Case Summary: Daniel McCarrick

CASE SUMMARY

Daniel McCarrick was 20 years old when he, along with two colleagues, attended the swimming pool at Skipsea Sands Holiday Park in East Yorkshire. The park was owned and operated by Park Resorts Limited. Daniel was working as a heating engineer at the time he visited Skipsea and lived in the New Moston area between Manchester and Oldham. On Thursday, 25 October 2007, when Daniel visited Skipsea, it was his first day in his new job as a heating engineer. He visited Skipsea along with two of his colleagues at the end of his first shift. It was Daniel’s first visit to Skipsea, and he sustained life-changing injuries after entering the poolside and proceeding to dive into what Daniel thought was the deep end of the pool. It was the shallow end, and Daniel suffered fractures to his vertebrae resulting in tetraplegia.

 

McCarrick v Park Resorts Limited and others [2012] EWHC B27 (QB) (26 October 2012)

The case was heard at the High Court sitting in Manchester. HHJ Gore QC sat over proceedings. Mr Silvester appeared for the claimant, Mr McCarrick. Mr Turner QC appeared on behalf of the first defendant. Mr Rahman appeared on behalf of Chiltern Health and Safety Service and Richard Johnson. Park Resorts Limited ran the holiday park and was the occupier for the purposes of the Occupiers’ Liability Act 1957. Mr Johnson was an employee of Chiltern and, acting in the course of his employment with them, carried out an initial evaluation audit of the premises, including the swimming pool. Chiltern were health and safety consultants for the purpose of purchasing the holiday park as a going concern.

Mr McCarrick was 20 years old when he visited the holiday park on Thursday, 25 October 2007. Mr McCarrick exited the changing rooms and dived into the shallow end of the swimming pool at the holiday park. At the time of this hearing, he is 25 years old. Liability for Mr McCarrick’s injuries is denied by all three defendants.

The claim is for damages for serious spinal injuries because of which Mr McCarrick has complete motor and sensory paralysis below C5 causing complete tetraplegia. The claimant alleges that:

• There was an absence of visible signs which prohibited diving or indicated that the water was shallow at the point he dived in.
• This caused him to dive under the misapprehension that he was entering the deep end resulting in his injuries.

The deepest part of the pool was 1.5 metres deep. The point at which Mr McCarrick dived in was only 1 metre deep. Mr McCarrick claims he acted, in the absence of warnings to the contrary, on the assumption that other pools he had visited always had a deep end. Liability is being tried as a preliminary issue to resolve the factual disputes between the parties.

The first defendant (Park Resorts Limited) says the pool was reasonably safe and there was no hidden hazard. The consequence that befell the claimant was because of the claimant’s own voluntary decision to dive into an unfamiliar pool with which he made no attempt to familiarise himself. In those circumstances, the defendants say they should not be liable.

The second (Chiltern Health and Safety Service) and third (Richard Johnson) defendants were not occupiers of the pool and retained no control over day-to-management or supervision of the pool or issues related to lifeguards. They accept they carried out an initial audit for the first defendant. They deny they owe any duty to the claimant as they are not an occupier.

HHJ Gore QC visited the poolside at Skipsea prior to the hearing and was equipped with a sketch plan and photographs of the poolside. Entry to the site is via a reception area with the changing area to the visitor’s right-hand side. It is accepted by the parties that there was no signage on the changing room door, but two days following the accident, the first defendant placed a sign on the door stating ‘no head-first diving’ containing the no diving prohibition symbol. The court did not have sight of the first defendant’s safety guide, which the claimant was not given or asked to read. In any event, it did not contain a reference to a prohibition of diving.  

