Evans v Kosmar Villa Holidays Plc

In August 2002, three weeks short of his eighteenth birthday, James Evans was on holiday with a group of friends at the Marina Beach Apartments in Kavos, Corfu. The holiday had been booked with a tour operator, Kosmar Villa Holidays plc (“Kosmar”). The apartment complex was under independent Greek ownership and management but was contracted exclusively to Kosmar and was featured in Kosmar’s brochure. It included a small swimming pool. Towards the end of his stay, in the early hours of the morning, Mr Evans dived into the shallow end of the pool and hit his head on the bottom, sustaining serious injuries which resulted in incomplete tetraplegia. He brought a claim for personal injuries against Kosmar. His Honour Judge Thorn QC, sitting as a judge of the High Court, found Kosmar liable for the accident, subject to a finding of 50 per cent contributory negligence. Kosmar now appeals against that decision.

It is clear that the claimant is a remarkable young man. The judge not only found him and his friends to be completely frank witnesses, unreservedly accepting their evidence as against any conflicting evidence for Kosmar, but also commented on how impressive the claimant had been at making the best of his disabilities after the accident and congratulated him on the triumphs he had achieved over his undoubted personal disaster. The warmth of the judge’s remarks is a fine tribute to the claimant. As the judge himself made clear, however, that cannot affect the court’s decision in the case, which must depend on the application of the relevant legal principles to the facts as found.

By contrast, the judge found that Kosmar’s lay witnesses had “variously committed themselves to an early and false joint account to save their backs” and on several issues was driven to the conclusion that “not only have they lied, but that they also put their heads together, probably at several stages, and conspired together to deceive” (para 15). Such conduct is a deeply troubling feature of the case and reflects very badly not only on the witnesses themselves but also on Kosmar. It will no doubt have added to the sympathy that the judge rightly felt for the claimant. Again, however, none of this can affect the legal analysis.

The judge described Kavos as the sort of resort that was typically aimed at young single people holidaying without adult supervision, not infrequently in groups of already formed friends, and with ample opportunities to drink substantial quantities of alcohol for very substantial periods, or indeed all of the day and night, and generally for the traditional night to be turned into day. He said that the operation at the Marina Beach Apartments was particularly well set up to provide for the young and lively and to fit in with the commercial opportunities at the resort. It was generally free from any real rules, and relaxed to the point of permitting most things that kept the youngsters happy.

The complex itself was next to the beach and consisted of a number of studios and apartments, a bar and the pool. A path ran from the accommodation block past the pool to the bar. The path was separated by a flowerbed from the paved area around the pool itself. The judge found that the bar might sometimes have closed by midnight, but more frequently it stayed open as long as there were guests wanting to drink. When the bar closed, the lights in the swimming pool and bar area were turned off, but the lights on the path remained lit. The judge rejected a defence contention that the pool was then closed. He found that its use by guests was continued and authorised.

The pool was 11.2 metres long and 5.8 metres wide. At the deeper end, furthest away from the accommodation block, the maximum depth of the water was almost certainly no more than 1.5 metres, though there was a ledge under the water on which people could stand. At the shallow end, the depth of the water was probably only about 0.8 metres. There was a small depth marker at each end of the pool, though they were probably not visible at night.

The experts agreed that the pool’s dimensions made it unsuitable for diving. There were two small “no diving” signs in the general area of the pool at the material time. One was on the wall of the toilet block, on the other side of the path running between the accommodation block and the bar, though the judge found that there was shrubbery hanging partly over and adjacent to the sign. The other sign was on a tree on the far side of the pool, close to the bar area. Both signs were among a collection of other notices. Despite the existence of those signs, diving was in practice a regular occurrence. Indeed, the judge found that “the Defendant knew full well that not only was the pool regularly used when the bar was shut, but also that diving did take place, probably on a regular basis, and without any reproof or reprimand” (para 19(4)(e)).

The judge accepted that the claimant had probably used the pool only once before the accident, on the Tuesday morning of his stay. In his witness statement, from which the judge quoted extensively, the claimant said that on that occasion he jumped into the deep end to cool off and stood on the ledge, leaning over the edge and talking to friends. He did not go into the shallow end. A little later he referred to his having seen people diving in from all sides and at all ends. He never thought that people would dive in like that to a shallow pool, and consequently he assumed that the pool was reasonably deep all around. He was not aware of there being a significant change in depth between the end he was using and the opposite end. He did not recall seeing any signs pointing out the depth of the pool or stating that there was to be no diving.

On the Wednesday evening the claimant went out with his friends for a meal and stayed out late. When he returned with one of his room-mates, they stayed in their apartment talking until about 3.30 a.m. They had also woken up their other room-mate. It was very hot and they had the windows open. There was a lot of noise from the pool. They could not sleep, so they thought “if you can’t beat them, join them” and went out to the pool. The claimant’s witness statement continued:

“18.

