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R v Upper Bay Ltd, Court of Appeal (Criminal Division), 2 March 2010

8 April 2010
The issues

Health and Safety At Work Act 1974 Section 3(1) and Section 33(1)(a) – child drowning – parental supervision.

The facts

On the 18th October 2005 a child, Chad Mole, 6 years old, almost drowned when he was using the indoor swimming pool which was operated by Upper Bay Ltd at Splashlands. Although the child survived he suffered catastrophic injury. The child had gone to the swimming pool with his father and younger brother. There had been 4 lifeguards on duty. There were signs stating that children under the age of 8 had to be accompanied by an adult. Chad could not swim. He did not have armbands or any other form of buoyancy equipment. The three were in the shallow end but after a while Chad made his way to the “bubble lounger” which was a semicircular jacuzzi close to the deep end. A little while later an adult using the pool noticed Chad under the water not moving. He had stopped breathing. He was taken to hospital and survived, albeit severely brain damaged.

Upper Bay Ltd were prosecuted in exposing Chad Mole to a risk to his health and safety by failing properly to organise the supervision of the pool. The deep end was not properly supervised and one of the lifeguards on duty had failed to comply with the policy which related to the safety of unaccompanied children about the area of the pool when they were aged under 8. The Defence argued that this accident had resulted from the lack of proper supervision by the father, who had failed to ensure that he had armbands and who had allowed him to wander away on his own. The Defence suggested that the negligence of the father took the place of any duty on the part of the company to Chad, but that even if there were such a duty, all reasonably practicable steps had been taken to ensure that it was fulfilled. The Judge found the company liable and imposed a fine of £150,000.00.

The company Appealed.

The decision

Under Section 3(1) and Section 33(1)(a) of the Health and Safety At Work Act 1974, the company had a duty to conduct its business so as to ensure that so far as was reasonably practicable, individuals using its facilities were not exposed to risks to their health and safety. Whilst it had to be recorded that lack of parental supervision and failure to provide buoyancy equipment was contributory to the accident which befell Chad, those factors could not exonerate the Defendant from liability. The duty imposed by the Act was non-delegable. The duties owed by the Defendant and the duties owed by the father were different but concurrent duties. The breaches of parental duty did not constitute a defence for the Defendant to the allegations of breach of the duties imposed on them by the Act.

The Defendant’s duty was not an absolute duty. Chad’s safety could not be guaranteed. What was required was that so far as was reasonably practicable, he should not be exposed to risk to his health and safety in the running and management of the swimming pool. It was a reasonable feature of the management of the pool that the Defendant could expect that young children would be properly supervised by a responsible adult. That was because the responsibility of the parent or adult was non-delegable to the Defendant which was responsible for running the pool. However, the Defendant had to recognise and anticipate that on occasions small children did escape, not only when parental supervision was lax, but even when it was very close. This was acknowledged in the Defendant’s own health and safety policy. Swimming pools were dangerous places for young children. Those who took them to the pool and those who managed the pool had to do everything they reasonably could to avoid the risk that a child might be drowned. It had been for the jury to assess whether, notwithstanding whatever criticisms might be made of the supervision extended to Chad by his father, that there was a case that the Defendant had been in breach of that duty and in all the circumstances it was plainly one proper to be put before the Jury. Had the Judge withdrawn the case from the Jury he would have been usurping his proper function. The conviction was safe.

Appeal dismissed.

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