The main pool was 20 metres by 8 metres. Paragraphs 13-17 read:

[13] Entry to the pool area is achieved by passing through an open aperture in the wall between the changing room and the pool area, illustrated in the photographs at trial bundle pages 261 to 263. The main pool itself, as I understand it, is 20 metres long and 8 metres wide. At the near end as one emerges from the changing room, set back from the pool, is a wall parallel to the end of the pool extending for about half or more of the width of the pool and then, at an oblique roughly 45-degree angle, that wall turns back away from the pool, and it is in that angled section that the aperture from the changing room is to be found and so it is that the apron area to the pool at this point is wider than the area between the parallel section of the wall and the near end of the pool.

[14] The emergent swimmer would see the children's pool straight ahead lying to the left of the main pool, and the main pool would be angled away to the right. The children's pool joins the main pool at least halfway along the main pool left-hand side viewed from the changing room end. There is a walkway along the right-hand side of the pool, the wall of which has images of sea life.

[16] At the far end of the pool is a massive window the full width of the pool and extending up above the level of the internal sloping roof and extending down towards but not quite to the floor. Although little was made of it in the evidence, it is in my judgment noteworthy that several steel beams running parallel to the width of the main pool lie at intervals along the full length of the pool and have cut into them large circles probably to reduce the weight of each beam. That nearest the end of the main pool nearest the changing room is only about 3 feet away from the front edge of the main pool. As to signage, at the time of the accident, the first defendant alleges (trial bundle page 44 to 45 and photographs attached at pages 48 to 52) that a "No diving" sign was propped up in the window on the sill at its base which in the narrative of the further information is alleged to have measured 16 inches by 2 feet, and that there was another one measuring 15 inches by 11.5 inches on a wall at the poolside on what was alleged to be the left as one exits from the changing rooms. As I have already observed, no oral evidence is called to substantiate. As I understand it, there is no dispute about the existence of a sign propped in the window, although I observe that the narrative description of it as wider than it was tall does not fit with the visual depiction of it.

[17] The sign alleged to have been on the wall caused me concern. None of the witnesses saw it. On the first day of the trial, I speculated that it might be the sign in the distance beyond the children's pool shown in trial bundle page 273 and that has now been confirmed. Its position is so far away from the changing room exit and at an oblique angle from the point of view of the emergent swimmer that in my judgment it is a misdescription to suggest that it warns such a swimmer or can have any relevance to this case. It cannot be read from the exit of the changing room and would not be noticed away to the left of the children's pool by a swimmer starting to focus on the main pool obliquely to his right into which he was planning to go.

[18] There is no dispute that the near end of the main pool is but 1m deep and the far end but 1.5m deep; the colour of the tiling in the main pool was uniform throughout, save for darker lane markings running the length of the pool, and that at two points along the right wall, but essentially at slightly above floor level were two white depth signs with red lettering, the one nearest the shallower end saying the depth was 1m and the one more distant saying that the depth had increased to 1.5m.

HHJ made the following findings of fact in paragraph 19:

[a] The angle of the wall through which the swimmers emerge from the changing rooms means that until one actually emerges from the line of the wall, the nearest depth sign to the right cannot be seen, but once even slightly away from the line of that wall, it can be seen clearly and read.

[b] However, to do so the emerging swimmer must turn his attention away from the length of the main pool and look at it, thereby taking one's attention away from the main pool itself or any signs at the far end thereof. 

[c] Although no measurement was taken, it was agreed at the visit that the floor tiles were 6-inch tiles and a simple tile count told me that the distance to the near edge of the main pool from the mid-point of the aperture on leaving the changing room was at least 20 feet or about 6m and, therefore, the distance from that point to the "No diving" sign propped in the windowsill was about 30m away, 15 inches tall and in my judgment probably unreadable to the emerging swimmer.

[d] I am fortified in my view by the fact that although the visit was not at the same time of day as the accident, there appears to be no dispute that at the time of the accident the lighting was what the third defendant in his audit prior to the accident had described as "mood lighting" and determined to be inadequate. 

