Case Summary: Robert O'Shea

CASE SUMMARY

On Sunday, 3 July 1988, Mr Robert O’Shea went to the Kingfisher Leisure Pool at Kingston-upon-Thames, owned and operated by the Royal Borough of Kingston-upon-Thames (“the Council”). Mr O’Shea had never visited the Kingfisher pool before. He arrived at the pool around 11:00. The visit was to celebrate Mr O’Shea’s 28th birthday. Shortly after entering the poolside, he dived into the pool and struck his head on the bottom. He suffered a burst fracture of the vertebra in his spine and is now tetraplegic.

 

The pool

The Kingfisher leisure pool was of 1984 construction, and 400,000 visitors attended the pool in 1988 annually. Mr O’Shea approached the water from the changing room at the beach end of the pool, where the water is shallow. Once passed the beach pool, the main pool is a rectangular competitive pool. There were several distinctive differences between the Kingfisher pool:

• The beach pool and main competition pool were joined (water and pool users could move between them).
• At the far end of the main pool was a wave machine.
• The depth varied along the length of pools from 0.9 metres to 1.8 metres. Unlike a conventional pool, the water depth varied across the width of the swimming lanes as well as the length.
• There was a variable freeboard between 0.56 metres and 0.9 metres.

At any one time, the Kingfisher pool was supervised by four lifeguards, and there were pool rules displayed around the poolside. In relatively small print, which the court accepted Mr O’Shea more likely than not did not see, the sign said:

The pool is for the enjoyment of all bathers, including families and children. Please do not indulge in horseplay which can be both upsetting to others and is also dangerous. Due to the shallow nature of the pool diving is not advisable.

Lifeguard staff were also given a copy of the pool rules. The rules they were given read:

No diving in the shallow area, only in the competitive area and always advise the client to use a shallow style dive.

 

The incident (Kingfisher Leisure Pool, 3rd July 1988)

Mr O’Shea, on entering the poolside adjacent to the beach pool, swam to the far side of the main pol with his friend Mr Hope. Mr O’Shea climbed out of the pool near a ramp. the Court accepted he climbed out next to a “black on white” notice displaying a water depth of 1.3 metres.

Mr Hope then turned and dived into the pool. He told the Court that he looked into the water, made some estimate of the depth, and adjusted his entry accordingly. As he hit the water, he turned a somersault. A moment later, Mr O’Shea dived but kept both arms by his side. At trial, there was some accusation that Mr O’Shea had tried to somersault as Mr Hope had, but Mr O’Shea denied this, and the court did not make any specific finding on the matter. It appeared (to the Court of Appeal subsequently) probable that Mr O’Shea had intended to dive headfirst with his arms by his side, which he did not dispute. Mr O’Shea’s head hit the pool floor following entry.

Mr O’Shea maintained that having swum across the beach pool, he thought he was at the deep end. Mr O’Shea brought proceedings against the Council, alleging they had breached their section 2 duty under the Occupiers’ Liability Act 1957.

 

O’Shea v Royal Borough of Kingston-Upon-Thames [1993] (Unreported, High Court (first-instance decision), 30^th November, Sir Michael Davies QC)

Mr O’Shea’s case was tried before Sir Michael Davies QC in the High Court in October 1993. Mr O’Shea, represented by Mr De Navarro and Mr Snell, instructed by Barlow Lyde & Gilbert, brought proceedings against the Council which operated the Kingfisher Pool in June 1991. Mr O’Shea claimed the Council had breached its section 2 duty under the Occupiers’ Liability Act 1957. The Council, represented by Blake QC and instructed by Messrs Howell Jones, denied the allegations.

(i) Expert evidence

The claimant’s expert was Mr Sanders, an advisor on water leisure safety to the Royal Society for the Prevention of Accidents (RoSPA), editor of the RoSPA Water and Leisure periodical, and secretary of the National Water Safety Committee. Mr Sander's view was unequivocal, and diving should not have been allowed at the Kingfisher pool during unprogrammed sessions.

Mr Burne, the defendant expert, had a different view. He said:

There is nothing in the management arrangements of this pool which were apparently in force on 3 July 1988 with which I would quarrel. The geometry, signing and the general approach to good governance for the safe leisure of the public is very similar indeed to a number of other local authority and privately owned facilities with which I am familiar.

