Another Swimming Tragedy

Article

21 July, 2015

RXDX (By his mother and litigation friend) (Claimant) v Northampton Borough Council (Defendant) & DXDX (Third Party) (2015)[2015] EWHC 1677 (Admin) QBD (Sir Colin Mackay) 11/06/2015

In this tragic case, the Claimant by way of his mother brought a claim for damages against the local authority following an incident at a swimming pool. The claimant was just 6 years old when he suffered a serious accident and nearly drowned.

The Claimant had visited the swimming pool with his father and his three older half-siblings. He was found by another pool user lying on the bottom of the pool, following a poolside resuscitation his life was saved but he was left with significant brain damage.

The Claimant alleged that the Defendant was vicariously liable for the failure of the lifeguards on duty to use reasonable professional skill and care, arguing that they failed to supervise his use of the pool and exercise appropriate vigilance over him at all times.

The Defendant in this case also brought Part 20 proceedings against the claimant's father.

At trial, the local authority was held liable for the failures of lifeguards to properly supervise the swimming pool. There was no evidence that advice published by the Health and Safety Commission defining good practice for public pools had been followed. The local authority had its own guidance regarding lifeguard duties. While the Health and Safety Commission advice was not a statutory code, it was nonetheless found that the Defendant's breach constituted common law negligence. Lifeguards should not assume that lone children were swimmers or under parental supervision.

The Judge was also critical of the Claimant's father stating that "there is a very strong case against the father for failing to exercise proper parental care over this child", he seemed to have been entirely unaware of what was happening to the Claimant until he was brought out of the pool. He 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 otherwise a man of means. The Judge however remarked that if his circumstances radically altered in the future, it might be appropriate to revive the claim against him.

Forbes comment

This tragic case demonstrates the importance of implementing and following the latest advice and recognised good practice. In this instance, the Local Authority had in place its own guidance but this was described in the judgment as "incomprehensible" and "lacking clarity". We strongly recommend that policies and guidance are kept under regular review and that staff are adequately trained. Crucially, employee training, risk assessments and policies and procedures must be documented and retained on file.

Furthermore, whilst there was a recognition that a lack of parental responsibility was partly to blame, the Judge stressed that if liability against the father was proved it would not be a defence to the claim for the local authority.

For further advice contact Sarah Wilkinson on 01254 662831 or by email Sarah Wilkinson.

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