25 August 2011
Tristan Hallam comments on occupiers liability once again: the voluntary assumption of risk
I read recently in the regular case updates that come through, a tragic case of woman in her late ‘teens who was rendered tetroplegic when she jumped into a swimming pool.The claim was brought against the occupier. I note that a hospital was also included in the claim and I anticipate therefore that there was some argument as to the treatment she received after the incident.In any event what appears to have happened is that the parents left the home in the knowledge that their child or children would be with friends of a similar age. There appears to have been an agreement that the injured woman could go swimming. She was given a swimming costume. She jumped into the swimming, appears to have landed in the shallow end and sustained a fracture to her neck rendering her tetroplegic. This is a tragic accident. I will not comment any further since I do not know the full facts. However the claim against the owner of the property and swimming pool did not succeed. The Claimant was a grown woman; she was aware or certainly ought to have been given the knowledge that would have been available to her, that to jump into the swimming pool in the shallow end was likely to lead to an injury. Voluntary assumption is what effectively applied. This is a difficult concept to the extent that it requires a Court to accept that the Claimant was entirely responsible for the accident. The Claimant therefore bears a very heavy burden of establishing any degree of fault of the part of the Defendant and the assumption therefore that the Claimant is entirely to blame must be considered very carefully since the Claimant will have failed therefore entirely to establish his or her claim.An example is a case that again appeared in the legal press recently of a Claimant who had fallen and fractured her spine. The Claimant had visited the premises which was a public house for drinks with colleges. She had talked about the possibility of sliding down the banisters. The public house which was a listed building and had sweeping banisters on both sides. The Claimant hoisted herself on to a banister intending to side down. She fell backwards. She fell some 4 metres onto the marble floor below. She fractured her spine. She was rendered tetroplegic. This was a case where the Court had to consider whether there was an assumption of responsibility by the Defendant to the Claimant and also whether there was a voluntary assumption by the Claimant of an obvious and inherent risk and this in itself, would remove any liability on the part of the Defendant. The Court found entirely against the Claimant. The position is very neatly summarised in the Occupiers Liability Act 1984 at section 1(6) which applies to the lesser duty owed to a trespasser and which states “No duty is owed by virtue of this section in respect of risks willing accepted as his by that person”.Unfortunately therefore both Claimants failed. And, the Courts made it clear that if a person is capable to the extent that they are of a reasonable age so that they are aware of the inherent risks and nevertheless place themselves at risk and suffer injury as a result, that their claim will fail. If therefore someone dives into a lake and suffers injury or goes hand gliding and equally suffers an injury they will not, in the absence of clear negligence on the part of the Defendant succeed in their claim.Tristan Hallam is a partner in Personal Injury in the London office of Russell Jones & Walker.If you or a member of your family has suffered an accident or injury call our expert personal injury solicitors on 0800 916 9046, fill in our short online claim form or email firstname.lastname@example.org and one of our specialist personal injury team will review your compensation claim for free.