[e] Even in the daylight conditions during my visit, albeit that the day was grey and gloomy, I could only barely identify that there were three stainless steel steps below the handrails on the right side of the main pool that facilitate entry by the more cautious and when I viewed, there was no one in the pool and I found it quite impossible to form a view about depth, either shallow or not, and that difficulty in my judgment would have been compounded by the so-called mood lighting.

[f] Gauging depth from the changing room exit was further compromised by large areas of bright surface reflection off the water which, as best as I could judge it, was only partly due to the light entering the window at the far end and was in part due to the internal lighting.

[g] Even during the day when I visited and I presume during the dusk period when the accident occurred three pairs of lights in the sidewalls of the main pool below the surface of the water have the effect of lighting some parts of the pool floor, but leaving other parts in shade, which again compromised the ability to judge depth.

[h] Now, in 2012, there were 5 "No diving" signs in the pool area, including one I found to be particularly conspicuous on the right wall to the right of the main pool which did not exist at the time of the accident.

[i] Contrary to the view expressed by the expert Mr Ebben called on behalf of the claimant who said that he would not expect water depth to vary from one visit to another, I observed that whereas the water level shown in Mr Ebben's photographs was towards the top of the rectangular and circular vents in the sidewalls of the pool, when I visited, the water barely lapped at the bottom of the rectangular vents and the circular vents that are fully submerged in all but one of Mr Ebben's photographs were completely exposed. This leads me to believe that the water level could vary by several inches between visits.

[j] There are now two elevated lifeguard chairs, each of which could clearly be seen by a swimmer emerging from the changing room traversing the 6m to the main pool and, if occupied, each occupant would have a clear view of the swimmer emerging. The furthest away was to the left of the main pool on the far side of the children's pool and was virtually facing the changing room opening, and the nearest was on the near end, right-hand side of the main pool and therefore only about 6 or 7m from the changing room exit. 

[k] Positions for two lifeguards were consistent with guidance to which I turn later, not least because when the pool is viewed as a whole, it is significantly greater than 170 square metres in area.

There is no dispute that there were no lifeguards deployed in the pool area when the accident occurred.

 

The accident

Some aspects of the evidence are not in dispute, namely:

[i] The accident occurred on the claimant's first visit to the pool.

[ii] He had been collected for work at 5.30 am that day, travelled and then worked a full day before the accident happened at about 6 pm.

[iii] At the time of the accident, the only person in any part of the pool was Mr Horsfall, and he was the only witness, it not being challenged by Mr Turner QC who appeared for the first defendant or Mr Rahman who appeared for the second and third defendants that he saw the claimant in the air and entering the water.

[iv] It was also not challenged that the claimant said in his witness statement that the pool area was still open for use by people staying at the caravan park.

[v] There were no lifeguards deployed in the pool area.

[vi] Mr Freeman did not see the accident but came into the immediate aftermath.

[vii] All three men came into the pool area having changed in the changing rooms.

[viii] Neither Mr Horsfall nor Mr Freeman had or had expressed any concerns about the safety of the pool to the claimant or given him any warnings or advice about use of it.

Paragraph 22 of the judgment summarises Mr McCarrick’s witness statement dated 23^rd August 2010:  

I remember when I went into the changing rooms that they were unisex. There were two women who were inside the cubicles getting changed ready to go into the pool. I got changed with Lee and Scott [that is Mr Horsfall and Mr Freeman]. We were ready before the two women that I had seen in the unisex changing room. Lee went over to the pool. I noticed that there was nobody else in the pool. I was talking to Scott, asking him whether the water was cold in the pool and so I did not see Lee get into the swimming pool. Scott told me that the temperature of the showers was usually the same temperature as the pool. He was stood under the shower and told me that it seemed all right. I looked at the pool and could see what looked like Lee stood at the other side of the pool, furthest away from me. At the time, Lee kept ducking up and down in the water, but the water only came up between his waist and his chest, so I thought that he must be in the shallow end. I, therefore, assumed that the end of the pool nearest to me was the deep end. I remember that there was no pool attendant in the area. There was literally nobody else about.

