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Hampstead Heath Winter Swimming Club v The Corporation of London, High Court, 26 April 2005

5 May 2005
The issues

Swimming – Health & Safety – Tomlinson v Congleton – Health and Safety at Work Act 1974 Section 3.

The facts

On Hampstead Heath there were a number of ponds which have traditionally been used by bathers. The claim was concerned with the “mixed pond” which was available to male and female swimmers. There was a jetty to help swimmers get in and out of the water and one side had been concreted and fenced but otherwise it has the appearance of a natural pond. There was no suggestion of any unusual or hidden dangers in the mixed pond. Some swimmers wished to swim in the mixed pond early in the morning in winter. They wished to swim when it was unattended and not open to the public.

They accepted that there were risks in swimming in an unattended pond but they considered them to be small and they were willing to incur those risks. The Corporation of London had refused to allow them to swim because it believed to do so would render it liable to prosecution under Section 3 of the Health and Safety at Work Act 1974. The swimmers argued that the Corporation was wrong and they sought judicial review.

The Health and Safety Executive had been joined as a potential interested party but had confirmed that it did not wish to be an interested party. However it had expressed its own view that it did not accept the Claimant’s position that if the Corporation were to permit them to swim unsupervised that as a matter of law the Corporation would have no exposure to any risk of prosecution.

The decision

Section 3 provided that it is the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health and safety.

In Tomlinson v Congleton the House of Lords had delivered a forthright judgment to the effect that the Claimant’s accident in that case had not been caused by the state of the premises but by his decision to do something that had inherent risk. The House of Lords held that had there been a risk arising from the state of the premises it was not one that required the Defendants to do anything about it and to impose a duty which in affect would have made it physically impossible to swim in the lake, would have been to ignore the social value of the activity that gave rise to the risk. Tomlinson was a case under the Occupier’s Liability Act 1957. The facts of Tomlinson were indistinguishable from the facts before the Court in this case. However, their Lordships had not been concerned in Tomlinson with the criminal law and in particular the possibility of an offence under the Section 3 of the 1974 Act. However, ordinarily the scope of tort was wider than that of crime and it would be anomalous if Congleton, relieved “emphatically” by their Lordships of liability in tort were to have been held to have infringed Section 3 of the 1974 Act. From Tomlinson could be derived an approach to the interpretation and application of the 1974 Act.

The Corporation had been correct to consider that their regulation of admission to the ponds constituted the conduct of an undertaking within the meaning of Section 3 of the 1974 Act.

Would the swimmers be exposed to risks to their health and safety by the conduct of the Corporation’s undertaking? This question could be dealt with on the same terms as the House of Lords had dealt with the issue in Tomlinson. If an adult swimmer was given permission to swim unsupervised in a pond that had no hidden dangers the risks he incurred in doing so were the result of both the permission and his decision. But the law had to discriminate between these causes in order to avoid imposing what Lord Scott in Tomlinson had referred to as “a grey and dull safety regime on everyone”. For the purposes of Section 3 of the Act if an adult swimmer with knowledge of the risks of swimming chose to swim unsupervised the risks that he incurred were the result of his decision and not of the permission given to him to swim. It followed therefore that those risks were not the result of the conduct by the employer of his undertaking and the employer was not liable to be convicted of an offence under that provision.

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