18 August, 2023
Health and Safety enforcement regrettably tends to follow tragic or serious incidents.
In this tragic case, a prosecution was brought by Leeds City Council following the tragic death of a three year old who drowned when he was visiting the David Lloyds Leisure Club with his father and sister in April 2018. An inquest was held with a jury in 2020 that returned a conclusion of accidental death. There was no CCTV footage or witnesses to establish how the child ended up in the pool but was spotted in the pool by the father who sought to pull the child from the water after noticing that he had left his side. The jury at the inquest hearing found that the child had probably been under the 1.2m deep water for more than two minutes.
The pool was being supervised by one 17 year old lifeguard on duty who was expected to supervise up to 50 people. The prosecution contended that there had been inadequate lifeguarding arrangements at the club over a number of years.
HSE guidance hsg179 recommends that "constant poolside supervision by lifeguards provides the best assurance of pool user's safety. Where the site specific risk assessment ahs shown that constant poolside supervision is not reasonably practicable, robust, alternative measures must be implemented to ensure the safety of pool users." In a pool size of 25 x 12.5m, the HSE guidance provides for 2 lifeguards which may be required following a Lifeguard Zone Visibility Test.
On the 1st August 2023, David Lloyd Leisure Club Limited pleaded guilty to a section 3 Health and Safety at Work etc Act 1974 offence relating to the company exposing club members to risks between September 2015 and April 2022. At Leeds Crown Court, they were subject to a substantial fine of £2.55 million and ordered to pay £258,000 in prosecution costs.
The presiding Judge said that the company "fell far short of the appropriate standard" and "ignored concerns raised by employees allowing breaches to exist over a long period of time" and "failing to put in place measures that are recognised standards in the industry". The concerns related to only having one lifeguard on duty, a concern which had been raised by employees themselves. Essentially, the company had failed to take practical steps to eliminate or reduce the risk of drowning.
The company admitted to having inadequate and unsuitable risk assessments and failing to take all reasonably practicable steps to ensure the safety of those visiting the club. The company had previously been subject to a fine of £330,000 for a near miss incident in 2016 when a child was discovered in the water at another club.
In imposing the substantial fine, the Judge remarked that the fine must reflect the seriousness of the offence which he categorised as falling within the high culpability category of the Sentencing guidelines by imposing a fine of £2.9m reduced to £2.55m for the guilty plea.
Ridwaan Omar, partner at Forbes Solicitors who specialises in Complex and Regulatory Insurance claims stated "this tragic case provides a stark reminder about the obvious dangers of water and drowning. Whilst swimming is a life skill it is essential that when organisations are providing leisure pool facilities they must also ensure that adequate supervision of visitors is provided by ensuring the numbers of lifeguards are appropriate and that adequate and suitable pool specific risk assessments is undertaken. The Court will take into account previous incidents of a similar nature when assessing culpability and aggravating factors when imposing sentence. The sentence came out on a day when another tragic case of a five year old child had reportedly drowned in a swimming pool at a resort in Cornwall which raises the importance for organisations to comply with industry standards to minimise the risk of tragic incidents occurring."
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