A young adult was severely injured after diving into a private
swimming pool while the owner was absent. Should the owner have
done anything to prevent or discourage this?
The case - GRIMES V HAWKINS [2011] EWHC 2004
(QB)
The issue
Many parents of teenage children have left them alone for an
evening with the promise that 'one or two' friends will come over,
only for a large party to result. In this case, that scenario
tragically resulted in a serious and permanent injury. What, if
anything, should the parents have done to prevent this?
The facts
Kylie Grimes was an 18-year-old who found herself at an
impromptu party at the house of Katie Hawkins, also aged 18. A
large group of friends had spent the evening drinking and then
descended on the Hawkins household, where the drinking continued.
Miss Hawkins' parents were away for the evening.
When the partygoers discovered the Hawkins' swimming pool, many
of them began 'bombing' and diving into the pool. There were no
signs warning them not to dive. The owner of the house, David
Hawkins, later testified that he had had no difficulty with people
diving into the pool.
Unfortunately, when Miss Grimes chose to dive in, she entered
the water at a steeper angle than she anticipated and struck her
head, injuring her neck. Sadly, she was left paralysed from the
chest down after the force of the impact broke a vertebra below the
base of her neck.
Miss Grimes brought a case against Mr Hawkins based on breach of
common law and the Occupier's Liability Act 1957. The defendant's
counsel argued that there was no sound legal basis upon which he
could be held liable. The claimant was an adult who chose to do
something in which there was an obvious risk.
The decisions
Throughout her judgement, Mrs Justice Thirwall praised the
attitude and courage of the claimant, while being scathing of the
defence witnesses and disbelieving much of what Katie Hawkins
said.
Despite this, however, on the question of whether there was a
breach of duty, it was held that there was not.
The judge observed that: "There is always a risk in swimming and
diving in any pool. Even where an expert diver dives into a
purpose-built pool his dive is not free from risk." In the event,
she found that: "The pool was not unsafe for diving," before
adding: "I have no doubt that some mature adults faced with a group
of young adults in high spirits, some of whom had had too much to
drink, would send them all home rather than allow any of them into
a swimming pool. But that is not to say that the duty owed to the
claimant under the Occupier's Liability Act 1957 required the
defendant to put the pool out of bounds that night. The defendant
was not required to adopt a paternalistic approach to his visitors,
all of whom were adults, all of whom were making choices about
their behaviour, exercising their free will.
"I do not accept that it is incumbent on a householder with a
private swimming pool to prohibit adults from diving into an
ordinary pool whose dimensions and contours can clearly be seen. It
may well be different where there is some hidden or unexpected
hazard but there was none here."
On that basis there was no breach of the Occupier's Liability
Act 1957.
Regarding the duties at common law, the judge stated: "The
claimant was an adult. She did something which carried an obvious
risk. She chose, voluntarily, to dive when, how and where she did,
knowing the risks involved, as she acknowledged on the first day of
trial. "I am quite satisfied that... it would not be fair or
reasonable to impose upon the defendant a duty of care to the
claimant which required him to put his pool out of bounds at night,
or to prohibit adults from diving into the pool."
The claim in negligence therefore also failed.
Marco Rinaldi
Although this is an English decision, it is likely a similar
path would be followed in Scotland. It demonstrates once again that
the courts will always look to the question of reasonableness in
determining whether a defender ought to have done anything more to
supervise those entering on their premises - perhaps especially in
a case such as this when the premises are private rather than
public. Furthermore, it can be seen that the courts are unlikely to
take a paternalistic approach to limiting people's behaviour when
it comes to adults acting of their own free will.
OTHER CASES
The case - RUBENSTEIN V HSBC [2011] EWHC
2304
In the course of this financial services misselling claim, Mr
Justice Parker offered the following distinction between giving
investment advice and providing information: "In both instances
information is provided, and in both instances the client has a
choice as to what he decides to do with that information. The key
to the giving of advice is that the information is either
accompanied by a comment or value judgement on the relevance of
that information to the client's investment decision, or is itself
the product of a process of selection involving a value judgement
so that the information will tend to influence the decision of the
recipient. In both these scenarios the information acquires the
character of a recommendation."
He went on: "To attempt any greater definition of the giving of
advice in an investment context would be unwise and is probably
impossible. I suggest, however, that the starting point of any
inquiry as to whether what was said by an IFA in a particular
situation did or did not amount to advice is to look at the inquiry
to which he was responding. If a client asks for a recommendation,
any response is likely to be regarded as advice unless there is an
express disclaimer to the effect that advice is not being given. On
the other hand, if a client makes a purely factual inquiry such as
'What corporate bonds are currently yielding X%?' or 'How does this
structured product work?', it is not difficult to conclude that a
reply which simply provides the relevant information is no more
than that."
The case - JONES V RUTH [2011] EWCA 804
In the judgement of this case, Lord Justice Patten said, with
reference to the Protection from Harassment Act 1997: "I am not
persuaded that foreseeability of the injury or loss sustained by a
claimant in a case of harassment is an essential element in the
cause of action. The obvious starting point is the 1997 Act itself.
Conduct of the kind described in s.1 is actionable under s.3 in
respect of anxiety or injury caused by the harassment and any
financial loss resulting from the harassment. There is nothing in
the statutory language to import an additional requirement of
foreseeability. Nor is the foreseeability of damage the gist of the
tort.
"Section 1 is concerned with deliberate conduct of a kind which
the defendant knows or ought to know will amount to harassment of
the claimant. Once that is proved the defendant is responsible in
damages for the injury and loss which flow from that conduct. There
is nothing in the nature of the cause of action which calls for
further qualification in order to give effect to the obvious policy
objectives of the statute."