… There were many other people using our pool and also the pool in the next door hotel. We couldn’t see anyone else we knew there. The bar was shut and the light was poor as we were relying on light from next door and from the apartments. People were diving in all over the place so I had no reason to think there would be a problem if I did the same. I had not seen any depth markings when it was light so none were apparent in the darkness. At the same time I also could not assess the depth of the pool before I entered but no-one else was having a problem so I assumed all would be fine if I dived in.”

The claimant went on to explain that he had learned to swim at about the age of 8 and had used pools in Turkey and Spain on family holidays as well as in the United Kingdom. He knew that you should not dive into water if you do not know how deep it is. However, he had assumed that this pool was safe. Because he was unaware of the depth of the pool and because he thought that it was perfectly safe to dive in, having seen other people doing it, he walked up and dived in. His was, as he recalled, “a very ordinary racing type of dive out into the water”. The dive was in fact into the shallow end, close to the point where there are ladder-type steps into the pool. He hit his head on the bottom and, it seems, was fortunate to be rescued before he drowned.

In cross-examination by Mr Eklund QC, the claimant made a number of further important concessions. The judge summarised the effect of the cross-examination as follows:

“29.

… Jamie was clearly a reasonably experienced swimmer, as his witness statement indicated. He had known that pools were bound to vary in size, in shape, and in depth, and that the shape of the bottom of pools could, and did, vary. He agreed that he knew that most pools have a deep and a shallower end, albeit he commented they are usually marked with such in his experience. He admitted that he knew that knowingly diving into a shallow end could be a very dangerous thing to do, and it could be a dangerous thing to dive in if he did not know the depth of the swimming pool. He admitted that he knew that it was dangerous to dive in if he could not see the bottom of the pool, but he added ‘I saw others diving in’. He admitted that he could have looked for depth markers, but commented that he did not recall seeing any of them; nor had he recalled seeing people swimming in this pool during the holiday, although he supposed he must have done. He had no recollection of people standing in the shallow end and thereby indicating it since probably half of their body would then be out of water.

30.

In cross-examination, the Claimant added, ‘I simply did not know it was the shallow end. I only had got wet in the deep end previously to cool off. I assumed there was no change of depth from there for the length of the pool’. …

31.

The cross-examination, which was extensive, and running for just short of two hours, continued with the Claimant making a number of concessions along the lines that I have already indicated. They included the fact that he did not think he needed supervising, nor to be told not to dive in if he did not know the depth. He even agreed now, in hindsight, that what he had done was a dangerous thing to do, but, again, he added that he was only doing what he saw other people were doing in diving in.”

In his submissions to us, Mr Eklund referred to specific passages in the evidence to bring home the points summarised by the judge. In my view, however, a sufficient flavour is given in the passages from the judgment that I have quoted above.

After dealing with the evidence of the other witnesses called on behalf of the claimant, the judge returned to the claimant’s knowledge of the pool. He found that at the time of his accident the claimant did not know “in any meaningful sense” that the end into which he was to dive was shallower than the end in which he had stood on the Tuesday. He could have done, but he did not. On seeing others diving in, he simply joined them. In the exuberance of youth, and in the spirit of the moment, he simply dived in to join them at the nearest point as he was seeing others do, and had seen others do previously.

That leads on to the judge’s specific findings about the accident itself. He found first that the claimant “should, and could, have known if he had really thought about it that the closest poolside into which he was to dive was the shallow end, and that his assumption that the pool was of the same depth at both ends might at least be inaccurate” (para 41). He then said that this could not be the end of his attempt to understand what happened and why the claimant dived in here having such knowledge that he previously had. The judge said that after careful consideration he made the following ten further findings of fact on the balance of probabilities (para 42):

“(1)

The Claimant was foreseeably tired. He had been living a fairly typical unstructured lifestyle compared with what he had been used to in the UK, which could only have been expected, and it was inevitable, and even offered as the nature of their holiday operation and the provision of a very late night bar and a swimming pool for which there was always open access.

(2)

The Claimant had had some alcoholic drink. It was almost certainly less than the defence might have expected of some of their young guests, especially amongst such a teenaged group as was this one.

(3)

He was in a holiday resort and location given to twenty-four hour hospitality with a purpose-built swimming pool facility that was available for use at all hours.

(4)

The Claimant not unreasonably thought, as I find, that the pool was available; it was in actual use; and that others were, and had previously been, diving in ‘all around’.

