RXDX v Northampton Borough Council & Anor [2015] EWHC 1677 (Admin)

Case No HQ13X04346[2015] EWHC 1677 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11/06/2015
Before
SIR COLIN MACKAY
Between
RXDXClaimantNorthampton Borough CouncilDefendantand DXDX third partyDefendant
Bill Braithwaite QC and Catherine Howells (instructed by Tollers) for ClaimantSusan Rodway QC (instructed by Weightmans LLP) for DefendantHearing Hearing dates: 18 – 21 May 2015
JudgmentSir Colin Mackay:
[1]On 17 February 2002 when the claimant was 6 years old he suffered a serious accident and nearly drowned. He was left with injuries in the form of irreversible brain damage which has adversely affected the quality of his life. This trial is confined to the issues of breach of duty and causation. If it becomes necessary the extent and effect of his injuries will have to be considered and the quantum of the claim will have to be assessed and proved if not agreed.[2]The claimant visited a swimming pool occupied and managed by the defendants at Danes Camp Leisure Centre with his father and his three half-siblings, all boys older than him. He was found by another pool user lying on the bottom of the pool, was removed by a member of the public and the attention of the lifeguard on duty was drawn to his plight. Resuscitation attempts were made at the pool side – he appeared at first to be lifeless – and poolside resuscitation and the work of an ambulance team which arrived promptly saved his life but he has been left with significant brain damage due to oxygen deprivation.[3]The claimant proceeds against the defendant alleging vicarious liability on its behalf for the failures of the lifeguards on duty to use reasonable professional skill and care, so as to procure the safety of the claimant, in essence by failing to supervise his use of the pool and exercise appropriate vigilance over him at all times.[4]The defendant has taken Part 20 proceedings against the claimant’s father to which he has not responded. No judgment has been entered against him, he not being covered by any insurance and not being otherwise a man of means. An appropriate order was made on 6 October 2014 whereby he was deemed to have admitted his fault. If in due course his circumstances radically alter it might become appropriate to revive the claim against him should the claimant win against the defendant. I can make no finding against the third party in this action but I fully understand why the defendant says there is a very strong case against the father for failing to exercise proper parental care over this child. He seems to have been entirely unaware of what was happening to the claimant at any stage until after he was brought out of the pool by another pool user. The claimant says the defendant and the third party are therefore in law several tortfeasors who have caused the same damage. The liability of the third party if proved would therefore not be a defence to the claim if I were to find the defendant was also in breach of its duty.[5]There are also issues about causation, with which I must deal later.

The Danes Camp Pool

[6]Before making my findings as to the events of 17 February 2002 I should describe this pool and its configuration. It is a modern type of recreational swimming pool very different from the “straight up and down swimming in lanes” model. It is well depicted on a scale plan which has been put before me. In broad terms it is shaped like an inverted “U”. There is a protrusion or promontory between the two legs of the U on which there is a raised platform .815 metres high on which a lifeguard can stand (there is no provision for him/her to sit) and walk round through 360 degrees gaining a full view of all areas of the pool. In rough terms he is no more than 10 metres away from every part of the pool. At the bottom of what might be called the left hand leg of the pool is to be found the deep end which in places is as deep as 1.8 metres. To the right is the shallow end. Ahead of the raised platform is a wide section of the pool and on the far left side of it there is what I will call the circular area protruding from the body of the pool. The plan gives gradients and depths at all relevant parts of the pool.[7]In addition to the raised platform there is a high chair with a height of 1.12 metres which is situated at the top of the left leg of the pool which again gives a good vantage point for a lifeguard over the whole of the main section of the pool in front of him, the circular pond like section to his left and the deep end to his right.[8]In addition to the plan I was given still photographs showing various aspects of the pool and also, of critical importance, a CCTV recording of the relevant events and times.[9]The quality of this recording at first sight is not of the highest but it is nonetheless a vital part of the evidence. The camera took images from a fixed point somewhere above the deep end section of the pool therefore looking towards the high chair on the left and the raised platform to the right, with the circular area at the top left of the view. It was played in court projected onto a large screen, which helped, but I also derived assistance from following it at the same time on a laptop which in certain respects, particularly the visibility of the timings, was clearer. There is a frame taken every second. I have viewed it on my own laptop several times, at counsels’ invitation.[10]The expert witnesses on safety issues have of course looked at this material at great length before this trial and I have been through it at the relevant points second by second with the help of counsels’ joint commentary. The experts have commented on what they see and their expertise in matters relating to lifesaving in my judgement entitled them to do this because they must have seen many such images. At the end of the day however I have to make my own findings of fact concerning what it is that the CCTV shows.

