England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY

		Claim No. 0MA91105 1 Bridge Street West Manchester M60 9DJ
		26th October 2012

1. THE JUDGE: There is no dispute that on 26^th November 2007 the claimant then aged 20, having been born on 3^rd September 1987, now therefore 25, dived into the shallow end of the swimming pool at Skipsea Holiday Park, Lincolnshire and sustained injuries in respect of which he seeks compensation from the defendants. Liability is denied.
2. The first defendant is the owner and runs the holiday park and, as such, is the occupier within the meaning of the Occupiers' Liability Act 1957. The second defendant was the first defendant's health and safety consultant for the purpose of purchase of the park as a going concern. The third defendant was an employee of the second defendant who, acting in the course of his employment, carried out an initial evaluation audit of the premises, including the swimming pool area, and therefore carried out the second defendant's role on its behalf on 25^th October 2007.
3. The claim is for damages for serious spinal injuries as a result of which the complainant has complete motor and sensory paralysis below C5 level causing complete tetraplegia. The claimant's case is that from the surrounding circumstances and the alleged absence of any clearly visible signs which either prohibited diving or indicated that the water was in fact shallow at this point, he believed it was the deep end. However, unbeknown to him and in contrast to other pools he had dived into, this pool had no deep end as such. At its deepest, it was 1.5m deep and at the point where he dived, it was in fact only 1m deep.
4. Liability is being tried as a preliminary issue. There are factual disputes surrounding the precise circumstances in which the accident occurred.
5. The defendant's case quite simply is that the pool was reasonably safe and there was no hidden hazard. The tragic consequences are simply the result of the claimant's own voluntary decision to dive into an unfamiliar pool when it is alleged that he made no attempt to ascertain the depth of the pool and, therefore, when it was manifestly unsafe to do so. He is unable to pass on responsibility for his actions in such circumstances to some alleged breach of duty on the part of any of the defendants.
6. Apart from the factual disputes, the first defendant's pleaded case is that, and I quote from paragraph 2:

"The claimant's status as a visitor to the park is admitted save that such status did not give rise to any duty of care on the part of the defendant in respect of guarding the claimant against the obvious risk of diving into water before checking it is deep enough. Without prejudice to the generality of the aforesaid, the defendant relies inter alia upon the following authorities."

And the cases of Tomlinson, Ratcliff and Evans to which I will refer later in this judgment were cited with references.

7. The second and third defendants contend that they were not occupiers of the pool and retained no control over the day-to-day management or supervision of the pool or issues relating to lifeguards. They assumed a responsibility only to the first defendant to carry out an initial audit of the premises which does not carry with it a separate duty of care owed to the claimant or other users of the pool.

The pool and physical circumstances

8. There are many photographs of the pool and I was taken on a site visit on 24^th October 2012 after I had heard all of the evidence. There is neither a measured nor scale plan, but a sketch plan was produced at the site visit. It is difficult to do justice to visual images by words.
9. Entry to the complex is via a reception area and, viewed from the perspective of the visitor, the door to the changing area is to the right. There is no dispute that prior to the accident there was no relevant signage on that door and that two days at most after the accident the first defendant placed a sign, seen on trial bundle page 53 and also page 266, that contained the appropriate "No head first diving" logo and in white letters on a red background stated "No diving". The allegation in "Further information" (trial bundle page 46), not challenged in the evidence, is that the sign measured 15.5 inches in height and 11.5 inches in width. It is alleged to be plain, obvious and unavoidable.
10. There appears to be no dispute, although it was not really dealt with in the oral evidence, that there was available, presumably at reception, the first defendant's safety guide. There is no evidence that the claimant was either given it or asked for it, but there is no dispute that it did not contain reference to a prohibition of diving.
11. On entry to the changing rooms, the visitor was faced with the end of two back-to-back rows of lockers which occupied central ground in the floor area. The first defendant alleged that on that end was a sign that appears at trial bundle page 502 containing a prohibition of six activities that included running, but did not include diving. They called no evidence to substantiate that or any other allegation in this case. The claimant told me in cross-examination that he did not see this sign. His work colleague Mr Freeman in his witness statement at trial bundle page 104, paragraph 6, said he noticed a sign, but does not identify whether it was this one. In cross-examination, he told me he cannot remember whether there was a sign immediately on entry. The claimant's other work colleague Mr Horsfall says nothing about this sign in his witness statement, but in cross-examination he told me that he cannot recall seeing it before, believing instead that there was a sign on the right-hand wall of the changing rooms. Broadly acceptant as I am for the reasons stated later in this judgment of the evidence of all three men, I have grave doubts and therefore do not accept on a balance of probability that a sign shown on page 502 was displayed on the night of the accident. I noted on my visit that no such sign was displayed then either.
12. At what I could describe as the distant end of the changing room were at least two sets of showers. Nearer what could be called the main part of the changing area were those shown in trial bundle page 55, which incidentally may show the sign Mr Horsfall was referring to as it appears to the right, and the distant view on the left of the photograph is the pool area. Just before one emerges into the pool area on the right is an entry point to the other showers, also shown at trial bundle page 268.
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.
15. 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.
16. 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.
19. Although at first ambivalent about the need for a visit, in fact I found the visit valuable and I make the following findings from my observations.

(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 (trial bundle page 223, item 24).

(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 side walls of the pool (see for example the far wall in the lower photograph on page 262) 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. They can both be seen in a single photograph at trial bundle page 261.