The Court was also provided with a copy of “Safety in Leisure Pools”, published in Water and Leisure in the winter of 1987/88 and “Safety in Swimming Pools”, published jointly by the Sports Council and Health and Safety Commission in March 1988. It was clear in the course of evidence at trial that from around 1980, the industry was taking steps to reduce the risks arising from diving in swimming pools. Although diving accidents are mercifully rare, where they do occur, they have the potential to be catastrophic, as in this case.

The Institute of Baths and Recreation Management (IBRM) set up a working group in January 1983, which included the RLSS UK, Sports Council, RoSPA, and the ASA with a view to publishing a joint statement. It was not until May 1989 that an agreement was reached on a joint statement, which was not published until September 1990. An important aspect of the statement was that diving should not be permitted into water less than 1.5 metres in depth.

 

(ii) The judgment of Sir Michael Davies QC

In regard to the joint statement by the industry working group in September 1990, Sir Michael Davies QC, the trial judge of the case at first instance, said [at p.26 of his judgment]:

Against that history, one has to go back and in the absence of evidence imagine responsible employees of the Defendants—and I remind myself that it is said that 400,000 people a year were using this pool—sitting down not only at the time of the installation of the pool but on an ongoing basis between 1984 and 1988 and saying, ‘What should we do? We must look at the risk if we permit diving? No doubt numerically the chances of a serious accident are small. It is not going to happen every day, every week, every year, maybe not every five years or ten years. It has not happened so far’, they could have said that in 1988.

I accept the evidence that there had been nothing of any significance happening by way of accidents before that time. ‘Yet there is a risk of catastrophic injury. We must look at the advice and weigh it all. We must consider the type of pool and the fact that people will come to the pool who are not expert divers and expert swimmers. We must consider the difficulty of supervising restricted diving’, by which I mean diving in certain parts of a pool designed in the way it was and the difficulty of supervising a change, with different rules for different parts of the pool or different times when the wave machine was or was not working.

I believe, and I am satisfied that the Plaintiff has established, that the Defendants acting as reasonable, prudent operators, if their officers had sat down, they would have said, ‘Let us look at all the advice. What shall we do? We should prohibit diving’. That is what … they should have done. They would have seen that some people perhaps less prudent had not done so—some had—and I think that they would have put up clear signs saying ‘No diving’, at the poolside and at reception.

The Defendants were negligent in all the circumstances in not prohibiting diving and in failing to instruct their lifeguards to enforce such prohibition.

I accept that Mr O’Shea did not see the signs indicating the depth of water, but it is my view that had Mr O’Shea seen a ‘No Diving’ sign he would have obeyed it. I am therefore satisfied causation has been made out.

Turning to the issue of contributory negligence, I conclude that Mr O’Shea was contributorily negligent in three respects:

(1) He failed to heed the depth of the water which was clearly marked.

(2) He dived into the pool with his hands by his side.

(3) He failed to perform a shallow water dive or a somersault or some other movement which would have prevented his head hitting the bottom of the pool.

The Judge proportioned liability equally between Mr O’Shea and the Council. Mr O’Shea appealed that decision to the Court of Appeal.

 

O’Shea v Royal Borough of Kingston-Upon-Thames [1995] P.I.Q.R. P208 (4 November, Court of Appeal, Neill, Hoffmann, and Henry L.JJ)

Neill, Hoffmann and Henry L.JJ heard the appeal. Neill LJ gave the majority judgment in the Court of Appeal on 4 November 1995. He said the following:

The case for Kingston was developed along the following lines:

(1) The judge failed to give adequate weight to the fact that in 1988 there were no published guidelines suggesting that it was unsafe for diving to be permitted where the depth of the water was 1.3m or where the freeboard was 0.56m. The only relevant recommendation in the March 1988 publication by the Health and Safety Commission and the Sports Council was concerned with diving when the wave machine was operating. I should refer to the following recommendation:

Diving, while the wave machine is operating, is dangerous and should not be allowed.

(2) The judge attached undue importance to the unsigned article in the 1987/1988 issue of Water and Leisure:

(a) Reference was made to the note on page 10 of that publication (p.252): 

NB: Leisure pools rarely provide safe diving conditions and therefore it may be necessary to prohibit poolside diving at all times.

Counsel for Kingston stressed that the word used was “may”. 

(b) He pointed out that the recommendation emanated from a body (RoSPA) which at that time was advocating a minimum diving depth of 2m which was completely out of line with the majority opinion and indeed exceeded by 0.5m the 1990 standard.  

(c) He also pointed out that it conflicted with the recommendation made in the March 1988 publication which was distributed a few months later.