The Claimant’s Submersion

[11]The claimant had gone to the pool that day with his father, the Part 20 defendant, and three of his father’s children aged 7, 8 and 10, all boys and all swimmers. The claimant could not swim and was the youngest of the group of four. The crucial events begin at 1342 in the afternoon.[12]The claimant can be seen to have climbed out of the pool and become separated from his father and half-siblings. At about 1342:43 he can then be seen walking left to right round the path at the edge of the circular area at the top left of the pool towards the area called the rock wall. His father and the three boys are not identified anywhere from this point on.[13]Having reached a point approximately at or just past the shoulder or the beginning of the entrance to the circular area the claimant sat down on the edge of the main pool and then turned so that his back was towards the water. He lowered himself into the pool. This he can be seen to be doing at 1343:09. There is no adult or other child with him. He is wearing a pair of dark blue or black bathing shorts. The last time he is visible on the CCTV is 1343:12 when he is in the water. It is agreed that at the point where he got into the pool and at any other point up to the point from which he was removed from the pool the depth was such as to enable the claimant to stand with his head well clear of the water. At no time was he out of his depth (he was assumed to be of average height for a six year old namely 1200mm) and at no time does he appear to have been in contact with any other swimmer. There is no support that I can see for the proposition that he was struck on the head by any person or object in such a way as to explain his subsequent immersion, though the was later found to have had a graze on his forehead. It is also right to note that if he advanced from his entry point towards the point where he was discovered the depth of the pool increased, albeit never by enough to cause him to be out of his depth.[14]The pool was not heavily populated in this general area. The experts agree there were about 12 other swimmers in this area and from the images I can see they are plainly a mixture of parents and children.[15]At about 1346:02 Wendy McCarron was in the pool with her partner Declan Masterson and three children of 7, 8 and 10. They were very approximately in the area on the plan where the words “SECTION B” are printed and Mr Masterson was teaching one of the children to swim. The child drew his attention to something on the floor of the pool and Mr Masterson quickly saw that it was a child’s body. He scooped the claimant out of the water and headed towards the lifeguard position in the high chair where resuscitation was commenced.[16]Between the claimant being visible when climbing into the pool and being held in the arms of Mr Masterson, having been extracted from the floor of the pool, there is a period of roughly three minutes. He is not visible above the surface for any part of this period of time though it is just possible that for the first few seconds he could have been above the surface but obscured, at least from the camera’s viewpoint, by an adult who passed in front of his position.[17]As a cross check on this the medical experts have reached a very significant agreement as to the likely duration of his submersion. They agree that the severity of the cerebral injury sustained by the claimant is “consistent with a period of anoxia of between one to five minutes” and from the video recording they “agree that it is more likely than not on the balance of probabilities that the period of submersion was greater than two minutes 40 seconds”. There were two periods of inadequate oxygenation, the first a period of total anoxia and the second a period of relative hypoxia due to the continuing presence of water in the lungs. The experts also agreed that on a balance of probabilities the claimant aspirated water into his lungs “within about a minute of submersion”.