(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.

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

The accident

21. This aspect turns on what witness evidence I accept and there are inconsistencies within the limited body of evidence I heard. Some aspects, however, 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 5.30am that day, travelled and then worked a full day before the accident happened at about 6pm.

(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 at trial bundle page 91, paragraph 12, 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.

22. The claimant in his witness statement dated 23^rd August 2010 said this:

"12. 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.

13. There seemed to be a section of 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.

14. 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 in the pool floor and sides, but it strengthened my impression that I was at the deep end.

15 ...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."

23. He later added at 28:

"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.

29. 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 the depth of approximately 1m. If I had known that, I would never have attempted to dive."

24. In his oral evidence, his account was entirely consistent with what he had said in 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 5.30am, had done a hard day's work and was probably quite tired. He denied shouting or being noisy, although he admitted that there was some banter such as would occur between friends. He denied having a shower in the changing room, in contrast to Mr Freeman whose witness statement said he did (trial bundle page 106, paragraph 15) which he confirmed to Mr Turner in cross-examination. He told me that he stood at the entrance talking to Mr Freeman while the latter was having his shower, asking him about the temperature of the pool and being told that it was the same as the shower. The conversation was neither reported by Mr Freeman in his witness statement, although he did say to Mr Turner in cross-examination that he chatted with the claimant briefly while he (that is Mr Freeman) was having a shower, and he confirmed to Mr Rahman that he had not said so in his statement. Mr Freeman's evidence on this point was not consistent, in that in cross-examination by Mr Rahman he said at one point that he had "quite possibly had a conversation" with the claimant and later that he could not recall the claimant standing and talking to him, but in my judgment that undermines the credibility of Mr Freeman as a witness, not the claimant, which is of little moment because he did not see the dive or the steps that led up to it.
25. The claimant did not say and was not asked whether he stood just inside or outside the boundary wall between the shower and the pool area, although in my judgment logically he would have been just inside. One does not normally talk through or round walls and, therefore, the nearest depth sign would not have been visible to him at that point. He told me that he was looking at the pool and Mr Freeman and back and forth, which again suggests he was just inside the wall.
26. The claimant told me that he took two or three steps towards the pool and then made what he called "a stuttering run", not a long sprint, and then dived into the near end of the pool, approximately at the midpoint of its width where two people can be seen standing in the photograph at trial bundle page 262. He accepted to Mr Turner 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. To Mr Rahman he said it was not a sprint but rather a quick walk. Mr Rahman also made the point that Mr Ebben's reported understanding that the claimant was running was not corrected before service of his report on behalf of the claimant. The claimant admitted to Mr Turner that he knew that if he dived into the shallow end, he would suffer injury, and to Mr Rahman that he knew that running was probably not allowed and generally was not allowed. He denied seeing 'no running' signs and, in particular, he denied seeing the signs shown in the photograph at trial bundle page 502 which Mr Horsfall also denied seeing, but which Mr Freeman said he saw on his third visit.
27. He, that is the claimant, could see that there were no lifeguards but because he was an adult and a confident swimmer who had been to pools before he was not concerned that it was unsafe for there to be no lifeguard. He estimated the distance from changing room exit to pool edge at 5m, which, as I have already said, from my own observation was remarkably accurate, the actual distance being about 6m. He would therefore have had about eight steps to cover the distance and he told me that he took two or three as a walk before the stuttering run, which would have been only five or six steps.
28. He 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, which belief was not accepted by any of the defendants. Firstly, he relied upon what he reported as a colour difference, which he said, and I agree, the photographs do not show, but which I observed on my visit as 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 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, he said, that the near end was the deep end and so, he said, he was as sure as he could be of that.
29. Mr Turner tried to make much of the variations in account about the water level on Mr Horsfall because the claimant said in his witness statement, "Between his waist and his chest" (trial bundle page 91, paragraph 12), whereas in cross-examination he said below his armpit level, while Mr Horsfall had said in his witness statement ,"Up to the top of my chest" (trial bundle page 115, paragraph 19) and in cross-examination he said just above nipple height. Mr Turner sought to say that 1.5m would have come up to his neck and therefore that these estimates were inaccurate, but in my judgment, firstly, I have no evidence that Mr Horsfall was so far towards the far end that he was in fact in the full 1.5m depth; and, secondly, I have already expressed my observation about differentials in water level which together would explain what Mr Turner sought to demonstrate to be a significant factual anomaly. The claimant also relied on the fact, as I have already indicated, that he asserted it had never been his experience to encounter a pool without a deep end.
30. The amplifications and occasional inconsistencies were highlighted in cross-examination by Mr Turner and Mr Rahman for the purpose of suggesting that the claimant was an unreliable witness, although Mr Rahman made it quite plain in closing that he accepted entirely the claimant's honesty and integrity. He submitted that the line has been blurred between recall of the events and ex post facto reconstruction to understand why or how the events occurred. However, in my judgment a number of factors point to the opposite direction and give me confidence that I can accept the claimant as truthful and accurate. 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:

(i) That he knew that if he dived into the shallow end, he would - not might suffer injury.

(ii) That he knew running was probably prohibited.

(iii) That he had been running, something nobody else actually saw, although Mr Horsfall inferred it, but which he could have sought to deny.

(iv) That he did not pause before diving.

(v) That it was a vertical dive.