There seemed to be a section of the tiled floor which provided a run-up to what I thought was the deep end of the pool. If a lifeguard or pool attendant had been on duty, I believe the run-up was long enough for him or her to have stopped me from diving into what I thought was the deep end of the pool, i.e. by speaking to me or blowing their whistle. I do not remember seeing any markings around the edge of the pool. I did not see any signs or warning notices anywhere around the pool area.

I did not notice anything unusual about the pool. I did notice a smaller pool to the left side of the larger pool. I think it may have been round in shape and from memory, it seemed to be half the size of the pool that Lee was in. I assumed that it was a shallow pool for children or non-swimmers. The colour of the water nearest to me seemed darker blue than the water towards the far end of the pool, which looked a lighter blue in colour. This may have been because of the colour of the tiles on the pool floor and sides, but it strengthened my impression that I was at the deep end.

I would estimate that there was a 5m run-up, which conveyed the impression that this was a means of getting into the pool. At the edge of the pool, I jumped up and then dived into what I thought was the deep end of the pool. I remember being really shocked when I felt my head hit the bottom of the pool, which was completely unexpected. The next thing I remember is floating up to the surface. I felt as if my arms were stuck at the side of me, and I was unable to move. I was facedown in the water and was shouting, but my face was underneath the water. I then started to turn my head to try to get Lee's attention. I think I was under for about a minute and was taking in water. Eventually, I started to give up and thought that this was going to be the end of it. Fortunately, at that moment, Lee must have realised something was wrong as I heard him swimming towards me.

If I had seen any signs at the swimming pool at the Skipsea Sands Holiday Park I would have read them, and I would have obeyed them. For example, if the sign had said not to dive, I would not have dived. If one of the signs said that this was the shallow end, I would have sat at the edge of the pool and just slipped in. I certainly would not have attempted to dive into the shallow end. I would never be that stupid. My family know that I have always been a sensible lad who would never knowingly take a risk that might cause me harm.

My foreman Lee did not tell me there was a shallow end in this pool. He just got in. I did not actually see him get into the pool. I formed the opinion that the smaller pool to the left of the larger pool was the shallow pool for use by either children or non-swimmers. It was only after my accident that I was told that I had dived into water that had a depth of approximately 1m. If I had known that I would never have attempted to dive.

At paragraph 25 of the judgment, HHJ said that Mr McCarrick’s oral evidence was entirely consistent with his witness statement, but there were several amplifications not contained in his statement. He admitted that his colleagues had expressed no concerns about the pool to him. He denied that he was in high spirits, saying that he had been up since 5.30 am, had done a hard day's work and was probably quite tired.

Mr McCarrick described taking two or three steps towards the pool and then made what he called "a stuttering run", not a long sprint, before diving into the near end of the pool, approximately at the midpoint of its width where two people can be seen standing. He that he did not pause, it was a running dive, albeit a stuttering run, and that it was vertically down into the water head-first. 

At paragraph 28 of the judgment, HHJ describes how Mr McCarrick was cross-examined “properly and vigorously” on why he had asserted in his witness statement that he thought he was diving into the deep end. Firstly, he relied upon what he reported as a colour difference emanating from the uneven effect of the sidewall lighting. Secondly, he relied on his observation of Mr Horsfall towards the far end, apparently bobbing but essentially standing in the water below his armpits which coupled with his assertion that he had never been to a pool that did not have a deep end, suggested to Mr McCarrick that the near end was the deep end.

