Upper Bay Ltd, R v [2010] EWCA Crim 495

Case No 2009/03746/D2

[2010] EWCA Crim 495

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Tuesday 2 March 2010

The Strand

London

WC2A 2LL

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

(Lord Judge)

MR JUSTICE RODERICK EVANS

and

MR JUSTICE GRIFFITH WILLIAMS

Between

R E G I N ACrown

- v -

Between

UPPER BAY LIMITED

Computer Aided Transcription by

Wordwave International Ltd (a Merrill Communications Company)

165 Fleet Street, London EC4

Telephone No: 020 7404 1400; Fax No 020 7404 1424

(Official Shorthand Writers to the Court)

Mr C Purchas QC, Mr J Cooper and Mr H Vann

appeared for Applicant

Mr I D Pringle QC and Mr B Thomas appeared for Crown

J U D G M E N T

Tuesday 2 March 2010

THE LORD CHIEF JUSTICE:

[1]This is an application by Upper Bay Limited for leave to appeal against conviction which has been referred to the full court by the Registrar. On 18 June 2008, in the Crown Court at Cardiff, before His Honour Judge Hopkins QC and a jury, the applicant was convicted of failing to conduct its undertaking in such a way as to ensure that persons not in its employment were not exposed to risk to health or safety, contrary to sections 3(1) and 33(1)(a) of the Health and Safety at Work etc Act 1974.

[2]The particulars of the offence related to an incident which took place at a swimming pool known as "Splashlands", Trecco Bay, Porthcawl on 18 October 2005. They alleged that the applicant had failed to ensure that a person not in its employment who may be affected thereby, namely Chad Mole, was not exposed to a risk to his safety, namely the risk to him, as a visitor of the said swimming pool, drowning.

[3]On 9 July 2009 the judge imposed a fine on the applicant of £150,000, to be paid within three months.

[4]This is a sad and distressing case. At about 11.30am on 18 October 2005 Chad Mole, then aged 7, almost drowned while he was using the indoor swimming pool operated by the applicant at Splashlands. Although he did not drown, he suffered catastrophic injury.

[5]The applicant was responsible for the premises. As part of assessing its responsibilities for health and safety, it had identified a "bubble lounger" as an area which involved reduced staff visibility because of the correlation of steel columns, agitated water and reflective glare. Young, weak or inexperienced swimmers were identified as potentially exposed to risk if they strayed out of their depth. There were a number of requirements that related to children under 8. They were to be accompanied by an adult. The maximum number of children permitted to be present accompanied by any one adult was three. The minimum number of lifeguards on duty was to be four, with a maximum of six. An extra member of staff was to be assigned to control an elevated water slide and its stairway known as the "flume" and the "flume tower". Problems of visibility were to be addressed by the positions taken up by lifeguards. Some lifeguard positions were to be manned when the facilities were open so that the lifeguards could survey specific areas of the pool.

[6]The applicant had a number of policies which are not irrelevant. One reads:

"Young inexperienced and weak swimmers are at potential risk if they stray out of their depth. Children under 8 years of age must be accompanied in the water by a responsible adult."

A second reads: 7. "Children under 8 years of age must be accompanied in the water by an adult, defined as a responsible person of 16 years of age and over. A maximum of three children per adult is allowed. Receptionists must ensure the rule is strictly adhered to. Any queries to be referred to the manager." A third reads: 8. "Pool assistants must check those children who appear to be under 8 years of age are accompanied in the water by an adult. Children without adequate supervision must be asked to stand on the poolside and the person responsible for the child found and advised of their responsibility and ensure supervision is maintained. Any queries to be referred to the manager."

A second reads:

[7]On the fateful day of 18 October 2005 Chad Mole went to the swimming pool with his father and younger brother. Of the four lifeguards on duty, the two nearest the pool were Simon Hughes and Jo Sperduty. In the immediate vicinity there were signs stating that children under the age of 8 had to be accompanied by an adult. Chad could not swim. He was not provided by his father with armbands or any other form of buoyancy equipment. To begin with it is plain that he, his younger brother and his father stayed together in the shallow end. However, eventually Chad made his way to the "bubble lounger", which was a semi-circular jacuzzi forming part of one side of the main swimming pool close to the deep end. A little while later an adult using the pool noticed Chad under the water, not moving. Immediate action was taken to rescue him. It was found that he had stopped breathing. Simon Hughes started mouth-to-mouth resuscitation. Chad started to breathe but then he stopped. Further emergency and urgent treatment was given to him. An ambulance crew arrived. He was taken to hospital. Although he survived, he is severely brain-damaged.