(5)

Insofar as the Defendant had rules or advice to prevent either, they were inadequate by any objective standard, and for the Claimant there was nothing adequate to prevent what I find was then to happen in this accident.

(6)

Objectively, he knew that diving in here was unwise and potentially dangerous. In the ordinary event, he would never have done so, and he did not ordinarily need to be told that.

(7)

That in the foreseeable exuberance of the youthful use of this pool, especially in the very late heat of the night, he copied what he had seen others doing on this occasion and others, both in deciding to go swimming this night when the bar was shut, and others were ‘diving in from all sides’. In those circumstances he forgot his own good sense, but against which possibility properly and prominently displayed warning signs were surely designed to prevent, especially given the nature of this sort of holiday facility. I find that, on the balance of probability, such better placed and more prominent signs which were recommended would indeed have brought him to his better sense before he dived in.

(8)

In the foreseeable spirit of the moment, lacking more mature years and experience, and lacking such precautions as the Defendant could, and should, have taken in reasonable foresight of such an accident, with such potentially disastrous consequences, the Claimant walked out of the accommodation block and simply dived in to join his mates and others, including a quite separate group from Liverpool in the pool.

(9)

What previous knowledge of the dangers the Claimant had had, that deserted him on this occasion. With nothing in particular by way of adequate safeguards and warnings, not even as the defence alleged, to help bring him to his senses at this late hour, any prior and useful knowledge left him. He dived in at the nearest point to him. It happened to be the shallower end. He was thoughtless at the time – foreseeably so, as I find, in the circumstances and nature of this holiday venue run by the Defendant. I think they both share some blame here, but that might be another matter as to whether it amounts to legal culpability by the Defendant in this litigation, and, if so, how any liability might be apportioned.

(10)

Finally, the Claimant knew beforehand that he should not have done as he did. He well knows now that he should not have done as he did. But, I find that the only explicable reason for what happened – as, indeed, the Claimant told me – was that actually at this particular time he was completely unaware and oblivious to the dangers he was courting. There was nothing then present that might adequately have deterred him from his brief state of inadvertence which the safety standards were designed to prevent, and thus briefly bring him to his senses on this occasion before he dived in. But for the simple and inexpensive precautions that have been canvassed here, this foreseeable accident could, and, on the balance of probabilities, would have been prevented in this case.”

I have already mentioned that the experts agreed that the pool was not safe for diving. The judge said that the significant disagreement between them was as to whether the “no diving” signs and the signage generally were adequate. The claimant’s expert, Mr Boydell, criticised the positioning and size of the “no diving” signs and also said that the signage relating to closure should have been explicit and enforced. The defence expert, Mr Fowler, was less critical of the signage although he made a number of concessions helpful to the claimant’s case. It is clear from the general tenor of his judgment that the judge preferred the evidence of Mr Boydell. In para 42 of his judgment, quoted above, he referred repeatedly to the absence of adequate safeguards and warnings. In para 52 he found in relation to each of the “no diving” signs that the “the sign was visible, the message was not”. He also found that the signage failed to comply with the guidance issued by the Federation of Tour Operators (“FTO”), which calls for fuller consideration.

The FTO’s Health and Safety Handbook contains a section headed “Suggestions for Swimming Pool Safety”, which also appears to be available as a separate leaflet to be given to hoteliers and others. The judge referred in particular to the following paragraphs:

“4.

Depth markings should be placed at regular intervals. Minimum 2m apart on small pools, 3m apart on large pools ….

5.

Gradual changes in depths should be indicated at these regular intervals as indicated.

6.

Sudden changes in depths should be clearly marked ….

…

8.

No Diving signs should be displayed in a prominent position, especially in areas with depths of less than 1.5m.

9.

Opening hours and emergency procedures should be clearly visible.”

The judge observed that in this case there was no depth marker signage complying with paras 4, 5 or 6; that “no diving” signs were particularly required here but were not displayed in a prominent position in accordance with para 8; and that opening hours and emergency procedures were not clearly visible in accordance with para 9. The handbook also contained an illustration of the layout of the sort of signage referred to, as to which the judge said that “[t]he signage here did not begin to compare with what the FTO have suggested”.

The judge did not deal with the status of the FTO guidance, but the issue featured in argument before us and it will be helpful to consider it here. We were informed that only about 30 per cent of tour operators are members of the FTO. The foreword to the handbook states that the handbook “has been produced to help anyone who wishes to improve health and safety standards for holiday makers”, and that it is a tribute to the FTO’s health and safety officers and others “that significant improvements to safety standards have been achieved especially when, as they often do, these improvements are over and above the local regulations”. The foreword is followed by an “important notice” stating that “[t]he information and advice contained in this Handbook is designed to assist tour operators and their suppliers to develop their own safety systems. It should, however, be regarded as a starting point, and not as a definitive statement of the law or technical safety standards”.

