‘Fat kid’ evidence ruled pretty thin

Keoghs’ Casualty Team Associate, Alan Chisnall, recently worked with one of our major clients to successfully defend a claim where the evidence of a minor and his friends at a swimming baths was deemed inconsistent and unreliable.

The claimant was a minor (aged 15) who attended the insured’s pool with his younger brother and a friend.

There were three diving boards on the side of the pool - a spring board, a 3m board and a 5m board. All three had been in situ for over 15 years without incident.

The layout of the boards was such that all three could be used at the same time - with a designated exit route from the pool determined by which board has been used.

Safety instruction boards and signs depicting the exit routes from the pool were on display nearby.

The claimant’s case was that, as he was about to dive from the 5m board, he became aware of someone in the pool who was exiting by the wrong route.

The claimant said he was forced to abort his dive and in so doing he grabbed a handrail at the end of the diving platform, this then caused him to swing out from the edge of the board so that he was left dangling from the handrail. He then fell into the pool, injuring his chest and leg against the board.

He alleged breach of duty under s2 OLA 1957 and negligence in that the lifeguard failed to warn him not to dive until the pool was clear.

Our case was that there was no-one in the pool when the claimant was about to dive.

Giving evidence, the lifeguard stated the pool was empty at the time. All three of the claimant’s witnesses said they were aware of the correct exit routes and the safety instruction signs, but did not read them because, “they were boring.”

The claimant also alleged that the signs had only been put in place after his accident - even though he had not returned to the pool since the accident.

Only one of the claimant’s witnesses said he saw, “a fat kid,” in the pool yet all three provided sketch plans placing a, “kid,” in the pool.

At trial the claim was dismissed. The judge was not convinced by the claimant’s evidence - especially that of his friend in respect of the, “fat kid.”

The defendant’s evidence that the pool was empty was accepted and that they had complied with their obligations under s2 OLA.

Alan said: “This was an important case from the outset. Section 2(3)(a)OLA 1957 states ‘an occupier should be prepared for children to be less careful than adults’.

“In this case the claimant was a minor using the same equipment and facilities available to adults.

“If the Court were to find that the Defendant had not complied with its obligations under s2(3)(a) then there was potential for a "floodgate scenario" in respect of future claims.

“The Court accepted that the Defendant had complied with its duty, the pool facilities were organised to comply with all HSE requirements and the duty lifeguard's evidence that the pool was empty at the time the Claimant was about to jump in was accepted.

“The Court found that the Claimant's evidence, especially that of his friend in relation the presence of the ‘fat kid’ was inconsistent and unreliable."