Supreme Court
Action No. 127 of 1979
27th January, 1983
Rajasingham, J.

Mr. M.C.E. Young for the Plaintiff
Messrs W.H. Courtenay & Co. for the Defendants

Application for damages in tort and contract for injuries caused
to Plaintiff while a hotel guest of Defendant at swimming pool
owned by Defendant - Injuries caused by negligence of Plaintiff
- Application dismissed with costs.

J U D G M E N T

The plaintiff's claim is for damages arising from a fall suffered by the plaintiff on the premises of the Fort George Hotel which was then owned by the second defendant company and is now owned by the first defendant company. The plaintiff was at all relevant times a paying guest at the hotel. The plaintiff's claim is based upon tort and contract, the former being based on an allegation of negligence on the part of the second defendant or its servants and the latter on the breach of a warranty that the premises were as safe as reasonable skill and care could make them. The action was initially filed against the first defendant but the writ was later amended with the leave of Court by the addition of the second defendant company. The original writ was filed in July 1979.

The statement of claim alleged that the plaintiff slipped and fell on the slimy and slick poolside floor of the hotel's swimming pool as he emerged from the pool. In paragraph 6 of the statement of claim the plaintiff went on to allege the specific acts that the plaintiff claimed amounted to either negligence or a breach of the warranty. The gist of the allegations is that the second defendant company permitted the floor to become slimy and slippery by not taking sufficient care to see that slime did not form and water did not remain on the poolside floor and that they knew or ought to have known that the floor was unsafe and dangerous and likely to cause injury to the plaintiff and other guests but did not warn the plaintiff of the said condition. The second defendant in its answer inter alia denied that the poolside was slimy or slick and that the defendant or its servants were negligent at all, while itself alleging that the area around the pool was at all material times as safe as reasonable care could make it for the purpose for which it was to be used and as safe for guests as reasonable skill and care could make it. The main issues between the parties crystalised into a dispute as to the condition of the poolside and as to the actions of the plaintiff that led to the fall. The defendant made no denial of the allegation that it had not warned the plaintiff of the condition of the poolside. The defendant's position is clearly that there was no occasion to do so as there was nothing to warn the plaintiff of. Thus the factual condition of the poolside and the care and skill exercised in its maintenance became one of the main matters at issue between the parties. An equally important issue was that raised by the defendant, namely, that the injury was suffered by the plaintiff wholly or partly because he had imbibed liberally at the bar and then attempted to do a "handstand" on the rails of the ladder leading out of the pool. Thus the defence was two-fold, namely that the injury did not result from the unsafe condition of the poolside and that the injury in fact resulted wholly or partly from the negligence of the plaintiff himself.

The plaintiff gave evidence and stated that he had arrived in Belize on the 11th April 1975, on a FAO assignment involving the fisheries industry. He possessed a degree in Biology and Chemistry, a Masters' degree in Physical Organic Chemistry and Nutrition and a Doctorate in Biochemistry and Nutrition. He said his income between 1970 and 1975 was between forty five to fifty thousand United States dollars. He played tennis, golf and little league baseball prior to his fall at the pool. He was about 49 years of age at the time of the fall.

He said that on the morning of the fall he had been to the fisheries laboratory and left there at 12pm or 1pm and went back to the hotel. He says he eventually went to the pool about half an hour before he fell, according to his answer in cross-examination. He says he only entered the pool once - diving in at the deep end and getting out, and falling, at the shallow end at which he says the bar was situated. In cross-examination he said he could not be sure which the shallow end was and which the deep end. This was argued as evidence in support of the defence claim that he was inebriated. He said he then climbed out of the pool holding the rails of the ladder with both hands and stepped out on to the poolside floor and one foot slipped out from under him. He says his other foot was also on the poolside floor at the time. He said he did not at any time notice that the poolside was in fact on two levels. He said he was in great pain all the way around his hip area and down his leg. He said a couple of young men came and tried to get him to his feet but he could not make it. Thereafter someone got a deck chair and put him in it and he was carried to the hotel's lobby. He says the Assistant Manager Mrs Hoare made arrangements and he was soon seen by Dr Hoy, who he thinks was in the hotel at the time. He was admitted to Holden Memorial Hospital and an x-ray taken. He was there overnight and then flew to Miami. He was operated on at Jackson Memorial Hospital at the University. He remained in the hospital for ten or twelve days, and was totally immobile for five to seven days. When he left that hospital he was able to get about with crutches but with some difficulty. He and his wife, who had joined him at Miami and who had been coached in how to assist him, then went on to Washington to his mother-in-law. Having stayed there for a month to recover part of his strength he then returned to his home in Dover. Being able by August to get about a little with crutches, he returned to Belize to complete his assignment. By this time he says he was able to swim better than he could walk. He returned to stay at the Fort George and in fact went to the pool to swim. He says he then noticed that the pool deck or poolside was "extremely slimy and slippery." This was something he did not notice on his first visit in April. He says he mentioned this to Mr. Hunt the Manager. He says thereafter they stopped serving soldiers in plastic cups and the poolside was kept in a cleaner condition. Initially he says there appeared "to be carelessness in general housekeeping as far as the pool was concerned." In cross-examination he said he did not think it was foolhardy for a person in his condition to use the slippery slimy pool deck because he was assisted. This was around October 1975.