There was evidence that the FTO guidance formed part of the documents used internally within Kosmar for the training of its representatives. There was, however, no evidence that it was regarded as laying down internationally recognised or uniform standards. Mr Fowler accepted in cross-examination that Mediterranean hotels conventionally have signs designating which end of the pool is the shallow end and which is the deep end, and also conventionally “comply with uniform standards about prominent diving prohibition signs”, but did not cover the nature or detailed content of any such standards.

The claimant’s case was based on the holiday contract between the claimant and Kosmar, with additional reliance on regulation 15 of the Package Travel, Package Holidays and Package Tours Regulations 1992 (“the 1992 Regulations”).

The amended particulars of claim pleaded implied terms of the contract that (i) the facilities at the apartments and in particular the swimming pool and its surrounds would comply with local regulations and safety standards applicable in Corfu in 2002, (ii) reasonable skill and care would be exercised in the provision of the facilities and services at the apartments and in particular at the swimming pool and its surrounds, and (iii) the facilities at the apartments would be of a reasonable standard by complying with recommended minimum standards laid down by the FTO. Breaches of each of those implied terms were pleaded.

The amended particulars of claim also pleaded that there had been “improper performance” of the holiday contract within the meaning of regulation 15 of the 1992 Regulations. Regulation 15 covers the situation where services to which the contract relates are supplied by someone other than the contracting party. It therefore applied to the operation of the apartment complex in this case. Para (1) provides that “[t]he other party to the contract is liable to the consumer for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by the other party or by other suppliers of services …”. Para (2) provides that “[t]he other party to the contract is liable to the consumer for any damage caused to him by … the improper performance of the contract …”. But the question whether there has been “improper performance” is to be determined by reference to the terms of the contract, which in this case takes one back to the implied terms as pleaded: Hone v Going Places Leisure Travel Limited [2001] EWCA Civ 947, para 15.

The first of the implied terms pleaded by the claimant may owe its formulation to Wilson v Best Travel Ltd [1993] 1 All ER 353. In that case the plaintiff, while staying in a hotel in Greece on a holiday booked through the defendant tour operator, sustained serious injuries on tripping and falling through glass patio doors at the hotel. The plaintiff’s claim, which pre-dated the 1992 Regulations, was based on an implied warranty that the structure of the hotel would be reasonably safe, alternatively a duty of care arising out of the term implied by s.13 of the Supply of Goods and Services Act 1982. The judge, Phillips J (as he then was), found against a warranty but accepted the existence of a duty of care. He held that the service provided by the defendant included the inspection of properties offered in its brochure and that the defendant owed a duty to exercise reasonable care to exclude from the accommodation offered any hotel whose characteristics were such that guests could not spend a holiday there in reasonable safety (p.356d-h). The evidence was that it was the practice in England, but not yet in Greece, to fit safety glass to doors. In those circumstances the judge held that there was no breach of the defendant’s duty, stating (at p.358b-d):

“What is the duty of a tour operator in a situation such as this? Must he refrain from sending holidaymakers to any hotel whose characteristics, in so far as safety is concerned, fail to satisfy the standards which apply in this country? I do not believe that his obligations in respect of the safety of his clients can extend this far. Save where uniform international regulations apply, there are bound to be differences in the safety standards applied in respect of the many hazards of modern life between one country and another. All civilised countries attempt to cater for these hazards by imposing mandatory regulations. The duty of care of a tour operator is likely to extend to checking that local safety regulations are complied with. Provided that they are, I do not consider that the tour operator owes a duty to boycott a hotel because of the absence of some safety feature which would be found in an English hotel unless the absence of such a feature might lead a reasonable holidaymaker to decline to take a holiday at the hotel in question.”

A claim such as that in Wilson v Best Travel Ltd would no doubt be put differently under the 1992 Regulations: since the tour operator is directly liable under those regulations for improper performance of the contract by the hotel even if the hotel is under independent ownership and management, the focus can be on the exercise of reasonable care in the operation of the hotel itself rather than in the selection of the hotel and the offer of accommodation at it. But I do not think that this affects the principle laid down as to the standard to be applied to a hotel abroad, namely that the hotel is required to comply with local safety regulations rather than with British safety standards. That was the approach in Codd v Thomson Tour Operators Limited (Court of Appeal judgment of 7 July 2000), in which the claimant had been injured while travelling in a lift at a hotel in which he was staying in Majorca. The tour operator accepted that it would be liable (presumably under the 1992 Regulations) if negligence was established against those who were responsible for running and managing the hotel, but the judge found that liability was not established. The Court of Appeal dismissed the claimant’s appeal, citing Wilson v Best Travel Ltd for the proposition that there was no requirement for the hotel to comply with British safety standards, and holding that there was no breach of local safety regulations and that there was no negligence by the hotel management either in relation to the maintenance of the lift or in relation to safety procedures.

