Grimes v Hawkins and Frimley Park Hospital NHS Foundation Trust [2011] EWHC 2004 (QB)

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On 5 August 2006, in the early hours, Kylie Grimes, who was 18 years old, dived into a swimming pool at the home of the first defendant, David Hawkins, in Farnham, Surrey, and sustained a catastrophic spinal injury. She alleged that negligent treatment by Frimley Park Hospital aggravated her injury. The issue before the Court was whether the first defendant was liable for the claimant's injuries. 

The pool was 9 metres by 4.5 metres with a water depth ranging from 0.8 to 1.72 metres. There were no signs prohibiting diving, specifying the water depths or other markings around the pool. Mr Hawkins told the Court that he taught his daughters to dive at the pool and regularly dives there himself. There were four overhead lights and one underwater light in the pool. The pool was otherwise well-maintained and regularly cleaned. 

On the night of 4-5 August 2006, the defendant and his wife, as was their older daughter, were away for the night. They had left Miss Hawkins, aged 18, their younger daughter, at home. The defendant and his wife said Miss Hawkins could have two friends to stay with. Miss Hawkins rang later the same evening to ask if two further friends could stay, to which the defendant and his wife agreed. Miss Grimes was one of the friends invited. That same evening, the friends went to the Hog's Head Public House in Farnham with several other young men and women about the same age. Some were designated drivers, so did not drink much. The rest consumed varying amounts of alcohol. Mrs Justice Thirlwall DBE accepted that the claimant was not drunk but had drunk 3-4 glasses of wine. 

A claim was brought against the first defendant under section 2(1) of the Occupiers Liability Act (OLA) 1957 and Common Law. HHJ Thirlwall DBE found that notwithstanding the disputed factual matrix, the claimant was an invited guest at the gathering of about 20 people who arrived at the house around midnight. HHJ also found that by providing the claimant with swimwear, she invited, if not permitted, the claimant to use the swimming pool. 

The claimant's evidence was that she used the pool for about 30 minutes to swim and chat with friends. HHJ accepted that the claimant swam around the pool but did not swim in the deepest part of the pool, probably because that's where many young men were bombing. HHJ accepted that the claimant had time to notice the different water depths in the pool. HHJ also accepted that the claimant only dived in once on the occasion she sustained her injuries. 

One of the most disputed matters was the location of the dive. HHJ accepted that the claimant walked along the long side of the pool, towards the deep end, and dived mid-way along that side of the pool in a diagonal direction towards the deepest part of the pool. HHJ was satisfied that the claimant dived into an area of the pool she had previously swum. The Court found that she had intended to execute a racing dive but had entered the water at a much steeper angle. 

The Claimant's evidence was that she knew immediately she had severely injured her neck. The Claimant instructed her friends not to move her and to keep her body still. The Claimant, by most accounts, was remarkably calm, in control, and her judgement unimpaired by the effects of alcohol. HHJ found that she was transferred onto a stretcher correctly, stabilised, and taken to the hospital. 

The Claimant accepted she knew it was dangerous to dive where the water depth was unknown. She had been a competent swimmer for many years and knew how to dive. She said, quite reasonably in HHJ's view, that had she been warned of the dangers of diving, she would not have dived into the pool. 

Mr Andrew Petherick and Mrs Linda Myhill presented the Court with expert evidence on the regulation of domestic swimming pools. In short, the experts agreed there were no regulations in place for domestic swimming pools. 

Regarding liability under the OLA 1957, in paragraph 69, HHJ found that the defendant owed the claimant a common duty of care whilst she used the swimming pool. Turning to breach of duty, HHJ relied on the precedent set by Tomlinson v Congleton BC and Others [2003] UKHL 47 to find that there were no hidden or unexpected dangers in the pool. The claimant's position, therefore, cannot be distinguished from the position in Tomlinson. Consequently, her claim under the OLA 1957 failed. 

The Court then turned to liability at common law. HHJ said it would not be fair and reasonable to impose upon the defendant a duty of care to the claimant, which required him to put his pool out of bounds at night or to prohibit adults from diving into the pool. The Claimant chose to dive, when, how and where she did, knowing the risks involved, as she acknowledged on the first day of the trial. Consequently, the claim failed to establish liability against the first defendant. 

References

Grimes v Hawkins and Frimley Park Hospital NHS Foundation Trust [2011] EWHC 2004 (QB). Available at https://caselaw.nationalarchives.gov.uk/ewhc/qb/2011/2004 accessed 5 July 2023. 

Citation: Jacklin, D. 2023. Grimes v Hawkins and Frimley Park Hospital NHS Foundation Trust [2011] EWHC 2004 (QB). Water Incident Research Hub, 5 July.