Case No: QBENF 97/1650

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD (HH Judge Brunning
sitting as a Deputy High Court Judge) on 7.11.97
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday 30th November 1998

B e f o r e :

LORD JUSTICE STUART-SMITH
LORD JUSTICE THORPE
LORD JUSTICE MUMMERY
- - - - - - - - - - - - -

	RATCLIFF	Plaintiff/
Respondent	
	- and -		
	G.R. McCONNELL and E.W. JONES sued on their own behalf as Governors and on behalf of all other Governors of Harper Adams Agricultural College	 Defendants/
Appellants	
- - - - - - - - - - - - -
 (Handed down transcript of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel: 0171 421 4040  Fax: 404 1424
Official Shorthand Writers to the Court)
- - - - - - - - - - - - -

Anthony Goldstaub QC & Toby Hooper (instructed by  Messrs Oldham Rust Jobson for the Appellants)
Richard Lissack QC & Hywel Jenkins (instructed by  Messrs Cunningham John & Co for the Respondent)
- - - - - - - - - - - - -
J U D G M E N T

LORD JUSTICE STUART SMITH:
Introduction
1.	In the Autumn term of 1994 the plaintiff, Luke William Ratcliff, became a student at the Harpur Adams Agricultural College near Newport in Shropshire, of which the defendants are representative Governers.  In the early hours of 8 December of that year the plaintiff, together with two friends dived into the open-air swimming pool.  He struck his head on the bottom of the pool and suffered very severe injuries involving tetraplegia at the level of C4.

2.	In this action he claimed damages from the defendants who are the owners and occupiers of the pool.  His Statement of Claim alleged that the defendants were negligent or in breach of the common duty of care under the Occupiers Liability Act 1957 (the 1957 Act).  The defendants denied liability and in particular alleged that the plaintiff was a trespasser in the pool, because, as he well knew, access to it was prohibited.  On the second day of the trial the plaintiff served a reply, which reflected an alternative submission made by Mr Lissack QC in opening the plaintiff’s case, that the defendants were in breach of their duty under the Occupiers Liability Act 1984 (the 1984 Act), which deals with the duty of an occupier of land to those who are not his lawful visitors, i.e. trespassers.  At the conclusion of the plaintiff’s submission to the judge it was conceded that any claim had to be founded on a breach of duty under the 1984 Act.  In his judgment delivered on 7 November 1997 His Honour Judge Brunning, sitting as a Deputy High Court Judge, held that the defendants were in breach of their duty under that Act.

3.	He held that the plaintiff was guilty of contributory negligence.  He apportioned liability as to 60% against the defendants and 40% against the plaintiff.  The defendants appeal.

The pool
4.	The pool is situated within a paved compound.  The walls of some college buildings form part of the enclosure and the remaining areas are contained by substantial walls and fences about seven feet high.  Entrance to the pool can be gained through the male and female changing rooms, which give access to the pool side.  In addition there was a wooden gate in the brick wall near the shallow end of the pool.  During the Autumn and Winter terms, and in particular on the night in question, the changing rooms and the wooden gate were locked.

5.	The pool was constructed in 1960, it is 18.3m (60') long and 9.1m (30') wide.  More than half the pool is uniformly shallow, having a depth of 1.1m (3'6'') that extends for a distance of 10.8m (35'); over the next 3.6m (12') the level descends to 2.2m (7') and the remainder of the pool some 4m (13') is at this level.  There had been a springboard at the deep end; but this was removed in 1992.

6.	There were four relevant notices.  At the entrance to the pool there was a notice on a white background with the word ‘Warning’ in red and underneath a prohibition on taking glasses or bottles into the pool.  Immediately below this was a notice in red lettering on white background which read:
	"THE POOL WILL BE LOCKED AND USE PROHIBITED BETWEEN 10pm AND 6.30am."

Inside the pool area at the shallow end there was a substantial notice in red on white background which said, “SHALLOW END”.  At the deep end on the fence behind was a similar notice which said, “DEEP END SHALLOW DIVE”.

7.	There was a light mounted high on the wall of the building at the shallow end.  It was activated by movement in the pool area.  It had been installed in about 1992 so as to alert the security patrols, who were on duty in the campus at night, to unlawful use of the pool.  It did not afford much light to the pool area.