A third reads:

[8]The prosecution case against the applicant was that it failed in its duty to Chad Mole and exposed him 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 years.

[9]The case for the defence was that this sad accident resulted from the lack of proper supervision of the young boy by his father who had failed to ensure that he had armbands or other buoyancy equipment and who had allowed him to wander away from the immediate vicinity of himself and his younger brother. It was suggested that the negligence of the father meant that the applicant did not owe Chad a duty of care; but that even if such a duty was owed, all reasonably practicable steps had been taken to ensure that that duty was fulfilled. There were sufficient lifeguards present; the policies of the applicant had been complied with; and, faced with the difficult situation, all the judgments that had been made were reasonable in the circumstances.

[10]The issue for the jury was whether the applicant owed Chad a duty of care, and, if so, whether it was in breach of that duty and Chad accordingly exposed to a risk to his health and safety.

[11]At the end of the case for the prosecution it was submitted to the judge that there was no case for the applicant to answer. In order to address that submission the judge summarised some of the essential features of the evidence that had been given that far in the trial. We do not propose to quote every word of the way in which the judge summarised this evidence, but we gratefully adopt his summary as a fair, accurate and balanced assessment of where the evidence that far had taken him and the jury. He explained the nature of the Trecco Bay leisure park, the arrangements there and the visit by Mr Mole, his wife and their two young sons who were on a short holiday from their home in Birmingham. The judge then continued:

"Once they passed the reception desk Mr Mole and the boys went to the changing room area and, having changed into their bathing costumes, went to the shallow part of the pool, also known as 'The Beach'. The water there is very shallow and gets slightly deeper as one moves towards the bridge. That was ideal for Mr Mole's sons for, although Chad had had some swimming lessons in school, his father told the jury, neither Chad nor his younger brother, JJ, then aged 4, could, in fact, swim. Neither boy had armbands nor any other buoyancy aid when they arrived at the pool. After splashing each other in the water for a short while Mr Mole said that Chad played on a small slide leading into the shallow water whilst he, Mr Mole, attended more to JJ. Mr Mole told the jury that he noticed some floats at the side of the pool and asked a member of staff if he could have one and, having obtained a float for JJ, Mr Mole began to play, exclusively, it seems, with the younger boy. He said that he assumed Chad was still in the shallow water behind him. After what Mr Mole said he thought was about six or seven minutes he turned around and realised Chad was not there. He called for him. Before that call, and unbeknown to Mr Mole, Chad had reached the deep end of the pool near what is called the 'bubble lounger', a semi-circular jacuzzi, in effect, which forms part of one side of the main swimming pool. There is no evidence of how Chad got there. Nobody saw him approach or arrive at that point. He may have walked around the edge of the pool and then got into the water at the bubble lounger or he may, remaining in the water, have gone under the bridge which separates the shallow from the deep part of the pool, by edging along the pool edge. There is evidence that Chad was seen in the water at the bubble lounger by one of the Splashlands' lifeguards, Jo Sperduty. It is said that she spoke to him and told him to go back to his parents and that she then walked away to await the arrival of two unconnected girls with learning difficulties at the end, the aqua chute part of what is called 'the flume', the flume being an elevated water slide reached by a circular stairway close to the bridge. Chad did not or could not do as Jo Sperduty told him. A Mr Joseph Coffey .... was at Splashlands with his two children. He told the jury that he had walked through the water from the shallow end and under the bridge into the deeper water. He said that there were one or two lifeguards at the foot of the stairs leading to the flume and one at the bottom of it, that is by the aqua chute. None or neither, he said, was looking towards the deep end or the bubble lounger and the female, obviously, on the evidence, Jo Sperduty, he said was looking towards the foot of the flume stairway. As Mr Coffey neared the bubble lounger he saw Chad. He said that Chad's head was beneath the water, that the boy was upright in the water with knees bent and at first he thought Chad was playing a game, holding his breath under water. But, as he neared him, he saw the boy rock forward in the gentle current of the pool and he realised, as he put it, that something was wrong. He approached Chad, lifted him out of the water, called out to Jo Sperduty, who came at once, and carried the boy to the edge of the pool and passed him to her. He heard Mr Mole screaming. Chad, we know, had stopped breathing and, although with difficulty, he was resuscitated by pool staff and ambulance personnel, tragically he has suffered .... substantial brain damage. A Robert Evans was also at the pool that day with his fiancee or girlfriend and her daughter. The fiancee or girlfriend is now his wife. He saw Chad being lifted from the water by Mr Coffey. He said that there was no lifeguard in the high chair at the deep end and he repeated, in effect, what Mr Coffey had said as to the positions of Jo Sperduty and the other lifeguard, the other lifeguard being at the stairway to the flume tower. The prosecution also called two environmental health officers from the Bridgend County Borough Council in this order, Mrs Thomas and, the more senior of them, Mr Williams. They had been assigned to investigate this tragedy and both went to Splashlands for that purpose. Also called by the prosecution was a Mr Andrew Ebben, an independent expert in the regulation of swimming pools and the training of lifeguards. I have touched upon a part of the evidence of Mr Williams in referring to Jo Sperduty's speaking to and then walking away from Chad Mole. Mr Ebben gave evidence about and was cross-examined upon the documents contained in the prosecution jury bundle and a defence bundle, those documents relating to the management of swimming pools generally and, specifically, to Splashlands."

