows that diving into a swimming pool carries an element of risk. This was an ordinary domestic swimming pool which was properly designed, competently built and well maintained. There was nothing unusual about it, there were no hidden hazards and it was well lit on this occasion. The pool was not unsafe for diving. H was not under a duty to put the pool out of bounds to a lively group of young people, some of whom (but not C) had drunk too much. All the guests were adults and all of them were making their own choices about their behaviour. H had therefore not breached his duty of care under the Occupier’s Liability Act 1957. H was also not liable under common law negligence.

What does this mean?

The judge went out of her way to praise the courage and manner of C both in court and at the time of the accident (when, realising she had injured her neck, she instructed her friends in the best way to keep her safe before the ambulance arrived). Unfortunately for her, as she is now tetraplegic, this praise was not a prelude to winning the case. The judge was critical of the demeanour in court of the defendant’s witnesses, other than the defendant and his daughter themselves.

This decision is the latest example of the courts’ increasing tendency to find that if you do something inherently risky and it goes wrong, you are not able to recover. While commentators refer, disparagingly, to a health and safety mad culture, the courts are taking a rather more hard headed approach – there is such a thing as bad luck.

Source: Grimes v Hawkings & Another [2011] EWHC 2004 (QB) Thirlwall J