8.	The judge, basing himself on the evidence of Mr Sanders, the plaintiff’s  expert, who was a water and leisure consultant, held that the pool was unsafe for diving and diving ought to have been prohibited at all times.  This was because it did not comply with recommendations published by an authoritative Working Group in September 1990.  The report recommended that ‘Diving should not be permitted into water with a vertical depth of less than 1.5m’.  And, ‘Diving should not be allowed in pools where there is a forward clearance of less than 7.6m'. 

9.	A diver from the deep-end would have 5.8m (18') of water deeper than 1.7m (5½') until he came to the sloping part of the pool.  But if the dive was made from the long side at the deep end in that distance of 5.8m (18'), there would have been 9.1m (30') of deep water to the opposite side, and this would have been safe.

10.	Mr Sanders also criticised the inadequacy of the depth signs and the absences of signs prohibiting diving.  It is now however accepted by Mr Lissack, on behalf of the plaintiff, that the plaintiff would not have seen such signs.  Their absence therefore have no bearing on the accident.

The facts of the accident
11.	The plaintiff and his two friends, Rupert Wager and James Wooton, had attended a disco in the students’ bar, which is situated about 100 yards from the entrance of the pool.  The bar closed at 10.45pm, his friends continued drinking from beer they had brought in; but the plaintiff said he did not drink alcohol after the bar closed.  He had drank about four pints.  After the disco finished at about 2.30am the other two suggested that they should go for a swim; the plaintiff agreed.  The plaintiff did not read the notice by the gate, though he was conscious of the word ‘WARNING’ on the top notice.  All three climbed over the gate.  They undressed.  The plaintiff put his foot in the water to feel the temperature.  It was, not surprisingly, very cold.  The plaintiff heard Wager tell Wooton which was the deep end.  All three then lined up at the side of the pool.  Wager was nearest the deep end, then Wooton, then the plaintiff.  All three did a running dive.  It is apparent that the place where the plaintiff dived must have been either where the shallow end started or, more probably towards the top of the relatively steep slope from the deep to the shallow end.  He hit the top of his head on the bottom.  It seems clear that he must have dived somewhat more deeply than he intended.

The Judge’s findings of fact
12.	The judge made a number of findings of fact, in particular in relation to the use of the pool out of permitted hours, the number of previous incidents involving injury, and the state of knowledge of the defendant’s responsible officers.  Mr Goldstaub QC has strongly criticised these findings; he submits that they do not accord with the evidence.  It is convenient to consider these findings at this stage, and state my conclusions as to what the evidence showed, in so far as it differed from the judge’s findings.

Use out of hours
13.	The judge said at p16:
	"...there is...a clear picture of persistent use and misuse of the pool by students over a period of years during opening hours and, more significantly, during periods when the pool was ostensibly closed and entry to it forbidden.  The birthdays of students were celebrated by their colleagues throwing them into the pool either clothed or unclothed.  Swimming took place during the night both in summer and to a lesser extent in winter.  There was frequently high spirited horse-play around the pool.  All this took place against a background of at times heavy drinking by the students in the nearby bars: swimming and horse-play occurred after such activity."

14.	Mr Goldstaub submitted that this finding was erroneous and misleading particularly since the judge failed to differentiate between the period before and after 1989/1990.  Before then there was considerable after hours misuse of the pool in summer (very little in winter).  This was deposed to by a witness, Mr Monether, a student who had left the college in 1989.  He said that the pool was only locked intermittently at night in his day.  There was use of the pool at night, and occasionally people were thrown in, especially in summer.  The college threatened to close the pool, but it was not closed in his time.  Philip Reece had been a student between 1986 and 1990.  He said there was often skylarking at the pool.  He had been thrown into the pool in winter.  The gate was not locked in his time.

15.	From about 1989/1990 (presumably the autumn term after Mr Monether had left) the gate was, or was supposed to be locked at night (apparently in fulfillment of the threat to close the pool).  Mr Robson, who was the Head of Student Services, said that after the gate was locked at night the problem of misuse of the pool out of hours was ‘reduced by a massive percentage’ (Day 3/71).  The judge ought, therefore, to have applied his mind to the position after 1989/1990.  Moreover, it is necessary to draw a distinction between misuse by students of the college who, if caught, could be disciplined, and others such as visitors (for example rugby players) and intruders such as village boys.

