Relocate this to the USA

[Scooter]

Defence counsel said she should have known how deep it was because others were in the pool. But if the pool is 6 ft deep, no one would have been able to stand at that depth unless they were almost 7 ft tall. So at that depth others in the pool would be swimming or treading water, how could she know whether the depth was 6ft or 12 ft?

[Long Run]

By exercising the smallest amount of common sense? This is totally an assumption of risk case. Pools come in all depths. It is up to the user to determine for themselves how deep the pool is. All the regulations to prevent access to the pool are for young children; as Gob noted, with some southern hemisphere logic, do those rules apply when an older person doesn't exercise due caution with respect to their own health? The court got this one right: sad situation but not the fault of the pool owner. Diving boards are disappearing across America, and guess why?

[Sue U]

By exercising the smallest amount of common sense? This is totally an assumption of risk case.

"Assumption of the risk" does not mean mrely that a person is engaging in a behavior that involves some risk; otherwise, every time you left your house you'd be "assuming the risk" that something might happen to you, and would therefore be without any recourse when something does. "Common sense" always involves assuming some level of risk in every activity. However, the legal docrtrine of assumption of the risk requires that the injured party had expressly relieved the defendant of his duty of care to avoid the specific risk of harm encountered; it is an affirmative defense that the defendant has the burden of proving. In this case, the defendant would essentially have to prove that Ms. Grimes said, or otherwise expressed: "I can clearly see how shallow the pool is and I know that by diving into it I am voluntarily choosing to ignore all safety concerns and risking severe injury, but I actually don't care if I end up paraplegic." Short of such a clearly expressed intention, the case should be decided under the principles of comparative negligence. It may be that Ms. Grimes was more negligent in her conduct than was the homeowner in safeguarding his pool, or it may be that reasonableness would dictate the homeowner (or his daughter) should have taken further steps -- but again, in our common-law system these are fact questions for a jury, not legal questions for a judge. This was simply not a question for the court to "get right."

Diving boards are disappearing across America, and guess why?

Perhaps it is because the risk/utility calculation is showing them to be more hazardous than they're worth?

[Long Run]

Sue, this is one where you and I disagree. Assumption of risk applies here because the plaintiff decided to engage in an activity which has known risks. Diving into any body of water involves the risk that there might not be enough water to do so safely. That is the risk that is assumed (among other risks). We protect young children from that risk because they don't have the experience, i.e., common sense, to understand that risk. This plaintiff was an adult and assumed the risk. To prevail, the plaintiff would have to show that the defendant somehow represented that the pool was fine for diving in the manner she chose to dive in.

[dgs49]

OK, having kicked this matter around for a page and a half, I quote my first post,

"The unstated but overriding approach to this sort of case in the U.S. is that the "system" will strive to get the injured plaintiff compensated, regardless of her own stupidity and/or the fault of the other party, because "It's the right thing to do." The Legal Challenge is finding some person or entity with sufficiently deep pockets (e.g., an insurance company) so that the jury won't feel guilty about taking money from an innocent person to compensate an idiot."

Sue U has done a nice job of explaining the current state of American tort law on the subject, but the bottom line remains the same. The person who dove into this pool was an idiot, and no one was at fault but her. But in spite of this, the "system" has invented fictions and absurdities for the dual purposes of getting her compensation from a "deep pocket" and providing employment to lawyers, generally. There is a valid social purpose for these legal absurdities - spreading the cost of an individual catastrophe - but it's all based on legal fictions.

Anyone who has been on this earth for longer than a dozen years, and has ever swum in a pool knows that you don't dive in unless you know how deep the water is. The only conceivable basis on which the property owner could be liable here (logically, not legally) would be if the pool were designed in such a way that the depth was intentionally concealed - for a unique visual effect or something of that nature.