Ratcliff v Mc Connell and Harper Adams College [1998]

Case Title: Ratcliff v McConnell and Harper Adams College [1998]

Case Citation: [1998] EWCA Civ 2679; [1999] 1 W.L.R. 670 

Court Name & Bench division: England & Wales Court of Appeal (Civil Division) 

Judges: LORD JUSTICE STUART SMITH, LORD JUSTICE THORPE, LORD JUSTICE MUMMERY

Judgement Date: 30 November 1998

Parties: 

• Ratcliff (Plaintiff/Respondent): A 19-year-old college student at the college, Harper Adams Agricultural College. 
• G.R. McConnell and E.W. JONES (Defendants/Appellants): Sued on their own behalf as Governors and on   behalf of all other Governors of Harper Adams Agricultural College 

Material Facts of the Case (Background): 

• The plaintiff, a 19-year-old college student, decided one night to go swimming with two friends in the college’s open-air swimming pool, even though he knew it was closed for the winter, and entry was prohibited.
• The plaintiff had been drinking alcohol, though he was not intoxicated.
• The pool was shallow for more than half its length, gradually shelving to a depth of four metres at one end. It was surrounded by high walls, fences, and a locked gate, with notices clearly stating that the pool was closed.
• A sign at the shallow end indicated its depth.
• Another sign at the deep end warned: “Deep end shallow dive.”
• The pool area had only motion-activated security lighting and was unlit otherwise.
• The plaintiff climbed over the locked gate to gain access and dived into the pool, striking his head on the bottom and sustaining severe injuries.
• He sued the college governors (the defendants) under section 1 of the Occupiers’ Liability Act 1984, alleging breach of duty towards a trespasser.
• During proceedings, the plaintiff admitted that:
•  He had been told explicitly that the pool was closed and contained dangerous chemicals.
•  He knew access was prohibited but ignored the restriction.
•  He was familiar with swimming pools, aware that depths varied, and that diving into unknown water was dangerous.
•  He knew the water level was low and made no attempt to check the depth before diving.
•  The trial judge found the defendants liable but held that the plaintiff was 40% contributorily negligent for his own injuries.

What tortious issues were raised by this case?

The tortious issue raised by the case was the failure of the college to take precautionary measures or steps in the misuse of the college’s open-air swimming pool outside of its open hours or prohibited hours from 10am to 6:30 am. The pool was usually closed for the winter. The plaintiff brought a claim against the defendants in negligence, alleging that the defendants owed him a duty of care and was in breach of their duty under section 1 of the Occupier’s Liability Act 1957, but on the second trial, an alternative claim was submitted by his counsel,      Mr. Lissack, which stated the defendants owed him a duty of care as a trespasser and were in breach of their duty under OLA 1984. 

The legal questions for the Court was: 

• Did the defendants owe the claimant a duty under s.1 of the Occupiers’ Liability Act 1984?
• Did the claimant willingly accept the risk under s.1(6) of the 1984 Act, which states that “no duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person”?

Arguments of the Parties on Appeal

APPELLANTS (Defendants – The College Governors)

Represented by: Anthony Goldstaub Q.C. and Toby J.A. Hooper

Core Argument:

The appellants argued that the trial judge erred in holding them liable under the Occupiers’ Liability Act 1984, because the respondent (Ratcliff) had voluntarily accepted the risk of injury. They relied heavily on the doctrine of volenti non fit injuria — meaning “to a willing person, no injury is done.”

Key Points:

• Voluntary Assumption of Risk (Volenti non fit injuria):

• The respondent was fully aware that the pool was closed and that entry was prohibited, having been expressly told so by the college.
• He knew that diving into shallow or unknown water was dangerous, and therefore freely accepted the risk of injury when he decided to climb the locked gate and dive.
• Under section 1(6) of the Occupiers’ Liability Act 1984, an occupier owes no duty to a person who willingly accepts the risk of injury.

• Adequate Precautions by the College:

• The college had locked the pool gates and erected clear warning signs, including one stating “Pool Closed” and another reading “Deep end shallow dive.”
• The appellants contended that these precautions were reasonable and sufficient to discharge any duty of care owed, even to trespassers.

• Temporal Context (Change After 1989):

• Counsel argued that the trial judge failed to distinguish between periods before and after 1989.
• Evidence showed that before 1989, pool misuse was common, but after 1989, the college implemented stricter security measures (locking gates at night, routine maintenance), which greatly reduced unauthorised use.
• Therefore, it was unreasonable to hold the college liable based on earlier incidents of misuse.

• Contributory Negligence and Responsibility:

• Even if some duty existed, the respondent’s conduct—entering without permission, ignoring warnings, and diving into unknown water—constituted complete assumption of responsibility for his injuries.

Key Legal Authorities Cited:

• Occupiers’ Liability Act 1984, s.1(3): Duty to take reasonable care where risk of injury to trespassers is foreseeable.
• British Railways Board v Herrington [1972] AC 877 – established occupiers’ duty to trespassers based on foreseeability of harm.
• Staples v West Dorset District Council [1995] PIQR P439 – duty limited where danger is obvious, but warnings must still be adequate.

Conclusion (Appellants’ Position):

The appellants asked the Court of Appeal to overturn the lower court’s finding of liability, arguing that:

• Any duty under the 1984 Act was discharged, and
• The respondent’s voluntary acceptance of risk barred recovery entirely.