The judge then turned to address the submissions made to him by Mr Cooper who then appeared for the applicant.

[12]Mr Christopher Purchas QC, who appears for the applicant today, submits that there was no case to answer, and that the judge was wrong to rule that there was. Mr Purchas highlights that the risk of drowning to which Chad Mole was exposed was the result of a combination of his inability to swim, his height (compared to the depth of the water), the lack of supervision by his father, and the absence of any buoyancy aids to keep him afloat, for which no one suggested at the trial that the applicant was to blame. Therefore the conduct by the applicant of the undertaking was not responsible for exposing the boy to any of the risks. The applicant was not responsible for, nor aware of, the boy's inability to swim. The father was responsible for providing the necessary parental supervision of the boy throughout the time he was at the pool and the only person responsible for ensuring that Chad was provided with buoyancy aids while he was in the pool. The father's lack of supervision was the sole cause for Chad leaving the shallow end of the pool and, ultimately, the accident.

[13]We turn to examine the submission. The judge paid counsel the courtesy of giving a long and detailed ruling. He dealt with no less than eight authorities beginning as long ago as 1907 which were put before him to demonstrate something for which no authority is needed: that parents have a responsibility and a duty to care for their children. Although he dealt with all of those authorities, it was unnecessary in the context of this case for him to have done so.

[14]The judge then turned to the submission that there was no case for the applicant to answer; that it was the father, not the applicant, who had exposed the boy to the risk of drowning. It was submitted that the duty owed by the applicant could not be considered independently of the duty owed by the father because the father's was an absolute duty. He then addressed the way in which Mr Cooper had put the matter: that Mr Mole's failure had been unreasonable, and that the applicant had no duty to remedy the consequences of Mr Mole's failure.

The judge continued:

".... that was because Mr Mole knew, and the [applicant] did not, that Chad could not swim. In addition, there is no concurrent duty on parent and [applicant], submits Mr Cooper. The duties are consecutive and the [applicant's] duty is qualified by the reasonable assumption that a parent will both supervise and provide the child, if necessary, with buoyancy aids, as they were in Chad's case necessary and which would, if provided, have protected him if, as he did, he wandered away from his father."

Mr Cooper's submission was that the applicant owed the boy no duty because the father had failed in his. The judge found this a disturbing submission. He asked two questions of Mr Cooper. First, if his submissions were correct, what purpose did he suggest there was in having lifeguards at the pool, if not to deal with situations such as those which had arisen? To that the judge understood Mr Cooper's answer to be that it was the duty of the lifeguards only to supervise and to observe the pool and that they had no duty to provide for the security of visitors. The second question was: was the submission that because it was Mr Mole's fault, and only Mr Mole's fault that Chad had wandered off, that even when the applicant became aware that Chad was drowning, it had no duty to act to save him? The judge understood Mr Cooper's answer to that to be in the negative. He refrained from expressing surprise at the breadth of the submission. It was not a submission which Mr Purchas was prepared to adopt.

The judge summarised Mr Cooper's position that:

".... the law going back 102 years says that no duty upon the [applicant] arises. They are absolved by the negligence of Brian Mole towards his own son."

