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Occupiers’ liability: Schools and colleges duty of care – inflatable pool

Risk v Rose Bruford College
6.12.13
High Court (QBD)

Facts

The Claimant was a student at the Defendant drama college (“the college”).  In 2009 he helped to organise the end of term “Events Day” which included the use of an inflatable pool.  Sadly, while jumping into the pool during the Events Day, the Claimant sustained very serious injury.

Allegations

The Claimant alleged that the college owed him a duty of care under the Occupiers’ Liability Act 1957 and at common law to take appropriate steps to prevent his injury, the duty arising either out of the college/student relationship or out of an assumption of responsibility based, in part, on its knowledge of the potentially dangerous use of the pool at the previous year’s event.

Findings of fact

  1. The college had played no part in the organisation and management of the event, and did not participate in health and safety issues, this being the role of the Student Union.

  2. The college, as occupier of the land, could have banned the use of the pool and could have regulated its use.

  3. The college did not foresee the risk of injury from a head first entry into the pool and, although there had been an incident of behaviour the previous year which was potentially dangerous, the Judge characterised that behaviour as “horseplay” and different in nature to that which led to the Claimant’s accident.

Argument

The difficulty faced by the Claimant was to overcome the effect of the House of Lords decision in Tomlinson v Congleton BC [2004] in which Lord Hoffmann said that an assessment of the occupier’s duty to take “such care as in all circumstances of the cases reasonable” depended not only on the likelihood that someone might be injured, but also on the social value of the activity which gave rise to the risk.  That case had concerned a person jumping into a lake (a natural feature of the land), and had been decided under the Occupiers’ Liability Act 1984 on the basis that the Claimant was a trespasser. However, the House of Lords considered that the position under the 1957 Act would have been the same.

In Tomlinson, there was no risk resulting from something “done or omitted to be done on the premises”.  In Risk, however, the pool had been brought onto the land and was only ever going to be there for about 24 hours.  Unlike in Tomlinson, therefore, it was accepted that the college did owe a duty to the Claimant and the question concerned the scope of the duty.  Was the risk one against which the college might reasonably be expected to offer the Claimant some protection?  In Tomlinson, Lord Hoffmann’s approach was to consider two matters:

  1. The degree of risk weighed against the social value of the activity concerned; and

  2. Whether the college should be entitled to allow people of full capacity to decide for themselves whether to take the risk.

In Risk, the Claimant sought to rely on the antecedent student/college relationship between the Claimant and the college and argued that the college owed a particular duty to protect him from the risk he took.  However, the Claimant was not able to refer to any case where liability had been established in a college/student context in this sort of situation.

Findings

Jay J finding that the college did not owe a duty to protect the Claimant from the risk he took:

  • While an antecedent relationship might be relevant to liabilities arising under the Occupiers’ Liability Act 1957 where there are hidden dangers or avoidable hazards, or liabilities arising at common law where college employees are directly instructing or supervising their students, in the absence of some particular assumption of responsibility, the scope of the duty was as set out by Lord Hoffmann in Tomlinson as follows:

A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, as in the case of employees whose work requires them to take the risk, or some lack of capacity, such as the inability of children to recognise danger…”

  • An occupier is entitled to expect that a visitor should protect himself against obvious risks.  The scope of the duty is defined by the degree of care ordinarily to be looked for in the visitor, and the fact that a small minority of visitors may fail to protect their own safety is irrelevant.

  • The Judge also drew support from his assessment of the social value of the activity as set against the quantum of risk although he did recognise that the social value of the inflatable pool was not as high as the lake in Tomlinson.

  • Having been asked to consider whether the law had moved on since Tomlinson, the Judge looked at two further cases.  In Poppleton v Trustees of Portsmouth Youth Activities Committee [2009] the college clearly had greater awareness than the Claimant of the risk of falling from a climbing wall onto the matting provided, however, the Court of Appeal held that there was no duty to warn the Claimant against obvious and inherent risks.  The position would be different if the college had in some way assumed responsibility for the Claimant’s safety.  Further, in Woodland v Swimming Teachers Association [2013], in the context of deciding the existence of a non-delegable duty of care, the House of Lords considered that a protective duty of care only arises where:

The Claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the Defendant against the risk of injury”.

  • As the Claimant in Risk also alleged breach of the common law duty, the Judge considered the Claimant’s argument that the college had assumed responsibility for the Claimant’s safety.  The Judge held that this required an examination of what the college had done.  He noted that the college had not taken any interest in health and safety matters at the event and that its health and safety policy was in quite general terms.  An assumption of responsibility would have required affirmative steps by the college to ensure that proper risk assessments were taken and all relevant control measures enforced.  Furthermore there was no evidence of any element of reliance on the college by the Claimant.

  • In the circumstances the college did not owe a duty to protect the Claimant from the risk he took. 

  • The Judge went on to say that if his decision on the existence of a duty of care was wrong then he would have held that the college was in breach of duty, but that the Claimant had not established causation.  He would also have found contributory negligence at a level of 75%.

Comment

This case falls between the circumstances in Tomlinson, where the Claimant jumped into a lake, a natural feature of the landscape where no duty of care was owed to the Claimant and Uren v Corporate Leisure (UK) Limited [2011], another inflatable pool case, where there was an antecedent employer/employee relationship, and therefore a duty was owed to the Claimant. It is a decision which robustly supports the opinion of the House of Lords in Tomlinson that, without more, an occupier is not under a duty of care to protect visitors from obvious risks or self-inflicted harm.

The case merits careful consideration by college bodies and their student unions in deciding whether protection should be offered to students, and their potential liability, in similar circumstances.

Contact

For further information please contact John Morrell, Director on 0207 645 9538

By John Morrell

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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