In the present case, there was no evidence to support the pleaded claim of non-compliance with local safety regulations, and that way of putting the case was not pursued at trial. In my view, however, it was still open to the claimant to pursue the claim on the other bases pleaded in the amended particulars of claim. What was said in Wilson v Best Travel Ltd did not purport to be an exhaustive statement of the duty of care, and it does not seem to me that compliance with local safety regulations is necessarily sufficient to fulfil that duty. That was evidently also the view taken in Codd, where the court found there to be compliance with local safety regulations but nevertheless went on to consider other possible breaches of the duty of care.

I can deal briefly with the pleaded failure to comply with minimum standards laid down by the FTO. I have already described the FTO’s Health and Safety Handbook and the “Suggestions for Swimming Pool Safety” contained within it. In my view the handbook is referred to correctly as guidance. It is advisory in character and has no legal force. It does not lay down standards with which Kosmar is required to comply. As I understood Mr Saggerson’s submissions to us, he did not contend otherwise but relied on the handbook simply as “informing” the standard of care and as casting light on whether Kosmar had exercised reasonable care in this case.

The case therefore comes down to the most general of the implied terms pleaded, that reasonable skill and care would be exercised in the provision of facilities and services at the apartment complex and in particular at the swimming pool and its surrounds. It is common ground that such a term is to be implied. The dispute relates to the scope of the duty of care and whether there was in the particular circumstances a breach of that duty.

If there was a duty to exercise reasonable care to guard against what the claimant did in this case, then in my view the judge was entitled to find a breach of duty. It was open to him to accept the evidence of the claimant’s expert, Mr Boydell, as to the deficiencies of the signage, and to find non-compliance with the FTO guidance; and his conclusion that there was a failure to exercise reasonable care, in particular as to the prominence of the “no diving” signage around the pool, is not one with which there is any reason to interfere.

But did the duty of care extend that far? The essence of Kosmar’s case is that there is no duty to guard against an obvious risk of the kind that existed here, namely that diving into shallow water (or into water of unknown depth) may cause injury. That risk was obvious to an ordinary able-bodied adult such as the claimant. The evidence shows that he knew of the risk and was able to assess it for himself. He took a deliberate decision to dive in. Kosmar was under no duty to warn him against such a course or to take other measures to prevent it. The fact that he dived in, as the judge found, in a brief state of inadvertence does not affect the position: that could be said of almost all accidents, and again there is no duty to guard against it. Nor is the position affected by the fact that a lot of people were taking the same obvious risk by diving in.

The most important of the cases relied on by Mr Eklund is Tomlinson v Congleton Borough Council [2004] 1 AC 46. That case concerned a lake in a country park owned and occupied by the first defendant and managed by the second defendant. Swimming in the lake was prohibited and the defendants displayed prominent warning notices. The first defendant, aware that the notices were frequently ignored and that several accidents had resulted from swimming in the lake, intended planting vegetation around the shore to prevent people from going into the water but had not yet done so because of a shortage of financial resources. The claimant, aged 18, went into the lake and from a standing position in shallow water dived and struck his head on the sandy bottom, breaking his neck. He claimed damages, alleging that the accident had been caused by the defendants’ breach of the duty of care they owed to him as a trespasser under s.1 of the Occupiers’ Liability Act 1984, by which a duty is owed in respect of risks of injury by reason of any danger due to the state of the premises. His claim failed at first instance, succeeded by a majority in the Court of Appeal, but failed once more on a further appeal to the House of Lords.

In his dissenting judgment in the Court of Appeal, Longmore LJ observed (p.62, para 47):

“One of the dangers of going for a swim in any stretch of water other than a dedicated swimming pool is that the swimmer may slip and injure himself. He may also quickly find himself out of his depth and be unable to cope; he may get cramp or be assailed by the coldness of the water and be unable to recover. All these are obvious dangers to anyone except a small and unaccompanied child. Another danger is that a swimmer may decide to dive into the water and hit his head on the bottom, if the water is too shallow; in my judgment that is an equally obvious danger and cannot provide a reason for saying that the owner or occupier of the water should be under any duty to take reasonable steps to prevent people swimming or diving in the relevant stretch of water.”

Mr Eklund submitted that that reasoning applies equally to an adult diving into a swimming pool, as occurred in this case. He also relied on para 51 of Longmore LJ’s judgment, in which it was said that a duty could arise only if there was a particular hazard (over and above the ordinary risks of swimming) in the stretch of water concerned. Mr Eklund stressed that in this case the pool was in proper condition and contained no particular hazard.