Other Relevant Information

[18]Following this event the local authority carried out an investigation by three of its officers who produced a report dated 25 February 2002. This established that there were four lifeguards on duty at the time, one at the flume position, one on band control by the main entrance and one in each of the high chair and central platform. They were rotated every 15 to 20 minutes “to maintain a high level of vigilance and concentration”. At the time the claimant was rescued there were three lifeguards in close proximity to the point where he was found. The report noted that the CCTV footage, which the inspectors had plainly seen, showed that while lifeguards were rotating at the time “the area was still adequately covered”. They noted a slight glare from overhead lighting from one position but said that this was “found to be insignificant”. They were plainly puzzled as to how this accident had happened given the presence of so many lifeguards in such close proximity, to the event and they concluded by assuming that the child was only underwater “for a short period of time, possibly seconds”. Understandably they thought this and only this could account for the fact that none of the lifeguards saw him at any stage. In fact as is now agreed he was underwater for a time approaching three minutes. But the reaction of the investigators is of interest; they could only offer this explanation for what was otherwise an inexplicable event.[19]Short statements were taken on 17 February 2002 in the course of this investigation from three of the four lifeguards on duty. These were adduced in evidence by agreement. They describe the process of rotation and how there was at about this time a group of teenagers who were making a nuisance of themselves jumping into the deep end, who had been told to stop by one of the lifeguards. Beyond that there is no explanation or commentary from any of them as to how this incident had come to pass.[20]At the start of the trial, having read in the opening skeletons that though there were statements from the lifeguards the defendant was not intending to call any of them, I asked the defendant’s counsel what the position was. She told me as I noted, I assumed acting on instructions as her solicitor was sitting behind her in the court when she made it, that they had all disappeared, that they lived in far away countries and the defendant had lost touch with them. Ms Rodway QC now tells me, and I readily accept it from her, that this was an erroneous explanation on her part and not one she had been positively instructed to advance.[21]At the beginning of the second day counsel corrected this, in a significant way. Some of the four could in fact be traced, she said, but a decision had been taken not to call any of them “because of the lapse of time”, as I understood it based on a judgment that they could not now be expected to offer any evidence of value as a result. I was told there were further statements made by the lifeguards later in the year 2002 which had been disclosed to the claimant. Neither the claimant, understandably, nor the defendant, surprisingly, sought to introduce those statements, made as they were within 10 months of the event, which must surely then have been still clear in the minds of those involved.[22]This was a highly unsatisfactory state of affairs, in my opinion. None of the early statements that I have seen deal with the key issues in the case namely, what zone was allocated to which lifeguard, whether there were any and if so what problems with visibility, whether and if so how they were distracted in any way, what their training was in terms of the application of the 10:20 system, with which I deal below, and how they can account for their failure to notice this emergency at any stage. I am I must say sceptical about the basis of the decision not to call them, or at least apply to put in the more detailed statements they made in October 2002.[23]Mr Braithwaite invites me to infer from this that the evidence the lifeguards would have given would have been unhelpful to the defendant’s case, namely that the failures of three lifeguards, two of whom were in prime positions to see from a range of about 7 or 8 metres the movements of the claimant over a lengthy period, were in some way explicable by distractions or obstructions elsewhere in the pool. I find he is right so to submit.