16.	There appears to be very little evidence of after hours use by students after the routine locking of the gate.  The plaintiff himself, James Wooton and Helen Motram, who all came up in the Autumn term of 1994 gave no evidence of use during that term.  Rupert Wager was in his second year at the time of the accident.  In his oral evidence he said that he had made three visits to the pool after hours, the majority being in the summer; so only one use was in the winter.  Stephen Vickers, who was a student at the college from 1992 gave no evidence of abuse by students.  Finally Mrs Copp, the college Head of Domestic Services who supervised the cleaning staff from August 1992 to May 1994 said that there was horseplay, fun and typical student behaviour at the pool after the May Ball, Rag Week and similar occasions.  She knew of no incident giving rise to injury, which would have been reported to her.  It was not clear to what extent her evidence was hearsay, or what she had actually witnessed or to what extent it related to after hours, since the pool was open to 10pm in the summer.  In addition to that Mr Robson said that there had probably been two or three occasions in summertime when he had spoken to or disciplined students, but never in the winter.  He had had a report of an occasion of use in the winter (Day 3/74).

17.	There were two other incidents of use or misuse of the pool after hours by non-students.  The most serious of these was on 8 July 1994 when the college students were not in residence.  A party of rugby players visited the college for a weekend’s coaching.  After returning from a meal in the early hours of the morning a  number of them used the pool.  The gate was not locked, as it should have been.  Jonathan James Mills was one of the party.  He dived in at the shallow end and hit his head on the bottom of the pool and sustained very serious injury.  Three other witnesses gave evidence about the incident.

18.	Finally, on 5 November 1994 a party of about 20 students from Seale Hayne, who were visiting the college were found by the security officer in the pool at 20.49 hours.  He moved them out.  It appears that they had gained entry by breaking down the fence at the rear of the pool.

19.	There were one or two incidents after the plaintiff’s accident.  But they are not relevant.  In my judgment the judge was not justified in making the finding, which I have cited in paragraph 12, that there was persistent use of the pool out of hours.  There was in fact very little evidence of misuse of the pool outside permitted hours after the gate was routinely locked.  The plaintiff’s solicitor had advertised on radio and in the press for witnesses; that was the extent of the evidence.

The knowledge of misuse by the college
20.	Did the college, by its responsible officers know that the pool was being used out of permitted hours?  The judge made the following finding at p19:
	"It is also clear from the evidence before me which I accept, that some of the 10,000 who annually visited the college on conferences were, from time to time, found to be using the pool at night by the Security Guards.  At all times the gate was locked and therefore the individuals concerned had climbed over the wall to gain access to the pool.  The security staff recorded that as the individuals were visitors to the college they could do nothing about it.  It was on one such occasion that Mr Mills a 19 year old rugby player suffered an injury which at first was thought to be similar to the one suffered by the Plaintiff in this case.  This was in early July 1994.  I am therefore satisfied:

		(a)  that the college through a number of its responsible officers was fully aware that the pool was being used as a matter of regularity by its students during prohibited hours."

There is a similar finding at p26.

21.	Mr Goldstaub criticises this finding.  In my judgment he is right to do so.  The judge was wrong in thinking that the gate was locked at the time of the Mills incident.  While the college knew of that incident and the Seale Hayne incident, students of the college were not involved in either of them.  There was no evidence that anyone in authority knew of Mr Wager’s after hours swims.

22.	The defendants employed a security company to patrol the campus at night.  It seems that these were two men patrols.  The patrolmen wrote daily reports about events that took place during the night which were submitted to Colonel Taylor, the Bursar.  The relevant reports were disclosed.  The incidents involving Mr Mills, the Seale Hayne students and the plaintiff were reported.  There are no other relevant reports.  The reports relating to incidents after the plaintiff’s accident are not relevant.  Assuming, as we must, that all relevant reports were disclosed, this certainly does not indicate that the patrolmen were either finding or reporting regular use of the pool during prohibited hours.  Colonel Taylor said he did not know of any such abuse.  There seems no basis to doubt Mr Robson’s evidence, which I have referred to in paragraph 16.  It is also clear that people could not be thrown into the pool if the gate was locked.