The leading speech in the House of Lords was given by Lord Hoffmann, with whom Lord Nicholls of Birkenhead and Lord Scott of Foscote agreed. Lord Hoffmann held that the only risk arose out of what the claimant chose to do and not out of the state of the premises, so that there was no risk of a kind which gave rise to a duty under the 1984 Act. But even on the assumption that there was such a risk, he held that there can have been no duty under the Act. An integral part of the reasoning that led to that conclusion was his consideration of what the position would have been if the claimant had been a lawful visitor owed the common duty of care under s.2(2) of the Occupiers’ Liability Act 1957, namely “a 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 by the occupier to be there”. Lord Hoffmann identified two important considerations. The first was the social value of the activities which would have to be prohibited in order to reduce or eliminate the risk from swimming, namely use of the beaches to sunbathe, paddle and play with children. The second consideration, examined under the heading “free will”, was whether people should accept responsibility for the risks they choose to run. Lord Hoffmann said this:

“44.

… Mr Tomlinson was freely and voluntarily undertaking an activity which inherently involved some risk ….

45.

I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang-gliding or swim or dive in ponds or lakes, that is their affair ….

46.

My Lords, as will be clear from what I have just said, I think that there is an important question of freedom at stake. It is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious. The fact that such people take no notice of warnings cannot create a duty to take other steps to protect them. I find it difficult to express with appropriate moderation my disagreement with the proposition of Sedley LJ … that it is ‘only where the risk is so obvious that the occupier can safely assume that nobody will take it that there will be no liability’. 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 … or the despair of prisoners which may lead them to inflict injury on themselves ….

…

50.

My Lords, for these reasons I consider that even if swimming had not been prohibited and the council had owed a duty under section 2(2) of the 1957 Act, that duty would not have required them to take any steps to prevent Mr Tomlinson from diving or warning him against dangers which were perfectly obvious. If that is the case, then plainly there can have been no duty under the 1984 Act. The risk was not one against which he was entitled under section 1(3)(c) to protection ….”

Similar passages are to be found in the speech of Lord Hobhouse of Woodborough, who described the claimant as “an 18 year old youth who ought to be well able to appreciate and cope with the character of an ordinary lake” (para 71) and said that all the relevant characteristics of the lake were already obvious to the claimant and that no purpose was in fact served by the defendants’ warning: “It told the claimant nothing he did not already know” (para 74).

In general I think it unnecessary to refer to the earlier authorities cited by Mr Eklund, all of which were considered in Tomlinson. It is, however, worth noting that Tomlinson approved the very similar reasoning in Ratcliff v McConnell [1999] 1 WLR 670 in relation to injury sustained by a trespasser when diving into a closed swimming pool at night. Stuart-Smith LJ, giving the main judgment, stressed the importance of identifying the risk or danger concerned, and continued:

“36.

The relevant danger here was that if someone dived into the pool they might hit their head on the bottom if there was insufficient water to accommodate the dive. That is a danger which is common to all swimming pools. There is no uniformity in shape, size or configuration of swimming pools. It seems to me that it is a danger which is obvious to any adult and indeed to most children who were old enough to have learnt to dive.

37.

… Even if the defendants knew or had reasonable grounds to believe that students might defy the prohibition on use of the pool and climb over the not insignificant barrier of the wall or gate, it does not seem to me that they were under any duty to warn the plaintiff against diving into too shallow water, a risk of which any adult would be aware and which the plaintiff, as one would expect, admitted that he was aware …. Even in the case of a lawful visitor there is no duty to warn of a danger that is apparent ….”

Mr Eklund relied on such authorities before the judge as well as before us. At para 59 of his judgment, the judge said that he distinguished the present case on its facts from all of those cited by Mr Eklund. He also distinguished them on the basis that they were cases in tort, under the Occupiers’ Liability Act, whereas the claimant’s claim was in contract and for breach of statutory duty. At para 59(1) he said this:

“[I]n this case the Claimant sues for the Defendant’s breach of contract and their statutory liability for improper performance. This case is therefore not about the Claimant’s limited rights under the Occupiers’ Liability Acts legislation. Therefore, considerations of a very different nature arise here as compared with the public use of what I shall generally call ‘the natural environment’. Especially, in my judgment, this case is nothing at all to do with imposing unreasonable obligations upon alleged tortfeasors, the liability of owners of either public or privately owned property to which either visitors or trespasser gain access and then suffer death or personal injury, let alone does the floodgates argument arise in this case of indeterminate liability to an unknown and undiscoverable class of potential litigants in this perceived litigious age.”