He completed his assignment in Belize and, as the pain was becoming more severe, he went back to Jackson Memorial Hospital and having been seen by Dr. Brown, the doctor who had performed the operation, proceeded to Washington and Dover. When the pain got increasingly severe he consulted Dr. Frank Stinchfield of the Presbyterian Hospital, New York in December 1975 and, on that doctor's advice, underwent an operation on his hip in June 1976. He was in hospital for twelve days and it took six months for his condition to stabilize sufficiently to permit him to fend for himself in his toilet, etc. In the third year following his accident he says he tried a two month assignment in the Azores and found it too big a strain. He returned to Dover. About two months later he tried an assignment in Kenya but says he just could not do the job well because of his physical condition. His assignment in the Azores lasted two months and he was paid $9,000.00 (US) plus $100.00 (US) as a per diem allowance, making a total of approximately $15,000.00 (US). His Kenya assignment was for four months and paid $16,000.00 (US) plus $100.00 (US) as a per diem allowance making an approximate total of $28,000.00 (US). I use the word "approximate" because the proof of expenditure, earning and losses produced in this case is most vague and at least on earnings and losses mostly unsupported by any real evidence. The only real documentary evidence is that relating to hospital expenses and that needs to be sifted through to ascertain the actual out-of-pocket loss to Dr. Snyder. He says he was thereafter unable to accept any assignments although he says he received several offers. He produced very little actual proof of offers and tried to maintain that cyclostyled job advertisements by UN agencies were in fact offers to him; I say "tried" because I cannot say he succeeded in convincing me that an inquiry as to his interest in being considered for an appointment amounts to an actual offer of an appointment. However, he says he has not worked since and has been unsuccessful in even securing a teaching job although he had been a full professor in the University of Maryland between 1965 and 1968. He said he has been divorced from his second wife to whom he was married at the time of the fall, and that his divorce was to a great extent due to his sex life being affected by his injury. He is no longer able to play tennis or golf or even little league baseball.

In cross-examination he said he had been trained for the Olympic swimming team and his training had included diving. He denied he had the coordination necessary to do the jack-knife dive or a somersault. He denied being drunk on the day in question. He said he does not recall ordering drinks. He does not recall ordering double screwdrivers, a drink which evidently consists of two portions of vodka and one of orange juice. He says it was on his second visit to Belize that he noticed the "construction" of the pool. He says that on his initial visit and on his second visit he did not notice that the edge of the pool deck nearest the pool had serrated tiles, but he has noticed them on this visit. He says he could not recall whether on the first visit he was aware that the pool deck was constructed on two levels. The plaintiff did not make any claim against the defendant until four years later, although he does appear to have thought of it on his second visit in 1975. He says he spoke of it to Mr. Hunt the Manager and was encouraged to bring suit against the Company. Mr. Hunt's version of this conversation is quite different. However, the plaintiff did make his claim in 1979. Prior to that he had published an article which inter alia praised the Fort George Hotel and mentioned the swimming pool without criticism.