(3) The judge failed to give due weight to the practice in the industry and in particular to the fact that in the only comparable leisure pool about which there was information (the pool at White City) there was no ban on diving.

(4) The judge failed to give sufficient weight to the fact that there had been no previous accidents at the Kingfisher Pool or to the fact that the number of accidents in the industry generally was very low. It had been estimated that of the 20 million persons who used swimming-pools in the course of a year, 25 per cent made entry dives from the poolside. The statistics for diving accidents therefore suggested that the occurrence of accidents was about one in a million dives.

(5) The judge was wrong to place reliance on the supposed difficulty of prohibiting diving only when the wave machine was in operation. There was no evidence to this effect.

(6) In the circumstances Kingston had not been in breach of any statutory or other duty.

(7) Furthermore, it was not foreseeable that Mr O'Shea or any other user of the pool would dive into the pool with his arms by his side where the depth of the water was shown to be only 1.3m.

(8) The cause of the accident, as Mr Burne made clear, was the manner in which Mr O'Shea dived into the water. Mr O'Shea acted with reckless disregard of his own safety and knew or ought to have known the risk he was running. He ignored the sign on the side of the pool showing the depth and it was probable that, even if there had been a “No Diving” sign, he would have ignored it.

(9) The approach of Carswell J. in the Maguire case was the correct approach. Alternatively, even if Kingston was at fault, Kingston's responsibility was very small and much less than that of the defendants in Gerak.

The arguments on behalf of Kingston are formidable, but in the end, I feel bound to reject them. Kingston knew that diving was inadvisable; their rules said so. In addition, the instructions to the staff made clear that there were areas where diving was unsafe and types of dive that were unsafe and which should be prevented.

I should refer to the evidence of Mr McCrimmon (the senior lifeguard on duty that day). In cross-examination on 14 October 1993, he was asked:

Q: Did you know that there was a policy that diving was inadvisable? I imagine the inference from that is that it should be discouraged.

A: No I did not know that.

Q: Had you known it, of course, you would have operated it?

A: It would have meant no diving at all would it not?

Later in the transcript, Mr McCrimmon said that there were no practical means by which a lifeguard could tell each client only to do shallow diving. HHJ said: 

Having been referred to the evidence of the lifeguards and the instructions which were given to the staff, I do not see how the lifeguards could have prevented a swimmer diving in an unsafe area or making an inappropriate dive if there were no signs designating the unsafe areas or telling swimmers that only shallow dives were allowed. It is to be noted that in the accident report which was prepared after Mr O'Shea was injured, it was recorded that the accident happened in a shallow area.

In the circumstances, I am satisfied that there was more than enough material on which the judge could conclude that the only safe system was to prohibit diving altogether. This was an uncontrolled session, and, although the lifeguards could exercise some control, they could not anticipate how someone at the edge of the pool was going to get into the water or whether he was competent to dive in.

It was said that a ban on diving would have been an undue restriction on the freedom of those who came to the baths. But if the restriction had been imposed in, say, 1985, it would merely have anticipated the 1990 recommendations. I reiterate that the ban with which we are concerned is one that would have been applied in uncontrolled sessions and which might have been removed or modified if organised racing had been taking place or a swimmer was being taught by a qualified instructor.

I would uphold the judge's decision on liability. I have been more troubled by the judge's apportionment of responsibility. Mr O'Shea did not check the depth before he dived. He failed to notice the sign showing the depth was 1.3 metres although he emerged from the water before he dived at a point immediately adjacent to the sign. On any view of the matter, the dive he performed was ill-advised. But Mr O'Shea said that having swum across the pool, he thought that he was at the deep end. He had not been to the pool before and the pool was unconventional in its configuration.

It is to be noted that the suggestion of horseplay was not pursued and the judge, having seen Mr O'Shea in the witness box, was satisfied that he would have obeyed any “No Dive” sign. Mr O'Shea clearly acted very foolishly but the evidence does not show that he was taking a deliberately calculated risk.

I have given careful consideration to the arguments which Mr Navarro presented very attractively and to such guidance as one can obtain from other cases where divers have been injured in not dissimilar circumstances. I have come to the conclusion, however, that I cannot say that the judge's apportionment was demonstrably incorrect.

I would dismiss the appeal. Hoffmann LJ agreed.

 

References (1)

_{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.} 

_{O’Shea v Royal Borough of Kingston-Upon-Thames [1995] P.I.Q.R. P208}

 

Citation: Jacklin, D. 2021. Case Summary: Robert O'Shea. Water Incident Research Hub, 8 January.