23.	The judge also found at p20(b)(c):
	"(b)  that no disciplinary measures of any kind were taken by the college after 1989;
	
	  (c)  that no attempt was made to give new college students and visitors to the premises such as delegates on a Conference specific information about the hours of use of the pool and bringing to their attention the rules and regulations governing its use."

24.	As already mentioned, Mr Robson did speak to those who were caught and he said he disciplined them; but it certainly does not appear that any serious consequences followed.  But this must be seen in the light of what the defendants knew, which in my judgment for the reasons I have given, was much less than the judge found.  It was not for the college to discipline those who were not their students.  The judge’s finding at (c) is wrong.  It ignores both the plaintiff’s oral evidence that he was told that the pool was closed, that it was dangerous to use because of strong chemicals and the prohibition contained in the notice by the gate.

25.	At pages 16 and 17 of his judgment the judge referred to some correspondence passing between the local hospital and the Principal of the college expressing concern at alcohol-related injuries sustained by students.  One of these letters was dated November 1991.  The other July 1995.  In my judgment this correspondence was irrelevant and should not have been admitted.  It had nothing to do with injuries in the pool.  And the plaintiff was insistent that he was not drunk on the occasion of the accident.  But it seems to have affected the judge’s mind - since otherwise why mention it - into thinking that there was much more indisciplined out of hours use than the evidence established.

26.	As to the defendants’ knowledge through their responsible officers of previous accidents involving the pool, they were obviously aware of that to Mr Mills.  That seems to have been an act of incredible folly to dive into the shallow end in the small hours of the morning.  The judge also said that Mr Vickers, a student in 1993, had told Mr Robson that he had injured his face in diving into the pool.  The evidence did not go as far as this.  Mr Vickers said he might have told Mr Robson that he’d had an argument with the pool.  Mr Robson did not recall any such incident.  Mr Vickers’ accident occurred during permitted hours and he obviously thought that it was his own fault.

27.	In my judgment these errors of fact by the learned judge contaminate his reasoning and conclusions.  But there are other difficulties with the judgment.  As I shall show when I come to deal with the law, it is important in a case such as this to identify the risk against which the plaintiff requires to be protected, if he does.  In particular, it is necessary to see whether the plaintiff himself was aware of the risk of injury because it was obvious to an adult man.  The judge nowhere in his judgment defined the risk and he did not advert to the plaintiff’s evidence relating to the knowledge of it except in relation to contributory negligence.  The risk in my judgment was that in diving into the swimming pool at night the plaintiff might hit his head on the bottom.  The risk is obvious, unless the plaintiff made sure that there was sufficient depth of water to dive safely, which he did not.

28.	Secondly, in my view it was necessary for the judge to state in clear terms precisely what it was that he held that the defendants should have done which they did not do.  I have found it difficult or impossible to discern what the judge had in mind.  At page 29 he said:
	"that what was reasonably required was clear information about the rules and clear instructions to the student body that particular activity would be dealt with by an appropriately firm sanctions if it occurred."

29.	When dealing with the question of causation at page 31 the judge said:
	"Drawing all these matters together I come to the conclusion that it is more likely than not, if the Defendants had made it clear that use of the pool was prohibited, that diving was forbidden, and that breach of the prohibitions would be punished, and had shown that they were punished, this Plaintiff would not have visited the pool that night."

Here again the judge fell into factual error because the defendants had made clear that the use of the pool was prohibited.  The notice said so and the plaintiff accepted that he had been told so in introductory talks.

30.	Reading the judgment I had supposed that the judge envisaged that the defendants should have put up some signs at the pool or notice in the changing room forbidding diving.  This was done sometime after the accident.  But Mr Lissack said that this would not have been enough, because the plaintiff would not have seen the signs or read the notice in the changing room.  In the course of his submissions and in response to some pressure from the Bench, Mr Lissack said that the plaintiff should have been told orally, at the time he was told that use of the pool was prohibited that diving was also prohibited; or alternatively written regulations to that effect should have been given to him at or before the time he joined the college.  In the alternative Mr Lissack said that the safe area for diving, i.e. the last 5.8m (18') should have been clearly marked off or delineated.  The suggestion that depths should have been marked on the freeboard of the pool (as was done later) clearly would not have helped, as Mr Lissack conceded, since the plaintiff would not have seen such a marking.  Mr Sanders put forward an alternative suggestion, namely that a floating rope should have marked off the safe diving area.  The judge made no finding about this; indeed he does not mention it.  There may have been valid practical objections.  I shall have to consider in due course whether the judge’s conclusions as to what the defendants should have done can be supported. 

