Introduction

The High Court (Queen's Bench Division) recently handed down judgment in the case of X v Northampton BC. The judgment is a reminder that a failure to comply with guidance published by the Health and Safety Executive can constitute negligence at common law and that local authorities can be held vicariously liable for breaches of duty of care by their employees.

Case Summary

On 17 February 2002 the Claimant, then a 6 year old boy, went swimming with his father and three brothers at a swimming pool managed by the Defendant local authority. The Claimant's brothers were all competent swimmers, whereas the Claimant himself was not able to swim. At some point during their visit, the Claimant exited the pool and separated himself from his family. The Claimant was picked up by CCTV at the poolside alone in another area of the pool where he was seen entering the pool.

Despite the fact that the Claimant was not in an area where the depth of water would have exceeded the height of an average six year old (assumed to be 1200mm in the case) the Claimant became submerged. He was discovered by a fellow pool user at the bottom of the pool. He was removed from the pool and brought to a lifeguard for resuscitation. From the timings of the CCTV and expert medical evidence it was concluded that it was 'more likely than not on the balance of probabilities that the period of submersion was greater than two minutes 40 seconds'. After receiving medical attention at the poolside, the Claimant was taken by ambulance to hospital. As a result of the submersion and consequent states of anoxia and hypoxia, the Claimant suffered irreversible brain damage.

Three of the Defendants undertook an investigation into the incident. The investigation revealed that there were four lifeguards on duty at the time, with three lifeguards being in close proximity to the Claimant when the incident occurred. The officers undertaking the investigation were unsure as to how the incident had occurred in the presence of numerous lifeguards and concluded that the child could have only been underwater 'for a short period of time, possibly seconds' (which contradicted the medical evidence that was presented in the case).

Decision

The decision of the High Court was limited to issues of liability and causation.

Liability

In relation to liability the Court discussed the 'Managing Health and Safety in Swimming Pools' guidance that had been published by the Health and Safety Executive in 1999. In particular, the Court focused on the recommendations relating to 'constant pool supervision by lifeguards' and discussion of the guidance of 'scanning' and the implementation of the '10:20 system' whereby a lifeguard scans their designated area within a 10 second scan and should be in a position to reach the site of an incident within 20 seconds of identifying the incident. The Court also considered the Defendant's own published pool safety guidance and concluded that it was 'an incomprehensible document' and reiterated an expert's observation that it lacked clarity.

Of particular relevance in this case was the lack of instruction in the Defendant's guidance in relation to which areas were allocated to particular lifeguards for them to supervise. None of the involved lifeguards were present at the trial and no further documentary evidence was provided by the Defendant in relation to the training undertaken by its lifeguards and the implementation of the Health and Safety Executive guidance. As a result, the Court concluded there was a 'dearth of evidence as to how exactly the defendant applied the clear advice of HSG 179'.

The Court concluded on the evidence available that the Defendant's lifeguards had failed in their duty of care to the Claimant by firstly failing to identify the Claimant as a 'child of interest' (as the Claimant was alone and not under any apparent adult supervision) and failing to continue to scan the area where the incident occurred in accordance with the discussed recommendations.

Causation

In relation to causation the Court considered the point at which the Claimant's oxygen saturation levels were restored to 100% and the state of damaging hypoxia reversed. It was concluded that this point was reached by the time the ambulance arrived at the hospital. Further, the Court accepted expert evidence that had the Claimant been rescued sooner i.e. within 30 seconds of water entering his lungs, recovery would have been quicker and subsequent damage avoided. As such, a causal link was established between the breach of duty on the part of the lifeguards and the injury suffered by the Claimant.

Comment

The above decision reinforces the message that local authorities who implement their own procedures in relation to the safe management and operation of sites frequented by the public should ensure that their procedures comply with the published guidance of the Health and Safety Executive, which although not having statutory force, is considered best practice and a material breach of such published guidance can constitute negligence.

Furthermore, it is important that when attempting to incorporate published guidance into bespoke procedures/policies that they retain an appropriate level of clarity and practicality so that employees can implement such procedures/policies and ensure they discharge their duty of care to the public.