(vi) That he could not see the bottom where he dived, thereby calling into question whether he could be satisfied that this was deep; and.

(vii) 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.

31. Secondly, he maintained that he could remember the day as if it was yesterday and always will, which does not surprise me.
32. 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.
33. 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.
34. I accept his evidence in its entirety. I therefore also accept his assertions that he did not see or therefore register the signage that was deployed, that if he had seen any "No diving" signs, he would have obeyed them, which was the experience of Mr Horsfall of the sort of man the claimant was and which was not challenged in cross-examination, although I accept Mr Rahman's point that he ran when he knew he should not do so, but in my judgment that does not destroy the point that he is, as I find him to be, essentially a compliant and obedient man. I accept that subjectively, he believed he was diving into the deep end. Otherwise, he would not have done so.
35. There are other aspects of the factual evidence that I also accept because they are consistent with my observations and the findings I have already announced. Thus, I agree with Mr Freeman that it is quite difficult to work out the depth of the pool simply by observing it, as opposed to the signage concerning its depth, something repeated by Mr Horsfall in cross-examination to Mr Turner. I accept Mr Horsfall's evidence that the depth of the pool varied, for that was my observation comparing the photographs with what I saw on my visit. I accept Mr Horsfall's evidence that it was very hard in the lighting at the time of the accident to read the signs at the far end of the pool.
36. Mr Horsfall in my judgment is essentially an independent witness. He was a work colleague only (see trial bundle page 114, paragraph 15) rather than a personal friend. He too in my judgment was an impressive witness and he essentially corroborated the claimant's account of both the event and the circumstances. I also therefore accept his account of his completion of the contemporaneous report form at trial bundle page 498 and, in particular, his view that there was enough stress in the area at the time, as he put it, which he did not want to add to by saying any more on the form. In any event, his lay opinion on the form to the effect that the cause was "Neglect (dived in pool)" does not bind me in respect of what is essentially a matter for me to decide.
37. It is material that I should add that there can be no dispute that there were two lifeguards on duty at the material time, but not in the pool area. Firstly, that is asserted by Mr Ashton (trial bundle page 152, paragraph 2) in a witness statement served by the first defendant which the claimant was entitled to and put in evidence pursuant to CPR Part 32.5(5), even though the maker was not called by the party serving the statement. It is also to be inferred from the conversations reported by both the claimant and Mr Horsfall to have occurred in the immediate aftermath, which conversations I accept to have occurred since I essentially accept their witness evidence for the reasons already given, and one of the signatories on the accident report form at trial bundle page 498 is described as "Lifeguard".

Expert evidence

38. The only expert evidence in this case came from Mr Ebben called on behalf of the claimant. He is a leading expert in pool safety, as appears from his impressive narrative career history (trial bundle page 235 to 236) and also from the fact that he was one of the authors of HSG179. He provided two reports and gave oral evidence. His unchallenged assertions in his first report included at paragraph 5.2.11 that diving into any water is a hazardous activity that requires risk assessment and that that has been known since the mid 1980s by reference to a number of documents cited by him and by Mr Silvester in opening which he appended to his report, by reference to which, he said:

"Any of these would have indicated that it [that is this pool] was not suitable for a dive entry at any point."

39. In his report, he opined that where the dimensions of the pool preclude diving in all or any part. The risk assessment should identify that and set out appropriate control measures to include suitable depth signs, "No diving" signs and deployment of supervision to manage behaviour and enforce signs (paragraph 5.3.1). He opined as to the value of clear and unambiguous "do not do" messages (paragraph 5.3.7) and that such messages are reinforced by staff on duty (paragraph 5.3.8). He says this is because of the ability to intervene, but in my judgment, it would also operate as an inhibitor of breach of message as well.
40. He criticised the signage. He would have expected a diving prohibition on the entry door to the changing room (paragraph 5.3.14) and in the safety guidance leaflet available to users (5.3.15). Although as one would expect of a CPR Part 35 compliant expert, he deferred to my fact finding role on questions like whether the "No diving" signs that were deployed could have been read by bathers on entry (see paragraphs 5.3.5, 12 and 13), he criticised the lighting, adopting the criticism that had been made of it by the third defendant in his audit (paragraph 5.3.5). He criticised the absence of any lifeguard in the pool area (paragraphs 5.4.7 and 8). He concluded by saying:

"The pool was not uncharacteristically shallow, but its shallow depths necessitated [my emphasis] good safety signs and good lighting. Neither appears to have been present." (paragraph 5.6.7)

41. In cross-examination, he accepted that the design of this pool was typical, conventional and that its depth was not uncharacteristic and the use of mosaic tiles, though not common, was done. He accepted that lifeguards cannot watch all bathers all of the time, although with respect to Mr Turner, I consider that to be a bad point in the context that on this occasion, had there been a lifeguard, he would have had to observe only two people.
42. Mr Turner in cross-examination made the point accepted by Mr Ebben that the guidance as to lifeguards at trial bundle page 1121, (and therefore 1120, paragraphs 186 and 187, from which the algorithm at 1121 is derived), is not of regulatory force, but Mr Turner also conceded to me that he would not submit that the guidance does not represent the accepted standard of behaviour for the management of pools. The furthest therefore that one could go with this was to say that if a risk assessment was properly done, one could depart from or deviate from the guidance in an appropriate case. When cross-examined through the detail of the algorithm, Mr Ebben accepted that as at the time of the accident, the answers to the questions posed did not mandate the presence of a lifeguard, but again in my judgment that is a bad point because the relevant way to test this is not by reference to what was in fact the case at the relevant time, but what might have been the case. The pool was open. Children might have availed themselves of the use of the children's pool. The pool water area was therefore in excess of 170 square metres. There is some evidence that house rules for safe behaviour were not enforced because diving was known to occur (see the statement of Mr Ashton at trial bundle page 153, paragraph 12). 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, would not accept that as a general proposition.
43. Cross-examined as to the signage, he 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 trial bundle, page 106, column 3, item (2) only applied to pools where diving was permitted in some areas but not in others. I do not agree. Firstly, that table is expressed only to be illustrative of hazard identification (see trial bundle page 1088, narrative description, heading "The table"). 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 my observation 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.

