RXDX (By his mother and litigation friend DXSX) v Northampton Borough Council & DXDX (Third Party) [2015] EWHC 1677 (Admin)

The claimant sought damages for personal injury from the defendant local authority regarding an incident arising from the alleged negligence of lifeguards at one of its leisure centres.

In 2002, the six year old Claimant (who could not swim) visited the swimming pool with his father and older brothers, who could all swim. He was found lying at the bottom of the pool by another pool user, who removed him and took him to a lifeguard for resuscitation.

The Claimant survived but suffered significant brain damage. CCTV footage showed the claimant becoming separated from his family, sitting on the edge of the pool on his own and then lowering himself into the water. He was lifted from the water about three minutes later.

Medical evidence agreed that the severity of the Claimant’s brain damage indicated that he had been submerged for at least 2 minutes and 40 seconds.

The Claimant alleged that the local authority was vicariously liable for the failures of the four lifeguards on duty at the time to supervise the pool and exercise appropriate vigilance over him.

The local authority took Part 20 proceedings against the Claimant’s father for failing to exercise proper parental care.

Held

The Health and Safety Commission published advice defining good practice for public pools. Although the publication did not have statutory authority, a material breach of its recommendations would constitute common law negligence.

The guidance stated that pools should be divided into zones to ensure that all areas were covered by lifeguards, and that each zone should be continuously scanned, both above and below the surface. Lifeguards should be close enough to their zone to reach an incident within 20 seconds.

The local authority also had its own guidance, however this was incomprehensible. It said there should be two lifeguards, each watching the whole pool but with one focusing on the shallow end and the other the deep end. It was not clear which lifeguard had responsibility for which end and none of the lifeguards had been told which zone they were meant to watch. Furthermore there was no evidence that the local authority had applied the Commission’s guidance.

It was found that the lifeguards had breached their duty of care by failing to identify the Claimant as a child at risk and by failing to keep him under observation and to continue scanning the water. Lifeguards should not assume that lone children were swimmers or under parental supervision.

There was a causal link between the lifeguards’ breach of duty and the severe injuries sustained by the Claimant.If the Claimant had been rescued within 30 seconds or a minute of being submerged, there would have been a rapid recovery and the brain damage would have been avoided.

The Claimant’s father had admitted his fault but no judgment had been entered against him in the Part 20 proceedings, as he was not covered by insurance and was not a man of means. It was noted that if his circumstances radically altered in the future, it might be appropriate to revive the claim against him.

What can we learn?

  • Local authorities need to adhere to all relevant standards and practices and have a comprehensible strategy in place that is capable of being adhered to
  • Specific reference should be made to lone children and at risk groups and individuals within the risk assessments and codes of practice used by local authorities
  • In appropriate circumstances, local authorities should consider bringing a counter-claim against the parent or guardian who had responsibility for the child in the pool, a care claim may be reduced as a consequence