The law
31.	Prior to the 1957 Act the liability of the owner and occupier of land was governed by the common law.  A sharp distinction was drawn between those who came with permission, whether as licensees or invitees, and those who did not, that is to say trespassers.  A duty of care was owed to the former, more stringent in the case of the invitees than licensees.  But none was owed to trespassers.  The occupier was only liable if he did ‘some act...with the deliberate intention of doing harm to the trespasser, or at least some act done with reckless disregard of the presence of the trespasser’ (Addie v Dumbreck [1929] AC 358).  In relation to children, the harshness of this rule was ameliorated by the doctrine of allurement.  Moreover, knowledge of constant child trespass, without any attempt to stop it, might amount to permission.  The 1957 Act abolished the difference between licensees and invitees.  Under it the occupier owes the common duty of care to all his lawful visitors.  That ‘duty is 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’ (s.2(1) and (2)).  The 1957 Act did not apply to trespassers and the common law rules continued in force.

32.	The law relating to trespassers was reconsidered by the House of Lords in British Railways Board v Herrington [1972] AC 877 where the rule in Addie v Dumbreck was reconsidered.  The plaintiff was a boy of 6.  He had gone from a meadow where children frequently played onto the defendant’s electrified line and suffered serious injury.  He was able to gain access to the line because the fence was in a dilapidated condition.  The defendant’s station master knew that children had been seen on the line and that the fence was out of repair.  The plaintiff succeeded.  Not all their Lordships expressed the nature of the duty in the same way.  But it is convenient to cite Lord Diplock’s summary of the law at p941:
	"First:  The duty does not arise until the occupier has actual knowledge either of the presence of the trespasser upon his land or of facts which make it likely that the trespasser will come on to his land; and has also actual knowledge of facts as to the condition of his land or of activities carried out upon it which are likely to cause personal injury to a trespasser who is unaware of the danger.  He is under no duty to the trespasser to make any inquiry or inspection to ascertain whether or not such facts do exist.  His liability does not arise until he actually knows of them.

	Secondly:  Once the occupier has actual knowledge of such facts, his own failure to appreciate the likelihood of the trespasser’s presence or the risk to him involved, does not absolve the occupier from his duty to the  trespasser, if a reasonable man possessed of the actual knowledge of the occupier would recognise that likelihood and that risk.

	Thirdly:  The duty when it arises is limited to taking reasonable steps to enable the trespasser to avoid the danger.  Where the likely trespasser is a child too young to understand or heed a written or a previous oral warning, this may involve providing reasonable physical obstacles to keep the child away from the danger.

	Fourthly:  The relevant likelihood to be considered is of the trespasser’s presence at the actual time and place of danger to him.  The degree of likelihood needed to give rise to the duty cannot, I think, be more closely defined than as being such as would impel a man of ordinary humane feelings to take some steps to mitigate the risk of injury to the trespasser to which the particular danger exposes him.  It will thus depend on all the circumstances of the case:  the permanent or intermittent character of the danger; the severity of the injuries which it is likely to cause; in the case of children, the attractiveness to them of that which constitutes the dangerous object or condition of the land; the expense involved in giving effective warning of it to the kind of trespasser likely to be injured, in relation to the occupier’s resources in money or in labour."                								(My underlining)

33.	Because of the difficulty of seeing the precise ratio in Herrington’s case the 1984 Act was passed.  S.1(1) provides:
		“The rules enacted by this section shall have effect, in place of the rules of the common law, to determine - 
		
		(a)	whether any duty is owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them; and 
		
		(b)	if so, what that duty is.”

The duty is owed to all those who are not visitors within the meaning of the 1957 Act, that is to say to trespassers. (s.1(2)).
	s.1(3) provides:
		
		An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in subsection (1) above if -
	
		(a)	he is aware of the danger or has reasonable grounds to believe that it exists;
		
		(b)	he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case), whether the other has lawful authority for being in that vicinity or not); and 
		
		(c)	the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.
		