Other documentary evidence and guidance

44. I have already referred to HSG179 and its conceded status. I note the following paragraphs: 2:

"The booklet provides guidance for those who have any involvement with the operation and management of health and safety in swimming pools, primarily: pool owners, including Local Authority clients; pool operators, including managing contractors; architects; engineers; designers; manufacturers; and constructors. Aspects of this guidance will also apply to pool hirers. Its aim is to provide guidance on the risks associated with swimming pool operation and the precautions which may be taken to help achieve a safer environment for people who use swimming pools and employees who work at them."

9:

"The term 'so far as is reasonably practicable' appears often in this guidance and means that the degree of risk in a particular job or workplace needs to be balanced against the time, trouble, cost, benefit and physical difficulty of taking measures to avoid or reduce the risk. However, it should not be used as an excuse to avoid taking safety measures and, if unsure, you should err on the side of caution."

66:

"Pool operators will need to...

Ensure that signs are located in appropriate positions and unobstructed, for example by equipment/plant etc..."

131:

"All pools require some measure of supervision, but arrangements for each location must be determined by risk assessment. The risk assessment that is undertaken at a swimming pool will need to include not only the physical hazards, but also those hazards relating to swimmers and swimming related activities. When pool operators assess the need for supervision, they will need to consider local circumstances, the pool's structure and equipment, the way the pool is used and the characteristics of those who may use it."

132:

"In order to plan for safe procedures, pool operators will need to have an appreciation of the main hazards and risks to users. The following hazards/risks have been factors in past deaths or serious injuries."

And then a series of bullet-points are listed. They are:

"(i) Inadequate or inappropriate supervision...

(vii) Diving into insufficient depth of water leading to concussion or injury to head or spine...

(x) Absence of or inadequate response by lifeguards in any emergency."

135:

"Safe operation of pools generally requires the deployment of lifeguards. It is the responsibility of the pool operator to ensure that they are sufficient in number, adequately trained, effectively organised and diligent in their duties. This responsibility includes assessing whether hirers of pools have made effective and safe arrangements for supervision."

137:

"Any pool will be safer if bathers are aware of potential hazards and act responsibly. As far as is reasonably practicable, the hazards should be brought to bathers' attention as soon as possible. This can be achieved in a variety of ways, such as:

(i) Notices displayed at reception, in changing areas and on the poolside.

(ii) A leaflet handed to bathers as they arrive and to those in charge of organised groups including school parties...

(iv) Oral reminders where necessary by lifeguards."

139:

"Constant poolside supervision by lifeguards provides the best assurance of pool users' safety. Lifeguard training should include knowledge of pool supervision and supervision skills and practical skills in scanning and observation. Effective supervision requires high levels of concentration and attentiveness and the length of duty spells on the poolside is one important factor affecting lifeguards."

186:

"Constant poolside supervision by lifeguards provides the best assurance of pool users' safety. Risk assessment may determine circumstances where the balance of cost and risk makes it possible to provide a safe swimming environment without constant supervision, but before deciding this, pool operators should carefully consider relevant characteristics such as the nature of pool; the pool users; activities in the pool at any particular time."

187:

"A risk assessment must be undertaken to decide whether constant poolside supervision is required. If the pool meets one or more criteria from the following list, it is strongly recommended that constant poolside supervision is provided."

Then there are a series of bullet-points:

"The pool has water deeper than 1.5m.

The pool water area is greater than 170 square metres.

Diving from the poolside is allowed.

There is poolside equipment or a feature posing additional risk.

There are abrupt changes in depth."

219:

"In pools with a water depth of less than 1.5m, all headfirst entries and diving should be prohibited during unprogrammed sessions."

45. The first defendant's risk assessment, to be contrasted with that generality and also with the facts I have found, is to be found starting at trial bundle page 352 and the relevant addition is dated June 2006. At page 354 it states:

"Park Resorts have an obligation to provide a safe environment for both our staff and guests. Nowhere is this more important than in our swimming pools... We will take steps to ensure that our statutory duties are met in respect of matters relating to health and safety and [my emphasis] that every swimming pool is run to the highest standard."

46. At page 371 they identified that large size pool users' information signage should be displayed at the pool entrance before any changing rooms. The "No diving" prohibition was not so displayed until after the accident in this case.
47. Page 373 identified that where depth posed the risk of possible spinal injury from diving, the control required was "No diving" signage. It also identified by reference to pool size that lifeguards numbers were to be assessed "for maximum usage". In other words, on my construction, by reference to the numbers who could use the pool, not necessarily simply the number using it at any given moment.
48. Page 374 cites as a generic example that diving may be strictly forbidden where the pool is too shallow for this activity, a decision that had plainly been taken by the first defendant as regards this pool before the accident occurred.