The plaintiff called one Frank Redmond as his eye witness. Mr. Redmond, who was a swimming club member of the hotel's pool, was there when the plaintiff swam and when he fell that day. Mr. Redmond's evidence contradicts the plaintiff on some rather remarkable matters. Mr. Redmond says that the plaintiff, who appeared to be a distinguished gentleman, swam up and down the pool and came out of the pool up the ladder "as a normal distinguished person would come up" (unquote). He said that after the plaintiff fell he Redmond, "would not allow them to try" to stand him up. The plaintiff in his evidence said a couple of young men tried to get him to his feet but he could not make it. I think here Mr. Redmond is giving more importance, than in fact it had, to his part in the events following the fall. A much more important contradiction and one that goes to the very root of the plaintiff's case is Mr. Redmond's answer in cross-examination that apart from water he saw nothing else on the concrete poolside. In fact Mr. Redmond has throughout his evidence maintained that the slippery condition of the pool deck was due to it being wet and because the concrete itself was smooth although not as smooth as a polished floor. He said he had seen others slip and fall. There is nowhere in his evidence any reference to any slime. Mr. Redmond also said the plaintiff slipped when he stepped on to the concrete pool-deck and not the tiles, as he came out of the pool. The plaintiff in cross-examination said he slipped when he stepped on to the serrated tiles and that his other foot was already on the tiles when he slipped. Mr. Redmond says plaintiff was not staggering when he walked around the pool prior to his fall. He says he did not smell alcohol on the plaintiff's breath when he stepped close to him to assist him after the fall. He said he could not say whether the plaintiff had any drinks while at a table amidst some people and that he himself cannot tell the smell of vodka. The plaintiff in his evidence, given after Mr. Redmond, said that although vodka had no distinguishable smell its additives had. The additive plaintiff allegedly used was orange juice. Mr. Redmond's evidence does not help the plaintiff although his deference towards the plaintiff even while he was in the witness box and his repeated references to the Plaintiff being "a distinguished" person were indicative of an obvious desire to assist him. In fact as I have already indicated, he did more harm than good to the plaintiff's case when talking of the condition of the pool and the circumstances leading to the fall and the events following it.

The plaintiff's final witness was Mr. John Waight, Surgeon. Mr. Waight examined the plaintiff on the 8th December, 1982. He said the Plaintiff's right lower limb was approximately one and a half centimeters shorter than the left, and that there was painful limitation of the movement of the right hip. He gave a detailed description of the results of x-rays he had taken and said there was scherosis and cysts in the area of the right femur which were compatible with vascular necrosis or death of tissue in the femoral head. He said there was evidence of osteo-arthrosis of the right hip. He said the vascular necrosis caused pain in the hip and possibly in the thigh and knee as well which could increase in severity as the process develops. The form of surgical treatment available in such a case was a total replacement of the hip. This would reduce the pain to a great degree, possibly even end it altogether. He recommends that the plaintiff should be in the care of an orthopaedic surgeon.

The defence then called Mr. Hunt, the Managing Director of the first defendant company and the then Manager of the second defendant's hotel in 1975. Mr. Hunt was trained in hotel management in the United Kingdom and received a scholarship to continue his training. He worked in various hotels from 1967 and came to Belize as Relief Manager of the Fort George Hotel in 1970 and returned in January 1975 as Manager. In March 1975 a month before the plaintiff's fall, he imported new filtering equipment and this was installed after the pool was emptied and cleaned. He says he thereafter instituted a regular maintenance schedule. This involved daily vacuuming and chlorinating of the pool, scrubbing with broom and soap of the poolside every few days and the adding of muriatic acid and alum whenever the clarity of the water was affected. He instructed the two attendants John Green and Winston Smith in the use of the broom and soap by personally showing them how to do it. All this was at or about the time of the installation of the new filtration equipment in March 1975. In cross-examination he said it was understood clearly that if the scrubbing of the poolside was not done in any one week it would be done in the very next week. He said his staff understood it was to be done at least once in ten days although he could not remember if the figure ten was mentioned. He said he himself inspected the pool surrounds at least once a week and sometimes several times a day. He said he had no means of saying if the scrubbing had been carried out unless he saw it being done. By this I do not think he meant it to be understood he would not notice it if the floor was discolored with slime. He said he would notice deterioration. Mr. Hunt spoke at some length on the manner of construction of the pool and poolside, the latter being made of serrated tiles around the pool itself for a width of about eighteen inches and thereafter of rough concrete. I need not dwell on this aspect of his evidence because evidence was led through expert witnesses on this which I will refer to in due course. I need only add that Mr. Hunt had managed hotels with pools and had seen others on his travels and had no criticism to make of this one. He said water never stood for long but always drained away or evaporated. He said this poolside had no gradient, but later evidence suggests that the gradient was so fine as to have been indistinguishable to the naked eye of an inexpert person. Mr. Hunt thereafter went on to say he heard of the accident on coming on duty at 6:00 p.m. and went to the poolside but darkness did not permit him to examine the state of the floor. He saw nothing which in his mind could have contributed to the fall. He says the tiles and the concrete flooring were both damp but he found no standing water. He returned next morning and is quite certain that there was no slime at all on the tiles or concrete. He went on to say that except for children who fell when running around the pool, he had never heard of anyone falling at the pool. His evidence is thereafter only relevant in connection with his conversations with the plaintiff. He says he met and casually conversed with the plaintiff many times, while he was a guest on his second visit and plaintiff never said anything about the condition of the poolside floor. The plaintiff did report seeing a broken coke bottle by the pool and thereafter plastic cups were introduced. The conversation worthy of note is one he had with the plaintiff early in the plaintiff's second visit and his account varies greatly from that remembered by the plaintiff. Mr. Hunt says he was at the reception desk when plaintiff and his wife came by and he asked them how they were getting along. He said the plaintiff gestured towards his crutches and said "a good lawyer could make something of this" and asked if there were any good lawyers in Belize. Mr. Hunt says he mentioned two or three names as being names of good lawyers, whereupon the plaintiff responded by saying his problem must be worth a hundred grand and asked Mr. Hunt whether he would consider a fifty-fifty deal. Mr. Hunt says he was perplexed by such a preposterous suggestion and responded with something to the effect that it was an interesting suggestion but one he could not consider. This was in or about October 1975. Mr. Hunt agrees that he or his office may have helped plaintiff by setting up an appointment for him with a lawyer at his request.

