Description
The Claimant had run and dived head first in to a small inflatable pool at an event at the Defendant's student union. The Claimant submitted that the Defendant owed him a duty of care to take appropriate steps to prevent him from injuring himself. It was held that the Defendant owed the Claimant a general duty of care under
s.2(2) of the Occupiers' Liability Act 1957.
The issue was whether the scope of this duty extended to a duty to protect the Claimant from the risk he had taken (
Caparo (ibid) and Darby v National Trust & ors [2001] EWCA Civ 189 applied). A duty to protect from obvious risks or self-inflicted harm only existed where the victim had no genuine or informed choice or lacked capacity. The Claimant did exercise a genuine informed choice and had created an obvious and serious risk by his actions which would not otherwise have existed.
Assumption of responsibility required an examination of what responsibility the Defendant had in fact assumed, rather than what responsibility the Defendant should have assumed. Knowledge of a risk was irrelevant to this consideration and instead went to breach. Here there had been no assumption of responsibility. The Defendant had taken no affirmative steps to ensure that proper risk assessments were made and control measures enforced. The Claimant had not relied on the Defendant having a duty of care.
It was held obiter that if a duty of care had arisen, it would have been sufficient for the Defendant to take reasonable steps to ensure that the student union was carrying out proper risk assessments and that it had a reasonably adequate system for supervision of the event.