The submissions

49. 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. I therefore start with the question of duty, but in doing so I warn myself for reasons the relevance of which will emerge later in this judgment that, in analysing duty, I must also not conflate two distinct aspects, namely: the existence of a duty and the scope of the duty.
50. Mr Turner began by relying on the decision of Coulson J in Geary v JD Wetherspoon Plc [2011] EWHC 1506 where it was submitted on behalf of the defendant that the claimant voluntarily assumed the obvious risk inherent in sliding down open banisters which on the far side had a long drop to the marble floor below. In consequence, the defendant maintained that it can have no liability in law to the claimant whether as alleged or at all. Relying on the decisions of the House of Lords in Tomlinson v Congleton Borough Council [2004] 1 AC 46 and the Court of Appeal in Trustees of the Portsmouth Youth Activities Committee v Poppleton [2008] EWCA Civ 646, what I find to be the ratio of his decision is to be found in paragraph 46 that:

"In the light of the claimant's candid evidence about the obvious risk that she ran, it seems to me that the principle of voluntary assumption of risk, set out in the cases noted above, is fatal to her claim. The claimant freely chose to do something which she knew to be dangerous. Because of the conversations about 'Mary Poppins', there was even a degree of pre-planning. She knew that sliding down the banisters was not permitted, but she chose to do it anyway [my emphasis]. She was therefore the author of her own misfortune. The defendant owed no duty to protect her from such an obvious and inherent risk. She made a genuine and informed choice and the risk that she chose to run materialised with tragic consequences."

Mr Turner submits and I agree that once that position is arrived at, the only way a claimant can escape is if and to the extent that he or she establishes that the defendant has assumed a responsibility to the claimant and Mr Silvester who appears for the claimant submits that the first defendant did assume such a responsibility in this case. Thus Mr Turner submits that the reasoning appropriate in this case is on all fours with that in Geary, such that I should be driven to conclude that there was no liability.

51. With respect to the argument, I do not agree that the matter is as simple as he states. It begs the question of whether that position should be arrived at, a question to which I turn later. But if it was, and if Coulson J was correct that two questions therefore arise in Geary, (first, was there voluntary assumption of risk by the claimant; and, second, if there was can the claimant establish assumption of responsibility by the defendant), that is not the same approach as adopted by the House of Lords in Tomlinson, which was not a volenti non fit injuria case but a duty case.
52. Thus, as appears from the speech of Lord Hoffman in an otherwise conventional approach, the court starting from the point that the claimant was a trespasser, considered, first, knowledge or foresight of danger and of the presence of the trespasser, (a status conceded - see paragraph 8) and then asked whether it was reasonable for him to expect protection, then balanced risk against gravity of injury and cost of avoidance and social value and the House did not come to a conclusion that there was a voluntary assumption of risk by the claimant, but instead came to the conclusion that there was no duty. Thus at paragraph 46 Lord Hoffman said:

"A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice..."

He had said earlier at paragraph 4 that:

"It [that is the claimant's conduct] came nowhere near the stupidity of Luke Ratcliff, a student who climbed a fence at 2.30am on a December morning to take a running dive into the shallow end of a swimming pool (see Ratcliff v McConnell [1999] 1 WLR 670) or John Donoghue, who dived into Folkestone Harbour from a slipway at midnight on 27 December after an evening in the pub."

It is also in my judgment noteworthy that trespassers such as the claimant realised that (paragraph 7 of Lord Hoffman's speech):

"Notices had been erected at the entrance and elsewhere saying 'Dangerous Water. No Swimming'."

53. Lord Hutton asked the question in a rather different way at paragraph 65 where he 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."

That is an interesting formulation when one considers the facts as I have found them in this case because, 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?

54. Many other authorities were cited to me in argument and I can deal with them quite shortly. Firstly, I agree that Fowles v Bedfordshire County Council [1995] PIQR P380 does not really assist the claimant because that was a case in which the risky activity embarked upon was under instruction and therefore the context of the observation that there existed a duty to protect against obvious risks was materially different. Nobody was teaching the claimant to dive in this case.
55. I also agree that Evans v Kosmar Villa Holidays Plc [2007] EWCA Civ 1003 does not assist the defendants because despite the superficial attractiveness of the point of similarity that the occupier had placed two small "No diving signs" in a pool, the depth of which throughout was unsuitable for diving (see paragraphs 6 and 7) that claimant had used the pool before (paragraph 8) and the trial judge had found:

"Objectively, he knew that diving in here [my emphasis] was unwise and potentially dangerous." (paragraph 14, finding derived from judgment paragraph 42,(6))

It is not surprising therefore that Richards LJ should hold (see paragraph 28) that:

"The evidence shows that he knew of the risk and was able to assess it for himself. He took a deliberate decision to dive in. Kosmar was under no duty to warn him against such a course or to take other measures to prevent it."

