If you don’t watch your kids, does that mean I don’t need to either?: An analysis of R v. Upper Bay Ltd [2010] EWCA Crim 495

This case was an appeal from a decision on 18th June in the Crown Court at Cardiff, in which Judge Hopkins QC held that Upper Bay Ltd should pay £150,000 for their breaches of s3(1) and s33(1)(a) of the Health & Safety at Work Act 1974.

The case concerns a holiday trip by the Mole family to “Splashlands” in 2005. Splashlands had a policy that all children under 8yrs old should be supervised by an appropriate adult, and that an adult could only supervise a maximum of three children. The pool also operated a policy that pool assistants (lifeguards) should challenge any child in the water not accompanied or directly supervised by an adult and ask them to stand on the poolside until the person responsible for the child is found and supervision is maintained.

That day, Mr Mole took his two sons, Chad (7yrs) and JJ (4yrs) to the pool. Neither boy could swim unaided, although they had both had limited swimming lessons previously. On the day in question, neither boy had armbands or buoyancy equipment. While Mr Mole was playing one-to-one with JJ in the shallow end, unbeknownst to Mr Mole, Chad made his way to a “bubble lounger” situated near the deep end of the pool. A few minutes later he got into difficulties, and had to be rescued by a swimmer. He was subsequently resuscitated by the lifeguards but suffered brain damage.

The question facing the Court was: who was responsible for Chad’s safety?

Mr Mole argued that because there were two lifeguards on duty in that area of the pool (but that both had their backs to the pool and instead focused on the water flume) there was a breach of duty. This breach was further exacerbated when one of the lifeguards (Jo) spoke to Chad in the vicinity of the bubble lounger and told him to return to his dad, but importantly, did NOT ask Chad to get out of the pool in accordance with the centre policy.

By contrast, the pool operators argue that Mr Mole was ultimately liable as he had a duty to supervise his children and he was negligent in not keeping both of them under close supervision and in failing to provide armbands for them. The centre further argued that the duty of pool attendants was merely to supervise and observe the pool and that they had no duty to provide for the security of visitors.

While the Court agreed with the principle that parents had a duty of care to protect their children from harm, and that Mr Mole had failed to some degree on this occasion, the Court also held that Splashlands owed a duty towards Chad.

Importantly, while the centre did not owe a guarantee of absolute safety, it did have a non-delegable duty to ensure, so far as reasonably practicable, that individuals using the facilities provided for them….were not exposed to risks to their safety or health. In particular, practical reality suggests that although parents should be expected to supervise their children, it was foreseeable that children can sometimes escape from this parental supervision. The duty of a pool operator is therefore to ensure that the risk that a child can drown is prevented. On this occasion, the centre failed to provide both adequate supervision for the deep end, and also to observe its own policy requiring unsupervised children to be challenged and to stand on poolside until appropriate supervision is found and it was right that liability should attach against it.

Because these duties are independent of each other and non-delegable, the failure of one party (in this case, Mr Mole – the parent) did not act as a defence for the failure of the other party (the pool).

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About Kris

Associate Professor in Sports Law, Staffordshire University; British Gymnastics Senior Coach

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