Even pioneers must be prudent
Cases which do not generate new law often remain unreported. This is because case law relies upon facts, and judges state the law in the context of the circumstances before them. Lawyers then use facts in reported cases as a kind of template. Consequently, matters which may be of interest to non-lawyers, both because of the facts themselves and by illustrating how the law applies to them, sometimes never reach the public. One such matter was Davies v Wyre Forest District Council, a negligence action in which judgment was delivered last year.
In 1983 the local authority's own architect's department designed a swimming pool, which was built in 1986. There was a deep end with steps, a beach, and two sides along which the deck around the pool was considerably higher than the water level to accommodate waves generated by a wave machine. The architects incorporated a ledge along one of the sides with a 300mm tread and 300mm rise, a design which had not been used elsewhere. This ledge, it was said, was to provide a platform for shallow racing dives when the pool was used conventionally, to sit or otherwise rest on, and for climbing out of the pool.
In 1990 the 19-year-old plaintiff fell while leaving the pool using this ledge and suffered injuries rendering him tetraplegic. The judge found the local authority, which also managed the pool, liable. Part of her judgment was that the design of the ledge was unsafe, and she addressed three areas of interest to designers.
First, the architects had no specialist knowledge of pool design and sought no specialist advice beyond that of the company with responsibility for the wave machine. The judge concluded that specialist consideration of such a design was necessary. '
Secondly, the judge found that the primary, if not the sole, purpose of the ledge at the time the pool was designed and built, was to enable the local authority to use the pool for both leisure and conventional purposes. The judge further found that building-control inspectors were reluctant to deal with specialist details of the pool surround. Consequently, there was an additional onus on the architects to analyse critically the compromise they were being asked to achieve, and to form a view on whether safety considerations dictated that the compromise should not be made.
Thirdly, the judge acknowledged that the novelty of the ledge was not negligence per se. The architects were negligent because it was foreseeable that someone using the ledge might fall: 'It was particularly unsuitable for the small and the large and the tired.'
The judge, in considering the ongoing duty of the pool management to monitor safety, cited expert evidence that there are now recommendations that access and egress from the sides of such pools should be barred. Apparently experience has shown that a leisure-pool environment leads people to act in unconventional ways, necessitating the needs for barriers, prohibitions and tight supervision. These changing standards did not affect the reasonableness or otherwise of the architects' actions in designing the ledge, which were, of course, assessed in the context of the information available to them at the time.
This case describes a tragedy caused, in part, by an insufficiently considered idea. To quote Lord Edmund Davies in iba v emi and bicc, 'The graver the foreseeable consequences of failure to take care, the greater the necessity for special circumspection . . . The law requires even pioneers to be prudent.
Kim Franklin is on holiday