Furthermore, he added:

"The risk in this case remained an obvious one of which the claimant himself was previously aware and should have been aware at the moment he dived. The fact that at that moment he acted thoughtlessly, in a brief state of inadvertence, is not a good reason for holding Kosmar to have been under a duty that it would not otherwise have owed him." (paragraph 42)

56. Similarly, in my judgment, Grimes v Hawkins & Anor [2011] EWHC 2004 does not help the defendants. Thirlwall J found as relevant facts that the claimant had swum about the shallow end of that pool for half an hour (paragraph 32) and, therefore, had "plenty of opportunity to observe the contour of the bottom of the pool" (paragraph 33), such that she found critically in my judgment at paragraph 74 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."

57. She also held that the pool was not unsafe for diving (paragraph 85), whereas there is no dispute that in this case the pool was unsafe for diving and the first defendant knew that to be the case. I agree with Mr Turner that her - that is Thirlwall J's - later reference to the earlier decision in O'Shea v Royal Borough of Kingston Upon Thames [1995] PIQR 1 was neither necessary nor helpful because in that case the existence of a duty was never argued as it later was in Tomlinson and were that case to arise today in the light of Tomlinson, it may have been open to the court - I put it no higher than that - to find no duty again because the claimant knew the pool was shallow and there was an implicitly clear enough sign as to depth where he climbed out and then dived back in (see page 210, internal page 6 of the judgment).
58. The point in my judgment of Neill LJ with which I respectfully agree and adopt is that:

"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." (see page 213, internal page 12 of the judgment)

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 breach.

59. I do not accept that Poppleton assists the first defendant as Mr Turner submits. May LJ held in what I take to be the ratio at paragraph 18 that:

"The risk of falling from the wall was plainly obvious. The judge held in effect that the risk that the matting might not in every case protect a climber who fell from serious injury was not obvious. But I do not consider that this finding is sustainable, not least in the light of Mr Poppleton's own evidence. Evidence apart, it is to my mind quite obvious that no amount of matting will avoid absolutely the risk of possibly severe injury from an awkward fall and that the possibility of an awkward fall is an obvious and inherent risk of this kind of climbing. Mr Poppleton's evidence was that he did not think it was that risky, indicating that he knew that there was a risk."

Thus May LJ found, that the only factual basis upon which the trial judge had based his finding was not justified or sustainable because it had been contradicted by the claimant's own testimony. Again, that can only be regarded as a decision on its own facts and not as authority for any proposition in law.

60. In my judgment what emerges is as follows. I accept, as Lord Hoffman observed 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 be 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."

Conclusion: First defendant

61. The first defendant in this case 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 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 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 in this pool in these circumstances: a fact specific finding.
62. In my judgment, the first defendant having the knowledge that it had and having made the decisions that it made based upon that knowledge, it is then illogical to say that on those findings there was no duty to prevent or at least protect against the risk of diving. Otherwise, what is the point of the knowledge and the decisions? It cannot be said in my judgment that there was no duty. Therefore, it is a question of what was the scope of that duty. It is only if and to the extent that the defendants establish that there was a danger inherent in the activity that either the claimant had actual knowledge of or was so obvious that he ought to have had or, alternatively, there was a risk that he consented to run, making what Richards LJ described in Evans as "a genuine and informed choice" or Coulson J described in Geary as a voluntary assumption of an obvious and inherent risk, that a defendant may be able to exculpate himself and then only subject to the claimant establishing, if he or she can, that there was nonetheless an assumption of responsibility by the defendant. Thus I conclude that there was a duty and 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, as there would have to have been, a genuine and informed choice and there was, in the alternative, an assumption of responsibility.
63. In my judgment, breach is then an easy question to determine. Having been under the duty that I have found, did the first defendant discharge that duty? 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 much 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 (see page 371).
64. Again, on the facts as I have found them, the duty to supervise was not satisfied. The first defendant had taken the antecedent decision and incurred the expense of employing lifeguards to supervise this pool. There may have been some debate about whether that was necessary or about the extent to which it was necessary, but neither are relevant to the decision I am faced with. They decided what they did and then did not deliver it. 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.
65. Were those breaches causative of injury? On my findings, they were. In my judgment, had there been adequate "No diving" signage, the claimant probably would have obeyed it and in my judgment that likelihood 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.

Conclusion: Second and third defendants

66. In my judgment the position of the second and third defendants is different. It was not their pool. It was not their decision about signage. It was not their decision about lifeguard deployment. It was not their decision about illumination. They did not invite visitors like the claimant. They did not seek to exert any control over the activity of visitors.
67. Mr Silvester puts it on the basis that their liability was an analogous to what he called "professional liability" but, with respect, that begs and then misses the question of whether a duty was owed in the first place. In so-called professional liability cases, there is an arguable duty because of the professional relationship between the claimant and the professional and to talk of professional liability asks what can be called the breach question, namely: whether the standard of conduct of the professional fell below what reasonably could be expected of the professional, such that it can be said that no reasonably competent professional would have behaved as this professional did; but in my judgment, the moment one formulates the question in that sort of way, it becomes evident that a condition precedent to the question arising is the existence of a relationship between the claimant and the professional that invites the question.
68. In my judgment, no more was there such an antecedent relationship here than there is, for example, between a lawyer of one party and the opposite party. A lawyer who advises his client that he would satisfy his duty of care towards others by acting or omitting to act in certain ways does not become liable to a third party when his client acting on that advice conducts himself in a way that is adjudged to be a breach of duty causative of injury, even if the advice fell below the standard that the client was entitled to expect. The client might be able to invoke so-called professional liability as justifying contribution or indemnity, but that is an entirely different matter.
69. In my judgment, therefore, 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 and his claim against them therefore fails.
70. In that there are at present no contribution or indemnity claims between the defendants, I need make no other findings.