Duties of a Lifeguard

[24]In 1999, in response to heightened concern about the numbers of drowning incidents in public swimming pools, the Health and Safety Commission published advice entitled “Managing Health and Safety in Swimming Pools”. This was prepared by a working party of which Mr. Sach, the defendant’s safety expert, was a member. Of relevance to this case appear to me to be the following passages: i) “Constant pool supervision by lifeguards provides the best assurance of pool user’s safety. Lifeguard training should include knowledge of pool supervision… and practical skills in scanning and observation. Effective supervision requires high levels of concentration and attentiveness…[para 139] ii) The key functions of the lifeguard are to:• Keep a close watch over the pool and the users exercising the appropriate level of control…• Anticipate problems and prevent accidents…• Identify emergencies quickly and take appropriate action”.[para143][25]The advice also deals with the technique of supervision in these terms at para 180:
“Scanning is the skill required by lifeguards to constantly watch a particular zone using a sweeping action. They will need to be able to scan their zone of supervision in ten seconds and to be close enough to get to an incident within 20 seconds. This is an internationally recognised practice and is known as the 10:20 system.”
[26]As for surveillance zones the advice is that the pool should be divided into zones to ensure all areas are covered. “Each zone will have to be continuously scanned. Zones will include the water area above and below the surface [para 179] (emphasis added).There are numerous references in the literature to this obligation of scanning to be a “constant requirement”.[27]While this document is guidance only and not a statutory code, the experts on both sides accepted that it defined good practice for public pools, and while my task is to decide whether the claimant has proved a failure by the defendant’s relevant lifeguarding staff to exercise reasonable skill and care in relation to the safety of pool users including the claimant any material breach of these obligations would constitute negligence at common law.[28]The defendant as occupier and employer produced its own guidance entitled “Pool Safety Operating Procedures and Emergency Action Plan”. It is a very substantial document. Of relevance to this case are to be found the following statement of duties: i) “4.1 Duties of Lifeguards The prevention of accidents must be the primary role of all lifeguards and it is therefore essential you are fully conversant with all written procedures that relate to the safe operations at Danes Camp…it is therefore expected that lifeguards adhere to the following safety guidelines in order to assist in preventing accidents: a) Whenever the pool is in use qualified lifeguards as detailed in section 5 below will be present on poolside. Supervision of the pool should enable lifeguards to keep all of the water area and pool bottom under observation… b) Time spent sitting in the high chair should be limited to ensure lifeguards remain alert. When sitting only use the designated lifeguard positions. c) Reading, writing and other similar distractions must not occur during lifeguard duties. d) NEVER TURN YOUR BACK ON THE WATER (original emphasis)”.[29]In an endeavour to spell out how this general advice would apply to this particular pool, on page 23 of the document is what purports to be an illustration of what should happen when (as in this case) a maximum of 50 bathers were in it. It is in my judgment an incomprehensible document and Mr. Sach the defendant’s expert put it mildly when he said there was a “lack of clarity” about it. It says there should be two lifeguards who are both apparently depicted as stationed on the same side of the pool, and the raised platform in the centre is not to be used. No 1 is said to have as his zoning requirement “watches whole pool but with frequent zoning of the shallow end”. Lifeguard 2 has the requirement “watches whole pool but with frequent zoning of the deep end”. It is not clear which is 1 or which is 2 or how this scheme would work in practice. As stated above, I do not have the assistance of the evidence of any lifeguard as to how this was explained to them or what their training consisted of and I am left with the conclusion that there was a lack of clear instruction on the critical point, as I see it, as to which zone was allocated to which lifeguard as that which he should scan with particular care every 10 seconds, applying the 10:20 system.[30]Mr Sach agreed that this document did not inform the lifeguard exactly what his zone and responsibility was, and said he would need to know “what they were trained to do”. In fact no training manual or notes have been produced, and Mr Sach was told there were none. In the absence of any evidence from the lifeguards themselves there is therefore a dearth of evidence as to how exactly the defendant applied the clear advice of HSG 179 cited above.[31]That leaves me in this position. There is no doubt that given where the two lifeguards can be seen to have been on the afternoon of this event the claimant was no more than 7 or 8 metres at most from both of them and must have been in the zone of the lifeguard in the high chair, as well as within that of the lifeguard in the central high raised position. Two pairs of eyes must have scanned his progress to the very point at which he entered the water and the area of the pool towards which he was aiming, over a three minute period every 10 seconds.[32]Ms Rodway argues vigorously that the claimant has failed to prove that the two lifeguards were not distracted by the unruly boys diving into the deep end, obstructed by other pool users, or impeded in their underwater view by a glare of lights on the surface. I have already said that the failure to adduce any evidence on such topics from those who could have given it should not avail the defendant in this way. On such evidence as has been forthcoming the diving boys were dealt with quite simply by an instruction from a guard to stop; there is no evidence that they did not do so. I see nothing on the CCTV to support the notion that it would have been difficult to keep an eye on the progress of the claimant once he entered the water from one or both of the raised vantage points.[33]Time was spent cross examining the experts on what the reasonably vigilant lifeguard should have thought, or “assumed” as the questioning went, when he saw as I have said the claimant approaching the pool edge on his own, turning round and getting in. Mr Sach in the end accepted, I believe rightly, that he could not assume that this boy was a swimmer, or that he was under parental supervision, as both experts agreed that was not uncommonly the case. He should therefore have been picked up by one or other of the lifeguards in their scanning process as a child of interest, and they should have continued to watch him as such until the observer was satisfied no problem had happened. Mr Sach accepted that at that point of entry the boy could have moved into deeper water.[34]As it was, I find that the claimant, unsupervised by his father, and unobserved by either lifeguard, having entered the water must have either tried to swim, or lost his balance when he moved away from the edge, and was submerged. That he did not cry out, or make a splash or commotion did not surprise any of the experts in this case, the phenomenon of “silent drowning” being a well –known feature of such events. He should in my judgment have been under observation even before he got into the water, and kept under observation “in the course of each 10 second scan” thereafter, and that did not happen. I understand the investigators’ incredulity when they looked into this matter and their conclusion that the only explanation could be that he was submerged only for a matter of seconds. That was not the case, as all the experts agree, and I am left with the conclusion that I should find as a matter of probability that both lifeguards failed in their duty of care to this claimant by failing to identify him as a child at risk and to continue to scan the water and pool bottom to satisfy themselves that he was not in difficulties after he entered the pool.[35]Had they not failed in that duty, and had they identified the claimant as a child whose progress needed to be kept under supervision, they would in a matter of seconds after his submersion, even if it was silent as it probably was, have registered his disappearance and immediately searched to find him and remove him from the water. All of that could and should have been done in about 30 seconds at most, in my judgment.