There was some suggestion in cross-examination of other surfacing material that may have been better for the poolside but Mr. Hunt, having endeavoured to answer them, finally concluded that he was no expert on that subject.

The next witness was Mr. Greenwood, a retired Civil and Municipal Engineer and Town Planner. He had had some actual experience in building and maintaining swimming pools and appeared knowledgeable in the theory of it. He inspected the Fort George Hotel pool on 14th December, 1982, after the commencement of the trial. I was impressed with his professionalism although at times exasperated with his loquaciousness. Having referred to the pool itself as modest and of concrete structure he said the pool had a raised curb of a double row of grooved cement tiles followed by imported pre-cast paving slabs of the common sidewalk variety. They had a surface of exposed sand or fine aggregate and a fine texture that cannot be obtained if it was hand cast. He said the slabs were considerably disrupted but were themselves in excellent condition from the point of view of their laying, with fine or narrow joints. He says he wet them and tried them with his bare foot and found no greasiness. He said they were inclined to be slippery towards the groove. His visit was after a night of continuous rain and he says he found no standing water. This he said led him to believe that despite the disruption of the slabs the drainage was good. He admitted in cross-examination that he had no means of knowing whether the poolside had been swept that morning. The adjournment of the trial gave him an opportunity to test this for himself. He said he visited the pool again on 4th January, 1983 when it was raining and found the water running off smoothly, except where some slabs had subsided at the shallow end - the end opposite that at which plaintiff fell. Mr. Greenwood even tested the flow with a dye and saw it appear in the sea. He said the northwest corner was the best drained area. This is the corner at which the plaintiff fell and there is nothing at all to show that Mr. Greenwood knew of this. He said algae could form if grooved concrete was not kept clean. He said it led to a black or dark green discoloration which was readily visible to the naked eye. He said chlorine normally kills algae but he did not know if it killed all types of algae. He said the bowel products of algae would lead to scabbing of the concrete but that he saw no evidence of such scabbing in the north west corner of the pool. He said scrubbing with bleach would prevent algae. He said the poolside had a slope of about one inch in ten feet. He said he himself would have allowed for a slope of two inches in ten feet to allow for poor workmanship as he would not have expected to obtain the excellent workmanship which was evident in the construction of this particular pool. He said the pool deck was very consistent although some parts were rougher than others. He said he did not find any smooth places. He said the first thing he looked for was algae and he found no evidence of it having been present. He said in cross-examination that he did not think the drainage around the poolside required improvement. He said he could not say how long before his examination of the pool, the triangular section in the northwest corner had been broken. The fall itself occurred eight years ago. However, Mr. Greenwood also stated that there was no subsidence of the slab at the northwest corner immediately opposite the ladder although a triangular cemented wedge was broken up and had loose cement pieces. This he said was unlikely to cause slipping. The slabs on either side of the slab directly in front of the ladder had subsided and it was suggested that this could cause water to stand on the one that had not subsided. Mr. Greenwood's overall impression seems to be that the hotel's poolside was constructed of the usual gritty concrete blocks used in such construction and that, that material is not any more slippery than any surface would be with a film of water. In this instance, he said, construction was of surprisingly good workmanship and the surface was free of evidence of scabbing by algae.