HHJ found at paragraph 30 that the claimant’s evidence was truthful and accurate for the following reasons: 

Firstly, he made a number of the sort of concessions adverse to his interests that are in my judgment an indicator of honesty and of accuracy, such as:

• That he knew that if he dived into the shallow end, he would - not might suffer injury.
• That he knew running was probably prohibited.
• That he had been running, something nobody else actually saw, although Mr Horsfall inferred it, but which he could have sought to deny.
• That he did not pause before diving.
• That it was a vertical dive.
• That he could not see the bottom where he dived, thereby calling into question whether he could be satisfied that this was deep; and.
• That he knew that if he was wrong about the near end being the deep end, he would have broken his neck and his chances of serious injury were virtually certain.

Secondly, he maintained that he could remember the day as if it was yesterday and always will, which does not surprise me.

Thirdly, he struck me as a careful, calm, and thoughtful man in all he said, answering all questions directly and not in any way being evasive or off the point. He was, in my judgment, an impressive witness.

Fourthly, while there are some inconsistencies, they were few, minor and nothing more or less than I would expect and, in my judgment, absence of such would have been more suspicious.

HHJ at paragraph 34, accepted Mr McCarrick’s evidence “in its entirety” including his assertions that he did not see or register the signage that was deployed. HHJ also accepted Mr McCarrick’s view that if he had seen any "No diving" signs, he would have obeyed them. This was the account given by Mr Horsfall, who regarded Mr McCarrick as “the sort of man the claimant was and which was not challenged in cross-examination.” HHJ accepted Mr Rahman's point that Mr McCarrick ran when he knew he should not do so, but in HHJ’s view, that does not destroy the point that he is, as I find him to be, essentially a compliant and obedient man. HHJ also found it is difficult to work out the depth of the pool simply by observing it.

The only expert evidence was from Mr Ebben called on behalf of the claimant. The risk assessment should identify and set out appropriate control measures to include suitable depth signs, "No diving" signs and deployment of supervision to manage behaviour and enforce signs. He reinforced the importance of clear and unambiguous "do not do" messages and that such messages are reinforced by staff on duty.

Mr Ebben criticised the signage stating he would expect a diving prohibition on the entry door to the changing room and in the safety guidance leaflet available to users. Mr Ebben accepted that questions like whether the "No diving" signs that were deployed could have been read by bathers on entry were a matter for the HHJ. Mr Ebben criticised the lighting, adopting the criticism made by the third defendant in his audit report. He criticised the absence of any lifeguard in the pool area and said the pool was not uncharacteristically shallow, but its shallow depths necessitated good safety signs and good lighting. Neither appears to have been present.

Mr Ebben accepted that the pool design was conventional and that its depth was not uncharacteristic. He accepted that lifeguards cannot watch all bathers all of the time, although, with respect to Mr Turner, HHJ considered that to be a bad point as had there been a lifeguard on the poolside he would have had to observe only two people.

Mr Ebben accepted that HSG179 is not of regulatory force, but Mr Turner conceded to HHJ that he would not submit that the guidance does not represent the accepted standard of behaviour for the management of pools. Mr Ebben accepted that at the time of the accident, the algorithm did not mandate the presence of a lifeguard. HHJ made the point that in making that assessment it is not just the session taking place that was relevant, it was what might have been the case. HHJ said:

The pool was open. Children might have availed themselves of the use of the children's pool. The total pool water area exceeded 170 square metres. There is some evidence that house rules for safe behaviour were not enforced because diving was known to occur. Access was not restricted to categories such as hotel residents or members, and so it is that Mr Ebben, while agreeing that at the time and in the specific circumstances of the accident the box saying that continuous supervision was not required did apply, I do not accept that as a general proposition.

Mr Ebben accepted that the design and size of the signage provided complied with the guidance and accepted that it was a matter for me as the trial judge to decide whether the signs met the requirements. Mr Turner succeeded in obtaining an admission that the rules referred to only applied to pools where diving was permitted in some areas but not in others. HHJ said he did not agree for the following reasons:

Firstly, that table is expressed only to be illustrative of hazard identification.