[16]The judge accepted "without hesitation .... that a parent .... has both a common law and statutory duty to protect his child from the risk of harm, and if it is the parent's breach of duty which is the sole cause of the accident to the child, upon a specific set of facts, an undertaking, such as the [applicant] in this case, would be absolved of responsibility because of that parent's failure. But that does not .... follow in every case. Each case .... is fact specific."19. ".... a properly directed jury could properly conclude that the [applicant] failed to ensure that Chad was not exposed to the risk of drowning. Upon the evidence called, there was no lifeguard observing from the high chair at the deep end of the pool. The evidence is that the deep end and bubble lounger areas were completely unsupervised. The two lifeguards, Mr Hughes and Miss Sperduty, one either end of the object, were preoccupied with girls using the flume. Further, Miss Sperduty actually spoke to Chad .... and, in doing what she then did, she broke [the applicant's] rules by not complying with the rule [that children without adequate supervision must be asked to stand on the poolside and the person responsible for the child found and advised of their responsibility] ...."

20. ".... [the applicant's] own safety policy was not operating at all or, if at all, not properly ...." Therefore a jury properly directed could safely conclude, notwithstanding the negligence of the father, that the child was exposed to the risk arising from the applicant's failures in the conduct of this undertaking.

[17]Although Mr Purchas has today put the case in a slightly different way, the end result of his submissions was that the judge was wrong. He asked us to reflect on the scope of the duty imposed on the applicant by the relevant statute and also on the causation issue of how the drowning had occurred. These two considerations, he accepted, would eventually elide. He submitted, however, that the scope of the duty imposed on the applicant was defined by statute. We agree with that submission. The exclusive focus was its conduct of its undertaking. Mr Purchas submitted that the question of vicarious liability, as understood in the context of the law of tort, did not arise. Moreover, the duty owed by the applicant under the statute was not an absolute duty. It was not required to guarantee that there would be no incident of drowning. He reiterated that Chad had drowned because of an absence of proper supervision by his father. The applicant did not have the same obligation to the child as his father; the nature of its duty was different. It was not in the position of a father, exercising the responsibilities of a father. No one employed by the applicant and none of the arrangements or facilities added to the risks of drowning to which Chad had been exposed by his father.

[18]We have considered those submissions in the overall context not merely of the facts but of the legal considerations which arise. This was an undertaking to which section 3(1) and section 33(1)(a) of the 1974 Act applied. It was incumbent on the applicant to conduct its business so as to ensure that, so far as reasonably practicable, individuals using the facilities provided for them by the applicant at the premises were not exposed to risks to their safety or health. The swimming pool, with sophisticated additional features, provided attractive entertainment for visitors. Unsurprisingly, children came to use the facilities with an adult who accepted responsibility for them. Chad Mole was such a child. He was a visitor to the pool with his younger brother. They were both under the control of, and to be supervised by, their father. Chad was 7 years old. He could not swim. He was not provided by his father with armbands or any other buoyancy equipment to support him if he entered the water. There is no doubt therefore that he needed close parental supervision, particularly against the risk that he might go near a part of the pool where he would, if he entered the water, in whatever way that may have happened, be out of his depth.

[19]It is sad to have to record, but we do have to record, that, unfortunately, on this occasion adequate parental supervision was not provided for Chad, not merely through the failure to provide armbands and buoyancy equipment, but through the absence of supervision over his movements. These factors contributed to the accident which befell the boy.

[20]All that said, these factors could not exonerate the applicant from potential liability under the 1974 Act. The duty imposed on it by the Act was not delegable. The duties owed by the applicant and Chad's father to Chad were different duties, but they were concurrent duties. The breaches of parental duty, which we have outlined, did not begin to constitute a defence for the applicant to the allegation of contravention of the duty imposed on them by the Act. The single question, therefore, was whether or not there was a prima facie case to answer that the applicant was in breach of the duty imposed upon it. We recognise that that duty was not an absolute duty. We accept that Chad's safety was not and could not be guaranteed by the applicant. What was required of it was that, so far as reasonably practicable, Chad should not be exposed to risk to his safety or health arising from failings in the way in which the applicant conducted its undertaking -- in other words, in the present context, in the running and management of the swimming pool and the safety of all those who used it. In that context it was, we accept, a feature in the arrangements for the management of the pool that the applicant could reasonably expect that young children would be properly supervised by a responsible adult -- properly in the context of the child's competence and experience as a swimmer. That is because the responsibility of the parent or adult is also non-delegable -- at least not delegable to the applicant which was responsible for running the pool. At the same time, however, making all these allowances, the applicant had to recognise and anticipate -- and appears to have recognised and anticipated in its policy -- the reality that on occasions small children do escape not only when parental supervision is lax, but even when parental supervision is very close. That is what children do. That fact is underlined by the acknowledgement in the applicant's policy about how an unaccompanied child under the age of 8, if seen unaccompanied, should be treated by the staff. In short, swimming pools are dangerous places for young children. Those who take them to the pool, and those who manage the pool and are responsible for the way in which the pool is organised and conducted, must do everything they reasonably can to avoid the risk that a child or children may be drowned. All these considerations must be addressed with a clear eye on the practical realities. As it seems to us, if the issue is contested, it is for the jury to assess whether, notwithstanding whatever criticisms might reasonably be made of the supervision extended to Chad by his father, there was a case that the applicant was in breach of the duty that it, too, owed to him. Indeed, our view of the submissions made to the judge below, and those advanced with his customary felicity by Mr Purchas on behalf of the applicant, is that, however one looks at this, this case was plainly one for the consideration of a jury. If the judge had withdrawn the case from the jury, he would wrongly, in our judgment, have been usurping its proper function. Accordingly, that ground of appeal fails.