	 (4)	Where, by virtue of this section, an occupier of premises owes a duty to another in respect of such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned.
	
	 (5)	Any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk.
	
	 (6)	No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).

It is perhaps unfortunate that when setting out the Act in his judgment the learned judge omitted the important words which I have underlined in section 1(4).

34.	Although the Court must now obviously apply the words of the statute, it seems to me that the considerations enunciated by Lord Diplock in Herrington, with the exception of the words underlined in his fourth proposition, are still apposite.  Those words which I have underlined are no longer correct in the light of s.1(3)(c) and s.1(5).

35.	As I have already said, it is important to identify the risk  or danger concerned, since the occupier had to have knowledge of it or reasonable grounds to believe it exists (s.1(3)(a)).  In this case, as in the case of all swimming pools, there are two dangers.  The first is that those who cannot swim, if they fall or get into it, may drown.  That is a particular danger to small children who cannot swim, may get out of their depth and do not appreciate the danger.  But such a danger is obvious to older children and adults.  If the occupier knows or has reasonable grounds to believe that small children may get near the pool (s.1(3)(b)), he may, depending on the circumstances, be expected to offer some protection.  That was not the relevant danger here; and in any event by fencing off the pool, the defendants obviously offered protection against the risk of children getting into it.

36.	The relevant danger here was what 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.	Mr Lissack sought to portray the danger here as a hidden one or something in the nature of a trap.  In my judgment it was nothing of the sort.  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.  Had there been some hidden obstruction in the form of an extraneous object in the pool or a dangerous spike, of which the defendants were aware, the position might have been different.  Though even so I am doubtful whether the defendants needed to do more than they did, namely to prohibit use of the pool except during certain permitted hours in the summer.  Even in the case of a lawful visitor there is no duty to warn of a danger that is apparent (Staples v West Dorset District Council (1995) P1QR 439).

38.	It is nothing to the point that if the defendants had consulted the current guidance, they ought to have banned diving altogether or except in the last 5.8m of the pool.  The question is whether the defendants should have offered other protection to the plaintiff from a risk which he should have been fully aware of, and indeed was aware of.

39.	Appellant’s counsel have searched to see if they can find any report of a case where an adult trespasser has successfully sued.  They have found one in Canada: Veinot (1975) 2 SCR 311.  The plaintiff was an inadvertent trespasser, there being nothing to delineate the highway from the defendant’s land; the road appeared to continue.  The danger was a dark bar at head height for someone riding a snow machine as the plaintiff was.  The bar was invisible at night.

40.	The judge seems to have thought that Mr Goldstaub was submitting that the 1984 Act applied only to child trespassers.  That was not Mr Goldstaub’s submission.  But he did submit that it would be rare for an adult trespasser to succeed.  That is because it will only be on rare occasions that an occupier will know or have reasonable grounds to believe that a trespasser is in the vicinity of danger, if he has taken steps to delineate his land by a fence so that the trespasser knows that he is trespassing.  The fence, even if it is broken in some places, ought usually to be enough to keep adults out.  Moreover, adults can be expected to look out for obvious dangers such as holes in the ground.  If they chose to come deliberately at night, so that they cannot see dangers, which would be apparent in day light, it is not the occupier’s duty to light or make the hole safe.

41.	I have derived assistance from the Scottish law and cases.  In 1960 by the Occupiers’ Liability (Scotland) Act it was provided:
	""The care which an occupier of premises is required, by reason of his occupation or control of the premises, to show towards a person entering thereon in respect of dangers which are due to the state of the premises ... shall ... be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger."

The same provision applied both to lawful and unlawful visitors.  But the standard of duty varied substantially depending upon whether the visitor was a lawful one or not.  In M’Glone v British Railways Board (1966) SC 1 (HL) the plaintiff was a 12 year old boy who was injured when he climbed onto an electricity transformer.  His action failed.  Lord Reid at p12 said:

	"The live wires were only a danger to a boy old enough to climb up this structure, and I think that the respondents could properly assume that such a boy would understand that the barbed wire was intended to keep him out and that there would or might be danger if he forced his way into this small enclosure.  This is not a case of danger to a child too young to understand such things.  The evidence shows that the boy knew quite well that the barbed wire was intended to keep him out and that to climb the transformer was dangerous.  But he knew little or nothing about electricity and he did not know about live wires.  So, even if he had read the notices, he would have learned little from them.  In a case like this an occupier does, in my view, act reasonably if he erects an obstacle which a boy must take some trouble to overcome before he can reach the dangerous apparatus."