Contributory negligence

71. Section 1 of the Law Reform (Contributory Negligence) Act (1945) requires me to balance 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. In my judgment, the causative potency of a vertical dive into a shallow pool is equivalent to the causative potency of the risk of such a catastrophic event if potential users of a pool are not adequately informed of its dangerous lack of depth or prevented from running that risk by deployment of supervision and signage which it had been decided was required.
72. However, in my judgment, the scale of apportionment is tipped in favour of the claimant by the facts that on my findings he did not know of the danger, but should have known had the first defendant not breached its duty and that but for those breaches I have found, the accident probably would have been avoided.
73. However, I have also 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.
75. Yes, Mr Silvester?

MR SILVESTER: My lord, can I ask for claimant's costs against the first defendant?

THE JUDGE: I am sorry, I did not catch that properly, Mr Silvester.

MR SILVESTER: Yes. I asked for my costs against the first defendant, my lord, in the usual form subject to this, that an offer was made to the first defendant - a Part 36 offer - offering a 65/35 division on liability in the claimant's favour and so the claimant has exceeded that offer.

THE JUDGE: Date?

MR SILVESTER: 26^th September.

THE JUDGE: This year?

MR SILVESTER: This year.

THE JUDGE: Yes. What do you say about the costs of the second and third defendants?

MR SILVESTER: Well, my lord, I am conscious of the comment you made during submissions that the first defendant did not do what you were expecting him to do, but we were faced with a defence which said, "We instructed Chiltern Consulting and they came back and advised us that it was perfectly adequate - the signage".

THE JUDGE: But you have lost and CPR Part 44.6 thereby dictates that the default position, if I can so describe it, is that costs follow the event and therefore that you should pay the costs of the action against the second and third defendants in any event and the question that arises, as I understand it, in those circumstances is whether, to use the old nomenclature, the appropriate order to make in those circumstances is a Bullock order or a Sanderson order. The liability, however, prima facie must be yours because you have failed. Is there any good reason why the form of order that should be adopted should be such that entitled you to recover those adverse costs from the first defendant because I have to say at the moment I do not see why?

MR SILVESTER: My lord, can I just take instructions on that?

THE JUDGE: Yes.

MR SILVESTER: My lord, I have taken instructions and I am not instructed to oppose that form of order.

THE JUDGE: All right. It seems to me then that subject to anything that, Mr Turner or Mr Rahman, you want to say, the order that is indicated at the moment is that the claimant should recover the costs of the claim against the first defendant from the first defendant, but that the claimant should pay the costs of the action of the second and third defendants. Yes?

MR SILVESTER: My lord, yes.

THE JUDGE: And the subordinate issue that then arises is whether in the light of the Part 36 offer, I should make any adjustment in relation to that costs order to reflect the fact of the Part 36 offer and, if I understand the rules correctly, but you will take me to them if I err, the discretion that I have, and it is but a discretion, is: firstly, whether or not to award what can be described in the vernacular as enhanced interest from the date by which the Part 36 offer could have been accepted; and, secondly, whether as again a matter of discretion, I should order from the same date that the basis upon which the detailed assessment of the costs should be undertaken should be the—

MR SILVESTER: Indemnity basis.

THE JUDGE: —indemnity basis rather than the standard basis. Mr Turner, do you have any observations that you wish to make in that regard?

MR TURNER: Yes. In relation to the date of the offer, my lord, well, it is not a case in which the exercise of discretion in favour of the claimant comes into play. This is a late offer. It was one that the claimant bettered in the event, but this late in the day it is disproportionate to start tinkering in relation to interest and questions of assessment which require a different approach before or after a relevant date.

THE JUDGE: If it helps you, Mr Turner, I am with you as regards interest.

MR TURNER: Yes.

THE JUDGE: I am not so sure as to basis of costs and it probably makes no difference except as regards Mr Silvester's brief fee, depending on the timing of its delivery, which of course is a complete mystery to me.

MR TURNER: And to me.

THE JUDGE: But that is in practical terms the only issue that is likely to be affected by the indemnity basis order if I am persuaded to make it because all the other costs by then essentially will have been incurred and that is your point, is it not?

MR TURNER: Yes. In a case such as this, where the offer is so very late and encroaches hard upon the timing of the trial—

THE JUDGE: Well, 21 days would have taken us to—

MR SILVESTER: 17^th October.

THE JUDGE: October. Thank you. There is some force in that, is there not, Mr Silvester?

MR SILVESTER: My lord, yes, but I do ask for indemnity costs from 17^th October and what that will be will be a matter either of agreement between the parties or a detailed assessment.

THE JUDGE: And, of course, Mr Turner, you are still protected because you are still able to take all the same points. It is only the burden of proof that will change with the basis of the order.

MR TURNER: Yes. In relation to consistency, if one is looking at such a tight period of time, there is really no proportionate point in giving the person who has the task of assessing these costs of applying different standards depending on the close time to the trial. That is the point I make.

THE JUDGE: I see the point but I am not with you in that regard and so the order that I am going to make is that the first defendant should pay the claimant's costs of the action against the first defendant on a standard basis up until 17^th October 2012 and on the indemnity basis thereafter, but to be subject to detailed assessment if not agreed.

