Dangerous undercurrents

Swimming outdoors in lakes and ponds carries with it many risks. Steven Harrison asks where the health and safety responsibilities lie

The delicate balance between an individual's right to take risks and a nanny state has often fallen under the media spotlight, most recently when a swimming club took the Corporation of London to the High Court after it was banned from self-regulated swimming in a natural pond due to health and safety risks. So, how have the courts viewed this balance of risk in relation to swimming in public places?

The High Court decided in Hampstead Heath Winter Swimming Club and Mark Sandford Hutchinson v Corporation of London and the Health and Safety Executive (2005) that the corporation's duty to ensure that members of the public are not exposed to health and safety risks under Section 3 of the Health and Safety at Work Act (1974) should respect the individualist values of common law.

Justice Burnton acknowledged that risk is inherent in life and that some risk is unavoidable but stressed the need for the law to protect individual freedom of action and avoid imposing "a grey and dull safety regime on everyone". For the purposes of Section 3, if an adult swimmer - knowing the risks of swimming - chooses to swim unsupervised in a pond with no hidden dangers, the risks they would incur would be the result of their decision and not of the permission given to them to swim. The defendant would not be liable to conviction.

No blanket guarantee

The HSE declined to participate at the hearing but has subsequently sought to make clear that, contrary to reports that it refused to clarify the corporation's responsibilities, its advice to both parties went into some detail and was referred to at length by the judge. However, it could not give a blanket guarantee that health and safety law would not apply, and could not provide an indemnity against a future prosecution because, as the judge pointed out, the facts of any accident cannot be anticipated.

Such risks have been brought into stark focus by the June activities of Oxford students taking part in the annual ritual of jumping off Magdalen Bridge. It has been claimed that security guards employed by the council failed to do their job effectively and tell jumpers that they would be landing in less than two feet of water. Students claimed they were not verbally warned of the dangers and did not see signs. The council argued that those who jumped were only putting themselves at risk.

While attracting wide interest due to the issue of civil liberties, the Hampstead case is the most recent of several decisions to have established that the occupier of a pool is generally under no duty to warn against the risk of diving into shallow water, where such risk is one of which any adult would be aware.

The Hampstead decision is consistent with the House of Lords' decision in Tomlinson v Congleton Borough Council (2003). The claimant was paralysed following a diving accident in a lake. The local authority had positioned notices prohibiting swimming in the lake but knew that the notices were ignored. There was a history of accidents and the local authority had restricted access so, given the prohibition, the claimant was a trespasser.

The House of Lords held that the lake did not present risks due to the state of the premises or anything done or omitted to be done on the premises. As such, nothing gave rise to a duty on the local authority's part. Even if swimming had not been prohibited and the local authority had owed a duty of care under the Occupiers' Liability Act (1957), it would not have been required to take steps to prevent the claimant from diving or to warn them against obvious dangers. Lord Hoffman said: "It should never be the policy of the law to require the protection of the foolhardy or reckless few to deprive, or interfere with, the enjoyment by the remainder of society of the liberties and amenities to which they are rightly entitled."

As far back as 1998, in Ratcliff v McConnell, it was held that the risk of a claimant hitting their head on the bottom by diving into a pool was common to all swimming pools and obvious to all adults. Even if the defendants knew or suspected people were using the pool when it was closed, it did not follow they were under any duty to warn against diving into too shallow water.

Water's edge

The logic of the House of Lords in Tomlinson has since been followed by the Court of Appeal in Rhind v Astbury Water Park (2004), which found the occupier was not obliged to inspect the bed of a disused quarry for a fibreglass container on which the claimant struck their head, when diving into it. The risk of injury was so obvious that the defendants owed no duty to post specific warnings or to exclude members of the public from the water's edge by fencing, landscaping or notices.

The Tomlinson decision is not, however, authority for the proposition that the defendants in that case were free from any criminal responsibility under Section 3 of the Health and Safety at Work Act (1974). However, in Hampstead, Justice Burnton stated: "One can nonetheless say that one expects the scope of tort to be wider than that of crime."

Both the 1974 Act and the Occupiers' Liability Act (1957) are concerned with responsibility for fault and he considered it "anomalous if the council, having been so emphatically relieved by the House of Lords of liability in tort to Mr Tomlinson, were to be held to have infringed Section 3 of the 1974 Act by failing to prevent swimming in the lake".

The HSE's reticence to give a cast-iron guarantee that it would not prosecute under Section 3 is not inconsistent with the Hampstead decision. For the purposes of risk management, it is important to appreciate that cases will still turn on their own facts and an occupier could still be exposed to prosecution in accidents involving unsupervised children or persons lacking full capacity. Similarly, a duty may be imposed where an accident is caused by a hidden obstruction in the water of which the defendant is aware.

In the case of the Oxford students, it will be interesting to see whether or not there will be any cases brought on the basis that they were induced to jump off the bridge by misleading information given by the security guards. However, subject to this issue, it is difficult to see how they could succeed, given the comprehensive guidance given in Tomlinson and Hampstead.

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