At p13 Lord Reid said that there might be circumstances where fencing that the invader must consciously overcome might not be sufficient.:

	“If an occupier brings a highly dangerous thing on to his land, he might have to do more than that if he has reason to anticipate the presence of very young children, or in the case of older children, if the obstacle merely prevents access to a place where no danger of any kind would be apparent to them.”

And later he said:
	“An occupier must do what he is bound to do, but he is not in fault in failing to do more, however easy it might have been to do that.”

42.	Lord Pearce, warning against the dangers of hindsight said at p17:

	"Where reasonable care has been taken, the fact that even greater precautions could have been adopted without difficulty does not, in general, constitute a ground for finding negligence.  In the light of subsequent events it is often easy to see how precautions could have been improved.  And it may be hard to clear one’s mind of subsequent events when judging the relevant question, namely, how the matter appeared before the accident to a reasonable person in the defenders’ position.  But if a person has used sufficient care before the accident, he does not become negligent because in retrospect one sees that he could easily have done even better."

And speaking of a trespasser he said at p18:
	"In such a case, it is, I think, enough, even where the danger is both lethal and artificial, if the occupier makes it clear, beyond the possibility of mistake, that all persons are forbidden to enter and, in addition, backs up that manifestation by some serious obstruction which can only be overcome by a deliberate act intended to defeat its obvious function."

43.	In McGinley or Titchener v British Railways Board [1983] 1 WLR 1427 a girl of 15 was struck by a train and seriously hurt when crossing the railway line between two stations in Glasgow.  Access to the line could readily be obtained by climbing on an embankment and passing through gaps which existed in the respondent’s fencing.  The claim failed.  Lord Fraser of Tullybelton, with whose speech the other members of the House agreed, said at p1432H:
	"I must emphasise that the question in this appeal is not whether the respondents, and other operators of railways if any there be, have as a general rule a duty to the public to maintain fences beside their lines in good condition or at all.  The existence and extent of a duty to fence will depend on the circumstances of the case including the age and intelligence of the particular person entering upon the premises; the duty will tend to be higher in a question with a very young or a very old person than in the question with a normally active and intelligent adult or adolescent.  The nature of the locus and the obviousness or otherwise of the railway may also be relevant.  In the circumstances of this case, and in a question with this appellant, I have reached the opinion that the Lord Ordinary was well entitled to hold, as he did, that the respondents owed no duty to her to do more than they in fact did to maintain the fence along the line.  I reach that view primarily because the appellant admitted that she was fully aware that the line existed, that there was danger in walking across it or along it, that she ought to have kept a look out for trains, and that she had done so when crossing the line on previous occasions." 

44.	Although the 1984 Act spells out the relevant considerations in more detail than the Scottish Act of 1960, the extent and scope of the duty is in my view the same.  The duty, if any, is owed to the individual trespasser, though he may be a member of a class that the occupier knows or has reasonable grounds to believe is in the vicinity of the danger.  But the nature of and extent of what it is reasonable to expect of the occupier varies greatly depending on whether the trespasser is very young or very old and so may not appreciate the nature of the danger which is or ought to be apparent to an adult.

45.	It is also clear that the question of volenti non fit injuria has to be considered at the same time as the question of consideration of the existence of the duty, since if the trespasser willingly accepts the risk as his, there is no duty owed by the occupier (s.1(6) of the 1984 Act).  The provision is substantially to the same effect as s.2(3) of the Scottish Act.  Lord Fraser said at p1434 of the McGinlay case:
	"As Lord Reid said in the M’Glone case 1966 SC (HL) 1, 13, subsection (3), merely puts in words the principle volenti non fit injuria.  That principle is perhaps less often relied upon in industrial accident cases at the present time than formerly, but so far as cases under the Act of 1960 are concerned, the principle is expressly stated in subsection (3) and there is no room for an argument that it is out of date or discredited.  If the Lord Ordinary was entitled to sustain this defence, the result would be that, whether the respondents would otherwise have been in breach of their duty to the appellant or not, the appellant had exempted them from any obligation towards her: see Salmond & Heuston on Torts, 18th ed. (1981), p467.  On this matter I am of opinion, in agreement with Lord Hunter, that the Lord Ordinary was well founded in sustaining this defence.  The reasons for doing so are in the main the same as the reasons for holding that the respondents were not in breach of their duty.  The appellant admitted that she was fully aware that this was a line along which trains ran, and that it would be dangerous to cross the line because of the presence of the trains."