Mr. Greenwood was followed by, in my opinion, a very simple and honest man, Mr. John Green. His answers were prompt and candid; as for example when he said he did not send the plaintiff's drinks through his assistant Smith because the plaintiff was tipping very generously and he wanted the tip for himself. He did not smile or blush but just stated it as a fact and without any embarrassment. He was a man without, I presume, much learning in any field but his chosen one of bartender. Yet he did not once contradict himself throughout a long stay in the witness box. His manner of expressing himself in language which in his mind bore a slightly different meaning to the normal meaning ascribed to it, led to slight flurries of excitement but soon became obvious in meaning. I have no hesitation in saying that neither the plaintiff nor his witness Redmond can compare in my mind with the credibility this witness awoke in it. He neither exaggerated nor guessed and confined himself to stating what he knew. What he saw and spoke of was devastating to the plaintiff's case. I am fully conscious of the fact that this witness's livelihood is dependent on his continued good standing with Mr. Hunt, the Managing Director, who was present in Court within a few feet of him. Green did not once even glance at Mr. Hunt. His answers were prompt, never hesitant and he never sought to evade a question. His evidence cannot be reconciled with that of the plaintiff and Redmond.

Green says the plaintiff came to the poolside sometime in the morning - before noon. He could not say what time it was exactly but it was in the morning. He said plaintiff came to the bar and had a double screwdriver. He said the bar was at the deep end about fifteen feet or twenty feet from it. He said that the plaintiff had several double screwdrivers that day and when pressed in cross-examination said it was about eleven or twelve and some of them were triple - three portions of vodka to the portion of orange. He said he could guess at the number from the fact of his having made about thirty dollars in tips from the plaintiff that day. He said there were three colored guys doing hand stands on the fence and plaintiff invited them over and they did hand stands around the pool. Plaintiff then signaled to Green and ordered three beers and a triple screwdriver for himself when Green answered his summons. The colored guys left thereafter and plaintiff started walking on his hands up and down one side of the pool along the outer edge of the deck. There was some confusion as to which edge was meant when Green said "edge of the pool"; as it turned out he meant the edge of the pool area. Nothing turned on what he meant when he used the word "edge". He said he saw plaintiff go in and out of the pool earlier and he came up to the bar walking quite steadily and ordered more drink. Plaintiff then went back to the bed he was lying on. Shortly afterwards he went over and spoke to four or five girls, who were lying at the opposite side of the deep end of the pool when they were not in the pool. He stood talking for a while and then went back to his bed and lay down. Then he went and jumped back in the pool for a second time. The witness gave plaintiff's Counsel the impression that plaintiff had only been in the pool once when in answer to a question by Defence Counsel "Did he go in the pool at all", witness said he did and then went on to describe the fall. It would appear that, that was plaintiff's second entry into the pool, he having earlier left the pool at it shallow end. On this occasion he swam up to the ladder at the deep and, climbed it holding on to the hand rails and, in the words of the witness, "he made a flip to put his foot up" and fell. "Foot" here is used in the Creole plural. Witness, in cross-examination, gave more detail and said the plaintiff fell towards his right side. He said plaintiff had his feet on the top step and did a flip upwards with his feet. He could not say if the plaintiff's feet went over his head before he fell. He said plaintiff fell on his lower back - that the whole of it hit the concrete, but that his upper back did not and was turned partly to his left. He said the area on which the plaintiff landed was dry as, up to that time, no one had come out by that ladder. The girls had come out by hauling themselves over the rim of the pool on the side which they occupied - near the north east corner of the pool. They were fifteen feet from where the plaintiff fell. Green said that at first plaintiff had a smile on his face - probably chagrin, before his face showed he was in pain. Green said he watched plaintiff most of the time because plaintiff would hold up his hand when he wanted a drink and he was paying in cash with a generous tip each time. He says he served others that day including, in all likelihood, Redmond, but he said Redmond usually gave him no tip. The plaintiff's generosity ironically left an indelible impression on this witness, one that may not prove to be to the plaintiff's advantage.