Causation

[36]The claimant’s case is that the sequence of events which followed the claimant’s rescue shows that he continued to suffer from damaging hypoxia until that state of affairs was brought to an end by his later intubation in hospital, after he had suffered a seizure, which served to restore his oxygenation. Therefore it is argued that once he inhaled water into his lungs leading to hypoxia that continued to cause him irreversible brain damage until he was intubated under aesthetic and to avoid that state of affairs he would have had to have been rescued, as counsel had put it in her closing submissions, “within 30 seconds/one minute of the start of inhalation”.[37]She says that the burden of proof is on the claimant and I should therefore find the shorter of those two periods and find that the claimant has failed to prove that any breach has caused damage.[38]The two experts in this area of the case were both of high quality. For the defence Professor Bates is a distinguished and experienced adult neurologist who I found to be a very fair and sensible witness. For the claimant Professor Perkins was, as Prof Bates conceded, a specialist in the matters in issue in this case occupying a niche position as a fellow of the faculty of Intensive Care Medicine and of the European Resuscitation Council and clinical Professor of critical care medicine at the University of Warwick. He specialises therefore in matters relating to resuscitation and in particular to those which follow drowning or near drowning incidents.[39]It is of vital importance to this issue to look closely at the sequence of events which followed the rescue of the claimant.[40]When the lifeguard Georgina Tabor was presented with the claimant by his rescuer he was on his back and lifeless. He then coughed and spat blood and water. She received a response to her talking to him by “giving” a small murmur and faint coughing and he nodded in response to what she was saying. He was taking deep breaths and was trying to open his eyes. His colour was returning and he was moving himself. Professor Perkin sees this as the start of a continuum a process which he and Professor Bates agree maps the potential sequence of recovery in such cases.[41]The ambulance arrived at 14:02 and was on the scene for 8 minutes I accept all the ambulance timings as reliable. Breathing was present but partially obstructed and he was given oxygen through a mask and airway. His oxygen saturation is recorded as “?90”. Prof Perkins interpreted that as probably reflecting difficulty in the ambulance attendant getting a clear reading. If it was a true reading he had made a considerable amount of progress from the 40 or 50 percent saturation figure that would have been the case when he was inhaling water.[42]The key question is how he responded in the five minute journey to hospital throughout which he was given 100% oxygen by the paramedics. There is a document which is part generated by a computer which puts his arrival time at 14:34. The ambulance’s arrival time is given as 14:15. I prefer that as an accurate guide. Ambulance attendants are scrupulous in accurately recording the times of their activities.[43]The hand written section of the document contains a nursing assessment which reads “time: O/A” i.e. On Arrival at which time it is said that his saturation was “100% on O²”. The defendant argues that this 100% reading is misleading and that he was never fully saturated until after he was intubated in response to his seizure, up to which point he continued to be suffering from inadequate oxygenation and therefore was still sustaining damage.[44]As Prof Bates put it, I think accurately, the only issue is when had his saturation reached 100%, thereby showing that he had continued his earlier recovery to a state of full oxygenation. As I have found the ambulance arrived at the hospital at 14:15. The paediatric resuscitation team had been forewarned of the claimant’s arrival and was standing by. It is to my mind unlikely in the highest degree that oximetry would not have been among the first actions taken when the claimant was received into the care of the hospital staff, that being an extremely simple procedure which is the work of seconds to carry out. Prof Bates conceded that the paediatric team would have wanted to deal with him. It is to my mind unlikely that they would not have tested his saturation levels as a matter of early priority.[45]If he had continued to breathe but was still hypoxic while at hospital Prof Perkins would have expected him to have been supported by bagging and then if necessary intubation, but on this occasion the intubation was indicated because he was fitting.[46]I therefore find as a fact that his saturation had indeed recovered to the level of 100% by 14:15 and that thereafter he was not profoundly or even significantly hypoxic.[47]Prof Perkins was taken to the paper of Quan and Others, a paper in 1990 in the American journal Pediatrics indicating that submersion duration was associated with a steadily increasing risk of severe or fatal outcomes, and that for periods of immersion of zero to five minutes there was a 10% of such risk. I did not find that paper any more helpful than did Prof Perkins. Severe outcome is defined in that paper as spastic quadriplegia with no self help skills. By the criteria of that paper what I know about the claimant’s current position (it is summarised to an extent in the report by Prof Bates) is that he would qualify now as mildly neurologically impaired at most.[48]Much was made by Ms Rodway of a reading of the claimants venous Gases which included a high PO² I accept Prof Perkins view that a venous gas result should not be relied upon for the purposes of assessing oxygenation in such cases.[49]The position is therefore as both experts agree that the claimant was on a continuum of improvement which reached its conclusion so far as oxygenation is concerned with the reading of 100% at 14:15, well before the intubation process was embarked on for reasons other than oxygenating the claimant. As to the length of time of submersion it is the view of Prof Perkins, with which I did not understand Prof Bates to disagree, that had the claimant been rescued early after the water had begun to enter his lungs you would expect to see a rapid recovery. By early he meant within 30 seconds or a minute which, had it been achieved, would have avoided all damage. For the reasons I have given above the claimant ought to have been rescued before such a time interval had passed had the lifeguards carried out their duty to a proper level of care. There is therefore a causal link between that breach of duty and the injuries the claimant has sustained and he is entitled to judgment accordingly.