Secondly, if that were true, the absurd position would arise that "No diving" signs would not have to be placed in pools where no diving at all was permitted, but only in pools where diving was permitted in some areas but not in others. That cannot be correct. Item (2) is clear and peremptory in its terms, declaring that:

“No diving” signs should be placed so as to clearly indicate where diving is prohibited because of the water depth.

Mr Ebben accepted the observation of HHJ that such signs could have been hung from the steel roof supports at the front or near-end of the pool and that he had seen that done.

 

The law

Mr Turner, in a formidable and eloquent submission, starts by warning me not to conflate what he says are two separate and distinct issues, namely: whether any relevant duty of care was owed to the claimant; and whether, if there was such a duty, the first defendant or for that matter the other defendants were in breach thereof. HHJ started with the question of duty, taking care not conflate the existence of a duty and the scope of the duty.

Referring to Lord Hutton, who said:

I consider that the risk of the respondent striking his head on the bottom of the lake was not one against which the appellants might reasonably have been expected to offer him some protection, and accordingly they are not liable to him because they owed him no duty.

HHJ said that is an interesting formulation when one considers the facts as I have found them in this case. I ask, not rhetorically: what was the risk the first defendant thought it might be expected to offer protection against by the placement of "No diving" signs and the deployment of lifeguards if it was not the risk of catastrophic injury caused by striking the head on the floor of the pool?

HHJ distinguished this case from those listed in paragraphs 54-56, which included being instructed to undertake a risky activity (Fowles v Bedfordshire County Council [1995] PIQR P380) and a pool diving accident where the claimant had visited the pool before (Evans v Kosmar Villa Holidays Plc [2007] EWCA Civ 1003). Similarly, HHJ distinguished this case from Grimes where the claimant had swum about the shallow end for half an hour before diving and injuring herself; providing, in Thirlwall J’s view, ample opportunity to observe the contour of the bottom of the pool" (Grimes v Hawkins & Anor [2011] EWHC 2004). Thirlwall J also found that the pool was not of an unsafe design. In paragraph 74, Thirlwall J found that:

The fact that the claimant executed the dive diagonally indicates that she had given some thought to the matter and did not think the water was deep enough immediately in front of her. She was right about that. She sought to reduce the risk by diving into deeper water. She was an accomplished swimmer. She knew how much water she needed to dive in. In my judgment either she misjudged the dive, or she misjudged the depth of the water, or she did both.

HHJ agreed at paragraph 58 with Neill LJ’s Tomlinson v Congleton Borough Council [2004] 1 AC 46 formulation at page 12:

Decisions reached on different facts cannot be determinative on the issues of negligence and contributory negligence in the case such as the present. In each case, one has to look at the particular facts in order to decide what precautions should have been taken and, where appropriate, to assess the respective degrees of fault.

In using the word "negligence" I am satisfied that he had in mind all the ingredients of the tort, including, therefore, duty as distinct from the breach. HHJ accepted the view of Lord Hoffman in Tomlinson at paragraph 45 that:

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. Of course, the landowner may for his own reasons wish to prohibit such activities. He may think that they are a danger or inconvenience to himself or others. Or he may take a paternalist view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so.

HHJ at paragraph 61 accepted that the first defendant chose to impose conditions,  knowing that the pool was too shallow to dive into and that it was dangerous to do so and that the result of doing so could be catastrophic, HHJ also accepted that it was simple and cheap to protect against that risk by imposing conditions, (namely to prohibit diving), to warn users, (it chose to deploy signage) and to supervise them (it chose to use lifeguards). On the factual findings that I have made, the risk was not an obvious one to the claimant.

HHJ found that the first defendant had knowledge of the risk and made decisions based upon that knowledge to prevent or at least protect against the risk of diving. HHJ found there was a duty of care and concluded that its scope was to prevent or at least protect against the risk of diving. There was not a voluntary assumption of an obvious or inherent risk based on a genuine and informed choice, and there was, in the alternative, an assumption of responsibility by the first defendant. 