MR TURNER: Yes. Just by way of clarification, I would expect that the court would intend that that order does not require us to make any contribution towards the costs which were incurred as a result of the involvement of the second and third defendants.

THE JUDGE: It is not my intention that the first defendant should make any such contribution given the finding that I have announced.

MR TURNER: I am obliged for that.

MR RAHMAN: My lord, I just want to be clear. I was slightly confused as to what the position is in relation to my costs. Are my costs going to be borne by the claimant alone?

THE JUDGE: Yes.

MR RAHMAN: It matters not where it comes from.

THE JUDGE: I think that is what I said, but in case there is any doubt about it, yes, that would be the effect as I understand it of 44.6 unless displaced and I see no good reason to displace in this case.

MR RAHMAN: My lord, when you are talking about a Bullock and Sanderson order, that presupposes that the claimant might recover those costs in turn, but I want to be clear that is excluded.

THE JUDGE: I agree, but I am not persuaded that this is such a case.

MR RAHMAN: I am grateful.

MR TURNER: Thank you. I ask for permission to appeal.

THE JUDGE: You indicated in the course of your submissions that if this were the decision I announced, you would do so.

MR TURNER: Yes. I do not think it is an opportunity to identify discrete areas, but primarily in relation to the identifying of the existence of duty. I would ask for permission that is not limited to that and it is very likely that we would consider the question as to the balance of contributory negligence as well and, therefore, it is not one of those cases in my submission where there should be a partial permission. It should be permission at large.

THE JUDGE: I am bound to say that, except in a clear case, in my view granting limited permission on discrete points when what is sought to be challenged is the decision at large is probably not an appropriate course, so were I minded to grant you permission to appeal, I would not limit it.

MR TURNER: Yes.

THE JUDGE: However, I remind myself that in considering the question of permission to appeal under CPR Part 52.36, I have to be satisfied that the appeal or proposed appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard. I deduce from the way in which you put it, Mr Turner, that it is the first limb that you rely upon.

MR TURNER: Indeed.

THE JUDGE: And in that respect for the reasons that I have announced within the judgment, I do not see the case the same as you and I see the decision that I have come to as a decision of fact for which I had evidence available and which entitled me to come to the decision that I did, such that in my judgment there is no real prospect of success and by that I do not intend to set the bar overly high. Real prospect of success only means that it is arguable to an extent that it cannot be described as false, fanciful or illusory. It is a modest threshold. Nonetheless, it is a decision of fact which in my judgment I was entitled to make and in those circumstances, the application is refused.

What I need to do - and I would be obliged despite the hour on a Friday afternoon if you would wait the few minutes that it will take me - is to complete form N460 so that when we have copied it for the file, you, as I think you are required to do, can take it away with you because it will require lodging, if it is your intention or that of your clients in due course to renew that application elsewhere.

MR TURNER: So be it.

MR SILVESTER: My lord, for completeness, and I am sorry to burden the court with another point, can I ask for permission to appeal against the dismissal of the claim against the second and third defendants? The point is as I put in the amended particulars of claim and in my skeleton: that we were arguing that the duty owed by the second and third defendants was not just to the first defendant who instructed them, but those including the claimant who were so closely and directly affected by their acts or omissions that they ought reasonably to have them in contemplation.

THE JUDGE: Again, for the reasons that I announced in the main body of my judgment, I consider that I have reached a decision of fact on the facts with available evidence and in those circumstances your application is refused and I would ask you to wait for the appropriate form as well.

MR SILVESTER: I am grateful, my lord.

THE JUDGE: Anything else, gentlemen?

MR TURNER: No, thank you.

THE JUDGE: There is for my part. I am grateful to all three of you for three things, firstly, the professional sensitivity that you displayed towards the claimant in the circumstances of this case. That is entirely commendable and he will be reminded of the words that both you Mr Turner and Mr Rahman expressed when cross-examining him and that is to the credit of you both. Secondly, I am grateful to all three of you for the care and the detail with which you have prepared and presented this case to me, which has made my task the easier and it is right that that should be acknowledged. Thirdly, you are to be complimented for the rare occurrence in my experience in cases of this type of being able to bring this case to a conclusion well within the time estimate that had been provided to the court, which is of great assistance to other court users. I am grateful to you all.

MR TURNER: Thank you.

THE JUDGE: Bundles: I think I can give you the authorities bundle back. That is not a problem. I think I ought to unburden the court of the trial bundles and pass them back to you, Mr Silvester, if you do not mind.

MR SILVESTER: My lord, yes.

THE JUDGE: So I am afraid we retain this lot, which is our file, and I think all of the rest goes back to Mr Silvester and I will get the computer working on form N460 for which you will permit me, I hope, a few moments.

MR SILVESTER: My lord, would it be possible to have a copy of your written judgment?

THE JUDGE: The difficulty with that is that, firstly, not every word that I have uttered appears in that; secondly, some of what I have done for my own ease has been not retyped from documents that are included in the bundle but either photocopied from them or dealt with in some other way and, therefore, I am afraid I do not think I can help you out in that respect. Otherwise, I would have just handed it down.

MR SILVESTER: I am grateful. Yes.

THE JUDGE: What it does mean is that we should be able to produce a transcript, should you require it, relatively quickly.

MR SILVESTER: All right.

THE JUDGE: I will go and attend to the forms. Good afternoon, gentlemen.

[Hearing ends]