[21]That leaves one criticism of the summing-up to which we must turn. A number of witnesses were called on behalf of the applicant at trial. They included Miss Sperduty, Mr Hughes, Jacqueline Gowan (a consultant in the field of environmental health), who had contributed to the drafting of the health and safety policy of the applicant, and an independent pool adviser and lifeguard, Mr Keith Saych, who described the matter as he saw it from the point of view of an expert.

[22]The starting point is that there is no criticism whatever of any direction given to the jury about the law which applied. We have read the summing-up with care. It represents an accurate series of directions about the law and a fair and balanced analysis of the evidence. Particular attention was paid to the contention on behalf of the applicant that the major, if not the sole, responsibility for this sad incident rested on the shoulders of the boy's father. The judge invited the jury to give full weight to that aspect of the case in deciding whether the criticisms of the applicant were justified, bearing in mind that there was no absolute duty to guarantee the safety of the boy and that its obligation required it to do all that was reasonably practicable but no more.

[23]The criticism of the summing-up arises from the way in which the judge, in reminding them how they should approach their task, suggested to the jury that there were three questions which they should ask themselves and consider during the course of their deliberations, and that all these questions were for the jury and the jury alone. First, why was it that nobody in authority at the pool saw Chad as he made his way along from the shallow to the deep end? Mr Purchas points out that if somebody had seen him, there would have been no duty on anyone on behalf of the applicant to take action and therefore this question was not relevant. We doubt that. If a boy aged 7 is wandering to the deep end of a pool near some attractive features and somebody who is responsible for the safety of children at the pool sees him and he appears to be without a supervising adult, that person would have a duty to intervene and with a few sensible questions find out what was going on.

[24]The second question posed by

the judge was this:

".... when Jo Sperduty saw Chad in the water at the bubble lounger, when she said and did what you find she said and did, was she complying with the [applicant's] own safety policy in a way to ensure Chad's safety?"

Mr Purchas submits that that was an inappropriate question because even if there was a failure to comply with the safety policy, that failure could not be definitive of possible criminal liability. We agree that it could not be definitive of possible criminal liability, but as a question for the jury to consider in the context of what Jo Sperduty said and did when she saw the young boy in the water, it was a legitimate question for the consideration of the jury.

[25]The third question posed by

the judge was:

".... after she, Miss Sperduty, left Chad, why did neither she nor Simon Hughes see him drowning or unconscious under the water?"

That, Mr Purchas suggested, was a loaded question. It implied that there was some kind of vicarious liability of the kind we acknowledge in tort with a duty, and it confused that duty with the duty on the applicant under the 1974 Act. In the context of this case it was a question that legitimately arose for consideration. What had happened to the boy? The answers to all these questions may have been favourable to the applicant. They may have been unfavourable. We do not know. The judge asked the jury to consider those questions, not as directions of law, but as suggestions for their consideration. They were not bound to consider them; nor were they directed to reach conclusions suggested, whether directly or by hint, from the judge. They seem to us to be questions which might reasonably be considered by the jury, and certainly questions which the judge was entitled to invite the jury to consider.

[26]In all these circumstances we consider that there is no arguable basis for concluding that the conviction of the applicant was unsafe. Accordingly, the present application will be refused.

[27]There is one small footnote to this judgment. It is only fair to Judge Hopkins to record that the reasoning in our judgment is fully in accord with his approach to this trial and the sensitive issues which arose in it. MR PRINGLE: My Lord, may I ask, please, for an order that the applicant pay the respondent's costs. I am glad to be able to tell your Lordships that the sum has been agreed at £24,000. THE LORD CHIEF JUSTICE: Mr Purchas? MR PURCHAS: I agree with that, my Lord. THE LORD CHIEF JUSTICE: Thank you, Mr Purchas. Yes, the order will be made, and in that sum.