HHJ at paragraph 63, found breach an easy question to determine. On the facts as I have found them, the duty to warn was neither satisfied by the single "No diving" sign that could have operated on the claimant's mind but in my judgment did not (because it was too small, too far away and too poorly lit by mood lighting), nor by the nearest depth sign (because the claimant would have had to have turned his head positively to his right and seen it when there was no clear and obvious reason why he should). It would have been the simplest and cheapest thing to do to correct this state of affairs as has now been achieved by much more (now one sign outside the changing room and five in the pool area) and better-placed signage (for example hanging a sign down from the roof architecture either over the changing room exit or at the front, that is the near end, of the main pool), where, as with the sign placed on the changing room entrance door after the event, it simply could not be missed and as was advocated by their own generic risk assessment.

HHJ also said the duty to supervise was not satisfied based on the facts as he found them. The first defendant had taken the antecedent decision and incurred the expense of employing lifeguards to supervise this pool. There is evidence that lifeguards were on duty, and there is no dispute that at the relevant moment, they were not deployed. No extra expense was called for. Either deploy those employed and on duty or lock the pool door. It ill behoves someone who does decide that a precaution is necessary then to say that they are not open to criticism for not acting in accordance with that decision. 

HHJ found that those breaches were causative of injury. In my judgment, had there been adequate "No diving" signage, the claimant probably would have obeyed it and, in my judgment, that likely would have been enhanced by the supervisory presence of one or more lifeguards acting, as it would, as an inhibition against breach of what should have been a clear and unambiguous prohibition. Therefore, in my judgment, primary liability is established against the first defendant.

 

The second and third defendant

HHJ found at paragraph 69 that there was no duty or assumption of responsibility by the second and third defendants vis-à-vis the claimant either for signage or deployment of lifeguards or for the standard of lighting. The claimant’s claim against the second and third defendant therefore fails. As there is at present no contribution or indemnity claims between the defendants, I need to make no other findings.

 

Contributory negligence

HHJ stated that section 1 of the Law Reform (Contributory Negligence) Act (1945) requires a balance of the causative potency and the blameworthiness of the conduct of the claimant for the first part and the first defendant for the other in order to decide whether it is equitable to ascribe some responsibility by way of contributory negligence to the claimant. HHJ said at paragraphs 73-74:

[73] I have found that the claimant did not do enough positively to satisfy himself that he was diving into water that was deep enough to do so safely when he admits that he knew it was dangerous to dive into shallow water. In my judgment, human conduct properly mindful of one's own safety dictates precisely that it is dangerous to make assumptions, in this case, that the near end was deep, rather than enquiries and checks to question or verify the validity of assumptions. Thus, for example, an appropriately careful driver contemplating an overtaking manoeuvre does not simply ask himself whether he can see oncoming traffic but must in addition ask whether he can see enough road ahead to be satisfied that there is no oncoming traffic and if he does not do so and collides with an oncoming vehicle that was out of sight, he must expect to be adjudged blameworthy at least to a degree. The claimant in my judgment did not embark upon that second level of enquiry properly, but acted on his assumption based on the first level of enquiry alone and, therefore, must be found blameworthy.

[74] In my judgment, however, the preponderance of blameworthiness lies with the first defendant because for the reasons I have found, knowing that the pool was too shallow to dive into and that it was dangerous to do so and that the results of doing so could be catastrophic and that it was simple and cheap to protect against that risk, it chose to decide to impose conditions, namely, warn users (it chose to deploy signage) and to supervise users (it chose to use lifeguards) and then did not properly deliver those decisions, thereby exposing the claimant to a risk which on my findings was avoidable and ought to have been avoided. Therefore, that responsibility that the claimant must bear must fall below 50 percent and I am fortified in that view by a greater degree of blameworthiness found against the claimant in O'Shea which resulted in a finding of 50 percent contributory negligence.

