In Grimes v Hawkins the High Court held that a Claimant that dived into a private pool and became tetraplegic did not have a claim against the homeowner.
It turned out that the Claimant was an 18 year old girl who had been invited to a party at the Claimants house. The Claimants were away and their daughter stated that she invited 5 people but in fact 20 turned up.
The court determined that the Claimant was a lawful visitor and that she also had consent to use the pool. The Claimant had been swimming in the pool and had dived into the middle when the unfortunate accident occurred.
The Claim was brought both under the Occupiers’ Liability Act 1957 and in common law negligence. Thus the defendant owed a duty to the Claimant to take such care as in all the circumstances of the case was reasonable to see that the Claimant was reasonably safe in using the premises for the purposes for which she was invited or permitted by the occupier to be there.
In its discussion the court held that there is always risk in swimming and diving, in any pool. Even where an expert diver dives into a purpose built diving pool his dive is not free from risk. Much depends on the diver’s technique, the angle of entry and so on. It is well known that diving always carries with it a risk of injury (particularly to the head or neck) if the dive is badly executed, or carried out in water that is too shallow to accommodate it. None of this is specialist knowledge. Every adult of normal intelligence knows it. The Claimant in this case knew it.
Accordingly the pool was not unsafe for diving. The court had 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.
The court therefore did 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.
The court therefore held that Defendant was not in breach of his duty to the claimant under the Occupier’s Liability Act 1957.
We thought this case would be interesting for our readers as we often get asked about a landlord’s liability when a pool is included in the demise. We hope that this case reassures most of you.
Agents and landlords are however advised to ensure that the tenancy agreement includes clauses which places a positive obligation on the tenant to ensure that all children near the pool are monitored and the pool is used appropriately.