John Green was the man in charge of the care and maintenance of the pool area and bartender at the pool bar. This was the position he held in 1975. His work day began at 8am when he collected his key and cash pan and went to the pool bar. Having left the cash pan there he opened the pump-house and took out a rubber hose which he then used to vacuum the pool. The area around the pool is then swept by his assistant Winston Smith. Once every three days he and his assistant scrubbed the area with two brooms provided by Mr. Hunt. They used soap and pine oil to do it. He says they, meaning the pool attendants, do not do it as often now. He said he and Smith were careful to do it because Mr. Hunt looked out of the bar upstairs or the dining hall and would upbraid them even if there was a cigarette butt on it. Thereafter every evening he put in three cups of chlorine and turned on the filtering system and left it on all night. On Wednesdays he added alum and on Saturdays he added muriatic acid. He said that even while people swam in the pool, he or his assistant would sweep off any excessive collection of water that was splashed from the pool. He left the pool bar to take charge of the upstairs bar about three years ago. He says the poolside floor was unbroken when he left to take up his new assignment upstairs. There was absolutely no guile in this man. I feel that he did not have the imagination for that.

The evidence of Green which I accept leaves no doubt as to the circumstances in which the plaintiff's fall occurred. I am satisfied that the plaintiff had imbibed most freely of alcohol and appears to have reached a state of mental recklessness if not lack of physical coordination, and in that state attempted some acrobatics which led to his falling and hurting himself most seriously. Dr. Snyder's boastfulness about his swimming prowess and the contradiction of his statement, that the poolside floor was slimy, by no less a person than his own witness Redmond, all lend support to Green's evidence if support was required. Dr. Synder was very evasive in his answers, so much so that he had his female companion ringing her hands in the well of the Court and unwittingly nodding or shaking her head in anguished unconscious answer to the question he was seeking to evade. His claims that he had to turn down many offers and his attempts to pass off before this Court that advertising printouts be produced were offers to him personally seriously affected his credibility. The only evidence which is almost acceptable and which was given by him relates to his medical expenses and even that is full of items which were not paid by the plaintiff and hence not recoverable by him. The fall occurred on what, according to his own evidence, was a working day. If Green is correct, and I have no doubt he is, Dr.. Synder spent most of it by the swimming pool. Even by his own evidence plaintiff spent all afternoon by the swimming pool. I shall not comment at too great a length on witness Redmond; it is sufficient to say that he impressed me as pompous and obviously partial. Mr. Waight's evidence was entirely confined to the results of his examination of Dr. Snyder and his own medical knowledge of such injuries or in other words to technical matters and expertise. While I am critical of the plaintiff and his eye witness, I am equally impressed with the unemotional and clinical manner in which both Mr. Hunt and Mr. Greenwood gave their evidence. Greenwood's evidence was impartial as is evident from several details of evidence given by him which were unhelpful to the defendant's case. For example he said he would have given a greater gradient if he was building this pool even though it appeared he was allowing for bad workmanship. Greenwood volunteered the evidence that the subsidence of the concrete slabs in some places obstructed drainage. This again was something he must have realized was against the defendant's interest and yet was obviously a fact that was relevant in his mind.

The plaintiff called Mr. Chin, a civil engineer, in rebuttal of the evidence of Greenwood. As it turned out his evidence was almost confirmatory of that of Mr. Greenwood. Mr. Chin said he found the surface of the pool side compared favourably with other pools he had seen. He said the drainage left something to be desired but when he added that excessive water reduced slipperiness, his usefulness to the plaintiff was ended. The plaintiff's case up to then was that poor drainage left excessive collections of water on the pool-deck which consequently raised the chances of slipping on it; Mr. Chin said it was not so and that a film of wetness was more slippery than a puddle. He said the northwest corner at which plaintiff fell tended to have water forming a puddle although it continued to flow. He also said the corner slab, which was five feet by five feet approximately, was raised. Since the plaintiff does not say he tripped, I cannot see the relevance of this. Chin does not say that made water stand on that slab.

In conclusion my finding on the facts are as follows: Dr. Snyder did imbibe rather liberally on vodka and orange, although there is no evidence to show he was staggering drunk. I find that he did attempt to do something other than just step off the ladder and on to the poolside by kicking his feet up behind him and that, as a consequence of that action of his, he fell and hurt himself very seriously. His fall had nothing at all to do with the construction or condition of the poolside or its maintenance. Mr. Redmond did say that at times the bolts of the ladder would have to be tightened because they came loose, but there is no evidence at all that the ladder was loose and thus caused the plaintiff's fall. Thus the negligence that caused the plaintiff's fall was entirely his own.

I accordingly dismiss the plaintiff's claim with costs.