Therefore, I have come to the conclusion that a proper finding is one of one-third. Accordingly, there will be judgment for the claimant against the first defendant for two-thirds of the full liability value of the claim, but the claim against the second and third defendants is dismissed.

 

Costs

HHJ ordered the first defendant to pay the claimant the cost of the claim against them. He also ordered the claimant to pay the second and third defendants the costs of the claim which failed against them.

 

Appeal

Two applications for permission to appeal the judgment were made at the hearing. An application by the first defendant sought to challenge how HHJ had assessed the issue of duty of care. HHJ declined to grant permission. The second application was made by the claimant, who sought to appeal on the basis that the second and third defendants owed a duty to the claimant directly, not just to the first defendant. HHJ declined to grant permission to that application. All parties had open the right to apply for permission to appeal from the Court of Appeal, but it appears that no application was made or made successfully indicating a possible resolution between the parties out of court.

 

Post-hearing

Matt Brown of Irwin Mitchell represented Mr McCarrick:

Daniel used to be a fun-loving and energetic young man who liked to go out with his friends, but he will sadly now never walk again. Swimming pools are there to be used and enjoyed, but they can be dangerous places, and all necessary precautions should be taken to ensure everyone is kept as safe as possible. We hope other pool operators learn valuable lessons from this tragic case so that no-one else is seriously hurt in accidents like this.

Mr McCarrick said:

The past five years have been so horrible, and it is hard for me to come to terms with how much my life has changed. If I had seen any ‘no-diving’ signs at Skipsea swimming pool I would have taken notice and obeyed them, it is just how I’ve been brought up. My family know that I’ve always been a sensible lad and I would never put myself at risk or do anything silly. It was only after the accident that I found out I’d dived into just one metre of water. I was so frightened. I remember feeling really shocked when I felt my head fit the bottom of the pool because it was so unexpected. I remember floating to the surface, face down and I was shouting for my friends, but I couldn’t move or feel anything. One of my workmates dragged me out of the pool and I could hear everyone talking around me calling for help. I was so frightened. When the doctors told me I would never walk again it was the hardest blow and I was devastated. I managed to tell my mum myself but the reality of it didn’t sink in for a long time after that. I am angry that the owners of Skipsea didn’t do more to protect me and that because of them I’ve ended up in a wheelchair. I hope people realise that swimming pools can be dangerous places and that leisure providers realise that they need to look after people and inform them of the dangers they may face.

 

References (5)

_{Note: I wish those affected all the best in their future. No part of this article purports to attribute blame. See our methodology page for further details of how these case summaries are constructed.} 

_{BBC (2012). Paralysed diver Daniel McCarrick receives £1m settlement. (BBC News, 12th December). Available at: https://www.bbc.co.uk/news/uk-england-manchester-20696186 accessed on 23rd September 2020.}

_{ITV News (2012). Holiday park pays compensation for pool accident. (14th December, 15:16). Available at: https://www.itv.com/news/calendar/update/2012-12-14/holiday-park-pays-compensation-for-pool-accident/ accessed on 23rd September 2020.}

_{McCarrick v Park Resorts Ltd [2012] EWHC B27 (QB) (26 October 2012) https://www.bailii.org/ew/cases/EWHC/QB/2012/B27.html 14/21}

_{McKeegan, A. (2013). £1m payout to man paralysed for life after diving into shallow swimming pool. (Manchester Evening News, 10th January, 18:14). Available at: https://www.manchestereveningnews.co.uk/news/greater-manchester-news/1m-payout-to-man-paralysed-for-life-698883 accessed on 23rd September 2020.}

_{Yorkshire Post (2012). Payout over swimming pool horror. (12th January, 06:00). Available at: https://www.yorkshirepost.co.uk/news/payout-over-swimming-pool-horror-1876290 accessed on 23rd September 2020.}

 

Citation: Jacklin, D. 2020. Case Summary: Daniel McCarrick. Water Incident Research Hub, 26 September.