At para 59(2) he said that “the Claimant had actually paid this Defendant as part of a commercial enterprise for a holiday abroad that would impliedly be reasonably safe for him, and be properly performed as a contract”, and that contractual and statutory duties then arose.

At para 59(3) he referred to the “free will arguments” demonstrated in the Occupiers’ Liability Act cases cited by the defence, but expressed the view that “this is not a free will case in that context” for several reasons:

“(a)

This is not so because the Defendant undertook to contract personally with this Claimant – incidentally, then a minor. If he was such a stranger as those appear to be in the Defendant’s cited cases, this Defendant was in a commercially dominant position both to require more information about this contracting party with whom in fact they chose to engage, and even to deploy exemption or limitation clauses to protect themselves if they had so wished. They in fact did neither.

(b)

The free will argument deployed here by the defence is surely quite misconceived. First, the real free will in any meaningful sense rested primarily with the Defendant. They chose to contract with him and accept his money. By comparison, this Claimant was entitled to presume that his holiday contract fulfilled common-sense and the reasonable hope and expectation that he would be kept reasonably safe by the application of the generally recognised standards of the leisure industry, as incidentally admitted in substance by para 2 of their defence. This Defendant did not, as I have found.

I have a third comment to make about this free will argument as deployed here by the Defendant against this Claimant. Implied in this concept if relevant to a claim that any breach of contract or statutory duty is to be defeated, there must surely also be the Claimant’s informed consent to a known, or advised, risk at the time of his own apparent, and alleged, folly. In this case, as I have tried to demonstrate, I find on the facts this to be quite to the contrary. It seems to me that this Claimant had neither any properly informed consent, and nor was he properly and appropriately advised as his contractual rights and the statutory provisions required, in the proper performance of this contract.”

This was followed by the judge’s conclusion (at para 60) that “I necessarily find proved the Defendant’s breaches of contract and the breach of their statutory liability as alleged by the Claimant”. At para 64, in the context of the issue of contributory negligence, he referred to “a proven breach of a contract, and blatant breaches as I find of the very legislation that was designed to protect such a vulnerable Claimant as this”.

The judge’s reasoning is open to a number of detailed criticisms: in particular, there is no obvious relevance in Kosmar having a dominant position (if it does) or having the power to require more information about the claimant; it would not have been open to Kosmar to exclude or limit liability for this accident; para 2 of the defence did not contain the admission attributed to it; and it is difficult to see what point the judge was making as regards informed consent and the giving of advice. But I would reject a further specific criticism made by Mr Eklund, that the judge was treating the FTO guidance as having statutory force: the judge’s references to statutory liability must have been intended to be references to liability under regulation 15 of the 1992 Regulations for improper performance of the contract.

The fundamental question, however, is whether the judge was right to distinguish the line of cases under the Occupiers’ Liability Acts as he did and to treat them as having no relevance to the contractual context (and related statutory context) of the present case. There are of course factual differences between the cases. The judge was also right that the extent of the duty owed by occupiers of land to trespassers and even to lawful visitors may be affected by policy considerations that have no parallel in the context of a holiday contract. But the core of the reasoning in Tomlinson, as in earlier cases such as Ratcliff v McConnell, was that people should accept responsibility for the risks they choose to run and that there should be no duty to protect them against obvious risks (subject to Lord Hoffmann’s qualification as to cases where there is no genuine and informed choice or there is some lack of capacity). That reasoning was held to apply in relation not only to trespassers but also to lawful visitors to whom there is owed the common duty of care under s.2(2) of the Occupiers’ Liability Act 1957 – a duty which, by s.5 of the 1957 Act, can be owed to contractual as well as to non-contractual visitors. I do not see why the reasoning should not also apply to persons to whom there is owed a duty of care in similar terms under a contract of the kind that existed in this case.

Mr Eklund drew our attention to the fact that in Dean v Thomson Tour Operators Limited (judgment of Silber J, 16 June 2000) it was agreed by the parties that where a tour operator was under a contractual duty to supply facilities to a reasonable standard, the principles to be applied were analogous to those in the Occupiers’ Liability Act 1957. Mr Eklund was able to make forensic play of the fact that Mr Saggerson was on that occasion counsel for the defendant tour operator rather than the claimant, but I do not think that the case itself is of any real assistance, for the very reason that the point went by concession and, although implicitly accepted by the judge, was not the subject of any argument. For the reasons I have given, however, I think that the approach adopted in the case was the correct one.

Applying that approach here, Kosmar’s duty of care did not extend, in my judgment, to a duty to guard the claimant against the risk of his diving into the pool and injuring himself. That was an obvious risk, of which he was well aware. Although just under 18 years of age, he was of full capacity and was able to make a genuine and informed choice. He was not even seriously affected by drink.