RESPONDENT (Plaintiff – Mr. Ratcliff)

Represented by: Richard Lissack Q.C. and Hywel Jenkins

Core Argument:

The respondent maintained that the college owed a continuing duty of care under the Occupiers’ Liability Act 1984 to take reasonable care to protect even unlawful visitors (trespassers) from injury, and that the college’s precautions were insufficient given the foreseeable risk of harm. 

Key Points:

• Insufficient Warnings:

• The respondent argued that he did not see any of the warning notices.
• Counsel contended that written warnings were inadequate, especially as there was no oral warning or specific briefing to students regarding the pool’s closure and potential dangers at the start of term.

• Failure to Mark Safe Diving Area:

• The deep and shallow ends of the pool were not clearly delineated or cordoned off.
• The respondent’s expert witness supported that the safe diving depth (approximately 5.8m/18ft) should have been marked clearly to prevent such accidents.

• Continuing Duty of Care:

• Even though the respondent was technically a trespasser, the defendants, as occupiers, owed a limited duty under section 1(3) of the Occupiers’ Liability 1984 Act if they knew or had reasonable grounds to believe that a trespasser might come into the vicinity of danger.
• Given that previous misuse of the pool had occurred (as evidenced by witness Mr. Monether), the college should have anticipated that students might continue to enter the pool area.

• Contributory Negligence, Not Complete Bar:

• While accepting some fault, the respondent’s counsel argued that his negligence should only reduce, not eliminate, recovery.
• The trial judge’s apportionment of 60% liability to the college and 40% to the respondent was, therefore, appropriate and fair.

Key Legal Authorities Cited:

• Occupiers’ Liability Act 1984, s.1(6): No duty is owed to a person who willingly accepts the risk of injury (“volenti non fit injuria”).
• Volenti non fit injuria principle – e.g. Morris v Murray [1991] 2 QB 6 (acceptance of risk when aware of danger).
• Evidence from Monether and Robinson showing post-1989 precautions — arguing no continuing foreseeability of trespass.

Conclusion (Respondent’s Position):

The respondent urged the Court of Appeal to uphold the original judgment, maintaining that:

• The college had failed to provide adequate warnings or supervision, and
• The limited duty under the 1984 Act was breached, despite the respondent’s contributory negligence.

Court Judgement / Final Decision

Verdict: The Court of Appeal allowed the appeal, reversing the decision of Judge Brunning (Queen’s Bench Division).

Decision:

• The defendants (college governors) were not liable for the plaintiff’s injuries.
• The Court held that no duty of care arose under section 1 of the Occupiers’ Liability Act 1984, as the plaintiff had voluntarily accepted the obvious risk of diving into water of unknown depth while trespassing.
• The risk was obvious and inherent, and the occupiers were under no obligation to protect him from it.

Judges: Stuart-Smith L.J. delivered the leading judgment, with Thorpe L.J. and Mummery L.J. concurring.

Legal Reasoning: 

• The defendants owed no duty of care to the plaintiff under section 1(4) of the Occupiers’ Liability Act 1984, as the risk of diving into shallow water was obvious to any adult of ordinary intelligence.
• Stuart-Smith L.J. held that the danger arose not from the condition of the premises (the pool) but from the plaintiff’s own conduct—diving into water of unknown depth despite clear warnings and prohibitions.
• The occupiers had taken reasonable care in all the circumstances by:

1. Locking the pool gates,
2. Posting warning signs (e.g., “Deep end shallow dive”), and
3. Prohibiting use of the pool during winter.

• Since the plaintiff admitted knowing that the pool was closed, that access was prohibited, and that diving into shallow water was dangerous, the doctrine of volenti non fit injuria (consent to risk) applied under section 1(6) OLA 1984.

• The Court emphasised that an occupier is not required to warn against dangers that are obvious to a “reasonable” person.

Precedents Cited:

• Herrington v British Railways Board [1972] AC 877 – established limited duty of “common humanity” owed to trespassers.
• Staples v West Dorset District Council [1995] PIQR 439 – no duty to warn of obvious risks to lawful visitors.
• Titchener v British Railways Board [1983] 1 WLR 1427 and M’Glone v British Railways Board [1966] SC (HL) 1 – reaffirmed that obvious dangers do not require additional warnings for adults or capable minors.
• Occupiers’ Liability (Scotland) Act 1960, s.2(1) – used for persuasive comparison on the reasonableness of care.

Ratio Decidendi:

• An occupier owes no duty to protect trespassers from obvious risks voluntarily undertaken by them.
• The duty under s.1(4) OLA 1984 is limited to taking reasonable care to avoid injury from non-obvious dangers, and no duty arises where the risk is apparent and voluntarily accepted.

Obiter Dicta

Comparative Reference to Scottish Law

• The Court referred to section 2(1) of the Occupiers’ Liability (Scotland) Act 1960, noting that the Scottish approach emphasises taking “reasonable care in all the circumstances.”
• Although only persuasive and not binding, this comparative reference suggested that English courts may consider Scottish reasoning to interpret “reasonable care” flexibly under section 1(4) of the 1984 Act, especially in future occupiers’ liability cases involving trespassers or recreational risks.

Conclusion / Observations

• Final Decision: Appeal allowed; the defendants were not liable.
• Leave to appeal to the House of Lords was refused.

Significance:

• The case clarified the scope of occupiers’ liability to trespassers, reinforcing that obvious risks (such as diving into shallow water) do not give rise to a duty of care.
• It established that personal responsibility and voluntary assumption of risk play a decisive role in such cases.
• It has since been cited as authority for the principle that occupiers are not insurers of safety against risks that reasonable adults should recognise and avoid.