How should these principles be applied in the present case?

46.	The plaintiff was a very frank witness.  The admissions he made in my judgment make it impossible for him to succeed.  He had been told expressly by the defendants that the pool was closed and contained dangerous chemicals.  He was not drunk, and he knew what he was doing.  He deliberately climbed the wall.  He did not notice the light.  He intended to make a shallow dive.  He had a  wide knowledge of swimming pools.  He knew there was no standard pool and there was no standard depth profile.  All pools are different.  He knew that diving could be dangerous and that it was necessary to make sure that there was enough water available before diving.  He did not know where the variations in depth might be, and did not know whether or where it might be safe to dive.  He knew he had to take great care to control the angle of the dive.  He knew that alcohol might affect his judgment.  He must have dived deeper than he intended.  He was aware that access to the pool was prohibited.  He did not know what notices were posted in the pool or changing room.  He paid no regard to the prohibition of access and was going to do what he wanted anyway.  He ignored the notice at the gate, though he saw the word ‘WARNING’, disregarding the rest of the notice.  He did not consider that the water level might be low, as in fact it was.  He did not look at any signs and probably would not have read any different signs.

47.	In my judgment it is quite plain that the plaintiff was aware of the risk and willingly accepted it.  Accordingly, I would hold that the defendants were under no duty towards him.  I cannot accept the judge’s conclusion that they ought to have told him that he should not dive in the pool because of its configuration.  Still less can I accept the judge’s conclusion that the defendants should have made it clear by punishing offenders, that the rule of non-access would be enforced.  That goes far beyond discouragement.  In any event, so far as is known to the defendants, there were no known abuses in the Autumn term 1994 by students, so I do not understand how the college could make an example to discourage the plaintiff.  I would add that I am very doubtful whether on the true facts the plaintiff satisfied s.1(3)(b) as to the state of the defendants’ knowledge; but I am content for the purpose of this judgment to assume that he did.

Causation
48.	In the light of my decision on the absence of duty or breach, it is not necessary to deal at any length with the judge’s finding on causation which I have cited at paragraph 29.  The plaintiff had to prove on balance of probability that if the defendants had done what the judge said they should, namely made it clear that diving was forbidden, the plaintiff would not have dived into the pool.  I appreciate that the judge said he reached his conclusion partly as a result of his assessment of the plaintiff seeing and observing him; that is an advantage we have not had.  But I am bound to say that I do not understand how the plaintiff could be said to have discharged this burden.  It is true that he said he would not have done so.  But since he ignored the prohibition on swimming at all and showed himself quite indifferent to any notices, it really seems to me to be quite fanciful to suppose that he would have been deterred by a further prohibition.  It is not without significance that Mr Wager , who was the leading light on this occasion, also said that he would not have swum if he knew diving was prohibited.  That evidence rang completely hollow when it emerged that Mr Wager had continued to dive in 1996, notwithstanding the ban that then existed and notwithstanding knowledge of the plaintiff’s tragic accident.  It seems to me obvious that he would not have been deterred by such a ban in 1994 and he would have encouraged the plaintiff in the same way as he did.

49.	This accident has had the most appalling consequences for the plaintiff; a promising life is now destined to be spent in a wheelchair.  It is impossible not to have great sympathy with him.  It is unfortunate that a number of high spirited young men will take serious risks with their own safety and do things that they know are forbidden.  Often they are disinhibited by drink and the encouragement of their friends.  It is the danger and the fact that it is forbidden that provides the thrill.  But if the risk materialises, they cannot blame others for their rashness.

I would allow the appeal.

LORD JUSTICE THORPE:  I also agree.

LORD JUSTICE MUMMERY: I agree.
- - - - - - - - - - - - -

Order: Appeal allowed with costs not to be encorced without leave of the court; order nisi against legal aid fund with nil contribution;  application for leave to appeal to the House of Lords refused.