Mr Saggerson argued that, on the particular facts as found by the judge, the claimant was not aware of any risk. At the moment when he dived, he assessed it as safe for him to dive, as others were doing. As the judge said, any prior and useful knowledge left him and he acted in a brief state of inadvertence. Mr Saggerson submitted that this case should be about the need for prominent signage to reduce the risk of people in the claimant’s position reaching a wrong conclusion as the claimant did. The point, in effect, was that it is not a matter of guarding against an obvious risk but of guarding against the possibility of a mistaken assessment of the risk. That is a clever way of seeking to meet the argument based on Tomlinson, but I would reject it. The risk in this case remained an obvious one of which the claimant himself was previously aware and should have been aware at the moment he dived. The fact that at that moment he acted thoughtlessly, in a brief state of inadvertence, is not a good reason for holding Kosmar to have been under a duty that it would not otherwise have owed him.

Accordingly I take the view that there was no duty to give the claimant any warning about the risk of diving into the pool, let alone to have better placed or more prominent signs than those actually displayed, or to take any other step to prevent or deter him from using the pool or from diving into it. His dive and its terrible consequences are matters for which he must take full personal responsibility.

It follows that I would allow Kosmar’s appeal against the judge’s finding that Kosmar was in breach of its contractual duty of care and liable under regulation 15 of the 1992 Regulations for improper performance of the holiday contract.

I will deal with this issue even though, because of the conclusion I have reached on the first issue, it is not strictly necessary for me to do so.

The judge, having found breaches of contract and breach of statutory duty, continued (at para 60): “I find that on the balance of probabilities this accident would not have happened but for them, and that causation is established by the Claimant”. More specifically, it seems that causation was established on the basis that the claimant acted in a brief state of inadvertence and that better placed and more prominent warning signs would have brought him to his senses before he dived in. It was the claimant’s own belief, stated by him in evidence, that if he had seen signs he would not have dived in.

The judge did not indicate the precise location or nature of the warning signs that in his view were required in order to fulfil the duty of care and have the requisite effect on the claimant’s mind. The judge had before him, however, photographs of signage put up since the accident, which include a new “no diving” sign on the wall of the toilet block and an additional “no diving” sign on a post located on the paved area at the shallow end of the pool (but standing some distance away from the pool itself). He is likely to have had this material in mind when reaching his conclusions.

This court will be slow to interfere with a finding of this kind. I have to say, however, that the finding in this case causes me considerable concern. It is striking that the claimant, on his own evidence, had not previously seen or taken in, even in daytime, any of the matters that indicated the existence of a shallow end, and did not see them on the occasion of the accident. He did not even see the ladder-type steps which were close to the point from which he dived in. Moreover the accident occurred in the hours of darkness, with the pool itself unlit, though the path lights were still on and would have cast some light onto the general area of the pool; and the claimant commented in his witness statement that the light was poor. In all the circumstances, if “no diving” signs of the kind that were put up after the accident had been present at the time of the accident, I think it improbable that they would have made any difference: it is unlikely that the claimant would have seen them or taken them in or that they would have operated to bring him to his senses and prevent the accident. Similar considerations apply in relation to any contention that there should have been explicit signage prohibiting use of the pool after the bar had closed and the main lights had been turned off (though, as Mr Saggerson appeared to accept in argument, that was not the basis on which the judge found liability). It is also unlikely that additional signage would have stopped other people from using the pool and diving in, or therefore from setting the example which the claimant said he followed.

In my view we are in as good a position as the judge to evaluate the relevant evidence and reach a conclusion on it; and, for the reasons given, I respectfully differ from the conclusion reached by the judge. In my judgment the claim should fail on causation even if a breach of duty were established. This provides an additional reason for allowing the appeal against the judge’s finding of liability.

Given the conclusion I have reached on liability, Kosmar’s appeal against the judge’s finding in relation to contributory negligence falls away. I shall do no more than outline the issue and express the conclusion I would have reached on it had it arisen for decision. Mr Eklund submitted that relevant causative responsibility for the accident lay almost wholly with the claimant, whose degree of responsibility was at least 80 per cent, and that the judge’s conclusion defied rational analysis. Mr Saggerson submitted that this case had 50:50 stamped all over it. I would have accepted Mr Saggerson’s submission. In my judgment, if the judge’s approach to liability had been correct, there would have been no basis for interfering with his equal apportionment of responsibility.

In conclusion, whilst sympathising greatly with the claimant’s plight, I take the view that the judge’s finding of liability was wrong, both as regards breach of duty and as regards causation. I would allow the appeal and dismiss the claimant’s claim.

I agree.

I also agree.